Dear Mr McLachlan

1. Happy anniversary. It is four years to the day since the AFL acquired support from the Gillard government, ASADA and the Essendon board to hold individuals (which was code for James Hird) responsible for Essendon players taking banned substances. The fact that the first witness wasn’t interviewed until four days later and the fact that there was no evidence of wrong-doing was of no interest to the AFL. It was only the optics that counted and the AFL needed a face.
   
   
2. Sadly, comments by you to Mark Robinson that appeared in today’s paper indicate that you still haven’t a conscience and that you still lack testicular fortitude.
   
   
3. You are delusional if you don’t think the AFL’s chicanery didn’t contribute to James Hird’s mental breakdown and his suicide attempt. James certainly believes that you were more responsible for his condition than anyone.
   
   
4. James and I were due to speak at a function in Melbourne on 1 December 2016, but after I spoke to him in early November, I realised that he was very sick.  I cancelled the function because I knew that he was on the verge of a major breakdown. I was so concerned about James’s condition that on 14 November, I asked Paul Little to reach out to James. He didn’t at that time. Six weeks later, James made a very serious suicide attempt.
   
   
5. If you genuinely feel concerned for James and want to contribute to his possible rehabilitation, you would ask for forgiveness, you would man-up and say that the AFL and Essendon board, and not James, should have been blamed for the governance failures at Essendon. And then you and Mike Fitzpatrick should resign.
   
   
6. In my view, what the AFL did, and what it continues to do, was far worse than the soccer (FIFA) officials who ripped off millions of dollars. It is inconceivable that any Australian sporting organisation in our history has ever acted more shamefully towards its members than the AFL.
   
   
7. Prior to 9 February 2013, I thought the worst act an organisation could do was to allow someone else to take the blame for their mistakes.  I was wrong. It’s obviously worse to create a false case against someone where no case existed. There is no doubt the AFL defamed James.
   
   
8. As you know, James Hird was on a different branch of the Essendon organisation structure from the football department and he had no power or right to interfere in its operations. You also knew, or should have known, that Dean Robinson and Stephen Dank didn’t report to Hird and you knew that on 2 February 2012, Paul Hamilton informed his football department staff that everything to do with the supplements programme had to come across his desk.
   
   
9. The Victorian OH&S Act indicates that about 32 people had more legal responsible than Hird to provide a safe work place – viz the players’ employers, which included nine AFL commissioners and nine Essendon board members; plus the AFL’s CEO Andrew Demetriou; yourself; Brett Clothier; Adrian Anderson; Dr Harcourt; the AFL human resource director; the AFL OH&S manager; plus Essendon’s  CEO Ian Robson; general manager football operations Paul Hamilton; Dean Robinson; the two doctors; human resource manager and the OH&S manager.

Fact: The tripartite agreement between the AFL, each club and each player means that the AFL commissioners are joint employers with each club board.

Fact: Clause 12 of the tripartite agreement the AFL commissioners had with Essendon and each player says: “The parties to this contract (AFL/Essendon/the player) shall use their best endeavours, in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this Contract.” Clause 7.3 of the AFL / Essendon / Player Contract says: “The AFL club shall provide a playing, training and working environment which is, so far as practicable, free of any risk to the health, safety and welfare of the Player. Without limitation, the AFL Club shall observe and carry out its obligations under the applicable Occupational Health and Safety Act or its equivalent.”

My Opinion: Clause 12 means the AFL had a responsibility to ensure Essendon complied with clause 7.3.

Fact: The AFL’s chief medical adviser Dr Harcourt stated during his 2013 Zurich, Switzerland, presentation at an anti-doping conference that “the AFL and ASADA got together to investigate some of the issues which were apparent … The real reason was that under individual contracts all players are contracted to the league as opposed to clubs” [my emphasis].

My Opinion: This means that the AFL has a duty of care to provide a safe work place for its employees, the Essendon players.

Fact: The key clauses of the Victorian Occupational, Health & Safety Act (2004) with respect to the AFL and Essendon are 21, 22, 23 and 35.  Both failed to fulfil their obligations and the AFL failed to ensure Essendon complied with those sections of the Act.

