Employment issues in Essendon doping investigation

Employment Law: 18 March 2019

There has been much talk of an alleged program of Essendon Football Club in which players were given substances described as 'supplements'. It has been alleged that the players signed a waiver, by which they agreed not to hold the club responsible for the consequences of their actions in taking the supplements.

At present there are many things we do not know, including: 

• what the supplements were, and whether they contained anything harmful to health or illegal (including contrary to the rules of the AFL competition);
• the content of the waiver, in particular whether it released the club from responsibility for adverse health effects of the supplements or consequences arising in the event that the taking of the substances meant that the players were ingesting banned substances that could give rise to suspension from playing in the AFL competition and thus loss of income and related benefits.

In the event that the club supplied the supplements or knowingly allowed them to be made available to the players, no waiver by the players would be sufficient to prevent the club incurring liability to the AFL or any other agency authorised to enforce rules and laws in respect of banned substances in sport in the event that the supplements were found to contain banned substances.

A waiver could be effective in preventing a player claiming against the club in the event that:

• the player was given full information as to what the club knew, or reasonably should have known, concerning the contents of the supplements and risks including possible adverse health effects and the likelihood that the supplements contained banned substances; and
• the player's participation in the supplement-taking program was voluntary. 

Whether participation in the program was voluntary will be a matter of fact in each case, as to whether each player knew or had reasonable grounds for believing that he would suffer some form of penalty if he did not participate. In terms of an anti-doping regime in which strict liability applies, it is likely to be no defence to the player that the club made supplement-taking compulsory, but the player would be likely to have a claim for compensation against the club that would not be extinguished by his waiver.

If the document was only a consent for medical treatment, as is now being alleged, the players are likely to have a case against the club even if the supplements program was voluntary, especially if the contents of the supplements were not fully disclosed to the players.