LINDSAY TANNER:
RE: This Tanner has got one heck of a hide
Over the last five years, hundreds of million words have been written on the Essendon Saga. Ninety-Nine per cent of the words brought nothing but everlasting shame to the authors and what should loosely be described as their profession.
However, none, in the authors’ desires to ingratiate themselves to the corrupted AFL involved strapping on the suicide vest and jumping off West Gate Bridge the way the Australian Institute of Company Directors (AICD) has with its April cover story about you. It’s impossible to believe that any organisation has ever been as naïve as AICD has been in swallowing your re-write of history and associating its brand with AFL football and the Essendon board.
My understanding is AICD teaches good governance to company directors. How ironical it is that AICD has written a puff piece cover story about a board that has not only covered up a conspiracy between the AFL and the 2013 Essendon board to breach their governance responsibilities, but has also thrown its players under the bus.
Before dissecting the AICD cover story, I shall list a few of many governance breaches by the 2013 AFL and Essendon boards.
1. The AFL conspired with ASADA, the Essendon board (represented by Chairman David Evans and Chief Executive Ian Robson) and the Federal government, on 9 February 2013, to fix the result of the investigation before the first witness was interviewed.
(A POSSIBLE CRIMINAL CONSPIRACY)
2. The Essendon board endorsed the agreement reached by the AFL, ASADA and the Gillard government.
(A POSSIBLE CRIMINAL CONSPIRACY)
3. The action of AFL Chief Executive Andrew Demetriou, a jurist if charges were laid, continually implying in the media that Essendon and Hird were guilty.
(A POSSIBLE BREACH OF THEIR RIGHT TO PROCEDURAL FAIRNESS)
4. The AFL briefed the proposed jury (the AFL Commissioners) on the evidence before the investigation was completed.
(A POSSIBLE SUBORNING OF DECISION MAKERS AND INTERFERING WITH THE PROCESS OF JUSTICE)
5. The AFL informed the jury before the investigation was completed that the Essendon Football Club, James Hird, Danny Corcoran and Mark Thompson were guilty.
(A POSSIBLE SUBORNING OF DECISION MAKERS, INTERFERING WITH THE PROCESS OF JUSTICE AND PERVERTING THE COURSE OF JUSTICE)
6. The AFL informed the jury before the investigation was completed what some of the penalties would be.
(A POSSIBLE PERVERTING THE COURSE OF JUSTICE)
7. The AFL bullied and blackmailed the Essendon Football Club, James Hird, Danny Corcoran and Mark Thompson to accept the penalties before charges were laid.
(A POSSIBLE CRIMINAL DURESS TO PERVERT THE COURSE OF JUSTICE)
8. The Essendon board agreed to the fraud to mitigate the threat of more severe penalties.
(A POSSIBLE CRIMINAL CONSPIRACY)
9. ASADA changed evidence; omitted evidence; and fabricated evidence to help the AFL create a case against Essendon, Hird, Corcoran and Thompson.
(A POSSIBLE PERVERTING THE COURSE OF JUSTICE AND PERJURY)
10. The AFL denied Hird procedural fairness by wanting him stood aside as coach before he was even interviewed.
(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE)
11. At the AFL’s behest, on 25 June 2013, David Evans asked James Hird if he would agree to be suspended and Essendon be banned from playing in the finals-series.
(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE)
12. On separate occasions, deputy AFL chief executive Gillon McLachlan (26 June 2013) and Andrew Demetriou (24 July 2013) asked ASADA chief executive Ms Andruska to omit information from the interim report. Those omissions may have contributed to the AFL being able to defraud Essendon of $2 million.
(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE AND CONSPIRACY TO PERVERT THE COURSE OF JUSTICE)
13. The AFL asked ASADA to include things in the interim report to prove guilt. This contributed to the AFL defrauding Essendon of $2 million.
(A POSSIBLE CONSPIRACY AND PERJURY)
14. ASADA chief investigator John Nolan tried to doctor the injection figures on 15 July 2013, to build the case against Essendon.
(A POSSIBLE ATTEMPTED FORGERY AND CONSPIRACY)
THE AUSTRALIAN INSTITUTE OF COMPANY DIRECTORS COVER STORY
Item (AICD) 1: “Essendon’s drugs scandal was a failure of governance amid increasing commercial pressures. Chair Lindsay Tanner explains how the board of one of the AFL’s oldest clubs turned things around.”
