The future of injury insurance and workers’ compensation in Australian sport

By Dr Eric Windholz

In November this year, Monash Law, in conjunction with the Australian Athletes’ Alliance (the peak body representing Australia’s elite professional athletes), convened a roundtable to explore the future of injury insurance and workers’ compensation in Australian sport.

Persons from across the sporting industry, government and academia came together to hear from Monash Law’s Dr Eric Windholz, and representatives of the AFL Players’ Association and Cricket Australia on this important but often overlooked issue.

That governments should regulate to ensure workplaces are safe and free from risks of injury – and those who are unfortunate to be injured at work are appropriately compensated and supported - are today considered essential tenets of a modern society. Yet for elite professional athletes the application of these laws to them is ambiguous, and in many cases absent.

Uncertainty in the application of these laws to professional sport stems from the high risk of injury inherent in the sporting contest, and perceptions that sport is play not work, athletes are ‘players’ not ‘workers’, and the sporting field is not a workplace.

And in the case of sports’ exemption from workers’ compensation laws, this dates back to the 1970s when the rise of professional sport called into question the (in)capacity of clubs to pay for insurance policies, and the potential personal liability of committee members to pay workers’ compensation benefits in the absence of a policy – remembering that at that time, many sporting clubs were unincorporated associations.

Today, sporting clubs are incorporated and the rationale for the continued exclusion of athletes from workers’ compensation laws rests on their being covered by other insurance arrangements. These other insurance arrangements range from New South Wales Sporting Injuries Insurance Scheme, to Medicare, to private insurance arrangements, some negotiated through players’ collective-bargaining agreements.

But there is circularity in this argument – athletes are only covered by other insurance arrangements because they are excluded from workers’ compensation schemes.

Moreover, the level of coverage these other insurance arrangements offer elite athletes varies according the nature of the sport, the financial capacity of its governing bodies, and the bargaining power of the athletes.

And nor is it applied consistently. Workers’ compensation laws vary from state to state, as do the sporting exemptions they contain. There are even exceptions from the exemptions – some by occupation - the most notable one being for jockeys and harness riders – but also in some jurisdictions, for caddies, boxers and wrestlers - and in some jurisdictions by income.

All of this raises important questions:

  • What is the rationale for sports’ exemption from workers’ compensation today?
  • What is the minimum level of cover athletes should expect to receive, and should it differ from that provided to other workers?
  • On whom should the responsibility and cost fall?
  • What is the role of government?
  • Is there a need for greater harmonisation among states and territories?
  • Is there a need for a bespoke scheme?

Athlete health, safety and welfare has many dimensions. Risks to physical health and safety emanating from the sporting contest has been sports’ traditional focus. Over the years, however, the focus has broadened to include risks to players’ mental health and wellbeing, and risks emanating other than from the sporting contest. The latter include risks from external pressures to succeed; from social and other forms of media; from the process of preparing for competition; and from the management and treatment of injuries incurred in competition.

These developments have been matched by increased interest and research into the causes, prevention and treatment of sport injuries. Comparatively less interest and research has been devoted to the manner with which players are insured and compensated for their injuries. Yet it is an important part of the sports’ injury equation. A successful sport injury management program should focus not only prevention and rehabilitation, but also on how we insure and pay for that rehabilitation, and compensate and support injured athletes through the process.

The roundtable proved very successful in commencing an evidence based discussion of this important topic. The discussion was robust and energetic. The issue was unpacked; ideas generated. Yet it was only the start. It is an issue we will continue to investigate in 2022.

Dr Eric Windholz is a Senior Lecturer and Associate with the Monash Centre for Commercial Law and Regulatory Studies (CLARS).