Getting back into the stands: COVID-19 and the legal considerations for sport

Introduction

Globally, sports have been significantly impacted by the COVID-19 pandemic, which will have reverberations for years to come. The priority has been the health and well-being of players, club officials, staff and fans alike. However, the easing of lockdown restrictions in some countries has raised the prospect of sports playing “behind closed doors” to enable the continuation of competitions and provide content to satisfy broadcasting arrangements and entertainment for a captive fan base.

Once the immediate health crisis has passed, it raises the question: when will fans be back in the stands supporting their favourite athlete, team, club or country?

Legal considerations for returning to sport

In making decisions about whether and how to re-commence sporting events, sporting organisations will need to comply with the following requirements: 

1. Government imposed restrictions and requirements specifically related to COVID-19; and 
2. General work health and safety (WHS) laws which are in place in each state and territory in Australia and require organisations to manage health and safety risks, including risks specifically associated with COVID-19.  

Government imposed COVID-19 restrictions and requirements: A national approach

Recently, Australian Prime Minister Scott Morrison outlined three criteria before the National Cabinet would consider lifting the country’s current coronavirus restrictions. The criteria are:

1. Tracing capability – a need to lift coronavirus tracing to an industrial capability using technology
2. Testing regime – a need to extend testing beyond those who are symptomatic
3. Local response – the ability to restrict an outbreak to where it occurs to limit community transmission

From a sporting perspective, the National Cabinet has now endorsed National Principles for the Resumption of Sport and Recreation Activities (National Principles) which provide for a phased return to sporting activities, starting with an initial phase of small group activities in a non-contact fashion, all the way through to full contact training and competition in sport. 

The states and territories will be responsible for sport and recreation resumption decisions, both at the professional and community level, and will determine progression through the phases, taking account of local epidemiology, risk mitigation strategies and public health capability.¹

According to the National Principles, the risks associated with large gatherings are such that, for the foreseeable future, elite sports, if recommenced, should do so in a spectator-free environment with the minimum support staff available to support the competition.

The Australian Institute of Sport has also released a Framework for Rebooting Sport in a COVID-19 Environment (AIS Framework), which provides further detail of the various ‘phases’ of sporting activities and the measures required to be implemented at each phase. According to the National Principles, the AIS Framework provides the minimum baseline standard required to be met before the resumption of training and match play for high performance and professional sporting organisations. 

The National Cabinet has also endorsed National COVID-19 Safe Workplace Principles which addresses principles regarding businesses returning to work safely. 

WHS laws

Under the WHS laws in across Australia, sporting organisations have a primary duty of care to ensure the health and safety of workers and that the health and safety of other persons is not put at risk from the conduct of their business activities. In order to meet this duty of care, sporting organisations must take all reasonably practicable steps to eliminate the spread of COVID-19 within their workplace and arising from their business activities, or if it is not reasonably practicable to eliminate it, then minimise it so far as reasonably practicable. 

Importantly, this duty of care extends to workers as well as “other persons” such as fans and other visitors to sporting venues. 

To meet this duty of care, sporting organisations need to adopt a risk management approach to its decision making in respect to COVID-19, including carrying out a risk assessment in respect of whether to re-commence sporting events and how this will be done (i.e. the measures that will be put in place to eliminate the spread of COVID-19 if sporting events re-commence).

The risk management approach and the decisions made in respect to COVID-19 must follow government imposed restrictions and requirements in relation to COVID-19 (including the National Principles and AIS Framework, as set out above) and be based on data and up to date information about the COVID-19 disease from government health authorities, safety regulators, medical journals (e.g. the Lancet) and infectious disease experts. A useful starting point is the links provided below.

Considerations for sporting organisations in returning to sport will need to address the following:  

• Social distancing requirements for players, staff, spectators; 
• Hygiene and cleaning requirements;  
• Education and training (including education about the COVIDSafe app (App) – see below); 
• Considerations for vulnerable groups;   
• Procedures for responding to suspected or confirmed cases of COVID-19; and 
• Rules for attending sporting events or environments – i.e. that no person is able to attend sport if they are unwell with cold or flu symptoms or have been in contact with a confirmed case of COVID-19.  