Fact: The AFL had a bi-lateral agreement with the Australia Sports Commission in its capacity as a national sporting organisation (NSO). The AFL’s responsibilities were set out in the Australian Sports Commission Policy Statement: NSOs Governance – Mandatory Requirements for ASC large partner NSOs. The AFL breached clause 2.3 of the Australian Sports Commission NSO Governance – mandatory requirements, which states: “An effective organisation must have a thorough system of audit and risk management, including internal and external processes. This committee must ensure there are adequate controls and systems in place to alert management and the Board to potential risks associated with the operation of the sport.”

My Opinion: The AFL made no attempt to either ascertain whether Essendon had adequate OH&S systems in place or whether it was complying with the law.

Fact: Then Chief Executive, Andrew Demetriou,was aware of Essendon’s interest in supplements in 2011, and aware that its doctor was marginalised by its sports scientists. He was quoted on 12 April 2013 saying “he had erred early last year in not acting more strongly on his fears sports scientists were overruling club doctors”. Demetriou told Mike Sheahan in his 27 September 2013 interview that:

“There are always things you think you could do better. The most recent one that comes to mind, which I have spoken about before, I wish we had been more vigilant last year when we were just starting to think, hearing things about sports science and the influence of sports’ scientists and we sought of had an inkling. I was privy to some information and (was) hearing things and certain things were happening Mike. At a couple of clubs, we were having doctors being marginalised. There were just things happening and it was part of an unhealthy and oh it was just an awkward trend which we didn’t like and I regret that we didn’t do something earlier [my emphasis].

My Opinion: This was a misleading and disgraceful admission. Misleading because “I regret we didn’t do something earlier” implies that the AFL did something to stop it. That is factually incorrect. The AFL did nothing until the Australian Crime Commission briefed him and you on 31 January 2013. Furthermore, it’s an admission that the AFL failed its governance obligations and that it didn’t fulfil its duty of care obligations to the Essendon players. Demetriou clearly acknowledged that he didn’t fulfil his responsibilities and was accepting, some say for the first time in his life, some blame for what happened at Essendon.

Fact: Demetriou admitted that he should have been “more vigilant” in 2012. He admitted to knowing “doctors at two clubs were being marginalised”. He admitted to knowing that “things were happening” and he regrets he “didn’t do something earlier”.

My Opinion: These shameful admissions are tantamount to acknowledging that the AFL was guilty of failing to fulfil its duty of care to the Essendon players.

Fact: Demetriou spoke at an integrity forum in Melbourne on 27 May 2014 and made a number of comments: “I started terming them [sports scientists] phys-edders because we saw a situation early on, even before the Essendon situation, where the demand for sport scientists and people who were coming into clubs, they were starting to have a significant influence over doctors, over club medicos, over coaches. At a couple of clubs … it was the doctor reporting into the sports scientist and that’s just unacceptable.”

My Opinion: Despite these grave developments, and Demetriou’s belief this behaviour was unacceptable, he and the AFL commissioners did nothing. Demetriou failed to fulfil his duties as a director of the AFL. He failed to fulfil his duty of care to all AFL players. This was a major governance failure by the AFL.

Fact: On the 9 April 2013, The Australian newspaper quoted Demetriou as saying: “We have already put our measures in place to enhance our policy and enhance the integrity of the [anti-doping] code with some sweeping changes.” [My emphasis]

My Opinion: ‘Sweeping changes’ implies that the procedures and policies in place in 2011 and 2012 were inadequate. Unfortunately, we shall never know whether the AFL’s procedures and policies and governance were worse than Essendon’s, because unlike Essendon, the AFL swept its review under the carpet. Demetriou has clearly implied that the AFL breached its OH&S responsibilities to the Essendon players.

Fact: You [Gillon McLachlan] in your capacity as then Deputy Chief Executive believed that the AFL could have taken action which would have prevented the whole saga. You [McLachlan] accepted some responsibility (for perhaps five minutes) on behalf of the AFL for the saga when you told SEN radio on 28 August 2013:

• “The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011”

• “The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.”

• “I don’t think that we can shirk it in every instance, I’m happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldn’t be in this situation.”

• “People need to take various forms of accountability and I’ll take that.”

Fact: On 27 August 2013, AFL chairman Mike Fitzpatrick said: “A number of fundamental principles guide our code and collectively contribute to making the AFL competition successful. Two of these principles are absolute non-negotiables:

1. The health and safety of the players, and the overall integrity of the AFL competition. These principles underpin our Rules and also our day-to-day decision-making.
   
