1. VWA SUBMISSION

Victorian WorkPlace Authority

Dear Sir

RE: My Complaint against the AFL

Further to our discussion today, I thought I should fine-tune my submission as well as providing the information you sought.

There are six issues:

A. Does the AFL have any duty of care responsibilities to the Essendon players? [and players at every club] YES

B. Did the AFL become aware, or had reason to be concerned, of a potential risk to the health and safety of the Essendon players? YES

C. Did the AFL do everything possible to eliminate the risk to the players’ safety? If eliminating the risk was impossible, did the AFL do everything possible to minimise the risk to the players’ health and safety? NO

D. Did the players suffer any injuries, physical or mental? YES

E. If the AFL and Essendon both failed to fulfil their obligations, which was the more responsible

F. What issues need to be taken into account when determining penalties if the AFL failed to fulfil its obligations and responsibilities

A. Does the AFL have any duty of care responsibilities to the Essendon players? [and players at every club].

The AFL 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, which it failed to fulfil:

The AFL and each of the 18 clubs have Master Governance Framework Agreements, which allow them to compete in the competition. Inter alia, in simple terms, it is a contract with bilateral responsibilities, which included OH&S obligations.
The tripartite agreement it had 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 of the same agreement 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.”

Importantly, Dr Harcourt stated during his Zurich, Switzerland, presentation at an anti-doping conference that “the AFL and ASADA got together to investigate some of the issues which were apparent … The real reason was that under individual contracts all players are contracted to the league as opposed to clubs” [my emphasis]. By definition, this means that the AFL has a duty of care to provide a safe work place for the Essendon players.
The bi-lateral agreement the AFL 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. The AFL breached clause 2.3 of the Australian Sports Commission NSO Governance – mandatory requirements, which states: “An effective organisation must have a thorough system of audit and risk management, including internal and external processes. This committee must ensure there are adequate controls and systems in place to alert management and the Board to potential risks associated with the operation of the sport.” The AFL made no attempt to either ascertain whether Essendon had adequate OH&S systems in place or whether it was complying with the law.
The agreement with ASADA and its responsibilities under its own anti-doping code
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, to 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.

The key clauses of the Victorian Occupational, Health & Safety Act with respect to the AFL and Essendon are 21, 22, 23 and 35. Both failed to fulfil their obligations and the AFL failed to ensure Essendon complied with these sections of the Act.

B. Did the AFL become aware, or had reason to be concerned, of a potential risk to the health and safety of the Essendon players?

To avoid repetition, I have coupled points B. and C. The following identifies examples of the AFL becoming aware of possible risks to the players health and safety, and the narration indicates the AFL did nothing.

Brett Clothier

The AFL became aware of a potential risk to the health and safety of the Essendon players at the end of July 2011, when ASADA informed the AFL’s integrity manager, Brett Clothier, that Essendon coach James Hird had enquired about peptypes (peptides).

Clothier responded appropriately by requesting that Essendon’s general manager – football operations, Paul Hamilton, bring Hird to a meeting at AFL House on 5 August 2011.

Page 16 of ASADA’s Interim Report said: “At the conclusion of the ASADA interview, the AFL’s Manager Integrity Services ‘re-iterated’ to Hird that peptides were a serious risk to the integrity of the AFL, in the same category as steroids and HGH.’ Mr Clothier told Mr Hird that ‘peptides already appeared to be infiltrating other elite sports in Australia and that [the AFL] we could be next.’ Mr Clothier also ‘implored [Mr] Hird to report to [the AFL] if he came across any information relating to peptides.”

At this meeting, Clothier failed his duty of care to the Essendon players by not telling Hamilton that all peptides were banned. Hamilton was not only head of the football department but he was responsible for the supplement program.

In warning Hird about the risk of peptides, Clothier obviously believed there was a risk that Essendon may use peptides. Consequently, there was a possible risk to the health and safety of the Essendon players.

Clothier also told Hird “the [AFL] could be next”. Given how dangerous to the health and safety peptides were, Clothier should have audited every club and issued a warning to each. He failed to do so.

Clothier had a legal responsibility to visit Essendon and perform the following tasks:

Inform the players that all peptides were banned

Audit Essendon’s OH&S policies and procedures

Ascertain whether Essendon was complying with its OH&S obligations. At the bare minimum, Clothier should have checked whether Essendon had ever done a risk assessment of the club, and done a risk assessment of every function performed by every employee; whether the players and staff had completed any OH&S training; whether the players had complied with clause 7.4 of the AFL’s Anti-Doping Code; and whether the club had recorded the name and date of every substance given to the players.

