Among the many unsolved mysteries of the Essendon saga – 

Why didn’t the Essendon board do the honourable thing and admit that its governance failures contributed significantly to the saga? 

Why did the newspaper heavies allow its journalists to conduct an unprecedented vicious campaign against James Hird based on a lie that he was responsible for governance and OH&S at Essendon; 

Why did the Essendon board insist Hird take the fall for them when it knew the board had failed to fulfil its OH&S responsibilities to provide a safe workplace for its players.

The Essendon board together with managing director and chief executive officer, Ian Robson and the AFL Commission had similar responsibilities for providing a safe workplace for the Essendon players. The AFL was only more liable because it became aware of the problem before the Essendon board. 

A director has an obligation to ensure that a company operates at the highest possible standards, complies with the relevant legislation governing corporations and that it attends to basic housekeeping tasks appropriately. Sadly, the board failed this responsibility.

Directors of a company are responsible for corporate governance activities – the processes by which an organisation is directed, controlled and held to account. A good corporate governance programme within a company incorporates two very important elements: planning and monitoring. The company must have a systematic way of managing its compliance with the relevant legislation that applies to their business eg the Corporations Act, the Occupational, Health and Safety Act, the Trade Practices Act, the Income Tax Act and many more. 

Under the Victorian Occupational Health and Safety Act, primary responsibility for occupational health and safety was designated to the nine Essendon board members and the AFL Commission, as both entities were formally acknowledged as employers.  Both organisations failed to fulfil their obligations. 

The board members faced statutory OH&S duties under the Commonwealth Corporations Act, obligations from the Australian Institute of Company Directors, agreements with the AFL, and requirements from the Work Health and Safety Act as mandated by the Australian Sports Commission.  Sadly, the Essendon board failed miserably to fulfil its obligations, and all nine members should have had the courage and integrity to face the music and then begged for forgiveness for their failures to fulfil their obligations.

Irrespective of what the media, the AFL or public thought, or wished, the law said, the Essendon board was required to understand the OH&S laws and their obligations under it, and it was responsible for providing a safe workplace for its employees. That should have been the beginning and end of the search to blame someone. The fact that the board members were not involved in the day-to-day running of the organisation was irrelevant and was not a defence. 

The board’s responsibilities are clearly spelt out in the Victorian Occupational, Health and Safety Act: 

Inter alia, some of the responsibilities of the Essendon Board included, ensuring the following tasks/protocols/policies were implemented or completed at Essendon. The AFL had an obligation to ensure Essendon, and every other club, did the following:

• Risk Assessment – Every task performed in the organisation had to be identified. For example, administering substances to players was one such task. A risk assessment was not conducted at Essendon, let alone a risk assessment of the tasks undertaken in the football department/high performance unit.
  

• The health risk/ danger in performing each task must be assessed. For example, the board had to ensure a qualified person had to assess the risks of substances being administered to players. 
  

• A process / procedure / protocol was then required to be put in place to eliminate, or if that was impossible, minimise the risk/danger in performing that task. 
  

• All procedures and protocols had to be documented.
  

• Each employee had to have their OH&S responsibilities explained to them and be trained in performing each of their tasks.
  

• Procedures had to be written to ensure compliance with each task.
  

• Records had to be kept.
  

• An OH&S manual should have been written containing all the procedures, protocols and processes. 
  

• The chief executive should have tabled a report with the board assuring them that Essendon had an OH&S manual, which included compliance responsibilities, which if followed, ensured the organisation would not breach the OH&S Act.
  

• The OH&S manual had to be readily accessible to all employees. 
  

• Audits should have been conducted at regular intervals to ensure compliance.
  
  
• The human resource manager should have tabled a regular report with the chief executive.
  

• The chief executive should have included a regular OH&S report to his board 
  

• Although the law says the board was responsible for providing a safe workplace, the board assigns the chief executive the task of complying with the OH&S Act on its behalf. However, irrespective of how well, or how badly, the chief executive performs that task, the board is still responsible. Something they knew and something the AFL and ASADA knew.
  

• The chief executive then should ensure that those employees involved with each task fulfill their obligations which have been documented in the occupational, health and safety manual. 
  

• As the design and implementation of the supplementation program was the responsibility of the football department, this meant that the general manager – football operations (Paul Hamilton); high performance coach (Dean Robinson); the doctors (Bruce Reid and Brendon De Morton); and sports scientist (Stephen Dank) all had certain obligations, which to varying degrees, and for different reasons, they did not fulfil. It’s important to remember that as the AFL withdrew all charges against Dr Reid (and didn’t charge Dr De Morton) it decided for various reasons it was impossible for the doctors to fulfil their obligations.
  

