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Leading La Trobe researchers comment on ongoing impacts of Essendon case

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On the evening of 21 March 2016, Professor Patrick Keyzer appeared on the ABC’s Four Corners, to comment on 22 year-old Hal Hunter’s case against Essendon Football Club.  Hunter played at Essendon during the now notorious Essendon supplements scandal.  Patrick Keyzer is a Professor of Law at La Trobe University, but is representing Hal Hunter in his private capacity as a barrister.

Hal Hunter played for Essendon for two years before being de-listed in 2013. After his parents’ attempts to get information from the club were ignored, Hal decided to seek pre-litigation disclosure from Essendon and the AFL.  After eighteen months of delays Hal got his day in court in October last year.  The Supreme Court ordered the AFL to produce over one hundred documents for Hal and his legal and medical team to consider.  The Supreme Court did not order Essendon to produce any documents because, the day before the hearing, Essendon’s lawyer swore an affidavit that Essendon had told him that they had provided all of the relevant documents they had.  Notwithstanding their representations to the Court, which they relied on successfully when they sought a costs order against Hunter in February, Essendon sent further documents to Hunter just last week.  Keyzer was reported on 3AW Radio yesterday and advised that if Essendon did not agree to a reversal of the costs order that Hunter would have no choice but to return to Court and point out to the judge that the affidavit sworn by Essendon’s lawyer in October was no longer accurate.

“They’re treating it like an issue that will just go away,” Hal Hunter said on Four Corners, “but for me, if I’m not going to get the answers to the questions I’m asking, it’s never going to go away.”

Through the program, Essendon players were injected with unknown substances repeatedly, sometimes on off-site locations. When asked about the risks of these substances Dr Peter Brukner OAM, who is a specialist sports and exercise physician, media commentator, and Honorary Professor of Sports Medicine at La Trobe University, explains that the risk lies in the fact that they are unregistered:

“What people sometimes don’t realise is that the Essendon scandal doesn’t revolve around supplements, but actual unregistered drugs. This means that these drugs aren’t tested and long-term effects or harmful side-effects are largely unknown. To someone like Hal Hunter, the unknown nature of these drugs is understandably distressful, and Essendon should do anything within its power to provide this clarity to its players.”

LBS sports academic, Dr Emma Sherry, whose research focusses on sports and athlete welfare and sport and the community, is happy to see the narrative of the Essendon trial shift to the health of individual players.

“Often in instances of doping, the focus is on the fact that athletes were cheating, rather than the health risk any unregistered drugs may impose. But for these 34 players, their sense of control has been taken away from them, when it comes to their health. When they get sick in the future, they will never be certain whether this development is a long-term side-effect from this unregistered drug, or whether it would’ve happened regardless. Basically, they have been exposed to a human clinical trial, without giving their consent.”

 

Essendon obtains costs order from Hal Hunter

Catherine Ordway Alistair Twigg Snedden Hall & Gallop La Trobe Law School
By Allistar Twigg [1] and Catherine Ordway [2]

In the drawn out process leading to a decision as to whether Hal Hunter decides to sue the Essendon Football Club or the AFL or both (or neither), the Victorian Supreme Court made a formal costs order against Hunter in favour of Essendon in respect of an interlocutory matter. At this stage, the parties have been involved in just the one specific legal issue for nearly 18 months: that of pre-action discovery.

Hunter played with Essendon as a rookie for nearly two years until he was cut and de-listed (and departed Essendon and the AFL) in September 2013. During that period, he was allegedly involved in the now notorious controversy referred to as the ‘supplements program’.

The Court of Arbitration for Sport found 34 Essendon players guilty of using performance enhancing drugs as part of the supplements program. Hunter was not among them.

As a consequence of that same supplements program, Essendon Football Club pleaded guilty to significant workplace breaches and was fined $200,000.

