The scope of the duty of care in sport - A submission in relation to UK Government’s review
The UK Government, Department for Culture Media and Sport (DCMS), has asked Baroness Tanni Grey-Thompson to lead a review into the Duty of Care sport has towards participants.1 The aim is to make recommendations to government and its agencies on the establishment and content of a formal ‘Duty of Care’ to athletes and participants, in both elite and grassroots sport, with the aim of ensuring that as many people as possible can engage in sport and that they can do so in a safe way, with their career and life after their career supported.
This is a submission by Professor Jack Anderson and Mr Neil Partington, School of Law, Queen’s University, Belfast in relation to the DCMS’s duty of care review.
In its narrow, legalistic context, the identification of a duty of care is a preliminary step in establishing that a defendant has behaved negligently towards a claimant. In negligence actions relating to sport, where for example a participant has been injured due to the alleged fault of the sport’s organising body, the duty of care between the parties lies along a spectrum of one that is, in professional sport, almost contractual in nature; to one which in amateur sport is based on the assumption of responsibility.
In a contact sport, the primary duty of care of a sports governing body is to ensure that the game can be played as safely and skilfully as possible. The ripple effect of this is – in rugby union for instance – that the governing body has a duty to ensure that its scrum or concussion regulations are as reasonably safe as can be expected in order to best prevent or mitigate the associated risks. Compliance with, and the enforcement of, these regulations – by way of referees, coaches and medical personnel; means that such persons are captured by the scope of the original duty of care.
In the law of negligence, the key question in establishing liability is whether the defendant (e.g., a sports governing body) has breached the duty of care it owes to the claimant (sports participant). In assessing breach of the duty, the courts have long recognised the social utility of sport – in other words, the societal benefits associated with participation in sport and including risky, physically invasive sports and which may be deterred if exposed fully to negligence liability. This approach is expressly encapsulated in statute in section 1 of the Compensation Act 2006 and to a lesser, implied extent in the Social Action, Responsibility and Heroism Act 2015.
This brief paper takes a wider approach to the concept of duty of care and is based on that which can be found in the Scandinavian model of sport i.e., a duty of care to athletes and participants at all levels of sport with the aim of ensuring that as many as possible play sport for as long as possible and in the most supportive and safest environment possible.
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- Tags: Athlete Welfare | Australia | Compensation Act 2006 | Concussion | Ireland | Irish Law (Civil Law (Miscellaneous Provisions) Act 2011 | Negligence | New Zealand | Responsibility and Heroism Act 2015 | Safeguarding | Safeguarding Department for Culture Media and Sport | Social Action | United Kingdom (UK) | United States of America (USA)
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Jack Anderson is Special Counsel (Integrity Regulation) at Racing Victoria. Formerly Professor and Director of Sports Law Studies at the University of Melbourne, he has published extensively on sports law, most recently with D Thorpe, A Buti, P Jonson & J Anderson, Sports Law (4th ed, OUP, 2022).
He is a member of World Athletics’ Disciplinary Tribunal, the integrity unit of the International Hockey Federation, and the International Tennis Federation’s Ethics Commission. Jack is an arbitrator on Football Australia’s National Dispute Resolution Chamber, the National Sports Tribunal of Australia and Sport Resolutions UK.
Neil is a Lecturer in Law at the University of Sussex. Prior to this, he gained his PhD and was a Research Fellow in Sports Law at Queen’s University Belfast. Neil has considerable experience in teaching and educational management and also holds an MSc in Sports Coaching.