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Sport its own legal ecosystem, forum hears

Sport its own legal ecosystem, forum hears

By Karin Derkley

Drugs Workplace 

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Sport is its own legal ecosystem, with its own laws, its own crimes and punishments, and its own courts, judges and appeals process, a forum on sport and the law presented by the Victoria Law Foundation heard last week.

That has led to increasingly glaring inconsistencies between how players are judged and treated in this parallel legal universe - particularly when it comes to elite sports, The Law and You forum: Is Sport Playing by the Rules? was told.

"Everyone's equal before the law except when it comes to elite sport," defence lawyer and Victoria University business and adjunct professor in law, Rob Stary said.

Mr Stary described elite sport as a "Russian mafia" that thinks it is exempt from the laws the rest of us have to live by. "They are untouchable, they don't need to abide by the rules, they deal with everything internally."

An example was AFL footballer Andrew Gaff receiving an eight match ban after he knocked out Andrew Brayshaw on the field with a punch that could have got him sentenced for 10 years under the coward punch legislation. "This kind of thing is excused in AFL and elite sports. They describe it as a brain fade and excuse him."

Head of the Office for Women in Sport and Recreation, physician and champion cyclist Dr Bridie O'Donnell said it can be convenient for infractions to be overlooked when people are elite athletes, although she added that this was less the case in more marginal sports such as cycling, hockey or basketball than in the major football codes.

"Take the three strikes system for drug use in AFL. I find it amazing that you could have two strikes of cocaine use or peptide use and you could say 'I'm just a young guy trying to play footy'."

A current example is the case of Shane Mumford whose return to AFL football was unlikely to be interrupted despite footage recently coming to light of him snorting cocaine.

But at the same time athletes were not afforded the kinds of workplace protections other workers took for granted, the forum heard. Workers compensation did not cover sportspeople, except jockeys and harness racing drivers, leaving athletes who are injured during competition without financial protection, Dr O'Donnell said.

That lack of workers compensation was a ticking time bomb for many sports, said La Trobe University pro vice-chancellor and director La Trobe Sport Professor Russell Hoye. "Who will be paying for this in 10-15 years when the science is better and we can prove the links between playing a sport and the long term health effects when you're 45-50?"

Athletes were often in a powerless position to resist pressure to play even while injured, Dr O'Donnell pointed out.

"The public perceives that because you're a captain of a football team or an Olympic champion you must be powerful and must have agency. But players are frequently forced, bribed or guilted into playing even when they've got pain or persistent injury."

Without statutory compensation schemes by which other employers are held to account there were fewer incentives for sporting organisations to provide safe workplaces, Springvale Monash Legal Service and Monash University Associate Professor Kate Seear said.

"There is the possibility that an athlete can sue, but that relies on them having the capacity financially and emotionally to take that legal action."

Athletes also suffered levels of bullying and harassment in their workplace that would not be countenanced in the outside world, Professor Hoye added. "Take sledging - where you're going to work every day to get abused and vilified. This kind of behaviour would no longer be permissible in any other workplace, but in sport it is accepted as part of the gamesmanship."

Women athletes were particularly vulnerable to abuse, Dr O'Donnell said. "Sexual harassment and bullying and even assault goes on all the time in women's sport and is ignored."

Professor Seear pointed out that in the Royal Commission into Institutional Sex Abuse, the hundreds of cases of abuse related to sporting organisations somehow flew under the radar. "There seems to be something hidden particularly about the treatment of young women and girls in sporting organisations that for some reason we're not grappling with."

The panel suggested there might be a case for the government to take greater control and bring in a regulatory role over sporting organisations. "Governments could do more, given how much they support sport, to influence what happens in sporting organisations," Professor Hoye said.

There was also a call to create a Sporting Ombudsman position.

Picture: Defence lawyer and Victoria University business and adjunct professor in law, Rob Stary, Head of the Office for Women in Sport and Recreation, physician and champion cyclist Dr Bridie O'Donnell, Victoria Law Foundation Executive Director Lynne Haultain,  La Trobe University pro vice-chancellor and director La Trobe Sport Professor Russell Hoye, and Springvale Monash Legal Service and Monash University Associate Professor Kate Seear


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