My Comment:
There is no evidence the Essendon players were administered Thymosin Beta-4.
There is irrefutable evidence that:
i. The Court of Arbitration for Sport panel changed evidence, and was biased, inept and arguably corrupt.
ii. The 2013 AFL executive, 2013 Essendon board, ASADA and the Gillard government conspired to fix the result of the investigation four days before the investigation commenced.
iii. The AFL commissioners (company directors), which included Richard Goyder and the now Victorian Governor Ms Linda Dessau, through their silence endorsed multiple breaches of their directors’ responsibilities.
iv. As joint employers, the AFL commissioners and the Essendon board were responsible for the governance failures. Commercial pressures had nothing to do with the issue.
Item (AICD) 2: “Among the many disasters befalling AFL club Essendon over the past five years, according to chair Lindsay Tanner, there was one moment [the first board meeting he chaired] when he knew he was absolutely the right person in the right place at the right time. This discipline, he says, has been the board’s most valuable contribution to Essendon’s recovery. … ‘The critical thing from the board has been a united, calm, focused demeanour — completely committed to moving on. Basically, copping it on the chin, no matter how unfair the blows may have been, and focusing on doing the job and getting things back in good shape. That’s something the entire board can feel very proud of.’”
My Comment:
- You and your board have been responsible for major failures. They have not fulfilled their obligations as directors. The failure is encapsulated in your words: [We have] “COMPLETELY COMMITTED TO MOVING ON. BASICALLY, COPPING IT ON THE CHIN, NO MATTER HOW UNFAIR THE BLOWS HAVE BEEN…”:
- The above implies that you and the board don’t believe the players were guilty. I have provided irrefutable proof that:
i. The Court of Arbitration for Sport panel changed evidence, and were inept, biased and arguably corrupt.
ii. ASADA changed evidence, omitted evidence and fabricated evidence
iii. ASADA chief executive Ben McDevitt misled Parliament on numerous occasions on 3 March 2016.
iv. Senator Duniam’s Community Affairs committee covered up McDevitt’s lies.
v. WADA used tainted evidence supplied by ASADA and often perjured itself during the hearing.
vi. The AFL defrauded Essendon of $2 million.
vii. As joint employers of the Essendon players, the AFL failed to fulfil its responsibilities to provide a safe workplace and therefore the current Essendon board should have demanded the AFL pick up at least half the tab for the inadequate sum paid for damages to the players.
viii. I can’t accept that the board members would have been happy to move on if their family members had been unjustly found guilty.
The net result of: “COMPLETELY COMMITTED TO MOVING ON” is:
i. Thirty-four innocent players and James Hird, Mark Thompson and Danny Corcoran have had their lives destroyed
ii. Valuable players left the club
iii. The members have lost millions of dollars
iv. The members and supporters now wear the stigma of supporting a club of drug cheats
v. I am comfortably satisfied that the 2013 Essendon directors and current directors have failed their fiduciary duties. And Tanner is boasting about his board’s performance.
Item AICD) 4: ‘Of course, underpinning the “keep calm and carry on” approach are huge changes at Essendon — in policies, executive structure, board composition and upward information flow — to ensure what Tanner calls “a classic failure of governance” never happens again.’
My Comment:
In latter paragraphs, you put your boot into James Hird, despite not knowing what happened. Interestingly, Hird’s job description, his place on the Essendon organisation structure and clauses applicable to him in the Victorian Occupational Health and Safety Act (2004) meant he had no influence or responsibility for ‘policies, executive structure, board composition and upward information flow’. The 2012 board did, as did previous boards, but you seemingly haven’t the courage to point your middle finger at them the same way you have pointed it at Hird.
Item (AICD) 5: “A toxic mix of circumstances, including lax oversight of the football department and a club icon (James Hird) in his first senior coaching role, were what brought Essendon undone.”
My Comment:
This comment indicates that you are hell-bent on burying Hird and saving previous boards. Clearly, Hird was sacrificed to save the 2012 board.
If Hird doesn’t sue you, he is mad. According to the Victorian OH&S Act, the Essendon organisation structure, Hird’s job description and the players’ tripartite employment contract with the AFL commissioners and the Essendon board, at least 30 people had more responsibility than Hird: nine AFL commissioners plus AFL staffers Gill McLachlan, Adrian Anderson, Dr Peter Harcourt, Brett Clothier, the human resource director, the OH&S manager, plus nine Essendon board members, plus Essendon staffers – chief executive Ian Robson, general manager football operations Paul Hamilton, high performance manager Dean Robinson, Stephen Dank, two doctors, human resource manager and the OH&S manager.