• Although every employee has general OH&S obligations, it should be noted as James Hird and Mark Thompson were on a different branch of the organisation structure from Hamilton and his high-performance unit, they had no responsibilities whatsoever with the design or implementation of the supplementation program and should never have been charged or penalised. 
  

• Two things the AFL, ASADA and the hacks in the media needed to understand are the OH&S Act and the Essendon organisation structure and job responsibilities decide who is to blame. Second, the OH&S Act was not created for coaches with honors degrees in civil engineering. They were also created for rugby league coaches, some of whom may not be able to read and write. 
  

There is no doubt that even prior to the employment of Robinson and Dank, Essendon did not fulfill its OH&S responsibilities. By law, the board had to accept responsibility for those failures. As the Essendon board knew it was responsible for providing a safe workplace, it is incomprehensible that not one of them had the intestinal fortitude to put his/her hand up and say “get off James Hird’s back, the law says my board colleagues and I are responsible for OH&S at Essendon, and we are honourable enough to accept total responsibility”.

• Perhaps, if the AFL had prosecuted each Essendon board member, as it should have, the Essendon directors (or their insurance company) would have been liable to cough up the $2 million AFL imposed fine instead of the Essendon members. On that score, I have been advised that the members could mount a case against the directors that would require them to pay the $2 million fine, plus a substantial amount for damages for Essendon having been excluded from the 2013 finals-series.
  

• Pursuant to suing the Essendon directors, I have also been advised that Essendon members could mount an even stronger case against the directors for breach of their fiduciary duties in giving the AFL a copy of the Switkowski Report. The Essendon board commissioned that report internally to identify and address governance issues. The board handed it to the AFL, which then used it against the club to decide guilt and penalties. The board had a fiduciary duty to act in the members’ interests. It clearly put the AFL’s interests before the Essendon members’ interests, when it gave the report to the AFL.
  

• Perhaps if the AFL had prosecuted each Essendon board member, the AFL would have had to prosecute each AFL commissioner and senior AFL staff. 
  

No reference to the Essendon Board failures would be complete without mentioning Managing Director and chief executive officer, Ian Robson, and then President, David Evans’ failures to tell the truth. Amazingly, both testified to ASADA that they were unaware of Essendon’s supplementation programme implemented by General Manager – Football Operations, Paul Hamilton and his high-performance unit led by Dean Robinson.

Ian Robson: 

The following quotes from the Interim Report suggest Robson has a major memory problem:   

• On or before 13 January 2012, Dr Reid became aware that players were allegedly administered Tribulus (oral) and AOD-9604 (injection) without his approval. He complained to Hird and then shortly afterwards to Hamilton. Dr Reid spoke with Hamilton about the supplementation programme and advised Hamilton that he would be writing a letter outlining his concerns. 
  

• Hamilton (page 24) said he “immediately raised Dr Reid’s concerns with the Chief Executive Officer, Ian Robson. When interviewed by ASADA, Robson denied being made aware of any concerns about the supplement programme until February 2013.
  

• February 2012: Robinson (page 28) recalled discussing the supplementation programme with Robson and being advised, ‘I’m happy for you to push the edge’. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
  
  The rest of Robson’s comments were censored by me for privacy reasons.
  

• In July – August 2012, Essendon conducted an internal review into soft tissue injuries. Hamilton (page 36) delivered the findings. Under the heading of ‘STOP’ were the following entries: [Stop] going for magic cures – Supplementation that is not medically based. Concerns with Tribulus, and Creatine. IV injections. Although according to David Evans, the review was headed by Ian Robson, he (Robson) claimed he had no specific knowledge of the supplementation programme.
  

• On 21 August 2012, Hamilton (page 96) sent an email to Robson and Corcoran expressing Dr De Morton’s concerns about the philosophy of injections.
  

• On 22 August 2012, Dr De Morton (page 97) sent an email to Hamilton, Robson, Jones and Cc’d Dr Reid in which he stated: ‘The other issue that arises is does all the extra therapies/tests etcetera distract the players …, apart from breeding dependence on a “drug” supplement culture? Dr Reid and I need to take control back of these areas [from Robinson and Dank]. 
  

• The CEO, Ian Robson (pages 102-103) had also expressed concern regarding Dank’s financial practices advising in an email to Hamilton and Corcoran dated 21 August 2012 that: ‘I am aware of three outstanding accounts incurred by Steve Dank and/or Dean Robinson. One account involved HyperMED which was owed $61,000 for hyperbaric treatment and injections. 
  

