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Contact Sports Risk
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Do you want to be sued for Discrimination or for not taking proper care?
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Do you want to be sued for Discrimination or for not taking proper care?
Discrimination case raises questions over risk management
27/03/04 by Michael Smyth |
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A recent anti-discrimination decision of the Victorian Civil and Administrative Tribunal in Australia raises a dilemma for supervisors of junior sport.
The case concerned complaints made by one 14 year old girl and two 15 year old girls against the Morrabbin Saints Junior Football League and Football Victoria Limited for preventing them playing Aussie Rules football in a team made up of boys.
In dispute was the construction of ss65 and 66 of the Equal Opportunity Act 1995 (Vic). Under Victorian Law discrimination in sport is unlawful subject to a qualification which states that a sex may be excluded from participating in a sporting activity where the strength, stamina of physique of competitors is relevant. This qualification does not apply to children under the age of 12 years.
This qualification is relevant to risk management, particularly in contact sports. One dangerous aspect of contact sports at the junior level is an apparent mismatch of teams in terms of strength and size. Between the ages of 10 and 16 both boys and girls grow at varying rates, generally with girls starting their growth spurt earlier but with boys eventually overtaking.
However, within that age group it is common for individuals to vary considerably in size and weight. In a contact sport that makes a big difference and the danger is that larger athletes may “trample” over smaller athletes causing injury.
Accordingly, from a risk management and a fairness perspective it is important for parents and supervisors to ensure an equal match in teams. However, in league situations that is not always possible where teams come from different clubs. The onus therefore falls upon the sporting body and I have no doubt that was one of the reasons behind the discrimination exception.
During the hearing, evidence was presented about the comparative growth rates of boys and girls both in terms of height and weight. The evidence regarding weight was also adjusted to take into account lean body mass rather than actual weight.
What the court concluded based upon the evidence was that the divergence between boys and girls only really started to become significant after the age of 13 years.
The court also put heavy emphasis on the participants right to choose whether to play. In other words the court concluded that, especially in contact sports, there would be less people choosing to play the sport where the likelihood of injury was greater due to their size. Therefore, there was a degree of natural selection amongst the participants.
What the court fails to have taken into account, however, is that we are dealing with teenagers. Until 18, teenagers are still under the guidance of their parents so the right to choose is restricted. If would not be uncommon for an undersize teenager, of whatever sex, to grossly underestimate the strength and size of the opposition or, if they did appreciate the risk, to play regardless. As teenagers both parents and the sporting body have a responsibility to such youngsters and should say no where the difference in size would affect their safety.
However, this right for participants to choose was a factor which led the court to decide that it was unlawful for the defendants to invoke the exception and prevent 14 year old girls from competing in Aussie Rules Football. The same was not true however for the 15 year old girls whose case failed because they were older.
What the case appears to say is that it is a question for each sporting organisation to decide at what age differences in strength, stamina and physique will play a significant part in the game. Since Aussie Rules is a contact sport the expectation would have been that the age would be at the lower end of the scale. However, although the statute indicates 12 years as being the bottom of the range, this case raises that level for this sport to 13 years of age.
The effect is to place parents or sports supervisors in a quandary. If they fear a mismatch in teams as a result of gender which may lead to injury, do they exclude one sex and risk a discrimination claim or carry on and risk being sued for failing to take proper care?
If you need advice on discrimination or risk management issues then find out more about our legal service by clicking here
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