News Hawthorn Racism Review - No player name speculation - opposition posters tread very carefully

[Strapping Young Lad]

Wrong. Hawks did what they had to do by the rules of the AFL.

Correct. For reference below, once the HFC had the report outlining serious allegations they were duty bound by the AFL’s protocol to hand over the report to the AFL integrity unit.

I will pin this post, as it seems to be a constant query.

 

[Mississippi]

I have little faith in the AFL seeking the correct outcome rather than seeking the most expedient outcome. My cynical prediction is:

• large confidential settlements with all aggrieved parties;
• investigation finding some wrongdoing but hiding behind gaslighting qualifiers of "good intentions," misunderstandings and confidentiality of the process;
• Hawthorn, Clarkson, Fagan substantially fined;
• Clarkson and Fagan continue on in their employment;
• no evidence ever heard in open court.

The above would be wholly unsatisfactory but it's how I think the AFL will aim to deal with it. Keeps it all out of court and out of the public domain.

Everyone's overlooking one critical aspect.
WorkSafe Victoria will almost certainly bring proceedings and these will not settle quietly out of court.

A recent High Court decision relating to Victorian circumstances has given a judgment regarding employers' duty to protect the mental health of their employees, and confirms that employers must take a proactive approach to control known risks to the psychological health and safety of employees, including those arising from the specific nature of their work.

Employers are obligated to eliminate or reduce risks to health and safety of employees (read footballers and their families) and the conduct of the employer is very relevant in assessing whether the employer was on notice of those risks and took appropriate steps in response.

In this context consider the allegations about instructions to a player and his wife to have an abortion (!!!) and another player having attempted suicide because of his treatment by the coaches (!!).

Not only will WorkSafe Victoria institute proceedings against the Club (the AFL does not employ the players in question) but the class action against the club and coaches by the players will be enormous and will be prolonged.

Don't for a second this that these issues will settle quietly in a confidential mediation.

And as for any potential defamation proceedings brought by Clarkson, Fagan and Burt - there's absolutely no way they'd be advised to take that course. That would be sheer stupidity and madness.

 

[Blackhawk42]

Yes - they are basically saying "what this investigation into paternalistic culture of white men in football needs is a paternalistic white man in football."

Or 'perhaps we need somebody who understands the nuances of elite level coaching to gauge if any unethical and unusual practices truly were employed'.

Somebody who doesn't understand the role can't completely understand exactly when the line is crossed. It's likely going to assist the victims with their claims more than help Clarkson and Fagen avoid punishment in my opinion.

 

[TylerDurden]

Everyone's overlooking one critical aspect.
WorkSafe Victoria will almost certainly bring proceedings and these will not settle quietly out of court.

A recent High Court decision relating to Victorian circumstances has given a judgment regarding employers' duty to protect the mental health of their employees, and confirms that employers must take a proactive approach to control known risks to the psychological health and safety of employees, including those arising from the specific nature of their work.

Employers are obligated to eliminate or reduce risks to health and safety of employees (read footballers and their families) and the conduct of the employer is very relevant in assessing whether the employer was on notice of those risks and took appropriate steps in response.

In this context consider the allegations about instructions to a player and his wife to have an abortion (!!!) and another player having attempted suicide because of his treatment by the coaches (!!).

Not only will WorkSafe Victoria institute proceedings against the Club (the AFL does not employ the players in question) but the class action against the club and coaches by the players will be enormous and will be prolonged.

Don't for a second this that these issues will settle quietly in a confidential mediation.

And as for any potential defamation proceedings brought by Clarkson, Fagan and Burt - there's absolutely no way they'd be advised to take that course. That would be sheer stupidity and madness.

I'm assuming you're a lawyer.

So you're saying even if they settle out of court, I.e. a big payout, further proceedings will ensue?

 

[Billyc]

Not only will WorkSafe Victoria institute proceedings against the Club (the AFL does not employ the players in question) but the class action against the club and coaches by the players will be enormous and will be prolonged.

This part isn't right. AFL is an employer of all players. But otherwise yes, a Worksafe investigation and prosecution would be separate matter, and largely outside of the control of the participants in terms of resolving it. However parties can plead guilty to Worksafe charges and pay fines without it going to Court. Essendon pleaded guilty to Worksafe charges (and paid $200,000 in fines) and I expect Hawthorn and the AFL would do likewise.

As for the class action (which I practice in), that will be civil litigation and would no doubt be subject to mediation and every attempt at resolution. The AFL settled with all Essendon players when faced with civil claims and when professional sporting codes and clubs are sued, civil litigation tends to resolve before reaching court (as does nearly all civil litigation). This might be different but I doubt it as I doubt the players and their families will want to go through that traumatic process either.

 

[Billyc]

Or 'perhaps we need somebody who understands the nuances of elite level coaching to gauge if any unethical and unusual practices truly were employed'.

