Summary

WorkSafe Victoria has announced that it has charged Essendon Football Club with two breaches of the Occupational Health and Safety Act 2004 (Vic) (Victorian OHS Act) in relation to the supplements saga that has engulfed the Club since late 2011.

It may come as a surprise to realise that the professional sportspeople who many of us pay to see grace the field each weekend, are workers who must be afforded work health and safety protections like all other workers in Australia.

Safety on and off the field

Many sports involve inherently dangerous activities. Playing sports, particularly contact sports, can expose players to the real possibility of injury on the field. For example, in the last couple of years in Australia we have witnessed significant injury, and unfortunately even death, occurring on the field in rugby league and union, cricket and horse racing.1

As a result, health and safety regulation of what occurs on the field has garnered significant media attention. In contact sports such as AFL, rugby league and rugby union for example, with the ever present threat of traumatic brain injury and the possible long term consequences of such injury, the governing bodies have deemed it necessary to introduce procedures that require those players that receive a head knock to be removed from the field for assessment.

However, the recent prosecution of Essendon Football Club by WorkSafe Victoria shows that it is not only what happens on the field that can expose a sporting organisation to breaches of the health and safety duties owed to its players.

The charges against Essendon

Those that have followed the so called "supplements scandal" will know that Essendon has been subjected to a number of investigations over its supplements program during the 2012 AFL season. The program involved players being injected with peptides. This resulted in the AFL fining Essendon $2M, revoking its opportunity to play in the 2013 finals series and removing draft picks.

In February 2013, Essendon announced an independent review to be conducted by Ziggy Switkowski into its own governance processes during the scandal period. The review found that a number of management processes normally associated with good governance had failed at Essendon. In particular, it was found:

. the rapid diversification into exotic supplements, sharp increase in frequency of injections, the shift to treatment offsite in alternative medicine clinics…. combine to create a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review.

On 9 November 2015, WorkSafe Victoria announced that it had charged Essendon with breaches of the Victorian OHS Act as a result of the supplements scandal. The charges allege a failure by Essendon to provide and maintain for its players:

  • a working environment that is, so far as is reasonably practicable, safe and without risks to health; and
  • a system of work that is, so far as is reasonably practicable, safe and without risks to health.

This type of charge can expose a corporation to a penalty of up to $1,365,030. Similar provisions exist in other work health and safety legislation across Australia.

It has been reported2 that Essendon will plead guilty to the charges. In a Club Statement issued by Essendon on 9 November 2015, Essendon stated that the charges reflect the governance failings of Essendon at the relevant time for which it has accepted responsibility.

Key learnings for Sporting Organisations

It is rare to hear of a sporting organisation being prosecuted in Australia for breaches of statutory health and safety obligations owed to its players. However, the decision to prosecute Essendon draws attention to the fact that elite athletes who play sport are considered to be "workers" under Australian law, and therefore sporting organisations which employ players owe those workers the same health and safety obligations as other employers in Australia, both on and off the field.

While in the Essendon case only the Club was charged, those officers in control of sporting organisations need to be aware that provisions exist in the Victorian OHS Act, along with work health and safety legislation around Australia, for officers to be individually prosecuted also. However, there are exceptions to this for those officers that are volunteers.

Essendon's acknowledgement that the prosecution reflects the governance failings of the Club is a reminder for all employers, and in particular sporting organisations, that they must have proper procedures and processes in place, both on and off the field, to provide their workers with a working environment that is safe and without risks to health.

Discharging this duty requires, at a minimum, an understanding of what obligations are owed, how to comply and incorporating safety management into the organisation's daily operations.