The AFL did nothing to eliminate, or minimise, the risk, since Clothier called the 5 August 2011 meeting. The AFL should dispense with Clothier’s service but the bare minimum should be the same punishment Hird received. Hird warned the football department, of which he wasn’t a part, not to use WADA banned substances; not to risk the health and safety of the players; and not to administer any substance to the players unless Dr Reid had approved it. Even though Hird wasn’t a member of the football department, and even though he had no responsibility for the supplement program, he was suspended for 12 months for not doing more than warning the football department. Ironically, Clothier did the same as Hird and received the equivalent of a knighthood from Demetriou. All he did was warn Hird not to use peptides. Clothier should at least be suspended for 12 months.

AFL Medical Officer, Dr Peter Harcourt

On 19 October 2011 (the first day of 2012 pre-season training), Dr Bruce Reid phoned the AFL’s medical officer, Dr Peter Harcourt, and told him that Dean Robinson had given the Essendon players peptides, including a peptide called Tribulus, without his permission. Dr Reid was not only concerned that he had been marginalised but that Tribulus was a WADA prohibited substance. Marginalising Dr Reid was a possible breach of the AFL’s Anti-Doping Code, and my understanding is Dr Harcourt was required to report the possible breach immediately. Clause 4.6 of the AFL’s anti-doping code says: “Where reasonable and as soon as the AFL becomes aware that a possible [my emphasis] Anti-Doping Rule Violation may have occurred, the AFL will immediately advise ASADA of the possible violation. The AFL will provide ASADA with all information pertaining to the possible Anti-Doping Rule Violation.”

Extract from the Interim Report Page 117:

“Essendon commenced their 2012 pre-season training on 19 October 2011. As part of the pre-season training players were administered supplementation that had not been approved by club doctors Reid and De Morton.

Robinson was asked during interview about this unregulated period:

‘I know we were using a lot of protein … Tribulus was used. Creatine was used. Glutamine was used. In that space, So, yes. There was a supplement, AOD-9604, that Steve [Dank] introduced to the doctor, and the doctor authorised it and that is, off the top of my head, that’s all we were using in that period of time.

Dr Reid recalled another occasion on ‘day one of the [2012] pre-season’ when he blew his stack’ after discovering Robinson had approved for Tribulus to be handed to all players at training. Dr Reid recalled that he contacted AFL Medical Director, Dr Peter Harcourt that same afternoon to ensure the supplement wasn’t a WADA prohibited substance. In addition to speaking to Dr Harcourt, Dr Reid also approached Robinson to reinforce the protocol that ‘nothing without [his] knowledge’.

Robinson stated that he was also concerned about the use of AOD-9604. However, his concerns did not pertain to the nature of the substance but rather the means of administration (injection).”

During Dr Harcourt’s presentation he implied that the AFL knew that there was a possible risk to the Essendon players’ health and safety:

“It was a bit disturbing to be quite honest with you and it was shocking to the extent to which experimental drugs were given to young athletes and highlighted the craziness and the madness of certain individuals who were in the support staff who really didn’t come to grips with what they were doing.

But they involved Human Growth Hormone releasing substances, sections of HGH molecules which are which are quite available and manufactured out of China, a dementia therapy drug to improve … who knows, a number of veterinary products and unknown substances, substances like a Mexican drug for the treatment of muscular dystrophy was given to the players without knowing what it was. So it was all a little bit crazy.

Most of this did not have the Australian regulatory approval or the therapeutic goods authority. And most of the substances where either just recently on to the WADA list or in the related substances sections of the list. So the individuals who were going about this were trying to exploit the nuances of the WADA list and probably also had some understanding that some of these substances were so new that the laboratories didn’t have the capability of dealing with them.

Coincidentally, we did have some wind of this during the course of the year, it was 2012, and so we did arrange through ASADA to have a number of specimens of these players sent to the Cologne laboratory rather than the Sydney laboratory but nothing came out of it.

Let’s not beat around the bush here. Dr Harcourt clearly admitted that the AFL had wind of this – “it was shocking to the extent to which experimental drugs were given to young athletes and highlighted the craziness and the madness of certain individuals who were in the support staff who really didn’t come to grips with what they were doing.

