The release of the Ted Wells Report to the NFL has tarnished the mystique of the professional locker room. The report found that Jonathan Martin (an NFL offensive tackle) was subjected to consistent harassment, bullying and hazing by three team mates while he played for the Miami Dolphins. Aside from losing two starters from their roster in the wake of the report, the Miami Dolphins terminated the employment of a coach and a trainer who were also involved in the scandal.
Unfortunately, this behaviour cannot be said to exist “only in America”. We have felt its effects in our backyard too. Remember the London 2012 scandal involving allegations of bullying within the Australian Swimming Team? The issue is pandemic and sporting organisations can no longer turn a blind eye.
Member protection policies
Sporting organisations (at both the national and local level) have duties and legal obligations to protect their members and constituents and to ensure that their sports are safe, fair and inclusive. In fact, sports supported by the Australian Government must have acceptable member protection policies in place in order to receive government funding.
Member protection policies are risk management tools that outline the duties and legal obligations of sporting organisations and explain the decision-making process that will be used to ensure ethical and appropriate behaviour amongst members and constituents involved in a particular sport.
Effective member protection policies are the “first line of defence” in assisting sporting organisations with handling issues such as bullying, hazing and other inappropriate behaviours. However, the challenge for sporting organisations is to ensure that their member protection policies (or any policies for that matter) are worth more than just the paper they are written on. In the realm of member protection, confronting this challenge is only possible if sporting organisations:
- are aware of the current legal landscape affecting member protection;
- ensure consistent implementation of their member protection policies;
- establish and utilise effective complaints procedures and methods of investigation;
- establish effective reporting systems; and
- educate their members and constituents.
The legal landscape affecting member protection
Navigating the current legal landscape as it applies to member protection is challenging for sporting organisations, as member protection is governed by multiple areas of law (at both the state and federal level), including:
- occupational health and safety;
- child protection;
- common law;
- industrial relations;
- workers compensation; and
- criminal law.
The difficulty for sporting organisations is that the law is applied differently amongst their various constituent groups. For example, professional athletes who are subjected to bullying can pursue different legal avenues to say child athletes who face the same issues. Additionally, the process and remedies available to each group also vary.
In order to stay abreast of legal developments, sporting organisations need to ensure that their member protection policies provide broad protection to their members and constituents, and that they are updated regularly.
Recent developments in bullying laws
On 1 January 2014, the Fair Work Amendment Act 2013 (Cth) came into effect. Under the amendment, if a worker experiences bullying at work they can apply to the Fair Work Commission for an order to stop bullying.
So, how is “bullying at work” defined, what is a “worker” and what does this have to do with sports?
Under the amendment, a “worker” is “bullied at work” if they experience “repeated unreasonable behaviour (at work)…that creates a risk to health and safety.”
In the case of sports, an athlete who is employed by a sporting organisation (usually a professional athlete) would be considered “worker” under the amendment. In fact, the label of “worker” is quite broad and also includes contractors and volunteers.
The Commission has been given broad powers, under the amendment, to make any orders that it considers appropriate (except orders requiring penalty payments) to prevent workers from being bullied at work. The amendment also requires the Commission to deal with applications to stop bullying within 14 days. This will assist in providing an expeditious process for victims of bullying.
Another benefit to aggrieved workers is that they are able to commence and pursue multiple proceedings under other federal and state work health and safety laws, even if they have made an application to the Commission. This previously was not allowed.
The amendment provides another avenue for relief for aggrieved workers and may be utilised by athletes who are faced with situations like that of Jonathan Martin.
Although the amendment should prove to be a worthwhile step forward, the fight to stop inappropriate behaviours such as bullying, hazing, and discrimination in sports does not solely depend on legislation. Sporting organisations must be proactive in their efforts to not only educate their members and constituents about appropriate behaviour, they must also create an appropriate culture for change. Conducting regular reviews of their member protection policies and rules will assist sporting organisations in their fight to prevent bullying and other inappropriate behaviours. Additionally, establishing effective reporting systems, complaints processes and methods of investigation will ensure that any grievances will be actioned appropriately and in a timely fashion.