June 10, 2020

With sport having encountered an unprecedented and abrupt hiatus due to the COVID-19 pandemic, the gradual easing of the UK’s lockdown measures and the publication of recent Government guidance herald the much anticipated return of sport.

On 1 June, the DCMS published its ‘Elite sport – return to domestic competition guidance’. This is the third stage of the Government’s proposed five stage framework for returning to full unrestricted elite sporting competition and follows the previous Stage One and Stage Two guidance relating to the return to training.

While the guidance is a helpful framework, the practicalities of recommencing competitive sport, even without the complications of spectators, pose many legal challenges. To be as helpful as possible, we have put together some employment and data protection FAQs based on some of the questions we have recently received from clients across the sports sector, which you can access here.

Minimum standards

The DCMS acknowledges that competitions are typically delivered in partnership by multiple contributors and commercial partners, which leads to a cross-over of responsibilities.

The guidance provides that all typical attendees at any sporting activity (including media and broadcast partners) must be appraised of all risk mitigation plans and given the opportunity to actively ‘opt in’. This ‘opt in’ requirement is unusual when compared to guidance issued by the Government in other sectors and an indication of how seriously the Government view the risks associated with the return to sport.

If any participant or stakeholder elects not to ‘opt in’ then further consideration must be given to the integrity of the relevant competition, the ability to implement the guidance and whether the competition can be staged safely.

The guidance goes on to set out a list of minimum standards which must be in place before progressing with return to sport plans.

Risk assessments and mitigation plans

As you would expect, continued emphasis on Social Distancing, screening and compliance with all Government and PHE guidelines while away from venues are at the heart of the general guidance. In terms of the specific guidance, in the same way as each sport and club were advised to appoint a COVID-19 Officer (CO) as part of the path to returning to training, competition organisers, venue operators and elite sports organisations (including National Governing Bodies) should appoint a CO. Each competition organiser should also appoint a named COVID-19 Medical Officer and, where such organiser does not also own/control the venue, a venue use agreement should be put in place.

Competition organisers (in collaboration with elite sport organisations) should develop (and review/update on an ongoing basis) a competition venue operations plan, a risk assessment and a mitigation plan. The guidance lists out the minimum considerations for these plans and reminds stakeholders of insurance requirements and statutory requirements (such as the Health & Safety at Work etc. Act 1974).

It is critical that all organisers, participants and other stakeholders get the minimum standards right and produce robust plans at the outset to help mitigate potential health and safety issues and liability.

Other legal considerations

• Furloughed staff: With the job retention scheme having seen such widespread utilisation within the industry, sports organisations will naturally need to consider the process of bringing staff back from furlough. In many cases this will be straightforward. But with the so called ‘flexible furloughing’ being introduced for a 4 month period from 1 July 2020, there are likely to be many options open to sports organisations. As we have come to expect with the job retention scheme, it is more than likely that the Government’s guidance will continue to evolve and clients will need to be alert to these changes and how they might factor into their short term plans.
• Contracts: We have all learnt a lot from COVID-19. Force majeure provisions have never been tested so extensively. Many clients in the sports sector are therefore seeing this as an ideal time to review and refresh or renegotiate their contracts to ensure they are as flexible as possible going forwards in an attempt to cater for future shutdowns and implement any specific COVID-19 related changes for what will no doubt be many more turbulent months ahead.
• Policies: Once organisations have carried out their COVID-19 risk assessments, it seems likely that many will take the step of drafting new policies in an effort to ensure the relevant safety measures are implemented properly. For example, we also expect many stakeholders in sport will consider implementing a health monitoring policy, a policy related to contact tracing as well as individual specific policies (to cover certain activities where social distancing is more difficult, for matters as diverse as physiotherapy and media accreditations).
• Data considerations: With many teams and clubs implementing measures – such as asking if staff/athletes have contracted, or been in contact with, COVID-19, regular screening and carrying out some form of contact tracing – there will be numerous data protection obligations to consider. Existing privacy notices will not address data processing from a COVID-19 perspective, and it is therefore important that organisations consider the lawful bases on which this new data will be gathered and make the workforce aware of this to mitigate potential liability in this area. In addition, consideration will need to be given to how personal data collected with respect to COVID-19 is kept secure and for how long it is retained. Organisations should also carry out a data protection impact assessment documenting the processes that have been put in place.