The publication of the Sheldon Report, and the broadcast of the BBC documentary ‘Football’s Darkest Secret’, have sparked a discussion about the Duty of Care that National Governing Bodies have for athletes, participants and others.
This is the first in a series of articles in which we consider the general duty of care (‘Duty of Care’ / ‘Duty’) of National Governing Bodies (NGBs) in their sports, and the steps that NGBs should take to discharge this duty. In this article, we will look at some recent alleged breaches by NGBs of their Duty of Care, and consider some of the potential consequences, particularly for those NGBs in receipt of public funding.
Duty of Care
Whilst it is four years since Baroness Grey-Thompson’s independent report on the scope of the Duty of Care that sport has towards its athletes, coaches, support staff, and others working or volunteering in sport, it is clear from recent examples that there are still important lessons to be learned.
So, what is meant by Duty of Care? Baroness Grey-Thompson said that the government should measure Duty of Care via an independent benchmark survey giving equal voice to all stakeholders in the system. She proposed that the Duty should apply to the following areas:
- Education.
- Transition.
- Representation of the participant’s voice.
- Equality, diversity and inclusion.
- Safeguarding.
- Mental welfare.
- Safety, injury and medical issues.
She recommended that the Government create a Duty of Care Charter setting out how participants, coaches and others can expect to be treated and where they should turn to if they need advice, support and guidance. She recommended that all NGB boards adopt a ‘Duty of Care Guardian’ and that the Government create a Sports Ombudsman with powers to hold NGBs to account for breaches of their Duty of Care. In the absence of these recommendations having been formally adopted, what is the Duty of Care applicable to NGBs and how do they comply? Whilst we will examine this in more detail in a later article, for the purposes of this article, the overarching principle is that NGBs have an obligation to avoid acts or omissions, which could be reasonably foreseen to injure or harm other people, specifically the athletes, participants and others within its sport.
In the light of this definition, let’s look at some recent examples of alleged breaches.
Example from... rugby
In December 2020, a number of Rugby Union players diagnosed with long-term brain injuries sent pre-action letters of claim to World Rugby, the Rugby Football Union (RFU) and the Welsh Rugby Union (WRU). Players include Steve Thompson, former England hooker who has been diagnosed with early on-set dementia and probable chronic traumatic encephalophagy (CTE) found in people with a history of repetitive brain trauma. Thompson, in his early 40s, says he no longer remembers winning the Rugby World Cup with England in 2003.
The pre-action letters state that the governing bodies had a duty “to take such steps and to devise and implement such rules and regulations, as were required in order to remove, reduce or minimise the risks of permanent brain damage as a consequence of the known and foreseeable risk of concussive and sub-concussive injuries”.
World Rugby, the RFU and WRU said: “We have been deeply saddened to hear the brave personal accounts from former players. Rugby is a contact sport and while there is an element of risk to playing any sport, rugby takes player welfare extremely seriously and it continues to be our number one priority. As a result of scientific knowledge improving, rugby has developed its approach to concussion surveillance, education, management and prevention across the whole game… We have implemented coach, referee and player education and best-practice protocols across the game and rugby’s approach to head injury assessments and concussion protocols has been recognised and led to many other team sports accepting our guidance. We will continue to use medical evidence and research to keep evolving our approach”.
Example from… football
Five of England’s 1966 World Cup winning squad have been diagnosed with dementia. The 2019 report from the University of Glasgow confirmed that there is a link between playing football and a hugely increased risk of dementia. The Football Association (The FA), and all of the major football governing bodies, have acknowledged that research. As a result, The FA has published new heading guidelines in training for children with a view to reducing and removing repetitive and unnecessary heading from youth football. Also, this season we have seen the top tiers of men’s and women’s football introduce a trial of concussion substitutes to ensure the correct precautions are taken when a player suffers a head injury.
Example from… bobsleighing
In September 2020, UK Sport launched an independent investigation into allegations of racism and bullying made against the British Bobsleigh and Skeleton Association (BBSA) the previous July by the then BBSA Board member Colin Rattigan. Rattigan claimed he was subject to an “extended period” of bullying and harassment and that recordings of board meetings were made in an attempt to entrap him. It is thought that he also claimed a number of sources had told him that Bobsleigh pilot Lamin Dean and other Black coaches were being subjected to discriminatory treatment. The BBSA board said that it welcomes UK Sport’s independent investigation and is happy to co-operate fully. Subsequently, Rattigan was removed by the BBSA from its board with immediate effect, the BBSA reporting that his dismissal was unrelated to the ongoing independent investigation and that Rattigan had fundamentally breached the BBSA Directors’ Code of Conduct and the BBSA Articles of Association.
