The Essendon Decision - A Work Health & Safety Perspective

It wasn’t just AFL fans who read with interest this week’s decision issued by the Court of Arbitration for Sport (CAS), overturning last year’s AFL Anti-Doping Tribunal decision and banning several Essendon Football Club players who CAS found to have been injected with Thymosin Beta 4 with the intention of giving Essendon an unfair advantage in the 2012 AFL season.  

Workplace lawyers have also followed the case with fascination, given the potentially significant work health and safety implications of subjecting players, who would be deemed ‘workers’ under relevant Work Health and Safety legislation, to an experimental supplement regime that included banned substances.

Every ‘person operating a business or undertaking’ in Australia owes a duty of care to provide workers with a work environment that is safe and without risk to health (so far as is reasonably practical), and professional sporting clubs are no exception.

While the initial AFL Anti-Doping Tribunal decision found the players themselves were not guilty of using the banned substance, it did find that Essendon had failed in its duty of care towards the players by delivering an "experimental, inappropriate, and inadequately vetted" supplements program.

WorkSafe Victoria went on to charge the club with failing to provide a safe working environment, and a system of work that was safe and without risks to health under the Victorian Occupational Health and Safety Act 2004 (the predecessor to the current Work Health and Safety Act 2011). The Club has entered a guilty plea and the prosecutor has asked the Magistrate to fine the club $305,350 for each of the two charges, which is the maximum monetary penalty available to the Magistrate to issue. The penalty will be decided on 28 January 2016.

At this stage, there does not appear to be reported evidence of any adverse physical effects of Thymosin Beta 4 on any of the players. However, the Essendon events demonstrate safety regulators will look at the positive and proactive duty imposed on organisations to take reasonably practicable steps to protect workers from a risk of injury. No actual injury needs to be sustained for there to be a breach of the legislation; in this case, expert medical evidence established that the substance could lead to adverse health effects, which was sufficient to constitute a breach of the Occupational Health and Safety Act 2004

This case serves as a salient reminder to organisations that the risk and severity of potential consequences are significant factors considered by regulators in prosecuting organisations and "officers" entrusted to lead them, irrespective of the culpability or "fault" of the deemed workers involved.  The protective position taken by Work Health and Safety laws and regulators was echoed by the Federal Minister for Health and Sport Susan Ley, who in a media release following the CAS decision stated "Athletes take guidance from those leading them and should be able to trust the institutions through which they compete".  

This reflects a somewhat different perspective to CAS in rejecting the players were without fault, by failing to make certain inquiries and disclosures, albeit under the regime of a sports scientist CAS described as a "rogue".  Same facts, different outcomes, but perhaps understandable given the different policy objectives  underpinning the respective jurisdictions.   

A full copy of the CAS decision is available here: http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ES... 

This content is general commentary provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.  

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