• The second involved a bill from Skinovate for $10,000 for vitamin injections. The third was from Away Australia for $18,961 for two supplements. 
  

• It’s incomprehensible that Robson would express concern about nearly $100,000 of unbudgeted expenditure and not enquire what it was for. It is also incomprehensible that the chief financial officer would not have discussed the invoices with Robson, and that Robson would not have included the problem in his monthly report to the board. 
  

On 24 April 2012, the AFL’s General Manager – Football Operations, Adrian Anderson sent an email to Ian Robson titled ‘Leading Approach to Sports Medicine and Sports Science in AFL’. 

“Everyone,

As a follow up to discussion with club coaches, CEOs, football managers, medical officers, physiotherapists and sport science staff in recent months, attached is a discussion paper as promised summarising the issues raised regarding medical decision making and optimal medical structures for AFL football.

The document has been produced to provide a starting point for further discussions between the three groups (medical Officers, physiotherapists & sports science staff) about optimal working relationships, and also to assist individual clubs in completing the exercise of looking at their own internal systems and structures.

If you have any questions, please let me know.

Kind regards

Adrian”

• 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 three of the findings of the Recent AFLMOA survey of club doctors (14 clubs responded) were:
  

• 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 occasions
  

• Non-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.
  

• Furthermore, the possible consequences listed in Anderson’s document would have sent shudders through every chief executive, viz: potential risk to player welfare (emergency cover, mistreatment, etcetera; exposes club, club staff & coaches, and AFL to potential litigation; issue with MO recruitment and retention; and potential MO insurance issues.
  

• On 24 April 2012, Mr Robson forwarded Mr Anderson’s email (including attachment) to Mr Corcoran and Mr Hamilton
  

In July/August 2012, he chaired an Essendon sub-committee review into substance use at Essendon. 

On 21 August 2012, Hamilton delivered the key findings of the club’s internal review into soft tissue injuries. Under the heading of ‘STOP’ were the following entries:

• [Stop] going for magic cures – Supplementation that is not medically based. Concerns with Tribulus and Creatine. IV injections. Players need to understand there is no easy solutions … We have also higher gastric upsets with intake of supplements
  

• [Stop] Injection menatality (sic)
  

• If all of the above were not worrying enough, Robson’s recollection of the meeting at Evans’s home on Monday evening 4 February 2013 is really disturbing and is sufficient reason to throw Robson’s evidence in the bin. Robson (page 48) “recalls the meeting was attended by Robson, Corcoran, Hird and Evans. Robson also recalled that specific questions were asked of Hird who informed the group that the ‘instruction was always that we were to be WADA compliant, everything was to be signed off by [the club, doctor, Bruce Reid]’.”
  

It is incomprehensible that Robson could not recall eleven days later when he was interviewed by ASADA that Dr Bruce Reid also attended the meeting and was questioned about the supplementation programme. Robson’s apparent poor memory throws into doubt the rest of his recollection of what Evans told the attendees. Inexplicably, Robson’s failure to mention that Dr Reid attended the meeting was inexcusably used against Hird by ASADA. 

ASADA made the following extremely damaging comment about Hird (on page 48) which was no doubt used by the AFL in deciding Hird’s penalty: [ASADA] “What is notable from Robson’s account is the purported failure of Hird to disclose serious concerns about the supplement programme that had been raised by Dr Reid in January 2012. 

It is known that Hird had intimate knowledge of Dr Reid’s concerns and had ‘talked [to Dr Reid] about him writing a letter to [the then Football Operations Manager] Paul Hamilton and talked about what would – that letter would include so that Paul was alerted to the fact that this was happening’. According to Robson, he had not been made aware of Dr Reid’s concerns until a board meeting on 7 February 2013.” 

It was inexcusable for ASADA to make such a negative comment because ASADA knew Robson’s evidence was wrong because:

Both Evans and Hird (pages 49 and 50 respectively) gave evidence that Dr Reid attended the meeting at Evans’s home. 

Hird testified that “Evans quizzed Bruce [Dr Reid] and me. 

What is unforgivable is ASADA knew Evans had discussed Dr Reid’s letter with Robson on 1 February 2013. In the interim report (pages 48 & 49) ASADA stated: ‘Evans recalled that on Friday evening, 1 February 2013 he attended the home of Dr Reid to ask if he had any suspicions about ‘what’s going on’. 

