Peso turístico por entornos y escalas

Gyms and fitness clubs have grown in popularity as people try to exercise more regularly and in a carefully regimented manner. The conduct of some fitness clubs has been brought into question, however, for overcharging, charging large sign-on fees and pressuring fitness enthusiasts into signing long-term contracts. Clubs may go into liquidation and those members who have paid fees in advance may find they have little chance of having the money returned to them.

Under the Fitness Services (Pre-Paid Fees) Act 2000 (NSW) there are special conditions attached to fitness contracts to protect club members from the unscrupulous conduct of some gym proprietors. Section 8, for example, deals with the prepayment of fees for periods of more than 12 months. It states:

‘(1) A supplier who agrees to provide any fitness service under a fitness service agreement must not seek or accept a pre-paid fee for the provision of the service for a period that exceeds 12 months.

Maximum penalty: 1000 penalty units (a penalty unit changes with time but is currently $110).’

The Fitness Services (Pre-Paid Fees) Act 2000 (NSW) places special conditions on fitness clubs and gyms to protect members.

The New South Wales Office of Fair Trading (OFT) monitors complaints and advises consumers to check the details very carefully before signing any contracts.

Fitness centres should be members of their peak body, Fitness Australia, as these gyms operate under a voluntary code of practice. This provides greater security and the code of practice calls for gyms to provide a ‘cooling-off period’ to their clients. The code also provides for early termination of the contract in case of serious illness.

Consumers should always ask the following questions when joining a gym:

• Are there sign-on or termination fees? How much are monthly membership fees?

• What happens if a member wishes to cancel, transfer or suspend membership?

• If paying by direct debit, how regularly are amounts deducted, are there special fees and how is direct debit terminated? Banks charge extra fees if there are insufficient funds in an account to pay monthly premiums.

Log on to the Pearson Places website and follow the links to find more about the NSW Office of Fair Trading.

Web _Destination

Fitness clubs and gyms around Australia are likely to come under increasing pressure from consumers who are fed up with strict membership conditions. The use of unconscionable sign-on tactics has angered many and has led the federal government, which has been keen to see reform in the industry, to design new policies to prevent unfair contracts. The New South Wales Office of Fair Trading receives an average of one complaint a day about unfair gym contracts, problems with ending memberships and obtaining refunds.

A new company that has recently entered the gym market has taken a different approach. It proposes to have no contract memberships. Members will pay a single amount per month (about $90) to use gym facilities. This could lead to intensified competition in the industry and a fairer system for consumers. Until now, the industry has been notorious for forcing customers to sign long-term contracts with onerous cancellation fees and conditions.

REVIEW

1 Explain the circumstances under which the law will intervene in sport.

2 Outline the issues associated with female participation in male-dominated sports.

3 Explain why drug-taking in sport is such a problem.

4 Describe the response of sporting authorities to the greater use of drugs in sport.

5 What is the role of the Australian Sports Drug Agency?

6 Outline the impact of drug-taking on the Olympic Games.

7 Describe the protections put in place to ensure that the rights of the users of gyms are protected.

LAW IN ACTION

1 Write a report summarising examples of athletes whose behaviour has resulted in serious consequences.

2 It is fair that famous athletes are expected to maintain higher standards of behaviour than many other members of society?

3 Examine the case Taylor & Ors v. Moorabbin Saints Junior Football League and Football Victoria Ltd [2004] VCAT 158 and complete the following questions:

a Outline the facts of the case.

b What was the ruling of the judge?

c Do you agree with this ruling? Explain your answer.

4 Review the case Watson v. Haines [1987] Aust. Torts Reps 80-094 and complete the following activities:

a What happened to Stephen Watson?

b Describe the basis of Watson’s case.

c Outline the outcome of this case.

5 Is it fair that elite athletes can be randomly tested for drugs in the off season, with inspectors coming to their houses and places of work to conduct the tests? Justify your answer.

6 A famous case relating to privacy was Ettinghausen v. ACP (1991) 23 NSWLR 443. After a rugby league match, Andrew Ettinghausen, a high-profi le player for Cronulla, state and national teams, was photographed taking a shower. He did not realise that his nude photo would appear in HQ magazine showing his genitalia. This caused Ettinghausen considerable embarrassment. He sued Kerry Packer’s publishing house, Australian Consolidated Press (ACP), and was awarded $100 000 in compensation. Discuss the right of a professional player to privacy when not participating in competitive sport.

161

Chapter 10: A contemporary law reform issue: Sport and the law

CHAPTER SUMMARY

Sport is an activity that most people engage in from an early age. The competitive nature of sport can add to its attraction for some, while others are discouraged by the sense of rivalry.

Sport is often played for sheer pleasure and the joy of competition. Persons who play sport without receiving payment are classified as amateurs.

They train and compete in their own time, usually before or after work and on weekends.

Professional sports are those in which athletes receive payment for their performance. They usually train full-time and devote their mental and physical efforts to their sport. Professional sports have improved the standards of sporting competitions, though critics argue that professionalism has taken away some of the spirit and camaraderie that exists in amateur sports.

Participants in certain sports are more likely to receive a sports-related injury.

