In recent years, anxiety, depression and psycho-physical stress in general have made their way into the world of professional sport.
The pressure and fierce competition that have always dominated high-level sport has been accompanied by the explosion of social media and daily global exposure, with its load of expectations and comments. Suffice to mention that in the past high-level sport – fan interaction was not direct. With the advent of social media, any barriers (even protective ones) have collapsed. Burnout in sport is today a reality.
On top, we can obviously add the trauma of the COVID-19 pandemic, which has reduced social interactions and increased stress and the feeling of uncertainty about the future.
The image of the athlete is often associated with the idea of strength, tenacity and endurance. Athletes fight, they do not give up, they train hard and put everything they have into excelling.
However, we are still talking about human beings, with their burden of fragility and insecurities.
That is why the pressure can be unbearable, even for those who make sport their job.
If we add to this whole scenario a personal predisposition, or a complicated past, the mixture can become explosive.
In such regard, although with different causes, there have been many recent cases of athletes being forced to stop, often at top moments in their careers, as they were close to a point of no return.
The Simone Biles’ “twisties”
One of the stories that has made the most headlines on the burnout in sport topic is that of US gymnast Simone Biles who, at the Tokyo Olympics, named the demons that hindered her performance: “twisties”. It is a temporary loss of control over one’s body, which can affect an athlete during a major competition. Those who have suffered from describe it as a dissolution of the sense of space, a real loss of awareness of one’s own presence. Biles found herself unable to cope with the exercises she had trained for all her life. The pressure of winning, especially on a global stage such as the Olympics, short-circuited her to withdraw from major competitions.
Naomi Osaka’s tears and Ash Barty’s retirement
Excessive pressure has also hit the tennis sector, as mentioned by Naomi Osaka, who refused to undergo the press conference ritual at Roland Garros 2021 and then withdrew from the competition altogether. A few days ago, the Japanese player also had a crying fit in the second round of the WTA 1000 in Indian Wells due to insults from the stands. This shows how stress often comes not only from high expectations, but also from the external environment, opposing fans or “haters” who contribute to multiplying weaknesses.
Staying with tennis, 2022 began with the shock announcement of the retirement of the current number 1 in the WTA rankings, 25-year-old Australian Ashleigh Barty. In the video announcing her retirement, she talks about feeling exhausted. She feels she has lost the physical drive, the desire, what we might call the sacred fire of competitiveness, and that is why she has decided to stop. A decision that has taken the whole tennis world by surprise. Professionals – and their sponsors – had predicted a long and successful career for her, given her young age. Instead, she chose to focus on her future and her personal life, putting everything else aside.
The depression of Josip Iličić
A case of alleged depression (never confirmed by the person concerned), which broke out at the beginning of the Covid-19 epidemic, affected Atalanta’s Slovenian footballer Josip Iličić. Despite playing for a team that is now firmly in the top tier, both in Italy and in Europe, the striker disappeared from the pitch for four months for no apparent reason. After a first attempt at a comeback at the end of last year, Ilicic was again out of the spotlight without explanation. What we do know about him comes from the voices of his coach and teammates, who paint the profile of a person struggling with a very complicated psychological recovery.
Luke O’Nien’s injury
Staying in the world of football, an even different case was that of Sunderland’s English footballer Luke O’Nien, who also appeared in acclaimed Netflix series Sunderland ‘Til I Die. A serious injury put him out of action for several months, during which the routine of his life, consisting of training and matches, was disrupted. In recent weeks, he decided to publish a long post on social media explaining what he was going through, partly with the idea of comforting colleagues in the same situation. In addition to the injury itself, the youngster tells of how the months away from the pitch brought out a deep sense of uncertainty about his future. The fear of not making a permanent recovery, of not returning to his old self, grew more and more. Not to mention the lack of contact with his teammates and the isolation that led him to ask himself deep questions about his identity:
“I’m a footballer.
Who am I if I can’t play football?”
In his case, the recovery has been through a new routine, the identification of daily goals, a more intimate reflection on his identity beyond football, also thanks to the comparison with players who, like him, have been in the box for long periods.
The return of Dumoulin
Fortunately, there are not only cases of athletes leaving competitions at the peak of their careers due to serious forms of burnout in sport. There are also some great comebacks, after periods of difficulty. Such is the case in cyclism of Tom Dumoulin, rider who won the Giro d’Italia and the World Time Trial in 2017 (and was capable of two second places, also at the Giro and the Tour, in 2018). In early 2020, the Dutch cyclist announced an indefinite stop. Again, the withdrawal was the consequence of too much pressure, so much so that he took a leave of absence from his team, Jumbo-Visma. This time, the desire to return to racing overcame the crisis: “I got the fire back in me,” he said after five months’ break. The results were there, with silver in the time trial at the 2020 Tokyo Olympics, behind Primož Roglič.
