Essendon AFL Drug Saga

5. AFL COMMISSIONERS’ OCCUPATIONAL HEALTH & SAFETY FAILURES

  1. The AFL had an unacceptable conflict of interest the moment ASADA agreed to widen the investigation to ascertain whether Essendon provided a safe workplace and who was responsible. As it was impossible to assess Essendon’s degree of responsibility, without assessing the AFL’s responsibilities, even Stevie Wonder could see it was essential that the investigation was completely independent of the AFL. Any investigation that involved the AFL as investigators meant that there would be a conflict of interest, which would not only deny Essendon procedural fairness (natural justice) but would compromise the integrity of the investigation.

  2. The AFL’s responsibility needed to be assessed because it had at least four agreements which carried governance and legal occupational, health and safety (OH&S) responsibilities to the Essendon Football Club and its players:

    i. The AFL and each of the 18 clubs have Master Governance Framework Agreements, which allows them to compete in the competition. Inter alia, in simple terms, it is a contract with bilateral responsibilities.

    ii. The tripartite agreement it had with Essendon and each player. Clause 12 of this agreement means the AFL has the same duty of care, and responsibility, to provide a safe work place as Essendon and each of the clubs.

    iii. The bi-lateral agreement it had 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 agreement with ASADA and its responsibilities under its own anti-doping code

  3. Additionally, the AFL commissioners had onerous statutory obligations under the Corporations Act. Simply put, the AFL had similar occupational, health and safety, and duty of care responsibilities, with each player at Essendon as the Essendon board. AFL chief executive, Andrew Demetriou, acknowledged this when he said: ‘The AFL has a duty to all its stakeholders that we look after our players.’ Sadly, Demetriou did nothing.

  4. There is no doubt the AFL failed to meet those OH&S and duty of care responsibilities. The AFL became aware of a safety problem at Essendon on 19 October 2011 when Dr Reid told the AFL’s medical director Dr Harcourt that the Essendon players had been administered peptides.

  5. Ironically, the AFL was more responsible for the OH&S and governance failures than the Essendon board because it was aware of the possible health dangers three months before senior Essendon people were aware. If the AFL had responded on 19 October 2011, Essendon’s governance problems would not have been an issue. The governance issues would have been addressed before the players were put in potential further danger.

  6. With respect to determining whether there was a conflict of interest in having a joint investigation with ASADA, it is irrelevant. For a conflict of interest to exist, all the AFL needed was to have OH&S and duty of care responsibilities to Essendon and its players.

  7. To determine the extent of Essendon’s alleged governance and OH&S failures, and to ascertain whether there were any mitigating circumstances which would reduce penalties, the AFL should have been investigated along with Essendon and its officials.

  8. Participating in a joint investigation with ASADA, not only enabled AFL officials to avoid being questioned but made it impossible to ascertain whether the AFL was culpable. Inexplicably, at no stage were the AFL’s governance and OH&S obligations scrutinised by ASADA or Dr Ziggy Switkowski, nor was its compliance.

  9. Demetriou, AFL deputy chief executive, Gillon McLachlan, general counsel Andrew Dillon, former general manager – football operations, Adrian Anderson, integrity manager, Brett Clothier and medical officer, Dr Peter Harcourt, should have been compelled to give evidence to help ascertain whether they did everything possible to not only protect the integrity of the competition but whether they did everything possible to ensure the AFL and Essendon fulfilled its duty of care to the players.