Criminal Offences Relating to Doping in Australia

Australia, unlike many other countries, does not have any legislation that specifically criminalises doping in sport. Instead, the Australian Commonwealth and each of the states and territories have enacted legislation that criminalises certain conduct constituting a violation of the World Anti-Doping Agency’s (WADA’s) anti-doping rules. By way of example:

• Australia’s Commonwealth Criminal Code Act 1995 criminalises the trafficking of certain substances that also appear on the WADA’s list of substances and methods as being prohibited both in and out of competition, and in particular sports (World Anti-Doping Code Prohibited List); and
• Australia’s Customs Act 1901 and Customs (Prohibited Imports) Regulations 1956 criminalises the importation of certain substances that also appear on the World Anti-Doping Code Prohibited List – this type of offence is punishable by up to five years' imprisonment and/or up to 1,000 penalty units.

Commonwealth and state and territory legislation in Australia also prohibits the use or administration of a substance on the World Anti-Doping Code Prohibited List without an appropriate medical or therapeutic justification.

Implementation of the World Anti-Doping Code in Australia

Australia is a signatory to the UNESCO International Convention against Doping in Sport, and is therefore required to implement an anti-doping scheme that is in accordance with the principles of the World Anti-Doping Code.

Sport Integrity Australia – an executive agency of the Australian government that brings together the Australian Sports Anti-Doping Authority (ASADA), the National Integrity of Sport Unit (NISU) and the national integrity programmes of the Australian Sports Commission as one entity – implements the World Anti-Doping Code by way of a legislative framework that includes the Sport Integrity Australia Act 2020 and the Sport Integrity Australia Regulations 2020 (in particular, Schedule 2 – the National Anti-Doping Scheme).

Sport Integrity Australia collaborates with the World Anti-Doping Agency (WADA), international anti-doping organisations and other stakeholders on an ongoing basis, to ensure (by way of regular amendments) that Australia’s National Anti-Doping legislation remains consistent with the World Anti-Doping Code. The Sports Integrity Australia Act 2020 was most recently amended in December 2020 to implement revisions to the World Anti-Doping Code.

Recent Anti-doping Case Example

A recent case example in Australian Sport is that of middle-distance runner, Peter Bol, who was provisionally suspended by Athletics Australia after he failed an out-of-competition doping test in January 2023. The suspension was lifted the following month after his “B sample” was found to have an atypical finding for erythropoietin (EPO), meaning that the amount found was not unusual and any EPO present was produced naturally by Peter Bol’s kidneys. Despite this, Sport Integrity Australia opted to continue its investigation until August 2023, when Peter Bol was finally cleared by the governing body.

Notably, the false positive in Peter Bol’s “A sample” has led WADA to undertake a review of current EPO testing processes. At the time of writing, the results of the review are yet to be released.

Match-Fixing – Legislative Measures

In 2011, the Australian Commonwealth and state and territory governments agreed to a National Policy on Match-Fixing in Sport (the National Policy), in an effort to “pursue (...) a consistent approach to criminal offences, including legislation by relevant jurisdictions, in relation to match-fixing that provides an effective deterrent and sufficient penalties to reflect the seriousness of offences, as provided for in Part 4.3 of the National Policy.” A number of Australia’s states and territories have since enacted legislative arrangements covering certain match-fixing behaviours, with penalties including a maximum of seven to ten years’ imprisonment.

By way of example, Part 4ACA of the Crimes Act 1900 (NSW) criminalises conduct that is likely to affect the outcome of any type of betting on any event (that is lawful to bet on in any state, territory or the Commonwealth), and which does not meet the standard of integrity that a reasonable person would expect of those in the positions that affect this outcome (ie, “corrupt conduct”).

Role of Governing Bodies

Athlete misconduct, including match-fixing and/or cheating in sport, is also dealt with and regulated by the relevant sporting code’s governing body, in accordance with their particular rules and the guidelines of participation in that particular sport.

Often, regardless of the code or league, player misconduct can trigger suspension, or in more serious cases, a player or players may have their player contracts terminated as a result of their misconduct.

The actions of former Australian Test Cricket captain, Tim Paine, in 2017 (which came to light in 2020) serve as a stark reminder of the consequences of misconduct in Australian sport. Tim Paine was accused of sending sexually explicit and unsolicited text messages to a former Cricket Tasmania employee. As a result, he lost the support of the Cricket Australia board and was reportedly forced to stand down from his captaincy. He has not played in the Australian side since, retiring from first-class cricket in March 2023.