The choice of the Los Angeles Dodgers
Finally, an unusual case. Alvin Andrew Toles was a young baseball talent, an outfielder destined for a successful Major League career. However, after his excellent 2016 debut with the Los Angeles Dodgers, he stepped away from the sport played due to serious psychological issues. Placed on the team’s restricted list, he had his contract and salary suspended. The anxiety and sleep disorders that plagued him from a very young age worsened over time, leading to a series of admissions to psychiatric facilities and a diagnosis that was difficult to deal with: bipolar disorder and schizophrenia. The lowest point: stopped by the police while sleeping behind the Key West airport, he was arrested (and later released) on charges of trespassing.
After some difficult years, a decision has recently arrived that does credit to the Los Angeles team: Toles has had his contract renewed. Although it will be difficult to see him on the court, with this renewal the player will have access to the health insurance and mental health services he needs to continue fighting his demons.
Burnout in sport: a difficult exit from the pitch
Whether it is a bad injury, illness, excessive pressure, stress resulting from sudden lockdowns, aggression from the press or insults from opposing fans, the result is always the same: the abandonment (partial or total) of competitions.
Withdrawal, not being called up for an important competition, self-exclusion from a world competition – these are all situations that have consequences, and not only on a strictly personal level.
Our work as sports lawyers requires us to study the legal effects of burnout in sport.
These are many, because a professional sportsperson is usually party to very detailed contracts for his activities but also sponsorship and endorsement agreements.
From a strictly legal point of view, the first effect of such situations will be the impossibility (total or partial) for the athlete to perform his or her work (for employed athletes) or services (for self-employed athletes). The consequences of this impossibility will differ depending on the status of the athlete concerned.
If the athlete is an employee, he or she should benefit from the protection offered by the labour legislation of the country where he or she is established.
For instance, under Swiss law, this impossibility of performance could result in the application of Article 324a of the Swiss Code of Obligations (“SCO”), which provides for an obligation to maintain salary when an employee is prevented from working by personal circumstances for which he is not at fault, such as illness, accident. The amount and duration of such obligation to maintain the employee’s remuneration will vary according to the employee’s seniority, the existence of a daily allowance insurance policy taken out by the employer or by specific clauses provided by the employment contract or by a collective agreement.
It should be recalled that prior to such a situation, it is the employer’s responsibility under Article 328 of the SCO to protect and respect the personality of the worker in the employment relationship by showing due regard for his or her health and ensuring that morality is maintained. This legal provision could justify the implementation by the employer of psychological follow-up measures, for example, for its salaried sportsmen and women who have expressed the need for them.
The question is therefore whether depression, if arose, could be recognised as an illness within the meaning of the above text. The answer is positive if we refer to Article 3 of the Federal Act on the General Part of Social Insurance Law, which states that
“any impairment of physical, mental or psychological health which is not due to an accident and which requires medical examination or treatment or causes incapacity for work is deemed to be an illness“.
Article 6 of the Act further specifies what is meant by incapacity:
“any total or partial loss of the insured person’s ability to perform the work in his or her profession or field of activity that can reasonably be expected of him or her, if this loss is the result of an impairment of his or her physical, mental or psychological health”.
In this respect, Swiss jurisprudence has already accepted that depression, stress or burnout can be considered as an impediment to work (TF 4C.346/2004). It is up to the athlete to prove this by means of a medical certificate, the employer or the insurance company always having the option of carrying out a medical control.
In addition to this salary maintenance, the athlete could also benefit from temporary protection against the termination of his employment contract in accordance with Article 336c of the SCO.
As to non-salaried sportsmen and women (namely self-employed, or service providers), they are not in the same position and will not benefit from the protective measures provided for by labour law.
In most cases, they earn their income from participation in competitions or from sponsorship contracts. Therefore, in case they are not able to compete, they de facto lose part of their remuneration. In addition, a prolonged depression or burnout could also lead to a reduction in remuneration from sponsorship or endorsement contracts or even to their outright termination. Indeed, many agreements provide for the retirement and/or the non-participation in matches for a certain period of time, whatever the cause, as grounds for termination.
Under these conditions, we can only advise these sportsmen and women, but also employed sportsmen and women who have also concluded sponsorship agreements, to take out insurance covering loss of earnings in the event of temporary cessation of their activity for any reason whatsoever, and also to pay particular attention when negotiating their contracts with equipment suppliers or sponsors in order to anticipate this type of situation.
Our law firm Elite Law, which specialises in sports law and sports employment law, has a long track record of handling this type of situation.
Thanks to the work of our international team, we are able to offer comprehensive assistance not only to athletes, but also to agents and team-employers. Our support is aimed at the parties involved and is designed to handle these problematic cases in the best possible way from a legal point of view.
