Hird launches Supreme Court action
James Hird issues a writ against the AFL in the Supreme Court claiming he has been denied natural justice, demanding chief executive Andrew Demetriou be banned from taking part in any hearing.PT3M20S http://www.canberratimes.com.au/action/externalEmbeddedPlayer?id=d-2se4k 620 349 August 22, 2013
Legal experts believe there is a strong case to say that Essendon's alleged failing in providing a safe workplace would allow the players to terminate their contracts - in effect, enabling even those under contract to leave the club if they wished to exercise that right.
Josh Bornstein, the deputy chair of Racing Victoria's appeals board and one the country's leading employment lawyers, said a case could be made that due to welfare, health and safety breaches, players could say their contract has been ''repudiated'', thereby allowing players to ''terminate'' the contract.
This view that Essendon might have repudiated the contracts by its treatment of players was shared by three other employment lawyers contacted by Fairfax Media. The AFL Players Association is also aware of this further legal novelty in the Essendon scandal - that players, if they wished, could seek to terminate contract and seek entry into the draft/trading system.
'The question is what the player wants to do about that breach.' Photo: Pat Scala
But rival clubs have also expressed concern about the prospect of players still being suspended for doping offences and there is also a view that those clubs would be reluctant to draft or trade for Essendon players, who might be suspended in the future - a situation that the Essendon, the AFLPA and the AFL have all wished to avoid from the outset of the scandal.
Most of Essendon's better players are under contract, and the club has been successful so far in avoiding any public breaking of the ranks from the playing group, albeit Triple M's breakfast show heard from a woman, ''Sarah'', who identified herself as a parent of an Essendon player and told host Eddie McGuire of her anger at the club for the way her son had been injected with substances and of the way it had handled the players and their parents.
Bornstein, a partner at Maurice Blackburn, said the repudiation of the contract would not require the players to have taken WADA banned substances, and it could be based upon the fact that the players had been either given ''harmful substances'' or if ''there is inadequate information about whether substance is harmful''.
''The question is what the player wants to do about that breach.''
Bornstein and other employment lawyers, who did to wish to be named, said there were common law provisions that applied to the players' contracts. There is also a clause in the AFL's standard player contract that states:
''The AFL club shall provide a playing, training and working environment which is, so far as is practicable, free of any risk to the health, safety and the 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.''
Another leading employment lawyer said: ''I think it's probably a breach [of contract].'' He explained that AFL player contracts were different and more complicated, in that they were ''tripartite'' - involving the AFL as well as the club and the player.
Essendon announced the signature of Jake Melksham on Friday, the key midfielder signing a two-year contract extension deal to remain at Windy Hill until 2015.
"Essendon showed their faith in me when they provided me with the opportunity to play AFL football and I wanted to repay that faith by signing on for a further two years," Melksham said in a statement.
"This is a proud and strong football club. We have a great group of players, and I couldn’t be happier to remain a Bomber."