No National Authority Regulating Sports Betting in Australia

Sports betting is not illegal in Australia, and there is no single overarching statute or authority regulating gambling activities, including betting, in the country.

Sports betting is, however, separately regulated by way of a series of federal statutes and by separate legislative frameworks in each of Australia’s eight mainland states and territories. By way of example, the Victorian Gambling and Casino Control Commission Act 2011 provides for the creation of the Victorian Gambling and Casino Control Commission (VGCCC, formerly known as the Victorian Commission for Gambling and Liquor Regulation), which is empowered to regulate the gambling and liquor industries in Victoria.

Regulation of the Betting Activities of Professional Athletes

The betting activities of professional athletes are often regulated to a greater extent than non-athletes by the regulating body of their particular sport. The Australian Football League (AFL), for example, prohibits players from betting on AFL matches, and in 2022 fined a player AUD5,000 and banned him from playing for two matches after he placed bets on 10 games during the 2021 AFL season.

The AFL also saw a betting scandal involving match umpires in 2022 where votes for the Brownlow Medal (which is awarded to the AFL’s best and fairest player in a season) were leaked by an umpire. The umpire in question subsequently lost his job with the AFL and was arrested by Victoria Police. At the time of writing, the umpire and three others who are suspected of being involved have not been charged, with a criminal investigation still ongoing.

In response to the 2022 Brownlow scandal, the AFL brought in new regulations ahead of the 2023 awards evening, including an AUD250 payout limit for round-by-round betting, prohibitions on any AFL staff from placing bets and allowing for on-the-spot audits at any time, in the hope of avoiding a repeat of a similar scandal.

Protecting the Integrity of Sport – Information Sharing

In some Australian states, approval by regulators (such as the Victorian Gambling and Casino Control Commission) as a Sports Controlling Body (SCB) enables an organisation to enter into agreements with sports betting providers for the provision of particular sports betting services, and to receive a financial benefit in return.

This also allows those SCBs to share information with betting operators – for example, in order to protect and support integrity in their sport. The intention of such a framework is to promote confidence in Australian sports and any associated betting activities.

Each of the major sporting codes in Australia has developed and implemented its own integrity unit, tribunal or similar body, to manage disciplinary proceedings against athletes.

The steps taken by each of those bodies in respect of investigating and penalising doping, integrity, betting and other offences differ among the codes.

By way of example, Rugby Australia has implemented a mandatory reporting scheme whereby “participants” in rugby (including players, coaches, managers and agents) are required to immediately report any breaches of their Anti-Corruption and Betting Policy to an appointed Integrity Officer. That Integrity Officer is then empowered to investigate the breach, issue the relevant participant with a written breach notice and, if requested, establish an integrity tribunal to conduct a hearing in relation to the alleged breach.

Ticketing Rights

One of the most notable sports-related commercial rights to be exploited in Australia are those relating to ticketing. The market for tickets in Australia is significant and comprises both primary and secondary ticketing markets.

The term “primary ticket sales” refers to a situation where tickets are first sold by an official ticket seller, whereas the term “secondary market” refers to a situation where those primary tickets are resold.

The Secondary Ticketing Market

The secondary market for tickets in Australia comprises two main components, as follows:

• authorised on-selling, whereby sporting bodies, such as Tennis Australia or the AFL, authorise other entities, such as travel companies, to purchase tickets to a sporting event and on-sell them to their customers; and
• ticket scalping, whereby ticket scalpers resell tickets at an elevated price.

Scalping

There is no federal legislation making scalping illegal in Australia. In 2017, the Australian Senate passed an amended motion for the Australian federal government to introduce new legislation to combat the issue. However, to date no specific federal legislation has been enacted. Instead, ticket resale to sporting and entertainment events is regulated through various consumer protections under the Australian Consumer Law and state/territory-specific legislation which sets out the manner and terms on which tickets can be resold, and provides for restrictions, or even prohibitions on scalping in that jurisdiction.

By way of example, in Victoria in 2022, amendments to the Major Events Act 2009 made it an offence to advertise or sell a ticket package to a declared event without the written authorisation of the seller. The amendments also require that resellers of all tickets to declared major events now state the face value, the asking price and the seat details of tickets in sale advertisements.             