Hird had nothing to do with the football department. He was on a different branch of the organisation structure from the football department. Mark Thompson, Simon Goodwin, Brendan McCartney and Sean Wellman reported to him, and he reported to chief executive Ian Robson. Legally, Hird had no right to interfere or instruct people in the football department.
On 2 February 2012, Paul Hamilton sent an email to relevant staff stating that everything to do with the supplements programme had to come across his desk.
Other issues contributed to bring Essendon undone:
i. David Evans and Ian Robson accepting the AFL’s claim on 1 February 2013 that Essendon players had been administered banned substances during 2011 and 2012
ii. Evans acquiescing to Demetriou’s demand on either 2 or 3 February 2013 to employ Elizabeth Lukin as a crisis manager. Her first action was to bully Hird into accepting full responsibility. Nice one Liz, that got the AFL commissioners and the Essendon board off the hook.
iii. Evans agreeing to employ one of Gill McLachlan’s good friends Tony Hargreaves as the Essendon solicitor to deal with the AFL and run all the court/tribunal cases.
iv. Evans agreeing to the AFL’s suggestion to commission Ziggy Switkowski to conduct a review into governance at Essendon. The edited report was a disgrace. Switkowski didn’t interview Dank or Robinson and only interviewed three players and some support staff. He didn’t interview anyone from the AFL although the AFL was a joint employer.
v. Evans giving the AFL and ASADA a copy of the Switkowski Report, which was used not only to fine Essendon $2 million dollars but was used to suspend Hird. Arguably, Evans and the board breached their fiduciary duty by giving the AFL and ASADA a private report to penalise the club millions of dollars.
vi. The deal done on 9 February 2013 between the AFL, the Essendon board, ASADA and the Gillard government for Essendon to accept guilt and accept being penalised, together with holding Hird responsible.
Item (AICD) 6: ‘Essendon deputy chair Paul Brasher MAICD, the only director remaining from before the scandal, and a former global chair of PwC, puts it this way: “On any board I’ve been on, there are two things that keep every director awake from a risk management perspective: How do you know what’s going on several levels below those you are interacting with and how do you smell the smoke coming under the door?”’
My Comment
1. Although I suspect Brasher was asking two rhetorical questions, I shall give him the answers. If you are on a board, you ensure that the organisation has impeccable policies and procedures; you ensure the organisation has foolproof reporting requirements; you ensure that the staff is aware of all the policies, procedures and reporting requirements that affect them; you ensure that someone at each level is checking with compliance.
2. You ensure the organisation fulfils it OH&S requirements
3. You ensure that the organisation conducts a risk assessment of every function performed in the organisation
4. You ensure that the organisation introduces policies and procedures to eliminate all the risks. If the risks can’t be eliminated you introduce policies and procedures that will minimise the risks.
5. You ensure the organisation has a human resource manual and that all staff has access to it
6. You ensure the organisation has an OH&S manual and that every staff member has received adequate OH&S training.
7. And if I were Paul Brasher, I should have ensured every player complied with clause 7.4 of the AFL’s Anti-Doping Code. That clause says that at the start of every season every player must table a document with the club doctor that includes every substance he took during the previous 12 months. I’ll bet Brasher has never checked with compliance with that clause.
Item (AICD) 7: “That the Essendon board had no idea what was going on with the football department’s “supplements program” is undisputed.”
My Comment:
- That is garbage as the following quotes from ASADA’s Interim Report prove:
“Mr Hamilton recalled being approached by Dr Reid about the supplementation program: ‘Dr Reid came to see me in January [2012] sometime … and he said he had some concerns that everything – the protocol was that everything passes through the club doctor … He had concerns that this wasn’t happening, and he also had concerns that some of the supplements that were being given he just thought they were useless anyway … he had some major concerns at that stage’.
“Hamilton stated that after his meeting with Dr Reid he immediately raised his (Reid’s) concerns with Robson: ‘But certainly the concerns that Dr Reid had was definitely – that was definitely put through to Ian Robson. As I said, one of my first actions when – I after I’d spoken to Doc Reid, was to discuss it with Ian’.
“In February 2012, Robinson recalled discussing the supplementation programme with Robson and being advised, ‘I’m happy for you to push the edge … let me couch it in my terminology, I’ve got no issue with tax avoidance, but I’ve got an issue with tax evasion.’