   
2. On behalf of the AFL Commission, I want to send a clear and unequivocal message to everybody that nothing – and no-one – comes ahead of the duty of care owed to players and also the need to safeguard the fairness of our competition. The pursuit of on-field success can never be allowed to obscure a commitment to the principles of player welfare and competition integrity. The very essence of sport demands it.

Fact: During Dr Harcourt’s presentation in Switzerland, he implied that the AFL knew that there was a possible risk to the Essendon players’ health and safety:

“It was a bit disturbing to be quite honest with you and it was shocking to the extent to which experimental drugs were given to young athletes and highlighted the craziness and the madness of certain individuals who were in the support staff who really didn’t come to grips with what they were doing.

“But they involved Human Growth Hormone releasing substances, sections of HGH molecules which are which are quite available and manufactured out of China, a dementia therapy drug to improve … who knows, a number of veterinary products and unknown substances, substances like a Mexican drug for the treatment of muscular dystrophy was given to the players without knowing what it was. So it was all a little bit crazy.

“Most of this did not have the Australian regulatory approval or the therapeutic goods authority. And most of the substances where either just recently on to the WADA list or in the related substances sections of the list. So the individuals who were going about this were trying to exploit the nuances of the WADA list and probably also had some understanding that some of these substances were so new that the laboratories didn’t have the capability of dealing with them.

Coincidentally, we did have some wind of this during the course of the year, it was 2012, [my emphasis] and so we did arrange through ASADA to have a number of specimens of these players sent to the Cologne laboratory rather than the Sydney laboratory but nothing came out of it.”

My Opinion: Let’s not beat around the bush here:

1. Dr Harcourt clearly admitted that the AFL had wind of this. The AFL and ASADA had reason to believe for about 15 months that the Essendon players were being administered banned substances that could harm their health and the health of their unborn and future children. And yet, they did nothing.  I can’t accept that in the history of Australian sport any other organisation has acted as irresponsibly or ineptly or apathetically as the AFL did to the Essendon players. My understanding is motorists are required by law to stop and render assistance at an accident. But with respect to Essendon, metaphorically speaking, some officials believed the Essendon players had stepped through the railing at the Gap at Watsons Bay with a suicide vest strapped to their bodies and did nothing about it for about 15 months. I can’t think of more callous behaviour than this. At least no Essendon staff member or player ever thought the players’ health was at risk.
   
   
2. Some of Dr Harcourt’s comments were factually incorrect
   
   
3. Dr Harcourt’s clearly stated that the players were guilty. His comments influenced media coverage before their hearing and denied the players procedural fairness (natural justice).

Fact: On 16 August 2014, the Age newspaper said “Former ASADA chief executive Aurora Andruska this week broadly referred to 2011 and 2012 tests during cross examination in the Federal Court, saying while the results were inconclusive, they were enough ‘to show that we were on the right track’.” 

My Opinion: ASADA and the AFL showed no care for the players’ health. They should have gone to Essendon and audited the club and told the players to stop taking peptides.

Fact: On 24 April 2012, the AFL’s general manager – Football Operations, Adrian Anderson sent an email to every club titled ‘Leading Approach to Sports Medicine & Sports Science in AFL’.

The discussion paper that was attached to the email, identified a range of ‘issues’ and ‘possible consequences’ that had arisen under the existing medical arrangements within AFL clubs. Inter alia, it said [in] theAFLMOA survey of club doctors (14 clubs responded):

• 7/14 said non-medically qualified personnel had exerted undue influence on medical decision making on one or more occasions in the previous 12 months
• 6/14 said this had adversely affected medical decisions on one or more occasionsNon-evidence based medical practices are growing which presents potential medical and injury risk ie, IV vitamins/supplements, specialist referrals without doctor input, radiation exposure and unhygienic facilities.
• The possible consequences were potential risk to player welfare (emergency cover, mistreatment, etc; exposes club, club staff & coaches, and AFL to potential litigation; issue with MO recruitment and retention; potential MO insurance issues.

My Opinion: The results of this survey flagged potentially catastrophic problems for the AFL, the clubs and the players, yet Demetriou, you (McLachlan) Anderson and Clothier, inexplicably, failed to do anything, despite their obligation under Clause 4.6 of the AFL’s anti-doping code to report it to ASADA.

