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Player Litigation

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Sir Hugh Percy said:
http://www.afl.com.au/news/2016-01-21/essendon-calls-parents-meeting-over-banned-players

Football manager Rob Kerr said on 3AW the club was being cautious in its interaction with players.


"We've made sure across the whole club that those people are getting contact from people within the club and getting moral support. That is really the main thing," Kerr said.


"We can provide moral support, and we are endeavouring to make sure that that's done."

Club is bending over backwards to chill things out. I had to laugh at the club providing the players with "moral support". If only they done that 4 years ago! Ah-huh-huh... umm.
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you do realise the 'club' now has a completely new group of staff dont you? You think they would act exactly the same as the staff in 2012?
 
mxett said:
you do realise the 'club' now has a completely new group of staff dont you? You think they would act exactly the same as the staff in 2012?
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Nup, uh-uh. Mah pops always tol' me the only gud Essendon club man, was a dead 'un. Ayup.
 
piesaregreat said:
The consent forms may count against them. It will depend on what they actually say. If the words WADA compliant are on them then the EFC will be in a whole lot worse trouble
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Maybe, maybe not. It depends on what arguments are put forward. If it, for example, later gets argued that the WADA compliant bit was put on there as a catch all just in case then it may not be all that significant. The fact that the players signed a consent form 'after' the program started is a factor that can work both ways and it will be argued both ways I'm sure.

The whole situation is way to murky still to be able to make any real meaningful predictions about the relative value of particular circumstances. I'd be confident of being able to turn most of whats known into a strong argument for either case and I'm pretty sure both sets of lawyers will being doing just that. You don't have to be right, you just need a strong argument to get a result in civil litigation
 

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jenny61_99 said:
It'll be Dr Wilcourt no doubt. Up to his eyeballs in it!
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Porkies and the art of dissembling from the Ol' Doc - http://www.sen.com.au/news/afl/01-1...rd-fairytale-dr-willcourt#0RC5RpZiGVycfq62.97

Earlier, the Ol' Doc arriving at SEN studios for his chat about health and well being -

Mind you, I do think Jess should stick to his knitting, and get a scientist to speak about science, lest he invites more rubbery distraction from "peptide experts" (fair dinkum, "peptide expert"?!).
 
Manila_Hawk said:
The players have not been wronged.

Of their own free will, they:
- Signed a consent form
- Allowed themselves to be injected multiple times with God-knows-what
- Never bothered to check what it was
- Refused to document any drug usage on the forms provided and mandated

Whilst it's true that the EFC set all of this up, the players had a choice AND THEY KNEW THE POTENTIAL PENALTIES....

How have they been wronged ? Coerced maybe..... Peer pressured sure... But they had a choice.

Some chose to exercise that choice.
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If Pig's Arse Jnr's claim late last week, that the players had signed Confidentiality Agreements to buttress the black op's behind the Consent Forms, that casts the players' claims in a different light. Content, timing, club counter signatories, presenters, advice, or not, to seek their own counsel before signing, would all be relevant, because it would challenge Hird's claim the players chose to be non-compliant by their own volition.

The verbal instructions to keep it quiet can be hard to stand up, but if the EFC have tied signing a confidentiality agreement to their employment and contractual arrangements, that's a whole other ball game.
 
Just interested said:
If Pig's Arse Jnr's claim late last week, that the players had signed Confidentiality Agreements to buttress the black op's behind the Consent Forms, that casts the players' claims in a different light. .
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I laughed. :p
 
imperial_oz said:
Now you resort to oddly interpreting my comments while actually admitting they could be true.

If you contribute to the loss of your reputation through 'established, incorrect conduct' and it has been established in a competent jurisdiction, then your own conduct that contributes to that loss of reputation WILL be a central issue. Duck and dive all you want but if it goes to the Federal Court, you will not be able to have that factor disregarded.

My first statement is absolutely correct. The only way it wouldn't be a central factor is a situation where a person has suffered a loss of reputation through ZERO fault and ZERO contribution of their own. That just is not the case here with the players as a group. There 'may' be different levels of contributory behaviour between individuals but personal conduct will be a factor for each of them based on the information established in CAS
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The central factor and being "a factor" are two seperate things.

Federal courts don't operate as CAS does and strict liability will have no bearing on the players reputational damage. If it gets to federal court it requires the players to show that the club damaged their reputations to x value
 
DemonTim said:
The central factor and being "a factor" are two seperate things.