Somebody who doesn't understand the role can't completely understand exactly when the line is crossed. It's likely going to assist the victims with their claims more than help Clarkson and Fagen avoid punishment in my opinion.

As someone else noted above, it needs to be treated as a workplace investigation, not a football investigation. Football and its culture is the problem.

 

[Jazzfan]

I understand what you are say. However, all views will be heard as part of the investigation.

Would you put former prison inmates on a jury? We don’t even allow lawyers to serve on juries. Or would you think it reasonable for Germans to be judges in the Nuremberg trials?

It’s perfectly reasonable to want to have a voice on the inside of the investigation but you can’t do that without introducing a conflict of interest.

But knowing this will be misinterpreted by many, you simply can't call a former AFL coach a conflict of interest without saying the same of an Elder mate.

Both are needed to fairly investigate the horrific allegations. Both will provide critical insights that will best allow for the truth to come out.

 

[Billyc]

But knowing this will be misinterpreted by many, you simply can't call a former AFL coach a conflict of interest without saying the same of an Elder mate.

Both are needed to fairly investigate the horrific allegations. Both will provide critical insights that will best allow for the truth to come out.

The difference is that the First Nations players and their partners may not feel at all comfortable being involved in the investigation without an Elder involved.

 

[Mississippi]

This part isn't right. AFL is an employer of all players. But otherwise yes, a Worksafe investigation and prosecution would be separate matter, and largely outside of the control of the participants in terms of resolving it. However parties can plead guilty to Worksafe charges and pay fines without it going to Court. Essendon pleaded guilty to charges (and paid $200,000 in fines) and I expect Hawthorn and the AFL would do likewise.

As for the class action, that will be civil litigation and would no doubt be subject to mediation and every attempt at resolution. The AFL settled with all Essendon players when faced with civil claims and when professional sporting codes and clubs are sued, civil litigation tends to resolve before reaching court (as does nearly all civil litigation). This might be different but I doubt it.

No Billyc - The player contract is between the player and the club (HFC). So the club is the employer.
The contract sets out provisions dealing with AFL guidelines that the parties must observe.

Hopefully, any proceedings with WorkSafe and players will settle. But we're not dealing with simple drug taking here. These problems are far more serious and have much greater consequences - and therefore much harder to resolve.

 

[tommyk72]

The allegations centre around the potentially unethical tactics of particular individuals.

Those individuals are no longer affiliated with the Hawthorn football club.

Unless evidence is released that it was a club wide operation to separate particular players from their families or offer advice on pregnancy options, I implore everybody to stick with the club as strongly as you can right now.

It appears possible (from what I'm reading by people much smarter than myself) that a substantial financial sanction could be levied against the Hawthorn football club.

The current administration, coaching staff and playing group aren't at fault. I will not accept guilt by association. Cancelling your membership or refusing to attend home games in protest isn't showing solidarity for the victims or proving any point to the club as it stands now.

By all means, feel hurt, conflicted of disgusted. But think long and hard about the future of our great club and the overwhelming positives it's provided to us and past generations. Our next generation of supporters deserve a strong base to hitch their passion to. What happens over the next 2-3 years off-field financially could affect that.

Jeff Kennett was president at the time, no? Surprised his name hasn’t been mentioned in all of this given his focus on governance and accountability for results.

 

[Blackhawk42]

Jeff Kennett was president at the time, no? Surprised his name hasn’t been mentioned in all of this given his focus on governance and accountability for results.

He wasn't.

 

[tommyk72]

He wasn't.

Thanks for clarifying. Apologies.

 

[Blackhawk42]

Thanks for clarifying. Apologies.

I initially thought he was when all this broke, but I don't believe there was any crossover of his tenure and the allegations. If there was it was minimal.

I can't stand Kennett, but will defend his position entirely since he seemingly couldn't possibly be involved.

 

[Yardie]

Everyone's overlooking one critical aspect.
WorkSafe Victoria will almost certainly bring proceedings and these will not settle quietly out of court.

A recent High Court decision relating to Victorian circumstances has given a judgment regarding employers' duty to protect the mental health of their employees, and confirms that employers must take a proactive approach to control known risks to the psychological health and safety of employees, including those arising from the specific nature of their work.

Employers are obligated to eliminate or reduce risks to health and safety of employees (read footballers and their families) and the conduct of the employer is very relevant in assessing whether the employer was on notice of those risks and took appropriate steps in response.

In this context consider the allegations about instructions to a player and his wife to have an abortion (!!!) and another player having attempted suicide because of his treatment by the coaches (!!).

Not only will WorkSafe Victoria institute proceedings against the Club (the AFL does not employ the players in question) but the class action against the club and coaches by the players will be enormous and will be prolonged.

Don't for a second this that these issues will settle quietly in a confidential mediation.

And as for any potential defamation proceedings brought by Clarkson, Fagan and Burt - there's absolutely no way they'd be advised to take that course. That would be sheer stupidity and madness.

How does the High Court decision affect past incidents? Does it come into play for those or only going forward?

