Conflicting interests: Sporting clubs as employer and health care provider

Monday 13 May 2019
Paula Shelton

In early April 2019, ex-Crow Sam Shaw launched legal action against the Adelaide Crows for negligently managing his multiple concussion injuries, leading to his premature retirement from the game.

The case highlights a number of medico-legal and ethical issues and calls into question the role of an employer as a health care provider.

Similar issues arose some years ago with respect to the Essendon Football Club supplements scandal, where players were administered substances with questionable efficacy and safety aimed at enhancing performance – one of which was a banned drug. The consequences for the club and the players were considerable, including lengthy periods of suspension.

There is no doubt that, as a matter of Australian law, a medical practitioner owes their patient a duty of care for their welfare and is required to treat a patient with reasonable skill. A patient who consults a doctor is entitled to expect that doctor to treat them in accordance with current practice, and with their best interests in mind. The duty owed is clear and the relationship unambiguous.

The position of club doctor, though, has an inherent potential conflict of interest. The doctor is employed by the club to provide treatment to its players.  As Princess Diana once observed, her marriage to Prince Charles was a bit crowded, because there were three people in it. Likewise the doctor/patient relationship between a club doctor and a footballer has the potential to become clouded by pressures outside the individual medical needs of the patient.

A good example is the reportedly once widespread practice of injecting injured players with local anaesthetic so they can remain on the field. This may permit them to continue playing, but potentially places them at risk of further injury. It may be in the club’s best interests for the player to continue playing, but is it in the best interests of the individual player? What, then, is the role of the doctor in this circumstance? Advocate for the player, or servant of the club? There may be pressure from coaching staff to keep players on the ground, and even from players themselves to be permitted to continue playing.

Further, the complex nature of the relationship between club and player must call into question the voluntary nature of any consent to treatment. The club, in this instance, is both employer and medical service provider; a fundamentally conflicted position. The club has power over players’ match selection and career progression. How would a player’s refusal to continue to play when the coach wanted him or her to continue be received? Perhaps a star player might have the power to refuse such a request, but it is not difficult to imagine that a more junior player, desperate for a game, would feel pressure to comply.

Australian sports clubs need to look carefully at the potentially conflicted roles between their support staff, and the duties they owe to their players. Medical and other functions should be strictly separated and responsibilities and accountabilities delineated and clearly communicated to the staff involved. Signing a contract with a professional sporting club should not mean that players are subject to questionable treatment, or that that the professional duties owed to them are ignored.

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