Dear Tim

RE: Essendon saga shows we need to change protocol 

Preamble: 

There are three subjects which should have been addressed in what has been called the Essendon Drug Saga – Drugs; poor governance by the AFL and Essendon; and the process. Bruce Guthrie was the only one to address poor governance by the AFL and the process. You, on the other hand, sided with the pack and only focussed on the drugs. This surprised and disappointed me when there had been no infraction notices issued by ASADA. The Australian Crime Commission claimed it investigated a wide range of issues for 12 months. ASADA investigated the Essendon drug situation for 12 months. 

Item (Lane) 1: “If the sanctions handed down last Tuesday night represent the full extent of penalties imposed on Essendon the club has indeed been fortunate. Two individuals have received a combined 18 months disqualification, two months of which are suspended. It could have been much worse.”

My Comment:

1. This misrepresented the situation. It implied James Hird and Danny Corcoran were found guilty of something and were penalised. Neither pleaded. The charges were withdrawn. They executed a Deed of Settlement. 
   
   
2. It implied the ‘sanctions’ were for drug related issues. They weren’t. Both accepted that they bore some responsibility for poor governance, and at the request or demand of Essendon chairman, Paul Little, agreed to a ‘suspension’ for a period of time.
   
   
3. Hird and Corcoran were misguided in accepting such ‘sanctions’ considering how far down the chain they were in the poor governance ‘culpability stakes’. The AFL Commissioners and the Essendon Board were far more culpable than Hird in failing to provide a safe work place, and consequently, they also should have been in ‘the dock’.
   
   
4. The AFL had faulty procedures and non-existent compliance. Deputy chief executive, Gillon McLachlan, even admitted on SEN Radio on Wednesday 28 August that “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… 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.”
   
   
5. For all intents and purposes, Essendon had no procedures.
   
   
6. Occupational Health and Safety was one of the major responsibilities of directors. The law states that Risk Assessments must be completed for every task, and then a program implemented to eliminate or minimise those risks. That was never done.
   
   
7. Hird may be educated but his exposure to health and safety regulations was zero. He was never given the appropriate training and the board made no effort to ensure he had complied with his responsibilities, which were never spelt out to him. 
   
   
8. Your comment that “It could have been much worse”, surely, needed to be put in context. Since 2001, 269 people had died in work place accidents in Victoria. The average fine was $170,000. 

Item 2: ‘The AFL’s charge sheet issued in relation to James Hird, Danny Corcoran, Mark Thompson, and Bruce Reid states that “38 players at the Club signed ‘Patient Information/Informed Consent’ forms in relation to these four substances …”’

My Comment:

1. Which charge sheet? Four charge sheets were issued and they varied from 34 pages to two pages. The final charge sheet was ultimately withdrawn with respect to Hird, Thompson and Corcoran.
   
   
2. You should have informed your readers that the vast majority of the original charges were vexatious. They were obviously made public for PR purposes.

Item 3: “These four substances” include the World Anti-Doping Agency-prohibited AOD-9604 and Thymosin. The charge sheet goes on to state that the Thymosin referred to was the AFL and WADA-banned Thymosin Beta-4. The worst-case scenario could find 38 Essendon players on the wrong side of the WADA code and thus face suspension.

My Comment:

1. The charges were withdrawn against Hird, Corcoran and Thompson. You disingenuously implied charges were the same as guilt
   
   
2. It is inconceivable that if AOD-9604 were banned, ASADA wouldn’t have issued an infraction notice against Jobe Watson because he admitted to believing he been injected with it. 
   
   
3. You incorrectly implied that Hird was guilty of condoning the taking of illegal drugs. On 15 January 2012, Hird sent an email to a number of people including Dean Robinson, Bruce Reid and Stephan Dank. It said: “Sounds good Deano, you know my thoughts on supplements. First, [it] must not harm the player. Second, it must not be illegal {according to WADA and AFL drug guidelines}. Third, we must get player consent. As long as we stick to these guidelines and you and Steve think it will help us then let’s go for it.”

Item 4: ‘Some decorated and intelligent Australian athletes who compete globally have expressed dissatisfaction at the outcome so far. Anna Meares, gold medallist in cycling’s sprint event at last year’s Olympic Games, used Twitter to make her views known: “Wonder what the response would have been if Lance Armstrong was demoted to 9th for doping… AFL… Seriously? What a joke.” Meares followed up with: “AFL might be a domestic game but its influence and reach on the nation means it and all involved should be held to a higher standard.”’’ A couple of weeks earlier, another Olympic champion, Lydia Lassila, had expressed similar frustration at the nature of the investigation into Essendon. She tweeted: “Olympic athletes caught doping are banned & shamed. Athletes are responsibility (sic) for what enters their body, not staff.”’

My Comment:

1. Winning gold medals doesn’t give the athlete prescience to make categorical findings. Mears and Lassila weren’t in a position to make a judgment on Essendon.
   