Now Hunter is concerned about his health and wants to know what the consequences of the supplements program are to him. So Hunter and his lawyers want access to all the supplements program documents held by the AFL and Essendon in order to see if he has a case and, if so, whom he should sue. He is doing this by way of pre-action discovery.

Pre-action discovery, which may be granted at the discretion of the court where the ends of justice require, differs from ordinary discovery in litigation, which is an entitlement.

Lengthy and somewhat testy correspondence about the supplements program documents between the parties’ lawyers over a year or so culminated in an application by Hunter for a formal order for pre-action discovery heard by The Honourable Associate Justice Mukhtar in October last year. His Honour found that Essendon had by then handed over every document it had relating to the supplements program.

As a result, on Wednesday 10 February, Essendon applied for and was granted an order for its costs of that October hearing which will likely be of the order of tens of thousands of dollars Notably, however, Essendon will receive no costs for any of its work in the eighteen months leading up to the day before the hearing. The judge formed the view that the late provision of an affidavit by Essendon disqualified it from receiving all of its costs. .

Essendon has been quoted over the last few years as vowing to look after the players involved in the supplements saga. Obtaining an order for costs against one of them seems directly contradictory to this.

The discovery of only a handful of documents by Essendon indicates that record-keeping during the supplements scandal was not a high priority. Yet there are a substantial number of authorities that indicate that poor record-keeping is reflection of negligent practice. Furthermore, a clause in the tripartite contract between players, the AFL and AFL clubs imposes a duty on the AFL and clubs to advance the welfare of the player. It would be impossible to argue that this duty was fulfilled during the supplements scandal.

Essendon and the AFL should take steps to settle this matter, and the other cases that have emerged among the Essendon and former Essendon players caught up in the supplements scandal. In the short term, taking steps to enforce a costs order against a now seemingly struggling ex-player, is not a step in this direction.

[1] Catherine Ordway is a Professor of Practice in La Trobe Business School, specialising in sport management and a Senior Consultant at Snedden Hall & Gallop.

[2] Allistar Twigg is a Sports Lawyer at Snedden Hall & Gallop, and has been involved in the sports industry for more than fifty years.

 

Catherine Ordway discussing Essendon Football Club supplements case on ABC Radio

CatherineOrdway

Recently, Sports Management specialist and La Trobe Business School Professor of Practice Catherine Ordway, was featured on the ABC Radio news speaking about the decision of the Court of Arbitration for Sport on the Essendon supplements case.

You can listen to Catherine on the ABC website.

Doping verdict takeout: Ask more questions

By Catherine Ordway

I am not surprised by the Court of Arbitration for Sport’s finding of anti-doping rule violations by the Essendon Football Club players. It’s the right decision and I am pleased the panel found the evidence supports the claim made by ASADA that the players had been injected with a prohibited substance.

The 34 current and former Essendon players, whether innocent or not depending on your perspective, were found to have been injected with the banned peptide Thymosin Beta-4. They have been suspended until November 2016 after a tumultuous three years of intense scrutiny.

The outstanding takeaway from the CAS decision for the players and the board members of the Essendon Football Club is this: Ask more questions.

Catherine Ordway La Trobe Business School Essendon Doping Verdict

Essendon chief executive Xavier Campbell (left) and chairman Lindsay Tanner at a press conference after the CAS handed down its decision. Picture: Michael Dodge/Getty Images

Players accepted what they were told by their coaches and trainers and ignored warning signs: Why wasn’t the club doctor involved? Why were they being taken to an off-site location? Where was the documented individual player injection programs? Why weren’t there medical files for each player? What were they being injected with on each occasion? Was it approved for human consumption? How were the performance improvements being measured?

As ASADA CEO Ben McDevitt said: “At best, the players did not ask the questions, or the people, they should have. At worst, they were complicit in a culture of secrecy and concealment.”