Federal courts don't operate as CAS does and strict liability will have no bearing on the players reputational damage. If it gets to federal court it requires the players to show that the club damaged their reputations to x value
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Or, contributed to the damage to their reputations.....and then some.
 

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DemonTim said:
The central factor and being "a factor" are two seperate things.

Federal courts don't operate as CAS does and strict liability will have no bearing on the players reputational damage. If it gets to federal court it requires the players to show that the club damaged their reputations to x value
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Mate, you have it explained, got it wrong and have now resorted to quibbling over a word.

This is what I posted and what you insisted was wrong

It most certainly will if the players sue for loss of reputation. Your own conduct is central to your reputation.

Not really sure what else they can sue for as they are still receiving their contract payments, so its not going to be easy to demonstrate any loss of income

I never stated it was the 'central factor' so you cannot even quote me correctly. Talk to a lawyer.

You cannot sue for loss of reputation with a starting point of 'please ignore my own conduct in relation to my loss of reputation and just blame the other guy' Your own conduct is central to the loss or maintenance of your own reputation. You also will not be able to prevent the other side's lawyers from bringing up your own conduct. Just because Essendon was found to have provided an unsafe workplace, it will not excuse the players from acting improperly. Their failure to follow the AFL Anti-Doping has contributed to their situation. The only thing left to argue is the amount of responsibility for each party.
 
Just interested said:
Porkies and the art of dissembling from the Ol' Doc
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Bugger Wilcourt, they should make him take it. Maybe give it to his wife and kids as well if he think it's so safe.

This is what the guy who did his Doctoral Thesis in TB4 said:


http://www.heraldsun.com.au/sport/a...ist-stephen-dank/story-e6frf9jf-1226634945498
Ballarat University's Dr Stephen Brown, who co-wrote a paper about Thymosin beta 4 and sport that was published in February in the authoritative Journal of Sports Science, said the substance was commonly used on racehorses.

"I'm shocked that it would be given to humans, because there's no evidence to show that it's beneficial. So why inject it and, if you do, what are the risks?" he said.

"Who knows what nasty genes it could turn on down the track?"

Thymosin beta 4 is in the early stages of development as a drug that could help regenerate human hearts.

"It's been used in racehorses as something that could improve recovery after injury but, as far as clinical data goes, it's pretty thin on the ground," said Dr Brown, who has a PhD in physiology.

"There isn't enough evidence to support giving it as a drug for a horse."
 
imperial_oz said:
Mate, you have it explained, got it wrong and have now resorted to quibbling over a word.

This is what I posted and what you insisted was wrong

It most certainly will if the players sue for loss of reputation. Your own conduct is central to your reputation.

Not really sure what else they can sue for as they are still receiving their contract payments, so its not going to be easy to demonstrate any loss of income

I never stated it was the 'central factor' so you cannot even quote me correctly. Talk to a lawyer.

You cannot sue for loss of reputation with a starting point of 'please ignore my own conduct in relation to my loss of reputation and just blame the other guy' Your own conduct is central to the loss or maintenance of your own reputation. You also will not be able to prevent the other side's lawyers from bringing up your own conduct. Just because Essendon was found to have provided an unsafe workplace, it will not excuse the players from acting improperly. Their failure to follow the AFL Anti-Doping has contributed to their situation. The only thing left to argue is the amount of responsibility for each party.
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Wait so when you repeatedly use the word central, you're not saying it's a central factor?

That is not even slightly being said. No one walks in and argues that. They will argue that it was factors outside their behaviour that caused the reputational damages, that their own behaviour wasn't "central" to the damage and it was caused by a working environment that did not meet up to its requirements. This isn't the CAS if the players were told what they received was 100% compliant and signed off on that, any reputational damage is outside their control. Worksafe findings has a bigger bearing on any federal court action than anything

Can you point out how I misquoted? Was it because I added the word factor after central? Wasn't that what you meant by central?
 
Did someone mention Johnny Faine's love of all things Peter Gordon?

http://www.heraldsun.com.au/news/vi...bed44aeea6760ddada397f9e3#load-story-comments

So, Gordon reckons WADA didn't have a right of appeal to the CAS, until the AFL updated it's anti-doping code.

Okeydokey, that'll go down a treat - bring it on, Pete, you pillock.

As I said, when an appeal against the CAS result was first mooted, "PULLLEEEEEEEEAASSE DO IT!!!".

I really wanna see just how cranky WADA can get, and how that crankiness might manifest itself.

Lots of unresolved substance and method violation evidence for WADA to take a squizz at - and nothing to do with appeals - brand new charges.

"Peter 'Custer' Gordon, say hello to Richard 'Crazy Horse' Young.'
 
