In February 2013, the Australian Crime Commission (ACC) held a media conference to announce the findings of a year-long investigation into the use of illegal drugs in sport. Particular emphasis was placed on the AFL and NRL.
Disappointingly, those who could grab the microphone or media attention – inter alia, ACC chief executive, John Lawler; Justice Minister Jason Clare; Sports Minister Kate Lundy; AFL chief executive Andrew Demetriou and WADA chief John Fahey – turned it into a pissing competition in their desire to paint the most catastrophic picture possible.
Comments by the aforementioned coterie not only did untold damage to the image of Australian sport and sports people but were hopelessly wide of the mark. Paradoxically, the AFL’s response in the following nine months to the ACC report did more damage to the sport than the alleged transgressors. To the uninterested, this came as an incredible shock.
In the history of Australian sport, it is arguable whether any board was better equipped to deliver a fair investigation through following the rules than the AFL Commission. They had the credentials to perform like the three tenors did at the “G”, but sadly executed it like Meat Loaf.
Mike Fitzpatrick (Chairman) – Rhodes Scholar, enormous intelligence, director of Rio Tinto Group and former chairman of the Australian Sports Commission and former director of Telstra.
Andrew Demetriou – acknowledged by many people, including I suspect himself, as Australia’s best ever sports administrator.
Linda Dessau AO – Family Court Judge, who unbelievably became Governor of Victoria.
Bill Kelty – Former secretary of the ACTU. Kelty recused himself because of his involvement with Essendon.
Sam(antha) Mostyn – Former Keating government communications adviser, who astonishingly became Governor-General of Australia
Richard Goyder – Managing Director of Westfarmers
Paul Basset – Co founder of employment company Seek
Chris Lynch – Former Chief Financial Officer of BHP
Chris Langford – Successful businessman and AFL Hall of Fame member.
With such experience and brainpower all that was needed was for the commission to understand its responsibilities and obligations and then follow the rules. Collectively, they had all bases covered. As a Family Court Judge, Dessau was in position to explain the importance of ensuring every person received procedural fairness (natural justice). Clearly, she failed.
Although he recused himself, I am sure Kelty wouldn’t have acted inappropriately if he had advised his fellow commissioners to check its occupational, health and safety responsibilities under the Corporations Act and the Victorian Occupational Health and Safety Act.
Fitzpatrick, Basset, Lynch, Langford and Goyder should also have known enough about OH&S and industrial relations laws to avoid mistakes.
And Demetriou had parked his AFL Mayne Nickless fleet of trucks outside Parliament House so often he must have known the importance of complying with the Australian Sports Commissions’ governance rules.
I suspect Mostyn’s expertise wasn’t required because the media allowed the AFL to run with the wind in all four quarters, and amazingly, then umpired the game wearing AFL uniforms.
The AFL has at least four agreements which carry legal OH&S responsibilities:
i. The bi-lateral agreement it has with Essendon to compete in the competition.
ii. The tripartite agreement it has with Essendon and each player. 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.” Clause 12 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.” Best endeavours, does not mean sitting on your backside waiting for someone to fail a doping test before doing anything. It means being pro-active. It means visiting the clubs regularly to ensure they are complying with OH&S laws.
iii. The bi-lateral agreement it has with the Australia Sports Commission in its capacity as a national sporting organisation (NSO). Those responsibilities are set out in the Australian Sports Commission Policy Statement: NSOs Governance – Mandatory Requirements for ASC large partner NSOs.
iv. The bi-lateral agreement with ASADA and its responsibilities under its own anti-doping code
v. And let’s throw in the onerous statutory obligations the commissioners (as directors) have under the Corporations Act (refer to Australian Institute of Company Directors rules).
vi. And let’s not forget the responsibility the AFL has to all its sponsors. Inter alia, sponsors such as Toyota don’t want to be involved with Mickey Mouse organisations who don’t fulfil their OH&S obligations.
Simply put, the AFL has the same occupational, health and safety and duty of care, responsibilities to each player at Essendon as the Essendon board. Demetriou implied this when he said: “The AFL has a duty to all its stakeholders that we look after our players.” I assume that means from day one. I am sure Demetriou didn’t mean we have a duty to our players after the first lot from the Bombers had crashed and burned.
If we count the eight commissioners, chief executive, deputy chief executive, general manager – football operations, human resource director, integrity manager, OH&S manager, AFL medical director, just for starters, all of whom legally had more responsibility than Hird, Hird only gets a jumper if we have 22 players and five emergencies! But the AFL won’t even allow that in grand final week.
Essendon AFL Drug Saga 