The Essendon Football Club was fined $200,000 in January this year, by the Victorian Magistrates Court, for risking its player’s health and failing to keep a safe workplace, during its now infamous 2011-2012 supplements program.

Following an investigation and prosecution commenced by WorkSafe Victoria, the club pleaded guilty to several breaches of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) which resulted in the fine and two criminal convictions being recorded against the club.

In a statement released by WorkSafe, following the sentencing decision, the regulator said that the sentence imposed by the Court, “serves a warning to professional sporting organisations, that they must protect the health and safety of their players, many of whom are young and vulnerable workers”.

The controversy over the supplements program, relates to the injection of the club’s players with various peptides over the 2011-2012 period, primarily with the synthetic hormone, TB 500 (Thymosin beta-4), which is thought to assist with recovery from intense workouts (1). TB 500 (Thymosin beta-4) can legally be purchased in Australia with a valid prescription from a medical practitioner and is widely available for purchase on the Internet or through anti-aging clinics.

However, there are potentially adverse side effects to the use of TB 500 (Thymosin beta-4) and according to submissions filed by the World Anti-Doping Agency (WADA) before the Court of Arbitration for Sport (CAS), its use by athletes was prohibited under the 2010 AFL Anti-Doping Code (2).

Magistrate Reardon fined the club $150,000 for breaching section 21(2)(a) of the OHS Act, which requires an employer to provide or maintain systems of work that are safe and without risks to health. He fined the club a further $50,000 for breaching section 21(1) of the OHS Act, which requires an employer to maintain a working environment which is without risks to health. Two criminal convictions were recorded against the club and it was also ordered to pay $20,000 towards WorkSafe’s legal costs.

WorkSafe has stated further that, “all employees, whether they are working on a factory production line, or competing as a professional sportsperson, have every right to expect that their employer will provide a healthy and safe workplace.” (3).

The fines and costs imposed by Magistrate Reardon, likely pale in comparison to the legal (and associated) costs incurred by the club, in responding to the WorkSafe investigation and prosecution and in responding to the investigation and various legal proceedings commenced by the Australian Anti-Doping Authority (ASADA) and WADA in relation to the club’s 2011-2012 supplements program.

The fines are far below the maximum penalties available to be imposed by a court under the OHS Act – currently at $1,365,030 for a company and $273,006 for an individual per offence and are a fraction of the $2,000,000 fine imposed on the club by the AFL in August 2013 (4). According to reports published in Fairfax Media, several of the club’s current and former players may also be considering a civil action against the club, for breach of the club’s duty of care to the players and for breach of contract (5).
The Essendon saga is set to continue, with 34 current and former players recently handed anti-doping suspensions by the CAS. That decision is expected to be appealed to the Swiss Federal Supreme Court. The players are taking the action after CAS upheld WADA’s appeal against the original AFL anti-doping tribunal hearing that cleared them. According to reports published by the Australian Broadcasting Corporation, the club has agreed to keep funding the legal costs of the appeal for both current and former players (6).

It is noteworthy that no individual person at the club was prosecuted by WorkSafe in relation to the supplements program. However, individuals (including in particular, managers and supervisors who may provide instructions to fellow employees, regarding the manner and performance of work and related safety procedures) should be aware of section 25(1)(a) of the OHS Act requires employees to take reasonable care for others who may be affected by their acts or omissions in the workplace. A failure to comply with section 25(1)(a) may result in a maximum penalty of $273,006 for a manager or supervisor, or where reckless conduct is involved, a term of imprisonment of up to 5 years.