Contract Issues
This is a case of the Essendon Football Club, a professional football club which plays in the Australian Football League (AFL). This paper focuses on the legal battle that the EFC faces concerning their alleged use of prohibited supplemental drugs in what is currently referred to as the Essendon doping scandal. The parties involved in the said saga were the EFC (including all of its constituents), the World Anti-Doping Agency (WADA), the Australian Sports Anti-Doping Agency (ASADA), and the Australian Football League. The main object in the case was the banned and prohibited peptide Thymosin Beta 4 .
Focusing on general contract issues, what is important to note is that the AFL is a signatory to the WADA’s World Anti-Doping Code (WADC). This means that it is required by law to reflect the same code that WADA implements regarding the use of banned drugs and supplements. A party that has proven to have violated certain clauses within the said code (i.e. WADC) may face ineligibility—that is, being banned from participating in the sport, either partially or fully. That automatically includes all complementary contracts such as sponsorship contracts with endorsers and other parties, although these are often negotiated privately and separately. A commercial entity that has established certain sponsorship-related ties with the EFC prior to the start and discovery of the doping saga, for example, may not automatically cancel their contract with EFC, despite the possibility that it may not be permitted to participate in AFL events anymore for an indefinite period, unless otherwise stated in their respective contract. This means that the best and most appropriate answer here is it depends on the type of contract that the signed with each other.
In Kia’s case, for example, one of the leading sponsors of the EFC, it still decided to back Essendon despite the beating it took from legal authorities following the doping scandal. Another example would be Maria Sharapova’s case of dope use. She and her comeback into the sport were still backed by her sponsors . These examples only show that sponsor contracts do not have to be automatically dissolved just because of an instance of doping.
Individual Contract Relationships
For players to be actually allowed to participate in AFL games and other events, they have to have a contract with the AFL and a professional football club. It is an all or nothing ordeal which means that a player’s eligibility to participate in such events may be suspended or cut off by either the AFL or the football club which they are a part of, for whatever reason. In the case of the EFC doping scandal, the party that is supposed to push for the suspension of the players is the AFL because AFL is legally obliged to mirror the anti-doping standards of the WADA and ASADA; and so it should make moves to keep the industry clean of dopers. EFC’s players were the targets of the investigation and since it was proven that they indeed used banned substances in the 2012 season, the charged players were not only suspended; the entire club’s opportunity to play in the 2013 finals series was also revoked. Additionally, the AFL slapped fines on Essendon, following the results of the investigations. Regarding the contracts between the EFC and its sponsorship partners, it can be noted that most of their sponsors remained mum throughout the investigation and were on wait and see mode. Kia, one of the biggest sponsorship partners of the EFC, for example, still honored their contract with the EFC despite the then ongoing investigations. This mirrors the author of this paper’s initial response regarding the sponsorship contracts between EFC and its partners.
Some notable names include former sports scientist for EFC Stephen Dank who admitted that he used Thymosin Beta 4 in his treatment methods when he was still working for EFC and James Hird, the senior coach of the EFC when it got involved in the doping scandal. The trust of the players was definitely breached when Hird and Dank failed to inform the players that an illegal substance was administered in some of their treatments, leading to positive WADA findings. Dank was the main culprit but Hird was held accountable as he should be. Then again, the strictness of the WADA’s anti-doping policies calls for all affected parties to be accountable, including the players.
Law on Negligence
Negligence and duty of care play a key role in the EFC and its players’ situation. The bottom line in their case is that they were under a legal obligation to follow the rules and regulations set by the AFL, ASADA, and WADA. The main regulatory body that they should follow when it comes to doping—which was the subject of their case, would be WADA because both the AFL and ASADA’s laws and clauses regarding the use of prohibited substances essentially mirror that of the WADA. The WADA already keeps and follows a list of prohibited substances (e.g. supplements).
This means that any athlete or organization that would be proven to have used any of the substances from the said list would face certain sanctions. In order to make the process of determining who is guilty and who is not simpler and stricter, the WADA follows the principle of strict liability.
According to WADA (2016), “the principle of strict liability is applied in situations where urine or blood samples collected from an athlete have produced adverse analytical results; this means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance or its metabolites or makers is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault” .
This means that any form of negligence or breach in the organization’s duty of care, be it on the part of the charged athlete or sports club may automatically be used against them. In the case of EFC’s players as an example, it did not matter whether the players were intentionally or unintentionally involved in the saga, the fact that there were evidences based on analytical results found that they used prohibited substances were enough to have them indicted and eventually suspended for two years. Another example would be how WADA included the AFL and the ASADA when it filed charges against the EFC as stated in the Court of Arbitration for Sport report .
Drugs in Sport and the Case of Essendon Football Club
The WADA was the organization pushing for the indictment of the EFC as an organization, the involved players and organizational personnel, and the AFL and the ASADA. The ASADA was supposed to enforce transparent and effective implementation of the WADA’s clauses especially regarding the use of prohibited substances in sports. The AFL, on the other hand, was supposed to follow ASADA’s guidance, rules, and policies regarding the same issue. This means that each organization is supposed to be accountable for its subordinates. The fact that certain players under EFC, a club registered under the AFL, managed to get away with using prohibited substances, suggests that there were breaches in the laws pertaining to negligence and duty of care by the AFL and at a higher level, the ASADA. Evidences of this can be found in the document sent by Australia’s Court of Arbitration for Sport (2015).
This is why WADA filed charges against Thomas Bellchambers et al., the AFL, and the ASADA. WADA’s mandate is to lead a collaborative worldwide movement for doping-free sports and the legal battle that it waged against the parties involved in the EFC doping saga suggests that it is taking its fight against illegal substances seriously.
What the author of this paper wants to highlight is the principle of accountability. Each organization was supposed to be accountable for their members and subordinates actions. In AFL’s case, for example, it was supposed to follow and mirror ASADA’s guidance regarding the illegality of the use of prohibited substances just like how the latter is subject to that of WADA. However, AFL failed to follow such guidance and that made the parties under its jurisdiction (i.e. EFC and its players) plus the ASADA legally liable when the results of the investigation showed that there were breaches of the anti-doping clauses based on WADA’s standards.
References
Court of Arbitration for Sport. (2015). World Anti-Doping Agency v. Thomas Bellchambers et al., Australian Football League, Australian Sports Anti-Doping Agency. 01-48.
Randles, D. (2016). It may not be game over for Maria Sharapova. University of Chester.
World Anti-Doping Agency. (2016). Strict Liability in Anti-Doping. WADA, https://www.wada-ama.org/en/questions-answers/strict-liability-in-anti-doping.
