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Essendon players can walk out: experts

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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.

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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.'

'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."

120 comments

  • Really simple. Sworn evidence from all players. Were you given substances into your body?
    Frequency and dates Substances legal or otherwise.
    Hird ultimate was "Performance".
    So was an advantage made over other teams and players?
    I believe YES!
    Therefore ESSENDON club and those in control have brought the game into disrepute.

    That simple...

    Penalty: Remove Hird and remove all the clubs points. No more sanctions needed.

    They can start afresh 2014 and with how many players are left to commit to a new era.

    Commenter
    Robbie-Editor-The Homemaker Reporter
    Location
    Melbourne
    Date and time
    August 23, 2013, 7:38AM
    • No way penalty includes loss of match points in 2014. Loss of draft picks for three years. These charges are worse than Carlton's in 2002. At least Carlton took their medicine.

      Commenter
      kirt
      Date and time
      August 23, 2013, 8:07AM
    • If you are going to look it at like that then technically Gatorade is performance enhancing. The fact wether substances were given is not the problem as none of them have been indentified as illegal....thus far...

      The problem is that they did not govern and adminstered it properly.

      As an essendon fan i agree that punishment is needed BUT 80% of the charges laid down by the AFl are a joke. Missing out on this years Finals and a 6 figure fine would suit.

      Commenter
      JordanS88
      Date and time
      August 23, 2013, 8:11AM
    • Thymosin beta 4. Says it all
      AGO9604 says it all
      Unknown Mexican substance says it all
      Dr Reid letter says it all
      Hird warned to stay away from Peptides and ignores warning says it all

      Penalty
      Removed from finals 2013
      Loss of all match points 2014
      Loss of all draft picks 2013, 2014 perhaps 2015
      3 million dollar fine
      Hird 5 year ban minimum.
      Corporal 5 year ban minimum
      Thompson 1 year ban
      Dr Reid 8 weeks.

      Players if found guilty 2 years.
      Jobs Watson returns Brownlow.

      This must never be allowed to happen again

      Demetriou sacked for insufficient drug testing and education of players to stay away from all drugs.

      Commenter
      Dale Burns
      Date and time
      August 23, 2013, 8:31AM
    • Good in theory but all they can say is they were given injections (perhaps) and they can't say what the substances were - that takes it nowhere from a legal perspective. The AFL needs to introduce rules of: 1. no injections; 2. any substances given to players also have to be submitted to the AFL for possible future testing or analysis. The AFL has really failed on this and their brand is damaged.

      Commenter
      the_Truth
      Location
      Melbourne
      Date and time
      August 23, 2013, 9:03AM
    • Good in theory but all they can say is they were given injections (perhaps) and they can't say what the substances were - that takes it nowhere from a legal perspective. The AFL needs to introduce rules of: 1. no injections; 2. any substances given to players also have to be submitted to the AFL for possible future testing or analysis. The AFL has really failed on this and their brand is damaged.

      Commenter
      the_Truth
      Location
      Melbourne
      Date and time
      August 23, 2013, 9:03AM
    • Can someone explain - if EFC players are guilty of anti-doping rule violations, why has the independent statutory with the legal power to address this failed to issue infraction notices to any players? Could it be that there is insufficient cold hard factual evidence? Or should we be worried about a cover up?

      Also, if EFC players that took these substances over 12 months ago were harmed then why - as far as we are aware - are none of them showing signs of illness, nor suing the club, nor indicating that they intend to leave the club? Once again, because it's not true, or because it's just another cover up?

      Speculation about what MIGHT happen in the future, is not the same as the reality that exists here and now.

      Commenter
      reality check
      Date and time
      August 23, 2013, 9:09AM
    • In all this debate over penalties people seem to be having, the idea that James Hird could have anything less than a lifetime ban is the most ridiculous. Look at what he's responsible for causing. How could you imagine someone that has done this back in the AFL in 12 months, 5 years, 10 years or ever? Hird needs to go for life and never be mentioned again.

      Commenter
      Nick
      Date and time
      August 23, 2013, 9:12AM
    • Dale Burns, you inadvertently nailed it with your comment "AGO9604 says it all". :) :) It really does, mate, it really does. After all, you don't do heavy metal in dubly, do you? I was chatting with someone last night who said Hird should be stood down. My question to him was "what did you think of Dr Garnham's comments?" and his response was "who is Dr Garnham?".

      Commenter
      Laki
      Location
      Windy Hill
      Date and time
      August 23, 2013, 9:28AM
    • Its not only the Essendon players that are able to walk out on contacts..lawyers can too!

      Commenter
      pay up Josh
      Location
      a place near you
      Date and time
      August 23, 2013, 9:33AM

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Related Coverage

Hird launches Supreme Court action (Thumbnail) 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.

James Hird launches Supreme Court action against AFL and Andrew Demetriou

James Hird has issued a writ against the AFL in the Supreme Court claiming he has been denied natural justice and demanding chief executive Andrew Demetriou be banned from taking part in any hearing into his involvement in Essendon's supplements program.

Clubs back AFL in row with Bombers

The league's 17 other clubs have lined up behind the AFL in its dispute with Essendon, calling on the Bombers to avoid fighting its bitter legal battle with the league in the courts.

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One of Melbourne's top compensation law firms is believed to be in talks with an Essendon player over the supplements scandal.

AFL presidents back league's stance on Essendon

The AFL's 17 other clubs have called on Essendon to avoid fighting its bitter battle with the league in the courts, and have offered their unanimous confidence in the AFL's handing of the dispute.

Demetriou: there was no tip-off

AFL chief executive Andrew Demetriou has again insisted he could not have tipped Essendon off that they were under a crime investigation.

AFLPA concerned for players' health

AFL Players Association chief Matt Finnis says Essendon players would require long-term monitoring of their health after growing uncertainty about the impact the Bombers' controversial supplement injection program may have on their lives.

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BRI 74 vs COL 86 Stats
WBU 97 vs WCE 87 Stats
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ADE 140 vs NTH 63 Stats
FRE 75 vs PTA 68 Stats
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HAW 123 vs GEE 61 Stats
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NTH 105 vs PTA 113 Stats
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HAW 127 vs WBU 57 Stats
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MEL 50 vs FRE 118 Stats
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ADE 91 vs PTA 115 Stats
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GCF 78 vs ADE 119 Stats
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CAR 75 vs BRI 84 Report Stats
PTA 68 vs WCE 78 Stats
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ADE 119 vs STK 73 Stats
HAW 155 vs MEL 50 Stats
CAR 57 vs GWS 135 Stats
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ESS 136 vs BRI 78 Report Stats
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WBU vs PTA 14:10ES
BRI vs GCF 16:35G
GEE vs SYD 19:20SS
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GWS vs SYD 14:10Spotless Stadium
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STK vs GEE 19:20ES
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HAW vs BRI 14:10AS
NTH vs WBU 16:35ES
ESS vs RIC 19:20MCG
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STK vs SYD 15:20ES
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Fri, 04 SepTimes shown AEST
COL vs ESS 00:00MCG
RIC vs NTH 00:00ES
HAW vs CAR 00:00MCG
GEE vs ADE 00:00SS
SYD vs GCF 00:00SCG
MEL vs GWS 00:00ES
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