Get Knocked Up and Get Knocked Out - Pregnancy in Sport

Andrew Scott-Howman, Partner | Wednesday 2 April 2003

The emergence of professional sport in New Zealand over recent years has posed some interesting problems for athletes and administrators alike.

Gone are the days when athletes were expected to be amateurs, and where it was necessary for almost all of our elite sportspeople to be part time competitors (with secondary careers required as a source of income).

The transition to a professional environment has not, however, been without some growing pains. There are still those in society who have difficulty in accepting the concept that professional athletes are now employees. Any listener to talkback radio will be aware that many New Zealanders believe that sportspeople should play for the "glory of the game" or for "pride in the jersey".

Sometimes, the tension between this attitude of traditional loyalty and generally accepted principles of employment law leads to unfortunate - and unexpected - outcomes.

For example, several years ago some of our top rugby players stood down from a tour to South Africa in order to be with their spouses at the birth of their children. Ordinarily, of course, it would not be unusual for an employee to make a request of this type of an employer - and the rights under the parental leave legislation would have ensured that such an absence was allowed (and, in most cases, regarded as a cause for congratulation). In the context of professional sportspeople, however, some fans raised questions about the "loyalty" shown by the players in question - and suggested, in effect, that the importance of their jobs should have come before such things as paternity leave.

A recent decision of the Federal Magistrates Court of Australia has illustrated that the difficulties in this area are far from resolved.

The applicant in Gardner v AANA Ltd [2003] FMCA 81 was a professional netball player. During the 2001 netball season she was the captain of the South Australian club known as the "Adelaide Ravens".

In June 2001 the All Australia Netball Association Limited imposed a ban upon pregnant women playing in its netball competition. Ms Gardner was pregnant at the time - and was prevented from playing netball. Ultimately, she was successful in obtaining an interim injunction, meaning that she was allowed to continue playing netball despite the ban (and even though she was pregnant). Because it took some time to get this injunction, however, Ms Gardner missed playing three games of netball, and as a result, lost match payments and sponsorship. Together with a claim for distress and humiliation, Ms Gardner's losses were agreed to be $6,750.

In general, the Australian legislation made it illegal for any organisation to discriminate on the basis of pregnancy (amongst other things). There was, however, an exception granted to voluntary organisations (such as the Netball Association) which allowed such discrimination in connection either with admission of people as members, or in the provision of benefits or services to members.

Put simply, Ms Gardner's case was that the Netball Association was not permitted to discriminate against pregnant women by disallowing them from playing in its competition. She sought compensation for her losses.

The decision of the Court involved a precise and careful analysis of the words in the particular section of the legislation. In essence, the Court was influenced by the fact that Ms Gardner could not have been a "member" of the Netball Association - and, for that reason, the exception in the legislation could not apply to her. In this way, the Court held that the Netball Association was not entitled to discriminate against Ms Gardner by preventing her from playing netball on the basis of her pregnancy. It found in her favour and made an order that she be paid the sum of agreed damages.

This decision has been the subject of some controversy in Australia. What would the result have been had it been heard here?

First, the New Zealand human rights legislation prohibits discrimination in employment on the grounds of sex (which includes pregnancy). In simple terms, therefore, it would have been open to a court in this country to decide that an act of discrimination against pregnant women was unlawful.

In all likelihood, however, it is probable that the answer to this particular case would have been found elsewhere.

The Health and Safety in Employment Act places a general obligation upon employers to prevent harm from occurring to employees at work. Where an employer is aware of the presence of a hazard which may cause significant harm, it must take all practicable steps either to eliminate that hazard or to minimise its effect.

The judgment of the Australian Court does not provide guidance as to the state of knowledge of the employer about the potential hazards presented in this case. For example, there is no information in the decision about medical knowledge concerning the dangers presented to pregnant women (and their unborn children) by participation in professional netball.

In short, the answer in New Zealand to this case would probably have required an analysis of medical information. If it was generally accepted by medical practitioners that a danger was posed to Ms Gardner by her continued participation as a netballer, her employer may have been justified in taking steps to prevent harm from occurring (which, depending upon the circumstances, may have included requiring her to cease playing netball). In the absence of that information, however, it is difficult to see how an employer could justify a general ban of the type imposed. Without the support of some medical information, a general ban would be likely to be found to be discriminatory.

This case is an illustration of some of the difficult issues that can arise in the application of general employment principles to professional sporting life.