Monitoring the 'player bubble'

The NRL and its much touted ‘Project Apollo’ have confirmed that the competition will recommence as a 20-round competition on 28 May 2020, with the Grand Final to be played on 25 October 2020.² This concept has been driven by the establishment of a ‘player bubble’, which has become part of the COVID-19 vernacular. It follows the mantra of ‘train, play, isolate’. 

The implementation of these types of measures is consistent with the requirements imposed on sporting organisations under WHS laws to take all reasonably practicable steps to eliminate the spread of COVID-19 within their workplace and arising from their business activities. 

Of critical importance for both player welfare and the integrity of the competition will be how such measures are enforced, but also the penalty for any breach. It has been reported that breaches will result in the loss of competition points for teams, which has a heightened significance in a truncated season. 

Managing both the implementation of and compliance with these measures poses significant employment law issues. Contractually speaking, governing bodies, clubs and venue operators need to be careful not to overreach in this time of crisis as it could set a precedent for future contracts. For example, could a star player in future be restricted from other physical activity for fear of injury, or could a player with issues outside the sport have their movements monitored to avoid indiscretions? However, managing implementation and compliance measures implemented to combat COVID-19 is also a necessary part of complying with the WHS laws and the primary duty of care. 

Tracing App and its privacy considerations

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020

Due to the proposed strict enforcement measures for players, it raises the prospect of whether sports should impose a mandatory requirement on players, club officials, staff and fans alike to download the Government’s released App. However, in doing so, it is important to note that Clause 9(1) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Determination) states that a person must not require another person to:

(a) download the App;

(b) have the App in operation; or

(c) consent to uploading the App’s data to the National COVIDSafe Data Store.

Clause 9(2) of the Determination goes on to state that a person must not, amongst other things, refuse to enter into a contract (including a contract of employment), take adverse action (within the meaning of the Fair Work Act 2009 (Cth)) against another person or refuse to allow entry to a premises, on the grounds that the other person has not downloaded the App, does not have the App in operation or has not consented to uploading the App’s data to the National COVIDSafe Data Store.

Privacy Amendment (Public Health Contact Information) Bill 2020

The Australian Government has therefore been very careful to ensure that the App is voluntary in its application and how it is used. However, given that the Determination is a legislative instrument only (and as such can be amended or repealed at any time), we await the introduction of supporting legislation to see to what extent this position will be reaffirmed or varied. With this in mind, the Attorney-General’s Department has revealed an exposure draft of the highly anticipated legislation.  The Privacy Amendment (Public Health Contact Information) Bill 2020 (Draft Legislation), which is designed to “enshrine the determination’s privacy protections in primary legislation, and to provide the opportunity for Parliamentary scrutiny of those protections”, is expected to be introduced in Parliament in the week of 11 May 2020.

The Draft Legislation will replace the Determination, and will:

• include all of the requirements currently contained in the Determination (see, for example, Section 94H of the Draft Legislation, which prohibits a person from requiring the use of COVIDSafe).  Breaching these requirements will be a criminal offence, a breach of the Privacy Act 1988 (Cth) (Privacy Act), or both; and
• introduce the following additional protections:
  • the national privacy regulator, the Office of the Australian Information Commissioner (OAIC), will have oversight of COVIDSafe to manage complaints about mishandling of COVIDSafe data and conduct assessments relating to maintenance and handling of that data;
  • the Privacy Act’s Notifiable Data Breaches scheme will be extended to apply to COVIDSafe data;
  • the interaction between the powers and obligations of the OAIC in relation to COVIDSafe data with the powers of state and territory privacy regulators and the Australian Federal Police will be clarified;
  • the administrator of the National COVIDSafe Data Store will delete users' registration data upon request;
  • an individual will be required to delete COVIDSafe data if they receive it in error;
  • no data can be collected from users who have chosen to delete COVIDSafe; and
  • a process will be put in place for COVIDSafe data to be deleted at the end of the COVID-19 pandemic and users to be notified accordingly.

