Is sport in the 'public interest'? Towards a legal and ethical framework for justifying sport-related harm

Brown held that consent is no defence to the infliction of serious bodily harm, yet it recognised an exception for properly conducted sport, noting that criminalising sport-related harm would not be 'in the public interest'. The justification for this public interest exception for sport, however, has received limited ethical scrutiny. Medical evidence increasingly links sport-induced repetitive head injuries with long-term neurological disorders. The past decade has seen a rise in concussion-related litigation, increased concern over player safety in contact sports and growing efforts to manage and regulate sports to protect athletes from foreseeable harms. Given the shifting medical and regulatory landscape, this article argues that sport's legal and ethical justification for tolerating foreseeable bodily harm requires renewed consideration. Drawing from human rights jurisprudence, I develop a proportionality assessment, used here as an ethical framework, to examine whether sport-related harm can be justified. This framework requires that the legitimate aims invoked to justify sport as being consistent with the public interest are specified, that the practices and risks tolerated within sport be genuinely connected to achieving those aims, that less harmful alternatives be considered, and that the decision not to prohibit sport-related harm be proportionate to the benefits pursued and burdens imposed on participants. I argue that until this justificatory work is undertaken, sport's exceptional status rests on an unexamined presumption and thus may not be ethically defensible.