In Australia, many sports sponsors use their sponsorship rights as a marketing tool. Sponsors generally leverage the platform that a sports rights-holder can offer in order to increase public awareness of their brand and, in turn, the value of their business. The affiliation with a sports rights-holder can, in certain circumstances, improve the corporate image of the sponsor as they leverage the strong reputation and brand of a sporting team or player. 

Attracting Sponsors to Sport

Sports rights-holders use sponsors to generate revenue for their business, by way of payment of sponsorship fees.

Sports rights-holders attract sponsor investment by offering a range of sponsor rights, which traditionally can include the right to use the sports rights-holder’s brand and player imagery, and to have the sponsor’s brand displayed on player kits and at certain matches. Sponsorship agreements may offer customised content, featuring players and team members, the right to feature on the sports rights-holder’s social media channels and, in some circumstances, allow the use of the sports rights-holder’s fan database for the sponsor’s marketing purposes.

Key Provisions of Sponsorship Agreements in Australia

The key provisions in any sponsorship agreement include clauses relating to:

• exclusivity, which may relate solely to a particular market or market segment;
• payment terms;
• sponsor benefits, including provisions dealing with the suspension of any sponsor benefits;
• intellectual property rights, including where and how a sports rights-holder’s brand can be used, and any required approvals;
• termination conditions; and
• the duration of the agreement.

Exploiting Broadcasting Rights

Traditionally, broadcasters in Australia exploit available broadcasting rights by selling advertising space on their channels (especially in the case of free-to-air channels) and otherwise by offering paid subscription services to the public.

Broadcasting rights are one of the most valuable rights available for sports rights-holders in Australia to sell in order to generate revenue. Broadcasters will often seek exclusivity in the broadcasting rights to certain sports events because they can exploit those rights to encourage businesses to purchase advertising space on their channels during times of high viewership.

By way of example, the AFL and Cricket Australia currently have broadcasting rights agreements in place with both Channel 7, which is a commercial free-to-air television channel in Australia, and Foxtel and Kayo as a subsidiary of Foxtel, which are both subscription-style pay-TV services. These television companies exploit the popularity of the AFL and cricket amongst viewers in order to generate profits through advertising revenue (in the case of Channel 7) and in the case of Foxtel and Kayo, through revenue derived from viewer subscription fees.

Exclusivity of Broadcasting Rights

Broadcasting rights in Australia are often obtained on an exclusive basis, meaning that the sale of particular broadcasting rights to a certain television channel or provider often precludes the sale of those same rights to another television company.

There are a number of “anti-siphoning” laws in Australia that require certain events (such as the AFL premiership competition) to be made available free of charge to the general public. This means that subscription-based television providers are not able to acquire the exclusive rights to broadcast these sporting events, without a free-to-air television channel also holding those broadcasting rights. Interestingly in the case of the AFL Grand Final, the match is only broadcast on a free-to-air television channel, available on pay-TV at a later time.

The High Court of Australia in the matter of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45 found that, while event organisers may make a profit by charging entrance to a private area in which a spectacle (ie, a sporting event) is being held, no proprietary rights exist in the spectacle itself.

Organisers of sporting events must then find different ways to control rights at a particular sporting event. As sporting events are generally held on private property, event organisers have the right to issue admission requirements for attendees. Further, each state and territory in Australia has varying statutory regimes that prohibit unauthorised broadcasting of sporting events. For example, Sections 43 and 44 of the Major Events Act 2009 (Vic) make it a crime to broadcast, telecast, videotape or record a sporting event without prior authorisation from the organisers.

Management of Sporting Events

Each state and territory in Australia has legislated independently on the issue of event organisation, management and supervision. In recent years, a number of legislative repeals have been enacted to better protect the interests of event organisers, including in the area of ticket sales and resales, particularly in relation to ticket scalping, as outlined in 2.1 Available Sports-Related Rights.

Duty of Care

In Australia, a legal person may be held liable for their failure to take reasonable care to avoid causing injury or loss to another person (negligence). One of the key requirements in proving that a person has been negligent is to show that the “negligent” person owed a duty of care to the person who was ultimately harmed, or who suffered a loss.

Although the tort of negligence and the principle of a duty of care traditionally developed in Australia by way of the common law, each of the states and territories has now legislated (to varying degrees) in relation to the general concept. For example, in Victoria negligence is governed by the Wrongs Act 1958 (Vic).

