Paid for performance
A collective of athletes from two of New Zealand’s most successful Olympic sports has launched a landmark employment case against High Performance Sport NZ. Dana Johannsen explains the implications for the way elite sport in this country is run.
It is a political battle that has been brewing for years. A group of high-profile athletes from two of the country’s biggest Olympic sports is taking legal action as they believe that contracted athletes are effectively employees of High Performance Sport NZ.
This is a dispute with its origins in 2018. That was the year of New Zealand sport’s great reckoning. Over the course of 2018 a series of high-profile athlete welfare scandals emerged in cycling, hockey, women’s football and triathlon, forcing a string of reviews into these troubled environments.
With each report, a clear theme emerged: the power imbalance between national sporting organisations (NSOs) and the athletes vying to ‘‘earn the fern’’ directly diminished athlete welfare.
Around the same time as the individual programmes were coming under the microscope, sports lawyer Stephen Cottrell’s review of elite athlete rights and welfare laid bare the systemwide issues. The 120-page report detailed clear evidence of problems emerging in elite sport in New Zealand because of a ‘‘lack of genuine focus on athlete rights and welfare’’.
As Cottrell concluded in his report, ‘‘the key ongoing issue to address . . . is the inequality of bargaining power between NSOs on the one hand and elite athletes on the other’’.
In the wake of the damning reviews, High Performance Sport NZ moved quickly to act on the findings. There were further system-wide examinations, working groups established, new complaints
processes put in place, the development of new system-wide strategy, and the implementation of a funding model designed to ‘‘place a far greater focus on investing in environments that optimise potential and which empower individuals to speak up and for the athlete’s voice to be heard’’.
But over the years, hopes that these measures would lead to transformative change have faded, with evidence the same athlete wellbeing issues were continuing to arise in highperformance environments.
And then . . .
Last year came the tragic event athlete advocates had long feared. Olivia Podmore, a top sprint cyclist, died in a suspected suicide. She was just 24.
For the second time in three years, an independent inquiry into Cycling NZ and its government partners was held. Once again, a key theme to emerge was the ‘‘chilling’’ power imbalance between athletes and the sporting bodies they represent, which sat at the heart of many of the issues.
These findings reinforced the long-held view among athlete advocates that the only way to create meaningful cultural change was for the athletes to have independent representation by a body empowered to exert real power.
In August
2021, Rob
Nichol of the
Athletes’
Federation told Stuff:
‘‘We think a core pillar of it, and what
we’ve been talking to the Government and Sport NZ about for a long time is, we think independent representation for the athletes is really important, and meaningful dialogue and engagement with the coaches and athletes and the people that make up these environments on a consistent basis like a genuine employment environment is absolutely crucial.
‘‘It hasn’t been allowed to happen in too many of these environments.’’
The Cycling NZ inquiry panel, headed by Mike Heron, KC, and senior academic Sarah Leberman, reached a similar conclusion. In its final report in May this year, the panel strongly emphasised the need for a truly independent athlete voice mechanism.
The panel also recommended that Cycling NZ consider making its high-performance athletes employees rather than contractors ‘‘in recognition of the fact that they are under CNZ’s effective control and train/compete at CNZ’s direction’’.
‘‘An employment model is not impossible,’’ the report said. ‘‘HPSNZ and CNZ each employ a significant number of people. Athletes are their raison d’eˆtre or reason for being; without them the [high-performance programme] would not exist – they deserve the same protection.’’
Despite the findings, there appears a reluctance by sport bosses to consider moving to an employee model. Privately, within the glass-walled offices of HPSNZ, the option has been dismissed as too expensive and unworkable. Officials also reason the additional financial burden of making athletes employees would restrict the number of athletes they can support, thereby further impacting athlete welfare.
Frustrated with the endless spin cycle of reviews, The Athletes Federation – New Zealand’s largest, and most wellfunded, athlete advocacy group – has decided to force the issue itself.
The federation, headed by Roger Mortimer, is behind the move by a group of elite cyclists and rowers to unionise themselves. It is also understood to be helping to bankroll the employment case, which has the potential to set a precedent that would lead to a fundamental shift in the legal rights of all contracted athletes.
The new group, known as The Athletes’ Co-operative, is cochaired by rowing legend Mahe Drysdale and Tokyo Olympian Kirstie Klingenberg, and is said to represent a group of about 60 elite rowers and cyclists.
The co-operative’s inaugural board features a high-profile roster of athletes including Olympic gold medallist rowers Emma Twigg and Tom Mackintosh, alongside cycling stars Sam Dakin and Sam Bewley.
But its existence, until now, has largely been kept under wraps as the group worked behind the scenes to set up the landmark legal challenge against HPSNZ.
The dispute wound up with the Employment Relations Authority after failed attempts by the co-operative to enter in collective bargaining with the government sport agency.
Stuff understands HPSNZ’s position is that the athletes are not its employees, and therefore it cannot enter into negotiations with the co-operative. It says athletes receive a grant, as opposed to wages, and making them employees would interfere with the sovereign rights of the actual sporting bodies the athletes represent.
According to Cottrell, who examined the contractor/ employee debate in his 2018 review, when determining whether a person is a contractor or employee, the court will look at the true nature of the relationship between the parties and all relevant factors.
The case for the athlete group, which is represented by prominent employment lawyer Andrew Scott-Howman, may be compelling.
Earlier this year, Equal Employment Opportunities Commissioner Saunoamaali’i Karanina Sumeo criticised the ‘‘exploitative conditions’’ of the country’s high-performance system, describing the financial support being received by athletes as ‘‘slave-labour type salaries’’.
Currently, HPSNZ invests $11.82 million a year in targeted athlete funding, with base training grants starting at $25,000, while Olympic and Paralympic medallists can receive up to an additional $40,000 a year. The current minimum wage is approximately $44,000 a year.
‘‘It’s called financial exploitation,’’ Sumeo said. ‘‘We’re expecting these people to be . . . ambassadors for sport, for our country, and that is how much they are worth?’’
But the more difficult hurdle to clear for the cooperative may be the argument that athletes are effectively employees of HPSNZ, rather than their respective sporting bodies.
The decision to take the case against the government agency was clearly a strategic one, setting up a fascinating test case that will likely be closely watched not only by other athlete representative groups in New Zealand, but overseas too.
The issue of whether elite athletes can be considered employees has been tested before in overseas courts, with a global trend to athletes turning to employment bodies in an effort to assert their legal rights.
In 2019 British cyclist Jessica Varnish lodged a claim through the UK’s employment tribunal that she should be considered an employee of British Cycling and UK Sport, and therefore should be subject to certain protections under the law – including sick pay, a pension and the right to sue for unfair dismissal.
If Varnish, a former world silver medallist, had been deemed an employee, it would have allowed her to pursue a claim against both British Cycling and UK Sport for unfair dismissal and sex discrimination. However, Varnish’s case failed on appeal.