Sport AFL Why legal action could ground the Bombers
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Why legal action could ground the Bombers

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The Bombers are in trouble. You can talk about pride in the jumper, the warring tribes and playing with passion all you like, but you’ve got to pay the bills. If Bomber president Paul Little has his way that is about to get a whole lot more difficult.

Essendon isn’t exactly flushed with funds. The club spent a hefty $26.5 million on its Tullamarine training facility and last September asked supporters to dip into their pockets.

Surely Little’s declaration of legal war on ASADA isn’t financially wise. The Bombers can’t gamble on court room battles they may or may not win, especially if individual players start to bring legal actions against the club for not exercising due duty of care.

Football clubs are businesses and players employees. If a business imperils the health or welfare of its employees it deserves to wear it in court. If, as ASADA alleges, the Bomber players have cases to answer, they are entitled to have their day in court.

This saga will move beyond the AFL and ASADA, and it should. If the club did all that is alleged, players deserve compensation. No organisation is entitled to inject its employees with substances – legal or illegal – without informed consent. If players are now claiming they have little idea of what they were injected with then the question arises: what the hell was going on?

Paul Little is "having a bet" each way. Photo: Getty
Paul Little is “having a bit each way”. Photo: Getty

They may have consented, but on what basis?

Forget the sham play-for-the-jumper argument. Players ‘put their bodies on the line’ for a buck, and if they don’t they’re mugs. Playing for the jumper is a throwback to sport’s feudal age when rah-rah presidents and chairmen suppressed players’ wages in name of spurious loyalties and amateurism.
Supporters believe in the jumper. Players, for their own good, have to look at their bottom line and their health.

Essendon should pay a hefty price for its tardiness. The club may well have to re-mortgage the hangar to foot the legal bill.

In challenging the legal standing of the joint AFL-ASADA investigation the club seeks to have ruled as inadmissible evidence collected from its players.

But Essendon’s own Switkowski report cannot be ignored. It detailed the rise on James Hird’s watch of an uncontrolled “pharmacologically experimental environment”.

Switkowski criticised the inattention to documenting the supplements players received. That many players still have little idea about what they were injected with is astonishing, and shows both the lack of informed consent and the poor level of education of the ASADA code amongst ALF players.

Under the code all sports persons are responsible for what they put into their bodies. The Essendon players are no exception. They haven’t a leg to stand on.
The players should consider taking action against the club. As Switkowski found, the club was negligent in its governance of the supplement program. In accepting it brought the game into disrepute last November, the club acknowledged fault.

Club president Paul Little, in speaking on behalf of the players, is having a bit each way. He’s challenging the validity of the joint AFL-ASADA investigation, the findings of which he accepted at the time. Leading individuals at Essendon did bring the game into disrepute.

Essendon sought ASADA delay
Bombers, Hird, to fight ASADA

He’s also attempting to win over the 34 players from Essendon’s 2012 list issued with infraction notices by becoming their defender in the courts.

This cannot mask the fact Essendon had a duty of care to the players which the club abused. The players signed consent forms which listed the substances they received and declared they were WADA and ASADA compliant. The club did not have the necessary checks and balances in place to ensure this was the case.

Such negligence goes beyond loyalty to jumper. Essendon should pay a hefty price for its tardiness. The club may well have to re-mortgage the hangar to foot the legal bill.

Tom Heenan lectures in sport studies at Monash University.

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