Generally, sports event organisers owe a duty of care to participants in the event, people working at the event and spectators who buy a ticket to and attend the event.

Limiting Liability

Liability in negligence can be limited or excluded by way of agreement between the relevant parties. However, the agreement should explicitly identify the limitation or exclusion of certain liability, as general wording such as “all liability is excluded” will not ordinarily be construed by Australian courts to apply liability limitations or exclusions to liability for negligence.

There is no blanket legal requirement in Australia for a sporting club (whether that club is professional, amateur, commercial or non-profit) to become incorporated. However, in order to limit the liability of its members and officers, many sporting clubs do choose to incorporate, either as:

• incorporated associations under the applicable state or territory legislation (the Associations Incorporations Acts); or
• corporations under the Corporations Act 2001 (Cth) (the Corporations Act). 

There are some circumstances where governing bodies have imposed a requirement that small local clubs be incorporated. For example, the AFL NSW/ACT, the state body responsible for the growth of the AFL in New South Wales and the Australian Capital Territory, requires local football clubs to be incorporated to ensure that the legal rights and obligations of the clubs are not borne by their members.

Sports Governance Principles

In March 2020, the Australian Sports Commission released a revised version of its Sport Governance Principles (Principles), which it has developed for the purpose of guiding Australian sporting organisations to deliver good governance. The Principles apply to all organisations throughout the Australian sporting sector, whether they are small local clubs or large national organisations.

Directors’ Duties

The Principles (outlined above) are not mandatory, but directors of sporting organisations are required to comply with the same behavioural requirements as any other company director in Australia, as outlined in the Corporations Act. This includes complying with a number of directors’ duties such as the duty of care, skill and diligence, the requirement to avoid conflicts of interest and the duty to act in good faith.

Insolvent Trading

The Corporations Act also prohibits insolvent trading by directors of all corporations, which includes the directors of sporting organisations. Pursuant to Section 95A of the Corporations Act, “a person is solvent if, and only if, the person is able to pay all the person’s debts as and when they become due and payable.”

The Australian Sports Commission (ASC) is the Australian government agency responsible for supporting and investing in sport in Australia and is funded by the Australian government.

The ASC distributes the funds it receives from the Australian government amongst sport at all levels, and is accountable to the Australian Federal Minister for Sport. Some sporting organisations in Australia are also funded by way of private investment.

In the wake of the COVID-19 pandemic, government financial support was introduced for small businesses (including eligible community sporting organisations). Although the amount of funding grants has decreased in the last year, a small number of grants remain available for community sporting organisations, including the Emergency Sporting Equipment Grant Program and Significant Sporting Events Program (both in Victoria).

Private equity continues to be a trend in the Australian sporting sector. Private equity investment refers to a situation where a private equity investor raises a pool of capital to form a fund which, once the particular funding goal has been met, will be invested into a company that the investor believes will offer a return.

Rugby Australia (rugby union’s national governing body) explored multiple capital-raising options throughout 2023. In November 2023, the governing body announced an agreement with a private equity firm, Pacific Equity Partners, to provide a flexible AUD80 million credit facility to help accelerate growth initiatives, particularly in women’s rugby, community and pathways.

Outside of rugby, private equity funding has recently been considered in both netball, football (soccer) and cricket in Australia. No such deals have proceeded, with an AUD6.5 million deal to privatise Super Netball falling through in August 2022 following Netball Australia’s rejection of the proposal. More recently in 2023, Football Australia considered the sale of its rights to the Matildas, Socceroos and the A-League for a 99-year period. While the proposal advanced significantly, the high commercial and privacy risk ultimately led Football Australia to shelve the privatisation plans.

Registering a Trade Mark

In Australia, any individual, company, or incorporated association may apply to register a trade mark in respect of certain goods or services by filing an application with IP Australia.

Subject to certain requirements, a letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent (provided it is capable of graphical representation) may be registered.

What Cannot Be Registered?

Certain marks cannot be registered in Australia, including:

• marks that are purely descriptive;
• some geographical names and surnames;
• certain words related to banking and financial services; and
• certain prohibited signs and marks which are scandalous by nature or contrary to law.