DemonTim said:
Wait so when you repeatedly use the word central, you're not saying it's a central factor?

That is not even slightly being said. No one walks in and argues that. They will argue that it was factors outside their behaviour that caused the reputational damages, that their own behaviour wasn't "central" to the damage and it was caused by a working environment that did not meet up to its requirements. This isn't the CAS if the players were told what they received was 100% compliant and signed off on that, any reputational damage is outside their control. Worksafe findings has a bigger bearing on any federal court action than anything

Can you point out how I misquoted? Was it because I added the word factor after central? Wasn't that what you meant by central?
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No and we both know it.

I said their behaviour is central to their reputation. You twisted that into 'the central factor' then claimed I was wrong because it was 'a factor, not the central factor' Squirm all you like but the posts are there for all to read.

Either way, you are still wrong. You pick and choose between the two jurisdictions (CAS and Worksafe) and make the again unsupported claim that the Worksafe findings will have a bigger bearing in the Federal Court. Utter nonsense. Not even good enough to be nonsense on stilts.

All of the factors will be at issue in any Federal Court matter. ALL. Not just the ones that you like. The players conduct WILL be an issue as personal conduct is a central factor in a persons reputation. The players would have to show that ALL of the damage to their reputation was caused by factors OTHER than their personal conduct and the chances of that getting up in court unchallenged is essentially nil. The Anti-Doping Code issues with personal liability will be relevant due to the fact that the players were aware of the requirements placed on them (training), failed to check the status of the substances, entered an agreement to keep the substances secret and entered an agreement to accept the substances (consent forms).

Their conduct is highly relevant to any loss of reputation. There is no way that they can divorce themselves from their own conduct.

Just to help you out here as you cannot see the simple things for yourself, the Worksafe charges did not consider the role of the players in the events that occurred because they were addressing the conduct of the employer only. Any Federal Court action will not be so limited because it it isnt dealing with offences under workplace safety legislation. Its just not that hard to see the difference
 
evo said:
Bugger Wilcourt, they should make him take it. Maybe give it to his wife and kids as well if he think it's so safe.

This is what the guy who did his Doctoral Thesis in TB4 said:


http://www.heraldsun.com.au/sport/a...ist-stephen-dank/story-e6frf9jf-1226634945498
Ballarat University's Dr Stephen Brown, who co-wrote a paper about Thymosin beta 4 and sport that was published in February in the authoritative Journal of Sports Science, said the substance was commonly used on racehorses.

"I'm shocked that it would be given to humans, because there's no evidence to show that it's beneficial. So why inject it and, if you do, what are the risks?" he said.

"Who knows what nasty genes it could turn on down the track?"

Thymosin beta 4 is in the early stages of development as a drug that could help regenerate human hearts.

"It's been used in racehorses as something that could improve recovery after injury but, as far as clinical data goes, it's pretty thin on the ground," said Dr Brown, who has a PhD in physiology.

"There isn't enough evidence to support giving it as a drug for a horse."
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HEEEE'S BAAACK!!!! From the comments section under the story on Gordon's chat with Faine:

"Hooray Mr Gordon. Until the day I die I am going to fight, with many like minded people all over the world, to have the monstrosity that is WADA and its progenies removed form society. The blackest day in sport in Australia began when the AFL hierarchy, the government spokespeople, WADA and ASADA started blathering out ignorant statements and leaping to conclusions with no facts, aided and abetted by the usual mob of sports commentators who used this fiasco for their own self aggrandisement.

Remember how it went-- Essendon players took cjc1295, no wait, it was melanotan 2, oh no - not that one- AOD- oh wrong there too- thymosin B-4- yep, let's stick with that one. And for good measure throw in some Mexican stuff- whatever that might have been.

If the Australian public thinks that sports program directors all over the world are sitting on their hands and using only old outdated techniques, as they seem to wish on the AFL in this case, they are dead wrong. All successful sporting programs are trying new cutting edge technologies all the time. That, is in fact, WHY scientists get involved in this! Hello?

And look what happened -- a colossal comedy with tragic consequences.

Then compare the absolute corruption going on at the highest levels of administration in so many codes all over the world.

And you ban the Bombers- thoroughly thrash and punish them for an unproven offence? The offence is that the leadership- or lack thereof in all quarters in this fiasco -- allowed something like this to get so out of hand and then to trample all over due process.

In this regard Australia is earning the right to call itself the last refuge for the LACK of clarity, competence, commonsense and justice in the world of sport. Well done, Australia.