So, the individuals who were going about this were trying to exploit the nuances of the WADA list and probably also had some understanding that some of these substances were so new that the laboratories didn’t have the capability of dealing with them.

On 16 August 2014, the Age said “Former ASADA chief executive Aurora Andruska this week broadly referred to 2011 and 2012 tests during cross examination in the Federal Court, saying while the results were inconclusive, they were enough ‘to show that we were on the right track’.” ASADA and the AFL would have been on the right track if they had gone to Essendon and audited the club and told the players to stop taking peptides.

It is unconscionable, and a flagrant breach of the AFL’s duty of care to the Essendon players, that the AFL didn’t go to Essendon to ascertain what was happening. It is beyond belief that the AFL did not demand that the players stopped taking substances when they believed that the players’ health and safety was possibly at risk. It is unfathomable that the AFL did not conduct an audit to ascertain whether Essendon was complying with the obligations set out in the Victorian Occupational Health and Safety Act.

General Manager, Football Operations, Adrian Anderson (Interim Report Page 241)

On 24 April 2012, the AFL’s general manager – Football Operations, Adrian Anderson sent an email to every club titled ‘Leading Approach to Sports Medicine & 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, it said [in] theAFLMOA survey of club doctors (14 clubs responded):

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.

The possible consequences were potential risk to player welfare (emergency cover, mistreatment, etc; exposes club, club staff & coaches, and AFL to potential litigation; issue with MO recruitment and retention; potential MO insurance issues.

The results of this survey flagged potentially catastrophic problems for the AFL, the clubs and the players, yet Demetriou, Anderson and Clothier, inexplicably, failed to do anything, despite their obligation under Clause 4.6 of the AFL’s anti-doping code to report it to ASADA.

More importantly, the AFL failed to meet its duty of care obligations to every club, not just Essendon. The AFL did absolutely nothing despite Anderson saying inter alia, there was a risk of Radiation Exposure [my emphasis]; Doctors were overruled; and there were unhygienic facilities at some clubs.

This email was just the summation of the questionnaires returned to Anderson. I imagine some of the raw data would have been much worse.

It is unconscionable that the AFL did nothing about this report.

As the possible consequences were potentially so horrific, it is impossible to comprehend that this email would not have been tabled at the AFL commission’s next board meeting.

Chief Executive, Andrew Demetriou

Andrew Demetriou was aware of Essendon’s interest in supplements in 2011, and aware that its doctor was marginalised by its sports scientists. He was quoted on 12 April 2013 saying “he had erred early last year in not acting more strongly on his fears sports scientists were overruling club doctors”.

Demetriou told Mike Sheahan in his 27 September 2013 interview that:

“There are always things you think you could do better. The most recent one that comes to mind, which I have spoken about before, I wish we had been more vigilant last year when we were just starting to think, hearing things about sports science and the influence of sports’ scientists and we sought of had an inkling. I was privy to some information and (was) hearing things and certain things were happening Mike. At a couple of clubs, we were having doctors being marginalised. There were just things happening and it was part of an unhealthy and oh it was just an awkward trend which we didn’t like and I regret that we didn’t do something earlier [my emphasis].

This was a misleading and disgraceful admission. Misleading because “I regret we didn’t do something earlier” implies that the AFL actually did something. That is factually incorrect. The AFL did nothing until Essendon chairman, David Evans, ‘self-reported’ on 5 February 2013. Furthermore, it’s an admission that the AFL failed its governance obligations and that it didn’t fulfil its duty of care obligations to the Essendon players. Demetriou clearly acknowledged that he didn’t fulfil his responsibilities and was accepting some blame for what happened at Essendon.

Demetriou admitted that he should have been “more vigilant” in 2012. He admitted to knowing “doctors at two clubs were being marginalised”. He admitted to knowing that “things were happening” and he regrets he “didn’t do something earlier”. These shameful admissions are tantamount to acknowledging that the AFL was guilty of failing to fulfil its duty of care to the Essendon players.

Demetriou spoke at an integrity forum in Melbourne on 27 May 2014 and made a number of mind-blowing comments: “I started terming them [sports scientists] phys-edders because we saw a situation early on, even before the Essendon situation, where the demand for sport scientists and people who were coming into clubs, they were starting to have a significant influence over doctors, over club medicos, over coaches. At a couple of clubs … it was the doctor reporting into the sports scientist and that’s just unacceptable.” Despite these grave developments, and Demetriou’s belief this behaviour was unacceptable, he and the AFL did nothing. Demetriou failed to fulfil his duties as a director of the AFL. He failed to fulfil his duty of care to all AFL players. This was a major governance failure by the AFL.