The Benefits of Registration

The benefits of having a registered trade mark include that:

• the registered owner will have the exclusive right to use the mark in respect of the goods and services covered by the registration; and
• the registered owner will have the right to bring an action against anyone using a mark that is substantially identical or deceptively similar mark to the registered owner’s registered mark, in respect of the same or similar goods or services and where customers are likely to be deceived or confused.

Australian Copyright Law

In Australia, copyright law is contained in the Copyright Act 1968 (Copyright Act). There is no system of copyright registration in Australia. Instead, subject to certain requirements, particular forms of expression (including text, images and music), are automatically protected by copyright under the Copyright Act.

For example, Section 101 of the Copyright Act provides that the copyright in a literary, dramatic, musical or artistic work “is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.” This includes using or reproducing the copyright works and offering articles for sale which contain infringing copyright material.

Defences for Copyright Infringement

Common exceptions and defences to copyright infringement include:

• fair dealings with the copyright works (which includes use in reporting, for research, review or criticism);
• certain private or incidental dealings with copyright works and other subject matter; and
• educational copying and archiving of works.

No Specific Database Right

As there is no specific law in Australia providing for database rights, databases may only be protected in Australia if they fall within the scope of protection offered by the Copyright Act. The Copyright Act will likely only cover a database in respect of the compilation of the data, and provided that the creators used intellectual effort in creating the database, and that the database itself is sufficiently original.

Copyright and Australian Sport

In 2019, the Australian Football League (AFL) issued a cease-and-desist notice for copyright infringement to a company called League Tees. The AFL alleged that a line of t-shirts and badges marketed and sold by League Tees, and which featured an iconic photograph of an AFL Women’s League player that was taken by AFL Media’s chief photographer, infringed the copyright of the AFL. Whilst League Tees maintained a position that their designs were substantially different from the photograph, they ultimately withdrew the products from the market.

No Image Rights in Australia

In Australia, there is no legally recognised image right. This means that the protection of an athlete’s image is not a specific cause of action. Instead, a number of other more traditional causes of action need to be relied upon in order to protect a celebrity’s image. These causes of action include:

• the tort of passing off;
• breach of Australian Consumer Law;
• defamation; or
• trade mark and copyright infringement.

The Australian Consumer Law and the Tort of Passing Off

Passing off is a common law tort in Australia, and refers to a situation where one party misrepresents that their goods or services are associated with the goods or services of another.

Similarly, the Australian Consumer Law prohibits a party from engaging in conduct that could mislead or deceive consumers. In relation to the image of an athlete, this means that any use of an athlete’s image is prohibited if that use could lead consumers to believe that there is a relationship in place between the business and the relevant athlete.

Licensing

Sports bodies and athletes can exploit their intellectual property (IP) rights in order to leverage the value of their brand and to generate revenue by licensing those IP rights to third parties. These licensing rights might include the right to apply a registered or unregistered trade mark to goods, services or other advertising materials.

Restrictions on Assignment

In Australia, there are very few restrictions on assignment of intellectual property. For an assignment of copyright to be valid and enforceable, that assignment must be in writing by way of a deed or agreement. However, where a trade mark is not registered, the ownership and intellectual property rights in the unregistered mark can only be assigned with the goodwill of a business.

Further, where a trade mark is a collective mark, it cannot be assigned or transmitted under Australian law.

In Australia, sports data, including both athlete and spectator data, is predominantly used by stakeholders to track player performance, increase fan engagement and encourage and expand partnerships.

Player Performance

Australia’s elite sports teams collect and analyse athlete data to identify strengths and weaknesses in any given player or a team’s performance. Analytics can help players and teams understand the key factors that contributed to their winning or losing a game or season.

In the AFL, for example, football clubs have developed their own data management systems and have recruited their own teams of data analysts to enable them to determine where they can improve and even how they can win.

Fan Engagement

Data and analytics are also used in Australian sport to improve the fan experience and to increase fan engagement with a particular sport or team.

Clubs and sports event organisers use data to create a better experience for fans within the stadium by collecting data in relation to ticket sales, spectator movement around the stadium and the purchases made at the stadium, including purchases of merchandise and food and beverage. Not only does this help clubs and sporting event organisers to increase sales of products and merchandise, it also assists in the delivery of a better spectator experience.

