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No vax means no match? The prickly debate of vaccinations in sport following the Djokovic debacle

Posted: 11/01/2022


Many great sporting battles are characterised by a bit of needle. However, we are now seeing some heavyweight clashes globally due to the distinct lack of one. The recent bout between world number one ranked tennis star, Novak Djokovic, and the Australian government ahead of the Australian Open has caused a real reaction worldwide. While everyone is entitled to their own view, only some reasons for refusing the coronavirus vaccine are protected by law.

What is the law on vaccinations?

Each country has different rules on vaccinations. In the UK, currently only those working in Care Quality Commission (CQC) registered care homes, and soon those working in the wider health and social care sector, such as NHS workers, will be required to be vaccinated to undertake their role. Effective ‘vaccine passports’ have been in place for some venues for sporting matches or large gatherings in the UK but, in other countries, the rules are stricter and have, at times, involved unvaccinated people being refused entry to restaurants, bars, leisure facilities and some shops (Germany), or even put under lockdown altogether (Austria). Australia and New Zealand have seen very low numbers of cases and deaths compared to other parts of the world, which many argue is largely due to their very strict restrictions.

However, sport, like much of our normal lives, has been severely disrupted over the past two years due to the pandemic, and so certain exceptions have been made to enable elite athletes to travel despite various travel bans or a lack of vaccination, for the purpose of competing in international tournaments.

What happened with Novak Djokovic’s attempts to play in the Australian Open?

Politics clashed with sport recently when Novak Djokovic attempted to enter Australia for the Grand Slam Open tournament but was refused entry to the country. The Australian Open requires all participants to be double vaccinated, but does allow exemptions on medical grounds.

Djokovic was one of almost 30 players to have been granted the exemption to play. However, due to an error when completing his documentation, he was allegedly attempting to enter Australia with a visa that would not allow for medical exemptions. In absence of a valid visa, Djokovic needed to be sponsored by the government of Victoria in order to be allowed entry. The government refused to do this, citing that he should not get special treatment.

As part of a legal challenge to the decision to refuse his entry, Djokovic confirmed for the first time publicly that he is not vaccinated, and that his medical exemption was on the basis that he tested positive for Covid-19 in December 2021. In the past, he has spoken out against the requirement to be double vaccinated, and was heavily criticised for hosting a tennis tournament in Belgrade in 2020, despite other major tournaments being cancelled due to the pandemic.

On 10 January 2022, Djokovic’s appeal resulted in an agreement between the government and Djokovic, whereby the decision to refuse his visa would be cancelled, and the government would pay Djokovic’s legal costs on the basis that it did not give him sufficient time to present his case to the authorities.

However, as we’re told when learning a sport: play to the final whistle (although perhaps the less said about the recent Tunisia v Mali Africa Cup of Nations match the better). Consequently, it was premature for Djokovic and his fans to think that the appeal would be the last we hear on the matter. Australia’s immigration minister, Alex Hawke, on 14 January 2022 took the astonishing decision to cancel Djokovic’s visa under an executive order, which Djokovic's legal team were unable to overturn, and, consequently, he was deported on 16 January 2022. This decision could mean that he would be banned from Australia for three years. Given that he is currently 34, a three year ban could mean game, set and match on Djokovic’s Australian Open career.

Other live examples of unvaccinated athletes

There have been a number of other high-profile examples of athletes impacted by their decision not to be vaccinated:

  • Basketball star, Kyrie Irving, was originally refused the right to play for the first two months of the NBA season because he refused to be vaccinated. While he is now able to play, he is still not able to play any home matches for his team, the Brooklyn Nets, because of New York’s rules on vaccination requirements.
  • German international footballer, Joshua Kimmich, refused the vaccination and suffered lung damage, which meant that he was unable to play between November 2021 and January 2022. After this incident, he did get vaccinated, later admitting that “it would have been better to do it earlier.”
  • American footballer, Aaron Rodgers of the Green Bay Packers, has refused the vaccination, claiming to be allergic to some of the ingredients in the vaccine itself, without specifying which ingredients were the problem. Rodgers lost sponsorship from an American health care company for his refusal.
  • In golf, 2020 US Open champion, Bryson DeChambeau, refused the vaccination, declaring that he was young enough not to need it. He contracted Covid-19 and admitted that he lost 4.5kg in weight, but this still did not incentivise him to get the vaccination.

What can employers do if their athletes are unable to play due to being unvaccinated?

The difficulty with these high-profile refusals is that the government of the particular country can amend and revoke the rules on exemptions as they deem necessary. While the employer could, as Djokovic’s team have done, seek costs against the relevant government if the decision was overturned, health and safety in the face of a global pandemic may be given greater weight than in other cases, in order to stop the spread of the virus.

France has announced that all athletes will need to be double jabbed to enter the country, which could restrict England’s ability to call on players who have refused the vaccination for the upcoming Six Nations, such as Henry Slade. Slade previously explained that he had suffered bad reactions from vaccinations in the past given that he is a Type 1 diabetic.

This ban could also impact Chelsea Football Club’s upcoming Champions League match against Lille. These clubs could seek a postponement of the matches but, often, team sports will have strict rules setting out that a postponement for Covid-19 will only be allowed where the team cannot field at least a minimum number of players. Excluding the unvaccinated players would, therefore, only be relevant if many others were also absent through injury or testing positive for Covid-19.