The starting point under the World Anti-Doping Code is that all athletes take full responsibility for any substance ingested into their body. Despite the players receiving anti-doping education, and the supplements program not being administered by the club doctor Bruce Reid – he was excluded from the program – players took the word of Stephen Dank, employed as a sports scientist by Essendon.

Read the CAS ruling in full here

 

If the players believed what they were being told about the program being WADA compliant, why didn’t they declare the injections on the ASADA doping control forms as required? Is it because they didn’t know, and didn’t want to know, what they were being injected with?

The players were told by Stephen Dank the program complied with the WADA code. PIcture: Shutterstock

The players were told by Stephen Dank the program complied with the WADA code. PIcture: Shutterstock

The players were lied to about what they were being injected with, and told by Dank the program complied with the WADA code. In this way, players can be said to be innocent victims up to a point, but they should have done more to seek advice beyond the narrow confines of the club.
Dank’s behaviour throughout did not satisfy any professional standards.

Beyond requirements for athlete support personnel under the WADA Code, conduct of this kind in any other industry would attract jail time.

While players should have asked more questions, fault for this scandal lies much further up the line: multiple governance failings and weaknesses created this perfect storm. The governance within the club has been described as appalling; with major structural and accountability deficiencies identified.

To a large extent, these issues have now been resolved and the recommendations outlined in Dr Ziggy Switkowki’s 2013 report followed. Dr Reid admits that he could have done much more to prevent the program, although he did try to have it stopped; an instruction which was ignored.

Former Essendon coach James Hird. Picture; Michael Dodge/Getty Images Catherine Ordway La Trobe Business School

Former Essendon coach James Hird. Picture; Michael Dodge/Getty Images

Another crucial factor to be considered is the team environment versus athletes competing in individual sports. Although all the players were over 18, senior players and people with “god-like” charisma, such as that ascribed to Essendon head coach James Hird, can have an enormous influence in a team setting. This was not explored by the CAS panel.

I wonder whether this presents a research opportunity: comparing the influence a long-term, one-on-one coaching relationship has on a young, impressionable individual athlete verses the pressures within a team environment, and whether these are factors the CAS panel should have taken into account.

From here, there are two ways the 34 players can explore further legal options. First, lawyers for the players could appeal the CAS finding to the Swiss Federal Tribunal. This, however, I suspect is unlikely. The CAS decision thoroughly sets out why the panel felt they were “comfortably satisfied” with the evidence presented. The “comfortable satisfaction” standard of proof sits somewhere between the criminal standard of beyond reasonable doubt and the civil standard of the balance of probabilities.

The second approach is for players to lodge civil action against the Essendon Football Club for a breach of the club’s duty of care toward them, and citing a loss of reputation, current and/or future earnings and potential damage to players’ future mental and physical health. As the products have not been approved for human consumption, we have no idea what the injections’ impact could be, with the possibility they may lead to heart conditions, fertility issues, susceptibility to various cancers or impacts on their unborn children.

The CAS finding that the players were injected with an unapproved substance will undoubtedly now be used against the club in expensive civil proceedings.

At a time when there have been numerous failings around governance in sport internationally — including a raft of reports that have given international federations responsible for football, cricket, cycling and athletics a shake-up — the Essendon case is important. The CAS ruling makes it clear athletes need to do more and take more responsibility for their own health and wellbeing, even in a team environment. Players and officials cannot rely entirely on information they are given within the club. Players must do their own independent research and ask more questions.

CatherineOrdwayCatherine Ordway is a Professor of Practice in La Trobe Business School, specialising in sport management. She has more than 20 years experience in the Sports Industry and continues to provide consultancy services to Olympic bidding cities, government agencies and sporting organisations on integrity and anti-doping issues. Catherine is a member of the SportAccord (GAISF), IBAF (baseball), ICC and West Indies (cricket) anti-doping tribunals, and is the IAAF (athletics) medical and anti-doping delegate for Australia.

This article was originally published on Melbourne University’s Pursuit Blog.

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