Persons who enter a boxing ring, for example, voluntarily accept part of the risk that they could be injured.

Administrative bodies, clubs, coaches and officials may all owe a duty of care to players and even spectators attending their sporting events. Players also owe a duty of care to each other.

In Woods v. Multi-Sport Holdings Pty Ltd [2002] the High Court showed that there are limits to how far the duty of care extends in relation to sporting organisers. A player had been injured while batting in an indoor cricket game but the court held it was not up to the indoor cricket centre to supply helmets.

An issue that arises in negligence cases is foreseeability. Could an accident have been avoided if more care had been taken in a given situation? Would a reasonable person have realised the possibility of harm occurring in a game, for example, if the rules were not followed properly?

Legislation exists to promote sport such as the Australian Sports Commission Act 1989 (Cwlth) and to protect persons playing in, or even spectating at, sports events. There is even a law against streaking at public sports venues.

An athlete who is denied the opportunity to defend themselves against a charge of misconduct can effectively argue that they have been denied natural justice.

Athletes often sign contracts to play for a certain club in a sporting competition. However, problems occur when contracts are used to stop players leaving a club or trying to join another club. If a player is unfairly restricted in their ability to earn an income this is referred to as ‘restraint of trade’.

Negligence is the most common tort.

If a player acts outside the rules of a game and injures another player in the process they may well be guilty of negligence.

The international Court of Arbitration for Sport (CAS) hears disputes that involve Olympic and other sporting events. An international player who is suspended from playing their chosen sport will usually appeal to the CAS.

Australian courts are reluctant to challenge the findings of disciplinary bodies established by sporting organisations. Players who misbehave on and off the field are often accused of ‘bringing the game into disrepute’.

The line between a player’s private life and what is in the public domain at times becomes quite unclear.

Sport always throws up issues of discrimination and unfair treatment.

A current issue relates to female participation in male-dominated contact sports. Denying women the right to play in such situations may be viewed as discrimination, but may also protect women from severe physical injuries.

MULTIPLE-CHOICE QUESTIONS

1 How are amateur participants in sport different to professional athletes?

A They enjoy playing their sport.

B They are never reimbursed for travelling expenses.

C Amateurs do not receive match payments.

D Sporting regulations do not apply to amateur players.

2 What is the ‘voluntary assumption of risk’ in sport?

A All athletes must accept full responsibility for their behaviour when playing sport.

B Participants accept that there is a greater risk of being hurt in their sport than in other activities.

C Athletes cannot expect medical insurance to cover injuries in sport.

D Administrators accept responsibility for any injuries to athletes in a sport.

3 What happens if a player is injured by an opponent who has breached the rules of the game?

A This situation is still covered by the voluntary assumption of risk.

B The offending player can only be penalised or suspended for their actions.

C The referee or umpire decides if any action should be taken against the offending player.

D The offending player is legally liable to pay compensation to the injured player.

4 Who owes a duty of care in a sporting match?

A Offi cials and organisers of the sport B Referees and coaches of the players C All players, offi cials, coaches and referees D Offi cials, coaches, and referees

5 Who decides when a pregnant woman athlete should cease playing sport before the birth of her baby?

A The expectant mother in consultation with her doctor B The club or sporting body in the best interests of the woman C The woman’s club in consultation with her doctor

D Other clubs, who can refuse to play her so the pregnant woman must cease playing that sport

6 If a player is suspended in a local competition for three matches without any explanation, what legal rights have been breached?

A The rule of law B Natural justice C The standard of care D International sports law

7 What legal principle was involved in Buckley v. Tutty (1971) 125 CLR 353?

A A club’s right to enforce a contract B A player’s right to demand a new contract

C Conduct bringing the game of rugby league into disrepute D Restraint of trade

8 Which of the following would be conduct bringing a game into disrepute?

A A player being penalised for a breach of the rules B A player having regular appearances on a radio show C A player being divorced by his wife

D A player abusing spectators

163

Chapter 10: A contemporary law reform issue: Sport and the law 9 When would a court overturn the decision of a sporting tribunal or disciplinary body?

A When the public complain about the sporting body’s actions B When the court disagrees with the logic of the decision C When there is an error of law

D If a player appeals the sporting body’s decision

10 Statute law best protects or provides justice for athletes through which of the following?

A Through anti-discrimination legislation B By challenging the rules of sporting clubs

C By imposing harsh penalties on athletes who break the rules of their sport D Through court inquiries into appeals against suspensions and fi nes

SHORT-ANSWER QUESTIONS

1 Identify the key elements of a negligence action for a sporting injury.

2 Outline how restraint of trade can operate in relation to sporting contracts.

3 Describe how the voluntary assumption of risk can reduce the liability of sports organisers.

4 Explain the key differences between amateur and professional sports.

5 Explain why a restraint of trade clause in a contract may be overruled in the courts.

6 Critically analyse the importance of foreseeability of harm in relation to the organisation of sport.

7 Justify actions by clubs to control the behaviour of their players on and off the playing fi eld.

8 Compare the rights of sportsmen and women to those of society at large in relation to random drug testing at any time of the day and throughout the year.