By Dr. Jason Haynes, Attorney at Law and Deputy Dean Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
The increasing commodification of sport has been tremendously beneficial for international sporting federations, clubs, broadcasters and especially consumers who, with the click of a button, have been able to enjoy the very best that athletes have to offer. Indeed, as sport is being gradually transformed into a spectacle of glitz and glamour, never before in the history of sport have players’ images and athletic prowess been coopted and monetized as they are now.
The commodification of sport has, however, also had significant negative externalities, particularly for players, which must not go unnoticed. Chief among them is the circumvention of players’ mental health as a result of their being constantly pushed to the limits of human ability to deliver for an increasingly entertainment obsessed sporting world. In this story of commodification, the customer is King, while players are Slaves.
Take, for instance, the recent saga involving Naomi Osaka, who withdrew from the French Open after she was fined $15,000 for not speaking with the press after the conclusion of a match. In a candid and emotional piece published in The Time Magazine, Osaka laid bare the magnitude of the mental health challenges which she has had to confront over the years, and the seeming unwillingness of those concerned with the management, administration and broadcasting of sport to respect and protect her and other athletes’ mental health:
“(…) in my opinion (and I want to say that this is just my opinion and not that of every tennis player on tour), the press-conference format itself is out of date and in great need of a refresh. I believe that we can make it better, more interesting and more enjoyable for each side. Less subject vs. object; more peer to peer.
Upon reflection, it appears to me that the majority of tennis writers do not agree. For most of them, the traditional press conference is sacred and not to be questioned. One of their main concerns was that I might set a dangerous precedent, but to my knowledge, no one in tennis has missed a press conference since. The intention was never to inspire revolt, but rather to look critically at our workplace and ask if we can do better.
I communicated that I wanted to skip press conferences at Roland Garros to exercise self-care and preservation of my mental health. I stand by that. Athletes are humans. Tennis is our privileged profession, and of course there are commitments off the court that coincide. But I can’t imagine another profession where a consistent attendance record (I have missed one press conference in my seven years on tour) would be so harshly scrutinized.
Perhaps we should give athletes the right to take a mental break from media scrutiny on a rare occasion without being subject to strict sanctions.
In any other line of work, you would be forgiven for taking a personal day here and there, so long as it’s not habitual. You wouldn’t have to divulge your most personal symptoms to your employer; there would likely be HR measures protecting at least some level of privacy.”
Meanwhile, decorated American gymnast, Simone Biles, withdrew from the women’s team finals, the all-around individual competition, and the event finals for the vault, uneven bars, and floor at the recently concluded Tokyo 2020 Olympic Games, citing mental health concerns, namely "twisties," a mental block that gymnasts deal with that prevents them from knowing where they are while flipping through the air. Her view was that:
“I don’t think they take into consideration our mental health because what we do isn’t easy or else everybody could do it. But also, at the end of the day, we’re not just athletes or entertainment. We’re human too and we have emotions and feelings and things that we’re working through behind the scenes that we don’t tell you guys about. And so, I just think it’s something that people should be more aware of.”
The Law and Mental Health
Sporting federations not only owe an ethical duty of care to players but a legal duty to ensure that they are not inflicted with reasonably foreseeable psychological harm. This duty of care was recognised in the Court of Arbitration for Sport (CAS) case of Azovmash Mariupol Basketball Club v. Panagiotis Liadelis, a case in which the Panel condemned the termination of the player’s contract by the club in circumstances where the player suffered “family drama and demoralization” and was thus not able to fully perform the contract according to its terms. The CAS considered that the club owed a duty of care to the player in circumstances where it was aware that the player was potentially suffering from a mental health issue. The club could not, in this context, simply terminate the player’s contract for just cause. Indeed, while the CAS acknowledged that some action, such as fines or similar sanctions might have been warranted, the decision to terminate the player’s contract, instead of assisting the player in getting help for his potential mental health issue, placed the club not only in breach of its tortious duty of care, but the contract in question.
While not a sports specific case, the case of Walker v Northumberland County Council supports the reasoning in Azoymash that clubs owe a duty of care to ensure that players’ mental health is protected. In that case, the employee had reported that, as a result of being inundated with work, she was unable to cope and had encountered mental health challenges. Her employer promised that that they would provide her with appropriate mental health support, including counselling and a reduction in her workload, but this never materialized. The employee later suffered a mental breakdown, and successfully sued the employer in this connection. The Court, in finding that the employer’s duty of care was breached, considered that:
“once a duty of care has been established the standard of care required for the performance of that duty must be measured against the yardstick of reasonable conduct on the part of a person in the position of that person who owes the duty. The law does not impose upon him the duty of an insurer against all injury or damage caused by him, however unlikely or unexpected and whatever the practical difficulties of guarding against it. It calls for no more than a reasonable response, what is reasonable being measured by the nature of the neighbourhood relationship, the magnitude of the risk of injury which was reasonably foreseeable, the seriousness of the consequence for the person to whom the duty is owed of the risk eventuating and the cost and practicability of preventing the risk.”
It can be extrapolated from these cases that, while a duty of care is placed on clubs to ensure that players’ mental health is not compromised, that duty is not absolute. All that is required is that the club does all that is reasonable to ensure that victims’ mental health is protected. This is essentially a due diligence obligation, having regard to the factors enumerated above in Northumberland.
The implications for sporting bodies cannot be clearer. Players cannot and should not be treated as commodities by clubs. Their mental health must not be trivialized; their concerns around their mental health must be taken seriously; and adequate support systems must be put in place to assist them if they report concerns around their mental health.
In the final analysis, what the Naomi Osaka and Simone Biles mental health cases have made clear is that the commodification of sport is not just a discourse of academic importance, but a serious ethical and legal matter which must be frontally addressed. Indeed, it might even be argued that rather than clubs and broadcasters being King, the time has come for a rebalancing of the asymmetrical relationship between these actors and players, such that players’ mental health is not scarified on the altar of the commodification of sport.
 CAS 2009/A/1952, Award of 9 February 2010
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