AUSTRALIA Trends and Developments Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
• optimising performance during games. As for tennis, some WHOOP devices are listed as an approved device by the International Tennis Federa - tion. Despite this, grand slams seem to be playing by their own rules: Tennis Australia and the All Eng - land Tennis Club (host of Wimbledon) both noted that wearables are not permitted, yet also announced that the position may change and discussions to this effect are ongoing. This governance conflict raises concerns about regulatory appeals and whether players or companies should seek clarity or alignment. Until the grand slams clarify their position on the devices, this inconsistency will continue to elicit backlash, label - ling the prohibition as an arbitrary restraint on players’ ability to track health and recovery. As to why the devices are problematic, they appear to raise concerns due to their capacity to transmit data in real time, which may constitute a violation of coaching rules. This is evident in the International Tennis Fed - eration’s stipulation that devices are permitted only if certain functions are disabled during play, including the strain target and strength trainer functions, due to the risk of haptic feedback being instantly received by the player or their team in violation of coaching rules. It is also speculated that the use of WHOOP devices may give elite players a competitive advan - tage in terms of financial strength. Aryna Sabalenka, for instance, has partnered with WHOOP. It follows that situations such as forcing the removal of a spon - sored device could entail loss of exposure value, which in turn may trigger commercial disputes regard - ing brand exposure guarantees. An additional concern arises regarding privacy laws, namely, potential issues related to data ownership and its commercialisation. For example, legal ramifications may arise if a tour - nament mandates that biometric data be shared with organisers or other third parties. What’s in a Name: Navigating Brand Image in Australia Brand protection has long been a central concern in the protection of athletes, sponsors and sporting organisations. For athletes in particular, the conversa - tion regarding the commerciality of their image, name and likeness continued in 2025. Accelerating these conversations was the development of Artificial Intel -
ligence (“AI”), which enables a person to be easily impersonated, making their reputation and goodwill more easily exploited or damaged. In Australia, the absence of true proprietary image rights requires athletes to resort to alternative meas - ures for protection, including trade mark law, copyright law, the tort of passing off (specifically with respect to an affiliation or endorsement) and the Australian Con - sumer Law to the extent of any use of an image that may constitute a misleading or deceptive representa - tion. Although an athlete may rely on these protec - tions reactively, certain common law measures can be difficult to establish and are typically fact-sensitive. In practice, it is more efficient to adopt a proactive approach, with athletes typically entering into agree - ments that grant a non-exclusive licence to use and exploit their image. However, these arrangements can be complex, as all relevant agreements must be prop - erly established, including addressing issues such as exclusivity, taxation and applicable salary cap restric - tions. Athletes should therefore remain prudent when selecting commercial partners, seeking alignment with their values and image, while avoiding over-commer - cialisation that may dilute their market value. An extension of this issue, as it relates to sporting organisations and broadcasters, is that sponsorship arrangements must remain consistent with existing Australian restrictions on marketing in professional sports. These are typically imposed by the Australian Communications and Media Authority (“ACMA”) and other industry-specific advertising codes, including the Alcoholic Beverages Advertising Code (“ABAC”). For example, gambling and alcohol advertisements may only be broadcast at certain times of day. Alter - natively, the advertising of certain industries (such as tobacco) is completely prohibited in Australia due to various ethical and public health considerations. Consequently, the Australian sports world contin - ues to navigate an intricate framework of rules and codes with respect to advertising to ensure that sports broadcasts uphold ethical standards and maintain integrity.
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