(I'm just curious, not defending anyone or anything)

 

[Mississippi]

I'm assuming you're a lawyer.

So you're saying even if they settle out of court, I.e. a big payout, further proceedings will ensue?

Its a messy situation. We'll have different proceedings in different jurisdictions.
My gut feeling is that these matters won't settle neatly and confidentially at mediation.
Proceedings involving the players suing the coaches and the club would only settle, you would think, if the coaches were prepared to admit liability - you can't expect or imagine the players and their families accepting anything less.

And if the coaches admit liability, then they kiss goodbye to multi-million coaching contracts, so why would they do that?

It's very early days - but this has the makings on an endless dog's breakfast that will keep us in the headlines for a year or three.

 

[TylerDurden]

Drip, drip.

 

[Mississippi]

How does the High Court decision affect past incidents? Does it come into play for those or only going forward?

(I'm just curious, not defending anyone or anything)

It's basically defining or clarifying the extent of the duties owed by employers to employees in the work place - those duties extending to ensure the mental welfare of employees. It's those principles, together with other duties, which will be applied to the conduct of the HFC coaches and vicariously to the club.
"Mental health and mental welfare" are the key words in this context because the allegations relate to termination of pregnancy, attempted suicide and separation of families.

As mentioned before, this is not comparable to the simple drug taking exercise that got Essendon into trouble.

 

[Billyc]

Its a messy situation. We'll have different proceedings in different jurisdictions.
My gut feeling is that these matters won't settle neatly and confidentially at mediation.
Proceedings involving the players suing the coaches and the club would only settle, you would think, if the coaches were prepared to admit liability - you can't expect or imagine the players and their families accepting anything less.

And if the coaches admit liability, then they kiss goodbye to multi-million coaching contracts, so why would they do that?

It's very early days - but this has the makings on an endless dog's breakfast that will keep us in the headlines for a year or three.

The club can admit liability without former employees (ie. Clarkson & Fagan) admitting anything. But settlement doesn't require an admission of liability anyway and most civil litigation settles without an admission. It's no different to any employer settling an employee who has been bullied / sexually harassed by another former employee, even where that accused party denies any wrongdoing.

Clarkson and Fagan will never personally admit liability, I agree. They are the parties most likely to push this into the Courts if they lose their jobs and reputations.

 

[killerspud]

We need to get away from the idea of football exceptionalism.

This is a workplace, pure and simple.

I'm a tv editor. If a boss came up to me when my wife was pregnant and said "mate you need to terminate that for the sake of your job, then dump her and move in with Garry from tapes"....

 

[Simon Crawshay]

One interesting angle out of this sorry saga is a discussion on how much of an involvement clubs should have in players life’s.

I mean what other workplace offers to board young workers in the houses of their bosses (coaches)? Or why do clubs care what activities players get up to on the off season (why should my employee care what I do in my holidays)?

And of course no other workplace would ever tell an employee who they should date (if that’s proven).

Could a possible outcome of all this be that AFL clubs become more of a traditional workplace? In that you turn up to work (training/game day) do your thing then clock off.

No involvement of the clubs at all in the players life’s aside from making sure they play well and turn up to training / meet their ski folds / etc. In essence meet their KPIs?

In essence a purely employer/employee relationship with no “father figure” overtones?

Clubs may decide this is the safest course of action after this all played out.

 

[SJT76]

The mental health implications are going to be a massive issue in the legal repercussions: directors’ duties, Brodie’s law, class actions as well as WorkSafe make me think that this is not going away quickly no matter what any of the AFL, club or coaches do.

The terms of reference of the AFL investigation will be interesting.

 

[hawkmang]

Brad Hardie on 6PR over here in Perth saying that there’s a rumour/story building that Fagan’s mention in the report is mistaken identity and it was another person.

Would be a big development in the story if true. Can anyone think of any Hawthorn coaches/staffers that resembled Fages back then?

 

[Off The Couch]

If this wasn’t already a shit show, the amount of information now being leaked is ridiculous.

There would appear that there are many with an axe to grind and boy are they making sure they are getting in the boot in

This will end up hurting both parties

 

[Mercy Seat]

Brad Hardie on 6PR over here in Perth saying that there’s a rumour/story building that Fagan’s mention in the report is mistaken identity and it was another person.

Would be a big development in the story if true. Can anyone think of any Hawthorn coaches/staffers that resembled Fages back then?

Bevo?

 

[TylerDurden]

Brad Hardie on 6PR over here in Perth saying that there’s a rumour/story building that Fagan’s mention in the report is mistaken identity and it was another person.

Would be a big development in the story if true. Can anyone think of any Hawthorn coaches/staffers that resembled Fages back then?

Evans.

 

[Nugett]

Jeff Kennett was president at the time, no? Surprised his name hasn’t been mentioned in all of this given his focus on governance and accountability for results.

Believe it was Newbold. Who I think was a lawyer at one stage in his career?