Nadine Dorries, Secretary of State of Digital, Cultural, Media and Sport, has suggested that the UK may also remove the sporting exemption against quarantining when entering the UK if the athlete has not received two doses of a coronavirus vaccine. Many matches have already been postponed in the UK and abroad, and the Welsh rugby union team is considering hosting their ‘home’ matches in England for the Six Nations this year, given the restrictions in force in Wales regarding crowds in stadiums. The spread of the Omicron variant has caused, and continues to cause, serious disruption to sport, so it is clear to see why authorities have taken a tough stance on decisions such as the refusal of a vaccination.

What can employers do with unvaccinated athletes in the UK?

Employers cannot force their staff to take a vaccination against their will, and only specific industries in the UK, mainly in the care sector, can adopt a ‘no jab, no job’ policy. However, employers must provide a safe working environment, and employees are afforded protection from detriment or dismissal under UK law if they remove themselves from an unsafe working environment because they perceive a serious and imminent threat to their health and safety, or that of others.

Case law in this area relating to Covid-19 is relatively new but is starting to show a pattern that the more the employer does to understand and address the employee’s concerns, the less likely it is that they will lose the case. However, it is often difficult to manage the concerns of staff who are worried that their colleagues are unvaccinated against the concerns of staff who refuse the vaccination for justifiable reasons. Careful risk assessments are vital, or employers risk claims for automatically unfair dismissal, constructive unfair dismissal, and whistleblowing, as well as potential discrimination claims.

In sports, the rules of the game’s governing body or the government itself is likely to overrule any obligations on who to select. Therefore, if the government or governing body prevent an athlete from playing, then clubs cannot overrule this decision without legal challenge.

Additionally, employers have to be very careful not to disclose special category sensitive personal data, including someone’s personal decision whether or not to be vaccinated, or they could face a claim for a breach of data protection legislation.

Are there legitimate reasons that an athlete can present for being unvaccinated?

Depending on the sport, if refusing the vaccination on medical grounds (for example if, as Aaron Rodgers alleged, the athlete is allergic to an ingredient), or from previous adverse effects of the vaccination based on a condition such as Type 1 diabetes (as for Henry Slade), then the athlete would need to show that their condition amounted to a disability to get protection under UK disability discrimination law.

This would require them to demonstrate that their condition has had a long term substantial adverse effect on their ability to perform day to day activities. Consequently, the decision to ban them would be considered discriminatory, most likely through indirect disability discrimination, discrimination arising from disability, or a failure to make reasonable adjustments.

Unfortunately for the athlete, indirect disability discrimination or discrimination arising from disability can be objectively justified, if the measure is deemed a proportionate means of achieving a legitimate aim. In this case, if the risk to health of others was deemed too great, then such a ban on the unvaccinated may be allowed.

Another protected characteristic that an athlete might rely on is ‘religion or belief’, both of which are protected from discrimination under the Equality Act 2010. Religion, in this context, is interpreted relatively narrowly to include only recognised religions that have a clear structure and belief system. For philosophical beliefs to be protected, they must be genuinely held and not simply someone’s opinion. The belief must concern a ‘weighty and substantial aspect of human life and behaviour’ and must be sufficiently cogent, serious, and important to warrant protection in a democratic society, without being incompatible with human dignity or conflicting with the fundamental rights of others.

It is currently not clear where a strong belief against vaccinations would fall. Case law has found that some beliefs based on absurdity such as terrorist attacks, for example 9/11, being authorised by the UK or US governments for their own end, are not capable of protection given that they lack sufficient evidence. Therefore, refusing to take a vaccination based on a conspiracy theory is less likely to be protected, whereas a refusal based on medical or scientific evidence may have more chance of being accepted. However, the tribunal would need to be mindful of the potential for this to harm the fundamental rights of others.

Although, combining the medical and philosophical belief angles could take this further. For example, if a female athlete was concerned about the risks of being vaccinated while pregnant, or was hoping to fall pregnant, and her concerns were based on a strong body of medical evidence and perhaps a family history of blood clots or adverse reactions to vaccinations, then she would have a stronger case for a medical exemption.

While employers need to be careful when implementing policies, it is worth remembering that discrimination claims can also be raised against associations such as the Football Association (FA) for their rules on vaccinations.

Conclusion

Whatever the reason for refusing to be vaccinated during the global coronavirus pandemic, sporting stars are not immune from criticism. Due to the audience that the world’s greatest sports stars can attract, often their comments can be as infectious as their personalities. Care is needed when commenting on these issues otherwise sponsors, like the American health company that ended their sponsorship of Aaron Rodgers following his comments on the vaccination, may leave the athlete.

Many athletes have spoken out in favour of the vaccination, including last year’s ‘Kicking Covid into touch’ campaign from rugby union players to get young people to take their vaccination, or Rafael Nadal’s recent comments when interviewed about Djokovic’s stance on vaccinations. But the more that sports stars publicise their views, whether based on scientific evidence or conspiracy theories, the more doubt is cast on the true position. As role models to millions, the words of athletes will often spread across their social media channels almost as quickly as Covid-19 itself, and, therefore, any useful information available to the public can get diluted.

As such, it is vital that athletes carefully consider any message they convey to their fans. Taking a stance against vaccinations is likely to result in similar decisions from sporting or governmental authorities in future, which could keep athletes like Djokovic on the side lines, rather than on the court where they belong.

This article was amended on Monday 17 January, to reflect Novak Djokovic's deportation from Australia following the immigration minister's executive order. 


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