More importantly, the AFL failed to meet its duty of care obligations to every club, not just Essendon. The AFL did absolutely nothing despite Anderson saying inter alia, there was a risk of Radiation Exposure [my emphasis]; Doctors were overruled; and there were unhygienic facilities at some clubs. It is unconscionable that the AFL did nothing about this report. As the possible consequences were potentially so horrific, it is impossible to comprehend that this email would not have been tabled at the AFL commission’s next board meeting.

Fact: The AFL became aware of a potential risk to the health and safety of the Essendon players at the end of July 2011, when ASADA informed the AFL’s integrity manager, Brett Clothier, that Essendon coach James Hird had enquired about peptypes (peptides).

Clothier responded appropriately by requesting that Essendon’s general manager – football operations, Paul Hamilton, bring Hird to a meeting at AFL House on 5 August 2011.

Page 16 of ASADA’s Interim Report said: “At the conclusion of the ASADA interview, the AFL’s Manager Integrity Services ‘re-iterated’ to Hird that peptides were a serious risk to the integrity of the AFL, in the same category as steroids and HGH.’ Mr Clothier told Mr Hird that ‘peptides already appeared to be infiltrating other elite sports in Australia and that [the AFL] we could be next.’ Mr Clothier also ‘implored [Mr] Hird to report to [the AFL] if he came across any information relating to peptides.” At this meeting, Clothier failed his duty of care to the Essendon players by not telling Hamilton that all peptides were banned. Hamilton was not only head of the football department but he was responsible for the supplement program.

My Opinion: In warning Hird about the risk of peptides, Clothier obviously believed there was a risk that Essendon may use peptides. Consequently, there was a possible risk to the health and safety of the Essendon players.

Fact: Clothier also told Hird “the [AFL] could be next”.

My Opinion: Given how dangerous to the health and safety peptides were, Clothier should have audited every club and issued a warning to each. He failed to do so.

Clothier had a legal responsibility to visit Essendon and perform the following tasks:

• Inform the players that all peptides were banned

• Audit Essendon’s OH&S policies and procedures

• Ascertain whether Essendon was complying with its OH&S obligations. At the bare minimum, Clothier should have checked whether Essendon had ever done a risk assessment of the club, and done a risk assessment of every function performed by every employee; whether the players and staff had completed any OH&S training; whether the players had complied with clause 7.4 of the AFL’s Anti-Doping Code; and whether the club had recorded the name and date of every substance given to the players.

The AFL did nothing to eliminate, or minimise, the risk, since Clothier called the 5 August 2011 meeting. Hird warned the football department, of which he wasn’t a part, not to use WADA banned substances; not to risk the health and safety of the players; and not to administer any substance to the players unless Dr Reid had approved it. Even though Hird wasn’t a member of the football department, and even though he had no responsibility for the supplement program, he was suspended for 12 months for not doing more than warning the football department. Ironically, Clothier did the same as Hird and received the equivalent of a knighthood from Demetriou. All he did was warn Hird not to use peptides.

Fact: On 19 October 2011 (the first day of 2012 pre-season training), Dr Bruce Reid phoned the AFL’s medical officer, Dr Peter Harcourt, and told him that Dean Robinson had given the Essendon players peptides, including a peptide called Tribulus, without his permission. Dr Reid was not only concerned that he had been marginalised but that Tribulus was a WADA prohibited substance. Marginalising Dr Reid was a possible breach of the AFL’s Anti-Doping Code, and Dr Harcourt was required to report the possible breach immediately. Clause 4.6 of the AFL’s anti-doping code says: “Where reasonable and as soon as the AFL becomes aware that a possible [my emphasis] Anti-Doping Rule Violation may have occurred, the AFL will immediately advise ASADA of the possible violation. The AFL will provide ASADA with all information pertaining to the possible Anti-Doping Rule Violation.”

My Opinion: My understanding is Dr Harcourt failed to report the matter to ASADA or anyone at the AFL or to anyone at Essendon. Like Clothier’s inertia, if Dr Harcourt had fulfilled his responsibilities, the whole saga may not have occurred.

Fact: The AFL failed to monitor compliance with Clause 7.4 of the AFL Anti-Doping Code. Clause 7.4 of the AFL’s anti-doping code states, ‘Before the commencement of the AFL Competition in each year each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last Match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer in writing of all substances and medications he subsequently takes or uses during the AFL Competition in that year. Each Club Medical Officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the Club.’