Partnerships

Historically, sports rights-holders did not have a substantial amount of information or data. However, a growing trend in sport is the increasing value of data that can be used by sports rights-holders and offered to potential partners. This data includes information in respect of sponsorships, broadcasting rights and advertising.

Sports rights-holders can now leverage data and analytics to not just encourage partners to get on board but also to increase the value of their offering.

In Australia, the primary piece of legislation regulating the collection and use of personal information is the Privacy Act 1988 (Cth) (Privacy Act). The Privacy Act only applies to certain organisations and government agencies. 

“Personal information” is defined by the Privacy Act as “information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.”

Sports data that is personal information will be subject to the requirements of the Privacy Act, which restricts the way in which that data can be collected, used and disclosed, transferred to and used by other entities.

The Australian government conducted a review of the Privacy Act in 2023. On the back of this review, the Australian Government introduced harsher penalties for privacy breaches. We expect that additional, significant changes to Australia’s privacy legislation will be introduced throughout 2024, including strengthened privacy protections to better align the laws in our jurisdiction with the EU’s General Data Protection Regulation. We also expect that the powers of the Office of the Australian Information Commissioner to investigate and resolve privacy breaches will be enhanced.

Sporting associations in Australia ordinarily set their own dispute resolution procedures, which are provided for in their governing documents and in their agreements with partners. These procedures are often set out in a dispute resolution clause which provides that the association’s internal tribunals (or another form of alternative dispute resolution) must be utilised before parties may take a dispute to court.

Generally, Australian courts will only get involved in sporting disputes if there has been an allegation that natural justice has been denied, or if there is a contractual dispute to be determined – for example, if a player alleges that a club has breached its own rules, as set out in the club’s governing documents.

Australia’s Civil Dispute Resolution Act (2011) (Civil Dispute Resolution Act), aims to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted. The Civil Dispute Resolution Act provides that an applicant who institutes civil proceedings in an eligible Australian court must file a “genuine steps statement” (a statement outlining the steps taken by the applicant to resolve the dispute prior to litigation or the reasons why no such steps were taken) at the time of filing the application.

For the purposes of the Civil Dispute Resolution Act, “genuine steps” include considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process such as mediation.

Alternative dispute resolution processes, including mediation and arbitration, are often utilised in the sports industry in Australia. For example, early in 2020, one of Australia’s largest free-to-air television channels, Channel 7, was in dispute with Cricket Australia in relation to its cricket broadcasting rights. In an effort to resolve the dispute, Channel 7 made an application to the leading Australian arbitration body, the Australian Chamber for International and Commercial Arbitration (ACICA) seeking a ruling on the dispute.

Sports governing bodies are able to provide for sporting and financial sanctions (including suspensions and monetary penalties) in their own rules, and regularly impose financial and other sanctions on players or clubs who fail to comply with the rules and associated codes of conduct.

Parties may challenge decisions made by a sports governing body in certain circumstances, including where the parties did not act unreasonably or acted in such a way that would offend natural justice. Australian courts may intervene in a dispute of this kind where a party contends that the governing body has breached or failed to follow one of its own rules.

Employment

The particular arrangements in place between an athlete and a sporting club or team will determine whether that athlete is, in fact, an employee and therefore covered by Australia’s strict framework of employment law.

Given that the express terms of player contracts often include promises to play the sport whenever and wherever directed by the club, wear the club uniform, attend training, and follow the instructions of the coach and team managers – an employer-employee relationship exists in most circumstances.

Salary Caps

Many of the major sporting codes in Australia have implemented salary caps. This means that the major clubs are subject to a limit in respect of the amount they are allowed to spend on player contracts.

Most jurisdictions in Australia have implemented a single set of work health and safety laws that are known as the model Work Health and Safety (WHS) laws. The main object of the WHS laws is to provide a framework to secure the health and safety of workers and workplaces which is consistent across the states and territories of Australia.

Within those states and territories which have implemented the model WHS laws (currently all jurisdictions in Australia other than Victoria and Western Australia), any “person conducting a business or undertaking” must, so far as is reasonably practicable, ensure the health and safety of:

• workers engaged, or caused to be engaged, by the person; and
• workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

The duty to ensure the health and safety of workers captures both the relationship between sporting clubs and the athletes that they employ, as well as between the governing bodies and the athletes that play in the competitions that they manage and oversee.