Previously in 2017, the BBSA had been the subject of an independent investigation by UK Sport into allegations of a “toxic culture” at the NGB. Following the 2018 PyeongChang Olympic Winter Games, whilst the UK Sport funding for bobsleigh was cut for the 4 years to Beijing 2020 by £5 million following disappointing results, skeleton received an increase of £7.2 million after winning three Olympic medals. However, UK Sport required a complete overhaul by BBSA of its leadership as a condition of receiving the money, which resulted in half of the eight-person board stepping-down and a new board with an equal split of male and female representatives.
Example from… gymnastics
On 29 June 2020, a group of current and former British gymnasts took to Twitter and other social media platforms to share a joint statement under the hashtag #GymnastAlliance to raise awareness of an ‘abuse culture’ which has been “completely normalised” in gymnastics. Following publication of the #GymnastAlliance statement, a number of athletes, including current Olympians and senior competitors, united to speak out about the physical and psychological abuse they have experienced and witnessed at British Gymnastics, as part of a BBC investigation. A common feature amongst the complaints is that whilst British Gymnastics has safeguarding policies in place, steps have not been taken to ensure that the policy is adhered to.
As more athletes came forward, British Gymnastics and UK Sport announced a co-commissioned and independent review to be led by Jane Mulcahy Q.C. Due to increasing pressures pertaining to impartiality, British Gymnastics then decided to remove itself as an investigative partner for the purposes of the investigation and allow UK Sport to oversee the review. In a joint statement, UK Sport and Sport England said they "welcome and support the decision of British Gymnastics to step aside from the review it announced last week and have agreed to co-commission a fully independent review into the serious concerns raised by gymnasts". The statement added: "We are working closely with key stakeholders, including the British Athletes Commission (BAC) and the Child Protection in Sport Unit (CPSU), to develop the terms of reference and the structure of the review to ensure it has credibility and the confidence of all of those who have had the courage to come forward"
British Gymnastics Chief Executive, Jane Allen, said “It is clear that gymnasts did not feel they could raise their concerns and it is vital that an independent review helps us better understand why so we can remove any barriers as quickly as possible”.
Example from… athletics
Earlier in the same year, in athletics, after admitting that it had “major concerns” following a series of events, UK Sport commissioned Dame Sue Street to undertake an independent review into UK Athletics (UKA) to examine “the strategy, leadership, governance, operation, culture and connectivity of UKA” to ensure it is “fit for the future”. Sally Munday, CEO of UK Sport said: “Issues raised in recent months regarding the sport are of major concern to both UK Sport and to the leadership team at UKA. Both organisations are committed to delivering long-term improvement and ensuring the sustainability of the sport while acting in the best interests of its athletes, staff and the wider athletics family” adding that “our aim in commissioning this first stage review is to ensure we have a full understanding of the priority issues and any next steps required to help the sport move forward”.
Following her review, Dame Street said that “UKA needs to transform the way that it approaches difficult ethical decisions… founded upon clear organisational values, beliefs and standards”. She added that “it is paramount that levels of authority in relation to decision-making on the ‘grey areas’ are crystal clear. Individuals operating under pressure to deliver targets will find it difficult to maintain objectiveness. Therefore, a safe and independent centre for advice on these matters is required”.
Notably, Dame Street also said that “it is important that UK Sport recognises situations in which it is appropriate to take a more interventionist approach.”
Conclusion
Whilst this article highlights some very recent instances of alleged breach by NGBs of their Duty of Care and the risks of legal action by athletes (individually or collectively) and others and intervention by public funders, it is imperative that NGBs regularly review their performance and conduct and assess whether they have effective structures in place to support compliance with their Duty of Care. Having appropriate policies, practices and procedures in place is important but adherence is key. Compliance should be reviewed on a regular basis to ensure both efficacy and accountability. Furthermore, NGBs should invest necessary time into education within their sports to bring about any necessary cultural changes. Individuals (athlete, coach or other) must have a clear route to enable them to speak out and they should feel able to do so without fear of reprisals. When responding to complaints, most NGBs will face issues of resource (whether time, personnel or financial). The response must however be meaningful and proportionate.
In our next article we will set out in more detail how the law defines Duty of Care including the defences that may be raised in any legal proceedings.
We are experts in this complex legal field and are on hand to offer support. Should you require any further information or assistance please do not hesitate to contact a member of the Brabners Sports Team.