Robin Willcourt"

Methinks he doth protest a tad too much, particularly when he riddles his protest with utter nonsense, and worse. Not really one for disclosure, the Ol' Doc, and I don't reckon he knows how to even spell "conflict".
 
Willcourt, Hardie and Bruce - the idiot parade
 
Manila_Hawk said:
The players have not been wronged.

Of their own free will, they:
- Signed a consent form
- Allowed themselves to be injected multiple times with God-knows-what
- Never bothered to check what it was
- Refused to document any drug usage on the forms provided and mandated

Whilst it's true that the EFC set all of this up, the players had a choice AND THEY KNEW THE POTENTIAL PENALTIES....

How have they been wronged ? Coerced maybe..... Peer pressured sure... But they had a choice.

Some chose to exercise that choice.
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You are confusing the strict liability on sports anti-doping rules with the common law.

You are correct about the player insofar as the WADA code is concerned. They should have known better and wear their penalties.

But from a common law point of view their employer owed the players a non delegable duty of care which was plainly breached. Workcover have already found this and Essendon have admitted it. The club's can't even tell their employees what they injected them with. From a legal perspective the players have absolutely been wronged. The question remains, as per my original post, what losses have they suffered?
 
Billyc said:
You are confusing the strict liability on sports anti-doping rules with the common law.

You are correct about the player insofar as the WADA code is concerned. They should have known better and wear their penalties.

But from a common law point of view their employer owed the players a non delegable duty of care which was plainly breached. Workcover have already found this and Essendon have admitted it. The club's can't even tell their employees what they injected them with. From a legal perspective the players have absolutely been wronged. The question remains, as per my original post, what losses have they suffered?
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lawyer here. This is correct. Clearly egregious negligence occurred and the players have a legitimate grievance and a prima facie cause of action, despite being incredibly naive. I suspect hypothetically even if a player at an AFL club had known they were doping but had done so at the direction of their club in the context of professionals at the club administering the drug, some players would still have a prima facie case against the employer.

The loss (damages), foreseeability of harm and circumstances of each player are different. They'll probably build an argument around losses arising from lost income, reputational damage, stress (particularly if any have a psychological injury). In the end it's unlikely the loss will ever be tested by a court, as the $ will be reached at settlement. They might also have a cause of action in breach of contract worth exploring.

My real question is why the players allow themselves to be herded like sheep with the AFLPA, and have done so the whole time? Separate to any cause of action in negligence they almost certainly have against Essendon, the AFL and perhaps some player managers, it may be in the interest of some individual players to appeal the CASA decision too. They don't have to do everything together. Where has that gotten them?

Each player should be getting independent legal advice. Approaching it as a group by letting the AFLPA call the shots conceded a shared responsibility premise that enabled CASA to tar individual players with the one brush, and made the prosecution case much simpler to argue by allowing them to cherry pick details from each player's evidence to build a larger narrative, which then applied to the lot.

What we should be seeing is 34 separate letters of demand being sent from the representatives of each player. Of those 34, I doubt many if any will make it to a court. The AFL and Essendon will be under a huge incentive to settle.
 
Throw said:
lawyer here. This is correct. Clearly egregious negligence occurred and the players have a legitimate grievance and a prima facie cause of action, despite being incredibly naive. I suspect hypothetically even if a player at an AFL club had known they were doping but had done so at the direction of their club in the context of professionals at the club administering the drug, some players would still have a prima facie case against the employer.

The loss (damages), foreseeability of harm and circumstances of each player are different. They'll probably build an argument around losses arising from lost income, reputational damage, stress (particularly if any have a psychological injury). In the end it's unlikely the loss will ever be tested by a court, as the $ will be reached at settlement. They might also have a cause of action in breach of contract worth exploring.

My real question is why the players allow themselves to be herded like sheep with the AFLPA, and have done so the whole time? Separate to any cause of action in negligence they almost certainly have against Essendon, the AFL and perhaps some player managers, it may be in the interest of some individual players to appeal the CASA decision too. They don't have to do everything together. Where has that gotten them?

Each player should be getting independent legal advice. Approaching it as a group by letting the AFLPA call the shots conceded a shared responsibility premise that enabled CASA to tar individual players with the one brush, and made the prosecution case much simpler to argue by allowing them to cherry pick details from each player's evidence to build a larger narrative, which then applied to the lot.

What we should be seeing is 34 separate letters of demand being sent from the representatives of each player. Of those 34, I doubt many if any will make it to a court. The AFL and Essendon will be under a huge incentive to settle.
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good post
 

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