Relevant Visas

The Department of Home Affairs in Australia offers a Temporary Activity Visa, which allows foreign persons to play, coach, instruct or adjudicate for an Australian sports team, or to undertake high-level sports training within a sporting organisation in Australia, for a period of up to two years.

In order to be eligible for a Temporary Activity Visa, applicants must:

• have a sponsor or supporter;
• have a contract and letter of support from a peak sporting body; and
• not work outside of the specified sporting activities.

The esports market in Australia remains relatively small compared to the global market. The popularity of esports within Australia has grown significantly over the last few years, accelerated further by the COVID-19 pandemic, as spectators sought to satisfy their love of sport during periods of suspension of traditional sporting matches.

Whilst the Australian esports market continues to take shape, Australian players appear to have been utilising the international market. Notably, Anathan “ana” Pham won the International Dota 2 Championships in both 2018 and 2019. Within a mere five years of competition, he won over USD6 million in prize money before his retirement in 2021.

Australia has made significant progress and investment in developing and growing its women’s sporting industry in recent years, which is expected to continue in the years to come.

Notable examples include an AUD5 million investment in 2022 into Basketball Australia to support the delivery of the FIBA Women’s Basketball World Cup and associated legacy programmes. In 2023, on the back of the FIFA Women’s World Cup, the Australian government committed AUD200 million to the women’s sports infrastructure in Australia to fund gear and facilities for female athletes.

While the FIBA Women’s Basketball World Cup and, in particular, the FIFA Women’s World Cup, have significantly boosted the visibility and popularity of women’s sport in Australia, it is fair to say that there remains a considerable gap to bridge in achieving parity with men’s sport.

Notable Statistics

In 2023 the “Value of You Can Be What You Can See” report, commissioned by the Office for Women in Sport and Recreation, reported that women’s elite and grassroots sport in Victoria has seen significant growth in recent years, with corporate supporters of women’s sport benefiting from more than AUD650 million annually in customer value. The report found that the sponsorship of women outperformed men across brand awareness, brand consideration and customer conversion. However, despite these impressive figures, industry benchmarks show that the value of women’s elite sport properties is, as at July 2023, at only 12% of the level of men’s elite sport properties.

In March 2023, it was reported that only 10% of broadcast coverage was allocated to women’s sport, a slight increase from 7.6% in May 2020. However, a recent study by Foxtel Media has also revealed that viewing engagement of women’s sport on the pay-TV platform has increased, with 36% of Australians consuming an hour or more of women’s sport per week (up from 32% in 2022). The study also found that the positive impact of sponsorship of women’s sport increased in 2023, with 68% of viewers feeling more positive towards brands that sponsor women’s sport in comparison to 53% surveyed in 2022. 

Competition Growth

The Australian Football League (AFL) is one of the most (if not the most) popular spectator sports in Australia, and now the Women’s AFL (AFLW) is one of the fastest-growing competitions in women’s sport in Australia. The first time that women were represented in AFL was in 2013, with the official AFLW professional competition beginning in 2017. At that time, the AFLW had only eight teams in participation. The number of teams grew quickly, with all 18 AFL clubs having AFLW teams by 2023.

Developing Women’s Sport Further in Australia

There are a number of organisations in Australia whose purpose is to develop women’s sport, including one notable organisation called Women Sport Australia. Since its incorporation in 2005, Women Sport Australia has worked with industry stakeholders to provide women and girls with greater opportunities in sport and physical activity. Women Sport Australia has conducted numerous initiatives in recent years, including a “Women in Leadership” workshop to provide further access to women seeking coaching and other leadership roles in the sporting industry, and a “Women in Sport Mentoring Program”.

Soccer is one example of a female sport that is continuing to grow in Australia. According to Football Australia’s National Participation Report for 2021, there were 174,380 women and girls participating in outdoor soccer, social and registered futsal that year. This represents a growth of over 21% or 30,507 players since 2020. Following the success of Australia’s national football team (known as the Matildas) at the 2023 FIFA World Cup, female participation in soccer and other sports is expected to skyrocket over the coming year.

Women’s cricket has also seen significant growth. The Women’s Big Bash League (Australia’s women’s domestic Twenty20 cricket competition) was recognised as the fourth most-watched domestic sports competition in Australia in 2021, amongst both men’s and women’s sport. In 2023, Cricket Australia also reported significant growth in female participation, with registered participation among women and girls in cricket clubs reaching over 50,000. Cricket Australia’s official census numbers for the 2022-23 season boasted a 26% increase in women’s participation from the previous year. Notably, the cricket body attributed some of this growth to the success of the FIFA Women’s World Cup.