Potential penalties

The Explanatory Statement to the Determination states that:

During a human biosecurity emergency period, the Health Minister may, in accordance with sections 477 and 478 of the Act, determine emergency requirements that he or she is satisfied are necessary to prevent or control the entry, emergence, establishment or spread of the declaration listed human disease, COVID-19, in Australian territory or a part of Australian Territory. A person who fails to comply with a requirement may commit a criminal offence (punishable by imprisonment for a maximum of 5 years, or 300 penalty units, or both).

By way of background, the Determination has been made pursuant to Section 475 of the Biosecurity Act 2015 (Cth) (Act), and the human biosecurity emergency period is in force for three months on and from 18 March 2020.

Sections 479(3) and (4) of the Act sets out the penalty for contravention as:

• imprisonment for five years; or
• 300 penalty units, 

or both.

This has been somewhat replicated in the Draft Legislation, with the modification that the penalties will be legislated by an amendment to the Privacy Act, bringing the App’s use under the jurisdiction of the OAIC.

A penalty unit for an individual is currently $210 pursuant to section 4AA of the Crimes Act 1914 (Cth) (Crimes Act).  Therefore, the potential penalty under for a breach of the Determination/Draft Legislation for an individual is $63,000 (in addition to five years imprisonment).

Note that a penalty unit is higher for corporations under the Crimes Act. Section 4B(3) of the Crimes Act provides that a court can impose on a corporation a pecuniary penalty not exceeding five times the amount of the maximum pecuniary penalty that could be imposed on a natural person.

Use of the App

When you register for COVIDSafe, it asks you to consent to the collection of your:

• name (however, the Privacy Policy for the App states that you can use a pseudonym or fake name if you prefer);
• age range;
• post code; and
• mobile phone number (which is then verified by way of two-factor authentication).

Bluetooth® signals are used to determine when you are near another COVIDSafe user, which then records your encrypted reference code, as well as the time, date, length of contact and proximity. It enables the health authorities to trace those people who may have come in contact with a case of COVID-19 once that patient tests positive. Importantly, no location data (data that could be used to track your movements) will be collected at any time.

Despite the Government’s clear intention for the App to operate voluntarily on an ‘opt in’ basis, the App raises an important question about the extent to which governing bodies, clubs and venue operators should encourage registration and use of the App for professional sportspeople or for persons attending games, be it officials, broadcasters or fans. For example, the Chairman of the Australian Rugby League Commission, Peter V’landys, has stated that the App is “an important tool and the game would look to use its footprint to encourage Australians to download it”.³

Encouraging the use of the App and educating workers and others about the App and its purpose, how it works and why it is a good idea to download it, is consistent with the primary duty of care imposed on sporting organisations to manage risks associated with the spread of COVID-19 under the WHS laws. Importantly, the AIS Framework lists recommending that athletes and other personnel download the App to reduce the risk of COVID-19 spread to the community and sport as a possible education measure to be adopted by sporting organisations to prepare for a safe return to sport. 

In communicating to workers and others about the App, it will be important for sporting organisations to address how the App protects the health and safety of individuals and the community , i.e. that the App: 

• enables accurate and fast contact tracing, which is important for stopping the spread of the virus; and
• the App, combined with widespread and rapid testing, will assist in any outbreaks of virus being quickly eliminated. 

Another measure that sporting organisations may wish to consider in relation to the App is requesting information anonymously from workers and others about whether they have downloaded the App or not and if they have not downloaded it, their location. This information is relevant to mitigating the risks associated with COVID-19 and can inform decision making about re-commencing sporting activities and what other risk control measures will be required once sporting activities have re-commenced. 

Given that the Minister for Health, Greg Hunt, stating that the government’s target for uptake of the App is 40 per cent of the population in order for it to be effective,⁴ sports organising bodies, their clubs and venue operators arguably have a role to play in promoting its use in combatting COVID-19 and enabling a return to live sport quicker. However, in doing so, the line between encouragement and coercion will need to be carefully navigated to ensure that the Determination (and supporting legislation to follow) is complied with. 

Links for further information

National Principles for the Resumption of Sport and Recreation Activities

AIS Framework for Rebooting Sport in a COVID-19 Environment

National COVID-19 Safe Workplace Principles

Safe Work Australia 

Department of Health

Overseas resources 

US CDC

Government of Canada 

UK National Health Service

Ministry of Health Singapore

Health Protection Scotland