My Opinion: If each club, including Essendon, complied with this rule, and if the AFL weren’t too lazy or too apathetic to ensure compliance with this rule, it is most unlikely there would ever be an anti-doping problem. High performance coach, Dean Robinson, general manager – football operations, Paul Hamilton, and chief executive, Ian Robson, failed to fulfil their responsibilities. AFL chief executive, Andrew Demetriou failed to fulfil his responsibilities by not having procedures and policies in place to ensure compliance with this most crucial anti-doping clause. The AFL commissioners failed to fulfil their responsibilities by not ensuring Demetriou had adequate procedures in place to ensure compliance with this most crucial anti-doping clause. This was a major governance failure by the AFL.

As the AFL has onerous legal responsibilities for the health and safety of players at every club it is inexplicable, and unforgivable, that it has never, ever, conducted an audit of any club to ensure the clubs were complying with the OH&S laws. I doubt whether the AFL could even name the clubs with OH&S manuals or those clubs which have conducted full risk assessments.

Paradoxically, the public insists the RACV audits motels, caravan parks and hotels every three or so years to ensure that each still meets its star rating and OH&S obligations. On the other hand, the AFL has never audited a single club’s OH&S compliance. If it is important enough for caravan parks to have an OH&S accreditation program, the least the AFL could have done was to feign interest and visited each of the clubs once to check whether they had an OH&S manual and whether the staff had received any training.

In Demetriou’s own words, and in your words, he was aware of a potential problem and he did nothing. Demetriou had a responsibility to do everything to ensure his clubs maintained a safe work place. Nearly as important as safety, Demetriou had a responsibility to maintain the integrity of the competition and protect the image of the game. The AFL was told in 2011 that Essendon had approached ASADA about peptides. Demetriou had a responsibility to the 17 clubs to ensure that no club implemented an illegal peptides program. The AFL, as you (McLachlan) suggested, should have monitored Essendon monthly. It should have visited every club to ascertain whether its record keeping and occupational health and safety procedures complied with the OH&S Act. I’d be surprised if any of the clubs complied.

As the AFL is the custodian of the game it has just as much responsibility to have fool-proof procedures and impeccable governance as Essendon:

1. The AFL failed to devise or implement any adequate system or process to ensure that Essendon fulfilled its occupational health and safety obligations and that substances provided to and used by the players were safe and were compliant with the AFL anti-doping code and the World Anti-Doping Code.
   
   
2. The AFL failed to ensure that systems were in place to make certain the program was monitored, systematic and supervised.
   
   
3. The AFL failed to act with sufficient vigour to terminate or significantly alter the program after becoming aware of, or being informed of, concerns about the program and adherence to the correct protocols.
   
   
4. The AFL failed to check with compliance with clause 7.4 of the AFL’s Anti-Doping Code at any club since 2010. 

Mr McLachlan, I can’t think of a lower or act by you and the AFL commissioners in allowing Essendon to take the fall for something for which you, senior AFL officials and the AFL commissioners were equally responsible. Sorry, I shouldn’t have used the euphemism Essendon. It has only been Essendon members, including pensioners, and the players, James Hird, Mark Thompson and Danny Corcoran who have paid the penalty. No member of the Essendon board, except David Evans and Paul Little was named. Hell, Demetriou and Carowhine Wilson even wanted to build a statue to Evans. I’ll donate to the cause if the statue is placed in Bill Lawry’s backyard!

Finally, as an aside, I should like to draw your attention to a major blunder by the AFL for which the AFL has hidden its guilt.

My understanding is old codgers such as me are allowed to take substances that are on WADA’s banned list. However, a person who administers a WADA banned substance to me is not allowed to work with any athlete (or club or organisation) who comes under WADA’s jurisdiction.

As Stephen Dank was legally administering WADA banned substances to his patients in his aged care clinics, why did the AFL allow him to be employed by the AFL owned Gold Coast Suns? Surely, that was a major governance breach by the Suns and the AFL.

My Opinion: Notwithstanding, the AFL Tribunal found Stephen Dank NOT GUILTY of taking possession of, or administering a prohibited substance at Essendon, if the AFL hadn’t been inept, ignorant or apathetic, Dank would not have worked at Essendon (or the Suns) and the whole Essendon saga would not have occurred.

Bruce Francis