Further proof that the AFL had governance problems in 2011 and 2012 came straight from Demetriou’s mouth. On the 9 April 2013, The Australian newspaper quoted Demetriou as saying: “We have already put our measures in place to enhance our policy and enhance the integrity of the [anti-doping] code with some sweeping changes.” Sweeping changes implies that the procedures and policies in place in 2011 and 2012 were inadequate. Unfortunately, we shall never know whether the AFL’s procedures and policies and governance were worse than Essendon’s, because unlike Essendon, the AFL swept its review under the carpet.

Demetriou went on to say: “I’m currently visiting every club, players included, to make sure they understand the importance of the issue.” My understanding is Demetriou didn’t visit every club. If the AFL had the correct procedures in place in 2010, 2011 and 2012 that checked on the clubs’ compliance with their OH&S obligations, Essendon would not have failed to fulfil its OH&S obligations.

Demetriou has clearly implied that the AFL breached its OH&S responsibilities to the Essendon players.

Deputy Chief Executive – Gillon McLachlan

Gillon McLachlan believed that the AFL could have taken action which would have prevented the whole saga. McLachlan accepted some responsibility on behalf of the AFL for the saga when he told SEN radio on 28 August 2013:

“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”

“The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.”

“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.”

“People need to take various forms of accountability and I’ll take that.”
Hird claimed in a Supreme Court writ that during a meeting on February 5, the day Essendon self-reported, McLachlan told him he knew Essendon players had taken performance enhancing drugs, the Australian Crime Commission was about to hand down a report and that the club should ask the AFL and the Australian Sports Anti-Doping Authority to investigate, then the investigation will look better for you. Hird would have been in serious trouble if he had made a false claim in his writ.

AFL ‘Registrar’

According to ASADA,in order to enforce anti-doping rules against athletes or support persons, sporting organisations must maintain a contractual relationship with those persons. The contractual relationship is generally enabled through a registration process requiring athletes and support persons to abide with the anti-doping policies of the sport. As Essendon was never given a home address for Dank, and as there wasn’t a single piece of paper in his human resource file, it is extremely unlikely that Essendon ever had a contractual relationship that would satisfy the WADA Code. This was obviously a failure by Robson, Hamilton and the HR manager. Just as importantly, the AFL registrar failed to do his/her job.

General Breaches

Undoubtedly the most reprehensible failure to fulfil duty of care responsibilities was committed by AFL and ASADA officials who claimed they knew in 2011 and 2012 that the Essendon players were taking dangerous life-threatening banned substances and yet did nothing to stop the players. The moment the officials suspected that the players were taking dangerous life-threatening banned substances they should have run down to Essendon and told the players to stop. In not doing so, they allowed the players to take for 15 months what the officials believed to be dangerous substances. This was unconscionable. The thoughts of the officials are encapsulated in Dr Peter Harcourt’s speech in Zurich in November 2013:

“It was shocking to the extent of experimental drugs were given to young athletes. And highlighted the craziness or madness of certain individuals who were in the support staff…”

“Coincidentally, we did have some wind of this during the course of the year [2012]… Most athletes of the team were involved. There was quite broad acceptance by the players even though it involved unusual practices and hundreds of injections.”

Dr Harcourt is basically saying the AFL had wind of an experimental supplementation program implemented by crazy, mad staff. And, inexplicably the AFL sat back and allowed this to continue for 15+ months.

The AFL failed to monitor compliance with Clause 7.4 of the AFL anti-doping code

Clause 7.4 of the AFL’s anti-doping code states, ‘Before the commencement of the AFL Competition in each year each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last Match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer in writing of all substances and medications he subsequently takes or uses during the AFL Competition in that year. Each Club Medical Officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the Club.’

If each club, including Essendon, complied with this rule, and if the AFL weren’t too lazy or too apathetic to ensure compliance with this rule, it is most unlikely there would ever be an anti-doping problem. High performance coach, Dean Robinson, general manager – football operations, Paul Hamilton, and chief executive, Ian Robson, failed to fulfil their responsibilities. AFL chief executive, Andrew Demetriou failed to fulfil his responsibilities by not having procedures in place to ensure compliance with this most crucial anti-doping clause. Undoubtedly, the most culpable was AFL integrity manager, Brett Clothier, who didn’t monitor compliance by any club. This was a major governance failure by the AFL.