“On 21 February 2012, EFC Chairman David Evans, Hird, and Dank met with David Kenley from Calzada (owner of Metabolic Pharmaceuticals) who had the distribution rights to AOD-9604. Evans was told about the product and that it was being used at Essendon as part of sales pitch hoping he would invest in the company.
“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 mentality
Although Robson was reportedly heading the review, he claimed to have ‘no specific knowledge of the supplementation program’ prior to 5 February 2013.
“By August 2012, it would appear that the concerns expressed by Dr De Morton was still live. On 22 August 2012, Dr De Morton authored 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 etc distract the club/players from the core issues of getting fitter and prepared to play AFL football, apart from breeding dependence on a “drug” (supplement) culture? Dr Reid and I need to take control back of these areas. I have discussed this document with Dr Reid prior to sending’. (296 Email Dr De Morton to PH, IR, MJ, & Dr Reid 22.8.12 at 8.04am) [Emphasis added]
“The CEO, Ian Robson had also expressed concern regarding Dank’s financial practices advising in an email to both Hamilton and Corcoran dated 21 August 2012 that: ‘I am aware now of at least three unauthorised outstanding accounts incurred by Steve Dank and or Dean Robinson. Can I please get an urgent sense of where we are at in terms of confirming what amounts are owing.”
In July 2012, Dr Reid asked David Evans and Ian Robson to terminate Dean Robinson’s services. Hird and Danny Corcoran spoke in support of Dr Reid’s request. Evans and Robson refused the request on the grounds that the club couldn’t afford the payout. The matter was discussed at the August 2012 board meeting. The board endorsed Evans and Robson’s decision.
Finally, it’s impossible to believe senior staff was not aware of the supplements programme. Supplement suppliers were screaming for up to eight months for payment of their accounts. Surely, Tanner isn’t suggesting that a junior clerk hid the invoices from his/her boss for eight months! As the amounts were large and unbudgeted for, they should have been included in the monthly cash flow and profit & loss reports to the board.
Item (AIDC) 8: ‘Brasher says the club’s risk management framework — rejigged in March 2012 in one of his first tasks as head of the (then) audit and risk committee — “looked wonderful”. In fact, an external expert concluded that Essendon’s risk matrix was “best in class”. “Five minutes later, all hell breaks loose!”’
My Comment:
- Hird and Thompson claim that they had never seen a club risk management or a human resource manual or an OH&S manual. They claim they weren’t given any OH&S training.
- Brasher’s revamped risk management framework from March 2012 seemingly failed to ensure documentation of all substances given to each player.
Item (AICD) 9: ‘Tanner says the power imbalance at Essendon, where the football department largely functioned separately from the rest of the organisation, with limited visibility and accountability to the board, is not uncommon. “Some organisations have a key leader who is not the CEO, but in reality, is more powerful than the CEO,” he says, citing powerful chief investment officers as an example. “We had a coach [former captain James Hird] who was a club icon, relatively new in the position; and a CEO [Ian Robson] who was an outsider, not from Essendon, and that created an inbuilt power imbalance.”’
My Comment
1. Hamilton was general manager football operations and he was a member of the Essendon executive.
2. I hope Brasher is not suggesting that the executive never met or is suggesting the executive never tabled a report at a board meeting?
3. Hird was deliberately placed on a different branch of the organisation structure from the football department so he couldn’t interfere with Hamilton’s job and his staff.
You, your fellow Essendon board members old and new and the club’s senior executives, old and new, haven’t stopped a host of corrupt practices taking place. A puff piece in the AICD’s magazine doesn’t alter that, or the resolve of those who know the truth to reveal it to the public.
If you had been as determined to protect the reputation of 34 young men, James Hird, Mark Thompson and Danny Corcoran as you seem to be to protect your board mates, all that puffery might have been justified.
As it stands, it’s just another attempt at a cover-up, which is so often worse than the crime. The AICD, with all its lofty goals, should be ashamed that it has allowed itself to be so abhorrently used.
Mr Tanner, as a director, you have a responsibility to protect your employees (the players) from physical and mental damage. I have given you sufficient ammunition for you to campaign vigorously for the Court of Arbitration for Sport to review, and then overturn, its unconscionable guilt findings.
Mr AICD, you could not have picked a worse poster boy to highlight good governance. I urge you to publish this document in your next issue of your magazine as an example of what company directors shouldn’t do.