   
2. The Australian Crime Commission and ASADA had investigated this matter for 12 months and six months respectively and hadn’t even been able to issue one infraction notice at this stage. Meares must be as intelligent as the media in being able to make such a judgment without having seen the evidence.
   
   
3. Meares defamed the players and Hird et al, as have you and the Age, for quoting her ridiculous analogy about Lance Armstrong and Essendon.

Item 5: “As for the 12-month penalty imposed on Hird, with a return to his job guaranteed, he is extremely lucky. His barrister, Julian Burnside, said he was let down by others. On the matter of accountability, Burnside said football clubs aren’t BHP. They do, though, pay coaches of Hird’s stature a million dollars a year.”

My Comment:

1. Hird wasn’t lucky. The AFL and Essendon were lucky that the sycophantic media only pursued one side of the story. The AFL and the Essendon board should have been investigated. WorkSafe Victoria should have been forced to conduct an audit at both the AFL and Essendon at some stage
   
   
2. The AFL and Essendon were lucky that Ziggy Switkowski’s executive summary didn’t canvass the AFL’s poor governance. Experts in this field claim the report was so incomplete, it wasn’t worth the paper it was written on.
   
   
3. Every business is subject to the same OH&S laws in Victoria. Consequently, they are all required to have risk assessments; programs to eliminate or minimise risks; written procedures; staff training; record keeping; and audits and compliance. The AFL and Essendon didn’t comply in a number of areas and consequently the buck should have stopped with them. They failed to ensure the players had a safe work place.
   
   
4. The AFL and Essendon were extremely lucky that Hird foolishly capitulated to a request (demand) from Essendon chairman, Paul Little, to sacrifice his reputation for Essendon, and abandon his Supreme Court action. The AFL and Essendon would have been smashed in the Supreme Court.

Item 6: “Ultimately, the AFL and Hird agreed that he contributed to Essendon’s failure to ensure the health, welfare, and safety of the club’s players. Further, he didn’t take sufficient steps to avoid putting the players at risk of breaching the WADA code. These are damning findings.”

My Comment:

1. To make a finding you had to have a charge and a plea and a judgment. That didn’t happen so there were no “damning findings”.
   
   
2. Hird agreed that he contributed to poor governance, but because of a lack of training he didn’t realise how ignorant he was in the human resource and OH&S areas. Consequently, he didn’t know there were others far more culpable than him. 
   
   
3. AFL deputy chief executive, Gillon McLachlan, also confessed that the AFL contributed to the failure to ensure the health, welfare, and safety of the club’s players. Sadly, no one in the media had the courage to expose McLachlan and the AFL.
   
   
4. If the Essendon Board didn’t ensure the correct procedures were in place and if it didn’t ensure Hird received the correct training and if it didn’t conduct performance appraisals and if it did nothing to ensure compliance, surely it was more libel than Hird?

Item 7: “The first part alone could reasonably warrant a ban of at least one year. As for the second part, athletes in breach of WADA are subject to a mandatory two-year suspension. For a coach to be judged to have failed to take sufficient steps to avoid putting as many as 38 players at risk of being in breach might be expected to bring a sizeable, compound penalty.”

My Comment:

Hird was basically a site foreman and research indicates no site foreman had been penalised as heavily as he.

Item 8: “The outcome appears to have been governed by those inseparable bedfellows: politics and pragmatism. On an issue this grave, involving a club with Essendon’s level of support and such a hallowed coach, the politics were inevitably complex. Heavyweight lawyers, ready to go all the way, ensured pragmatism in greater-than-usual doses.”

My Comment: 

This was garbage. Linking the AFL and ‘governing’ was an oxymoron.  It would have been much more appropriate to say the AFL was an authoritarian organisation and the outcome was determined by:

1. The AFL’s need to have secured ‘sanctions’ by whatever means to save face for Andrew Demetriou and the Federal Labor Government. 
   
   
2. The AFL had won the PR battle through reprehensible tactics.
   
   
3. The Commission not having one person with the courage to say “isn’t it just possible we were denying Hird natural justice by allowing Demetriou to sit on the jury?”
   
   
4. The sycophantic media throwing the press council’s code out the window and only addressing one side’s behaviour in the dispute.
   
   
5. Seventeen presidents saying “I’m all right Jack, stuff you.”
   
   
6. The AFL and 17 presidents believing the AFL was so almighty that it didn’t have to provide natural justice.
   
   
7. The only pragmatism was displayed by Hird. He knew he could win in the Supreme Court but sacrificed his reputation for the love of his club and players.
   

There was only one thing that mattered in this saga and that was the rule of law. Despite being treated like a sheltered work shop and the government and media allowing it to kick with the wind in all four quarters, the AFL should have ensured that everyone under its control received natural justice. That didn’t happen.