As the AFL has onerous legal responsibilities for the health and safety of players at every club it is inexplicable, and unforgivable, that it has never, ever, conducted an audit of any club to ensure the clubs were complying with the OH&S laws. I doubt whether the AFL could even name the clubs with OH&S manuals.

Paradoxically, the public insists the RACV audits motels, caravan parks and hotels every three or so years to ensure that each still meets its star rating. On the other hand, the AFL has never audited a single club’s OH&S compliance. If it is important enough for caravan parks to have an OH&S accreditation program, the least the AFL could have done was to feign interest and visited each of the clubs once to check whether they had an OH&S manual and whether the staff had received any training.

In Demetriou’s own words, and in the words of his deputy chief executive, he was aware of a potential problem and he did nothing. Demetriou had a responsibility to do everything to ensure his clubs maintained a safe work place. Nearly as important as safety, Demetriou had a responsibility to maintain the integrity of the competition and protect the image of the game. The AFL was told in 2011 that Essendon had approached ASADA about peptides. Demetriou had a responsibility to the 17 clubs to ensure that no club implemented an illegal peptides program. The AFL, as McLachlan suggested, should have monitored Essendon monthly. It should have visited every club to ascertain whether its record keeping and occupational health and safety procedures complied with the OH&S Act. I’d be surprised if any of the clubs complied.

As the AFL is the custodian of the game it has just as much responsibility to have fool-proof procedures and impeccable governance as Essendon.

The AFL failed to devise or implement any adequate system or process to ensure that Essendon fulfilled its occupational health and safety obligations and that substances provided to and used by the players were safe and were compliant with the AFL anti-doping code and the World Anti-Doping Code

The AFL failed to ensure that systems were in place to make certain the program was monitored, systematic and supervised.

The AFL failed to act with sufficient vigour to terminate or significantly alter the program after becoming aware of, or being informed of, concerns about the program and adherence to the correct protocols.

On 16 October 2013, the AFL released the results of a survey into supplement use at AFL clubs. Twelve clubs admitted to running programs with “medium or high levels of supplement use”. Players at nine clubs also admitted to buying their own supplements. It identified an inappropriate definition of supplements and a flawed selection process in the employment of support staff. The AFL accepted the clubs’ word that none of the substances were WADA prohibited. The AFL chose not to investigate these clubs. Once again the AFL failed to fulfil its duty of care to its players.

D. Did the players suffer any injuries, physical or mental? YES

There have been numerous newspaper reports quoting various Essendon players saying they have been mentally destroyed over the last two years. One player, Paddy Ryder, was so badly affected, the AFL allowed him to break his Essendon contract and sign with Port Adelaide. Numerous doctors have been quoted in the mainstream media as saying the players could contract cancer and there is the possibility of birth defects in their children. This has created an immeasurable mental anguish for all the players. If the AFL had acted when it should have after Dr Reid’s phone call to the AFL on 19 October 2011, the whole saga would not have occurred, and the players would not have incurred mental injuries.

E. If the AFL and Essendon both failed to fulfil their obligations, who was the most responsible.

There is no doubt that both the AFL and Essendon failed to fulfil their OH&S obligations and in so doing, failed their duty of care to provide a safe work place.

Essendon did not have any OH&S procedures in place. No hazard identification ever took place and no risk assessment ever took place. No training was provided to the employees.

The AFL had an obligation to ensure that Essendon complied with its OH&S responsibilities. The AFL did not have procedures or protocols in place to ensure Essendon complied with its OH&S responsibilities.

The AFL has to accept most responsibility for the risk to the players because it took no action on 19 October 2011 when Dr Reid notified the AFL that the Essendon players had been given peptides without his permission. If the AFL had responded at that point the whole saga would not have occurred.

F. What issues need to be taken into account when determining penalties if the AFL failed to fulfil its obligations and responsibilities?

There were approximately 38 players involved in the supplement program. All have incurred mental anguish. The number of players affected, and the substantial mental anguish suffered by the players should be taken into account when determining the AFL penalties.

Yours faithfully

Bruce Francis