Sport insights - March 2023

Macro image of sprinter at starting line on running track.

Access the latest legal news, information and insights impacting the sport and leisure industry.

World Athletics - transgender and DSD athletes

In March, World Athletics announced that male-to-female transgender athletes who have been through male puberty will be excluded from female World Rankings competition, effective from 31 March 2023. This exclusion will also apply at the Paris Olympics in 2024.

World Athletics has also adopted new regulations affecting DSD (differences of sexual development) athletes. The new regulations require DSD athletes to reduce their testosterone levels below the limit of 2.5 nmol/L for a minimum of 24 months before competing internationally in any event in the female category. Previously, this rule was limited to 'restricted' events being distances of 400m to one mile.

These developments follow similar decisions made by World Aquatics and World Rugby, reigniting the debate for sport governing bodies at all levels about the approach to transgender and DSD athletes, and in relation to inclusion and diversity in both high-performance and community-level sport.

Privacy and sporting bodies

The Attorney-General's Department recently released the Privacy Act Review Report detailing proposed changes to the Privacy Act 1988 (Cth) that, if adopted, will have significant changes for Australian sport.

The proposed changes, which would impact most Australian sporting bodies, seek to:

  • broaden the classification of information protected as personal information;
  • impose additional obligations on organisations for the handling of personal information;
  • provide a 'right to be forgotten' - which would give individuals a right to request that their personal information be removed from internet searches and erased from records;
  • give individuals more transparency and control over direct marketing, targeting and sale of their personal information;
  • strengthen the requirement on entities to keep personal information secure, and destroy or de-identify it when it is no longer needed; and
  • remove the small business exemption that currently applies to businesses with a turnover of up to $3 million, which would make sporting bodies of all sizes (including community clubs) subject to the Privacy Act.

Lander & Rogers' Sport and Leisure team continues to monitor discussions about changes to the Privacy Act and will provide more information as the situation evolves.

Extension of existing anti-siphoning list

In July 2022, the Australian Labor Party outlined possible changes to Australia's anti-siphoning laws as part of its 2022 election commitment.

While changes to the existing regime were expected to be announced before 1 April 2023, the Albanese Government has instead extended the existing list for a further three years, with further consultation to take place.

The extension means, for the time being, streaming services such as Netflix and Amazon Prime are not regulated by the scheme, which provides free-to-air broadcasters with an initial opportunity to purchase television rights for listed events before pay TV providers such as Foxtel may purchase the rights.

Further consultation is expected to occur later in 2023, with the Minister for Communications advising that "review of the anti-siphoning scheme is a priority for the Government in 2023 and is being progressed as part of a broader package of reforms to support a strong and vibrant media sector". The extended anti-siphoning list is available in the Broadcasting Services (Events) Notices 2023.

Future fan token regulation

Fan tokens are a type of cryptocurrency that gives the holder exclusive rights, offers and activities, such as voting in club decisions, special ticket access, exclusive player 'meet and greets', access to private events and other activities. The UK Treasury has published a consultation paper covering the UK Government's commitment to introducing a new regulatory regime for crypto assets, including fan tokens. The proposal includes extending the UK's financial services legislation to apply to crypto assets, which would significantly increase the regulatory burden. The UK Government's approach is likely to be closely watched by the Australian Treasury, which recently closed submissions on its token mapping exercise, as part of the Australian Government's deliberations as to future crypto asset regulation.

Importantly for sports, in late 2022 the UK Treasury Committee debated 'fan tokens' and recognised the asset class should fall within the definition of crypto asset, noting fan tokens may operate as a gateway for teenagers and those new to cryptocurrency and assets. As a result, under the UK definition, fan tokens will almost certainly be deemed a crypto asset in the future.

The legislative change in the UK, combined with fan tokens being more commonly recognised as a discrete crypto asset class, increases the likelihood that fan tokens will be subject to future Australian regulation of crypto assets.

For more information or enquiries about changes impacting the sport and leisure industry contact Lander & Rogers' Sport & Leisure team.

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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Matt Milenkovic

Matt Milenkovic