Essendon players can walk out: experts Jake Niall
The Age
August 23, 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.
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.
http://www.theage.com.au/afl/afl-news/essendon-players-can-walk-out-experts-20130822-2sekq.htmlLeading Melbourne lawyer Justin Quill confirmed players could walk away.
"There is a requirement for Essendon to provide a safe workplace and there is an argument it didn't do that because of the supplement program," he said.
"The follow-on is that there is an argument that Essendon has breached its duty to its players and is therefore effectively like a breach of their employment contract. That could allow players to walk away."
The AFL charge sheet said players were injected with "unprecedented frequency", under a regime that varied "sharply from prior practices" incorporating "exotic, mysterious and unfamiliar compounds".
"The club decided to implement the program without any meaningful input from appropriately qualified persons," it stated.
There is a provision under the collective bargaining agreement for players drafted by a club to refuse to sign a contract there.
But that player would need to provide exceptional circumstances why they should not play at Essendon, with heavy penalties for players who tamper with the draft.
http://www.news.com.au/sport/afl/essendon-players-could-walk-away-from-the-club-as-a-result-of-supplement-saga/story-fndv8gad-1226702415886
