Over the past week we have seen blood, sweat and tears as the Olympics fires up. Our athletes are now putting years of sacrifice and training on the line as they strive for excellence in their sport. But for many the journey to the Olympics has been a struggle, not just physically and psychologically, but also financially.
The existing funding model which is managed by Sport NZ is based on a targeted investment approach and favours sports with a track record of success and a pipeline of talent. Failure to maintain these standards results in funding being cut or withdrawn.
This means that some athletes receive significant training grants and others do not. The average amount paid to elite athletes is around $25 000 per year, which is less than the living wage. There have also been concerns expressed that the model prioritises medals over athlete wellbeing and is unpredictable and punitive.
This was the background to case taken to the Employment Relations Authority by a group of 60 or so Sport NZ funded cyclists and rowers, spear headed by the new Mayor of Tauranga, Mahe Drysdale.
The case related to whether Sport NZ was required to enter into bargaining for a collective employment agreement with the athletes. The complication was that the athletes were not employees and nor did they have a direct relationship with Sport NZ. Most were engaged as independent contractors by their respective National Sporting Organisations (NSOs), which in turn are funded by Sport NZ.
Sport NZ defended the claim arguing that it had no intention of entering into an employment relationship with the athletes and that an employment relationship is the “gateway” to employment entitlements and a pre-condition to collective bargaining.
The authority did not accept this, finding earlier this year that a collective agreement could be negotiated in advance of employment relationships being formed, although it could only be ratified and come into force once there were two or more employees who would be covered by it.
This decision is important because it requires the parties to now engage in good faith bargaining. If a collective agreement is settled this will significantly increase the pressure on Sport NZ and the NSOs to recognise professional athletes as employees. Alternatively, the athletes could go back to the authority to claim that they are to all extents and purposes, in an employee – employer relationship.
Over the past few years, the authority and court have taken a more expansive view of what constitutes an employment relationship. Groups including Gloriavale community members, uber drivers, and real estate agents have all successfully argued that they are in reality, employees.
The tests applied in these cases include assessing the level of control exerted over the individual by the principal, and what freedom they have to effectively run their own “business”. If this is applied to professional athletes, it may not be difficult to conclude that they have very little ability to make their own arrangements and are subject to the rules and whims of their sporting body.
By way of example, our Olympic athletes were required to sign up to a 23-page Olympic Games Athlete Agreement as a pre-condition to selection. This is effectively a Code of Conduct setting out performance and behavioural standards, which include “keeping yourself in the best possible condition (physically and mentally)” and abiding by all reasonable directions of the Chef de Mission or other appointee.
The agreement also provides for the ability of the Olympic Committee to terminate the relationship, including where the athlete is “suffering from any physical or psychological injury, illness, condition or significant loss of performance”.
Whilst the agreement expressly says that the athletes are not employees, this is not determinative of the nature of the relationship if the authority or court consider otherwise.
There is a reasonably compelling case for athletes, whose full-time job is to train and compete, to be treated as employees. If we want our elite athletes to have the best chance of success, we need to support them financially, physically and psychologically. The security of an employment relationship may be the best way to ensure this.
In the meantime, our athletes have the support of all of New Zealand behind them. Leave it all out there!
This article was originally published in The Post