During those discussions, Dr Reid expressed concerns about the 2012 supplementation programme. Dr Reid also discussed a letter he had written to the former football manager, Paul Hamilton on or about 17 January 2012. Evans stated that upon learning of this letter it ‘‘immediately put [his radar up. Evans recalled Dr Reid stating: 

‘That effectively he was very uncomfortable with what had been going on …’ His view is that whilst he wouldn’t have been doing what they’ve been doing as far as the supplements, that he certainly didn’t condone the practices of, you know, injections and, you know, one of the supplements that was given, which [was] AOD-9604 … [and he then] started talking to me about the letter that he wrote. And then he started looking at his – looking at his files and then he rang me on the phone as I was driving home to say, “I found this letter.” He read the letter out to me. He said I – he said – he seemed pleased that he found this letter that – you know, that – you know, as soon as I heard that letter I thought, “It’s far from good news.” (Footnote 63, Evans’s interview with ASADA 15 February 2013.)

David Evans:

Evans testified that that he had no knowledge of the supplementation programme prior to 1 February 2013. This is impossible to accept. Dank believed that AOD-9604, an alleged weight reducing substance (with untested claims similar with the approved miracle substances Wegovy and Ozempic) could help Essendon win the premiership.  He also had an extraordinary belief in the commercial potential of AOD-9604. On 28 January 2012, Dank sent a friend an SMS advising him of his intentions with Metabolic Pharmaceuticals (the company which owned the intellectual property on AOD-9604): 

On the 21 February 2012, Metabolic Pharmaceutical’s, CEO, David Kenley, delivered a presentation to David Evans in Evans’s company board room. Hird and Dank also attended the presentation. Kenley shared the same belief as Dank that AOD-9604 could be worth billions. 

Kenley spoke at length about AOD-9604. Evans investigated the commercial potential of AOD-9604 and eventually he decided that neither he nor Essendon would invest. 

If Evans’s forgetfulness over knowing anything about AOD-9604 is not worrying enough, his recollection of what happened between 1 February 2013 and 5 February 2013 throws into doubt the credibility of the rest of his evidence. Not only did he forget things, but he also gave incorrect evidence

Page 50 of the interim report quotes Hird as follows: ‘David [Evans] walked in [Monday 4 February 2013] or he was sitting [in my office] when I got in, but he looked pale. I said, “What’s wrong?” and he said, “I’ve been told we’re taking performance enhancing drugs.” And I said, “Mate, I don’t know what you’re talking about, David. I think that’s complete rubbish. I’ve never seen performance-enhancing drugs at the football club. They wouldn’t be taken by our players.” He said, “I hope you’re right.”

‘About 8.30 that night I was having dinner with my kids for my birthday, and I got a call from David [Evans] to say, “We’re in a lot of trouble. The AFL believes that we’ve taken performance-enhancing drugs. Get over here straight away.” So, I went to his house. Ian Robson was already there. Bruce Reid arrived, and so did Danny Corcoran, and David said that he’d been told by [CEO] Andrew [Demetriou] that we were taking performance-enhancing drugs … And I said, “I don’t believe him, David. What source does he have?” He said, “There’s a report coming out” and that he had been told – he had seen it or some – he had been told and he’d rung David. He quizzed Bruce and I as to whether we had – what evidence there – is there of this. The only thing that Bruce could think about was AOD-9604, and we were both convinced that we’d seen WADA approval, we were both convinced that it’d been approved by WADA … Dave then took a call from Andrew Demetriou again, came back in and said, “He’s definitely saying we’ve taken them.”

Dr Reid claimed that Evans told him that Andrew Demetriou and Gillon McLachlan had told him that Essendon had been taking performance enhancing drugs.

Danny Corcoran also agreed with Hird’s version of what happened at Evans’s home on 4 February 2013. Unbelievably, neither Corcoran nor Dr Reid was asked about Hird’s claim, or if they were, their answers were not included in the interim report.

If there were degrees of untruthful comments, Ian Robson would win the gold medal. 

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.

On 24 April 2012, Mr Robson forwarded Mr Anderson’s email (including attachment) to Mr Corcoran and Mr Hamilton with the following instruction:

“… please see note below and attached from Adrian Anderson to the AFL FYI … please circulate within the Footy Department as appropriate … how are we going to co-ordinate our response to this developing issue within the industry?”

At an after-match drinks session at Hird’s home in late July 2012, Hird, Dr Reid and Danny Corcoran asked Evans and Robson to sack Robinson because of how he was running the supplementation programme. Evans and Robson denied the request on the grounds that the club couldn’t afford the payout. Their decision was confirmed at the August 2012 board meeting. Clearly, this was a major failure.