Moving from the field to the race track, motorsport has seen significant investment over recent years to boost female participation. Through the FIA Girls on Track initiative, Motorsport Australia (Australia’s motor racing governing body) together with other motorsport organisations and local car clubs, have been providing girls aged 8-22 with more tools and support to get more involved in motorsport, whether as drivers, engineers, mechanics, volunteers or in one of the many other roles in the motorsport industry.

Notable Usage of NFTs in Australia’s Sport Industry

In 2022, following the success of the US National Basketball Association in the NFT market, selling basketball’s greatest “moments” as NFTs called “NBA Top Shots”, Cricket Australia in conjunction with the Australian Cricketers Association signed a multi-year official licensing deal with Rario and BlockTrust regarding the creation of an online platform for the trading and sales of NFTs, in particular “digital memorabilia.”

2022 also saw the launch of the “AO Artball” NFT collection by Tennis Australia, which remained popular amongst Australian tennis fans during this year’s Australian Open. There was also the launch of the AFL Mint, which sells exclusive AFL NFTs showcasing iconic “moments, highlights and champion players” in AFL history.

Risks in NFTs in the Sports Industry in Australia

The NFT market in the Australian sports industry has cooled off slightly. During arguably the peak years of NFT popularity, in 2021 and 2022, sports fans often scrambled to secure an NFT of their favourite sports team’s memorabilia in the hope that the NFT would increase in value. However, in the last year the sports industry has gone relatively quiet on the NFT front, perhaps given the uncertainty around the value of NFTs, which is not as strong as other digital assets or currencies. The uncertainty and potential risks associated with investment in NFTs are certainly not unique to the sports industry.

The rise in athlete activism continues to be a prominent feature in perhaps not just Australian sport, but internationally. Notably, late 2022 saw tensions rise between the competing interests of athletes’ ideals and brand identity, with that of corporate partnerships in Australian netball where Netball Australia lost its AUD15 million sponsorship from Hancock Prospecting.

More recently, the International Cricket Council prohibited Australian cricketer Usman Khawaja from wearing slogans or symbols that the council considered to be political ahead of the team’s first game against Pakistan at the start of the 2023/2024 Test series.

The regulatory framework for artificial intelligence (AI) in Australian sports is still in its developmental stage, with some state governments currently conducting inquiries into the use of AI (for example, in New South Wales). However, sporting organisations are utilising this technology to optimise performance. For example, many AFL clubs are utilising AI technology to provide statistical analysis for their team’s performance. They are also using it to provide summaries of opposition teams’ vulnerabilities, strengths and weaknesses in order to prepare for games. 

AI is also revolutionising the approach to managing Anterior Cruciate Ligament (ACL) injuries. ACL injuries have become increasingly prominent and impact athletes across all sports and levels and AI mechanisms have been a key technological innovation component of orthopaedic surgery. AI-based technologies are being used in a wide variety of applications, including image interpretation, automated chart review, assistance in the physical examination via optical tracking using infrared cameras or electromagnetic sensors, generation of predictive models, and optimisation of postoperative care and rehabilitation.

As AI progresses, its integration into various facets of the sports industry is anticipated to expand, potentially influencing job roles in areas where AI proves to be more efficient. This trend of AI impacting employment is not confined solely to the sports sector.

The Metaverse is revolutionising the sport experience for fans, taking them beyond watching sport on a screen or in a stadium, to immersing them as active participants in their own games.

The concept of the Metaverse is still very new to the Australian sport landscape. In 2023, the Australian Open introduced the Metaverse concept to tennis fans, expanding that offering this year to feature the ability for Roblox users to compete in virtual tennis-themed games to win prizes.

As the use of AI and technology grows within the Australian sports industry, there is no doubt that more sporting organisations will follow in the Australian Open’s footsteps by offering more opportunities for engagement with fans through the Metaverse.

Sport entering into the Metaverse will not be without its challenges. The lack of a regulatory framework in this space will pose a significant risk to users and organisations who engage with the Metaverse. It is thought that the risk of cyberattacks, the impacts on mental health, the risk to child safety online and of fraudulent activity will increase if appropriate protections are not put in place.