• Nick Noonan and Lisa Berton

The ‘Dream Tour’ – a sporting case study of corporate vs safety considerations


Recent action by a cohort of surfers casts the spotlight on the obligations of professional sporting bodies to take interest in, or further to protect, the physical and mental health of their athletes. Having regard to the broad reach of Work Health & Safety (WHS) legislation (in Australia, anyway), it represents both an interesting case study as well as an observation on the tension between corporate and safety considerations.


The World Surf League (WSL) is the governing body for professional surfing and operates various international surfing competitions, including the “Championship Tour”.


This year, the WSL imposed a material change to its competition format. With a total of 10 events on the 2022 Championship Tour, as well as a final one day event where a World Champion will be crowned, the WSL introduced in 2022 a “mid-season cut” after 5 events, where half of the athletes on the tour would be relegated. Those relegated athletes would then have an opportunity to requalify to the Championship Tour the following year by competing on the second-tier “Challenger Series”.


For most fans, the “Cut” (as it has become known) added drama and intrigue. Suddenly there was a risk of well-known, loved and often long-term athletes disappearing from the tour. That creates drama. Drama sells.


For the athletes (well, not all of them), the Cut was a bad idea.


Prior to the Margaret River event in April, an interesting thing happened. Despite the usual sunny veneer curated by the WSL, suddenly there was grumbling in the ranks. The rarely heard of “World Championship Surfers”, aka the “union” for the surfers, was manoeuvring behind the scenes. Boycotts of the Margaret River event were threatened. Petitions were signed (by some, but not all of the athletes).


An extract of the petition reads:


Dear WSL,

This is an official petition, on behalf of the Championship Tour Surfers, asking for the mid-year cut-off format to be reconsidered and disregarded, following up on an in-depth discussion, which took place at the WPS Meeting on April 11th, 2022.


Here are some of the issues of major concern to the Surfers in relation to the mid-season cut-off:


…………………


Also, there has been an increase in injuries this season which compounds the problem. There is no transparency regarding the future of the Surfers that got injured during/before Pipe and are unable to make the cut, with only 2 injury wildcards available. Some of them might not even have a chance to surf the Tour, after working/investing so hard to qualify. Many are still surfing/competing while injured, even with concussions, to requalify for next year’s CT. It is not healthy for elite athletes to compete in too many events in such a short period. Most of them are mentally exhausted and mental health has always been our major concern. As a next step to this petition, the Surfers would like to meet as soon as possible to discuss these concerns. We understand that new formats need to be explored to make the CT sustainable. We also understand that the Margaret River event has been sold at a premium value and the “cut drama” has been built throughout the broadcast, but we don’t want this cut to happen.

……………

The mid-year cut has made being a CT surfer much harder from a mental health and financial standpoint and we do not see it as a sustainable path forward.

………………….

Thanks for your attention,

World Championship Surfers


The potential for the Cut to harm the mental health of the athletes was explicitly raised as a concern. Further, the petition letter from the athletes indicated that many surfers were competing while injured, given the treacherous nature of the venues (Pipe and Margaret River were contested in potentially life threatening conditions, with events this year both running in surf north of 12 feet).


The response from the WSL was as swift as it was brutal. Extracts only below:


Dear Championship Tour Surfers


Today, we received an official petition, via WPS, on behalf of the Championship Tour surfers,. Asking for the mid-season cut-off format to be reconsidered and disregarded. I want to frame this letter in a transparent, open way so that everyone can have the same facts and information that you, your coaches or anyone feels you need to better understand where we are as a league and the future of our sport.


……………………….


I want to be very clear that it is inconceivable that we could, should or would eliminate the mid-season cut, which is the foundation of our redesigned Championship Tour. The redesign of the tour was a joint decision with WPS and the surfer representatives in July 2020 and was made after considerable discussion among the WSL, WPS and the surfers. I want to be very clear on this point, that WPS has not only been across, but has co-developed and agreed to every change and enhancement we have made to the Championship Tour format. Now, a group of surfers are trying to disrupt the tour and everything that we have worked so hard to build together.


………………………..


I want to be clear that I and the entire WSL leadership team recognize that you have a hard job – it is demanding, stressful and challenging, and introduction of this new competitive layer makes it more challenging. We discussed this with WPS and many of you before we joined hands and made this decision for the betterment of our sport. We were not surprised that concerns are being raised as we move forward toward the first mid-season cut. However, we truly believe that we have created a structure that accommodates surfers and presents the best opportunity in the history of the sport to re-qualify for the tour in the same year as the mid-season cut. We remain supremely confident that we will come through this together with a more sustainable tour and better opportunities for surfers.


Finally, I want to reiterate that we are in the best position we have ever been – now is not the time to change course.


The WSL’s response deals with the commercial realities – the Cut is happening, contracts have been signed, money is at stake, the athletes knew about the Cut, the Tour needs the Cut to survive and grow. All valid, reasonable and commercially meritoriously claims.


But, the health of the surfers, including their mental health, was not mentioned (not expressly anyway), despite concerns for athlete health being a primary submission in the petition letter. An acknowledgment that surfers have a “hard job” seems to be as far as the WSL goes to recognise the potential for the health of the athletes to be impacted by the sport.


So, what’s the big deal?


Well, maybe nothing. But, maybe something. The surfers are not employees of the WSL. Assuming the WSL was an Australian organisation (it is not), the fact that the surfers are not employees of the WSL would be irrelevant for Work Health & Safety (WHS) purposes. Our WHS legislation imposes obligations on “Persons Conducting a Business or Undertaking” (PCBUs) with respect to their “workers”, which include employees as well as independent contractors, volunteers, apprentices and labour hire workers. That statutory obligation requires the PCBU to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work. In simple terms, the WSL would be required to care about the health (including mental health) of its athletes and take steps to reduce the risk of injuries or illness. Being on notice that an athlete was competing injured would justify action, or at the very least, inquiry. Being on notice that a proposed change to a competition format may affect the mental health of athletes is a matter which may arguably justify proactive intervention on the part of the sporting body.


WHS legislation goes further. “Officers” (directors, potentially senior managers) must exercise due diligence to ensure that the PCBU complies with its WHS duties. This is a personal obligation with personal (read – criminal) consequences for non-compliance.


Take this scenario. Rookie surfer finally makes the Championship Tour after slaving away for 5 years on the lower tiered competitions, living from week to week away from rookie’s family on a measly sponsorship deal, sleeping in one’s car, etc. Rookie surfer’s dreams are answered when rookie finally qualifies for the Championship Tour. 5 events in, before rookie has had a chance to “find one’s feet”, rookie finds himself below the Cut line. Bumped off Tour after 5 events. Sponsors disappear. Mental demons materialise. To what extent does a hypothetical WSL have an obligation to support rookie, before or after the Cut occurs?


The reality is that the ‘Dream’ tour is a dream for some but could become a nightmare for others. For sporting codes worldwide, the light that shines on the mental as well as physical health of their athletes has never been brighter.

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