Update
4 April 2013
Holding Redlich
In The News
Clubs, players’ legal minefield
Publication: The Age
Date:
29 March 2013
Page no: N/A
Author(s):
Andrea Reynolds and Emma Starkey (of Holding Redlich)
Publisher: The Age Company Limited
The recent ‘’drugs in sport’’ controversy has created a legal minefield of conflicting interests for football players and their clubs.
Players who have taken prohibited substances under the direction of clubs will first face scrutiny from the Australian Sports AntiDoping Authority and, if subsequently banned, may have claims against clubs for lost remuneration, reputational damage and
personal injuries.
Under anti-doping codes, players are deemed responsible for anything they use or consume that results in a doping violation,
regardless of knowledge or intent. In practical terms, players have no prospect of escaping a ban completely.
This was confirmed by Aurora Andruska, the chief executive of ASADA, in an article published by Fairfax Media on March 18.
She emphasised that the only way players could effectively reduce a ban was to not only admit to taking prohibited substances,
but to dob in others. This will strike at the heart of team cultures. Some players may choose to accept a longer ban rather
than risk damaging their long-term prospects with their club, and within the sport. Indeed, some players may reason that their
reputations would be damaged more by cutting a deal with ASADA.
To the extent that clubs have been complicit in the administration of prohibited substances, it would be unfair for players to then
suffer loss or damage, particularly where they have placed their trust in clubs and medical teams to look after their health and
fitness. Clubs may be in breach of their contractual duties to provide a safe working environment or to not act in a manner that
would destroy the relationship of trust and confidence between players and clubs. Administering prohibited substances, or failing
to have adequate safeguards, may breach their obligation to provide a safe working environment. This may also expose clubs to
prosecution under relevant OHS legislation.
A club’s contractual obligation not to do anything that would undermine the relationship of mutual trust and confidence would
involve a requirement that the club ensures that players are not given prohibited substances.
It is unlikely that even clubs that have signed consent forms from their players will avoid liability, particularly if the advice given to
players about signing the consent forms was wrong.
If players continue to be paid by clubs throughout their ban, they will not have a claim for a loss of remuneration. But some could
have their sponsorship deals terminated, or consider that their reputations have been damaged by the actions of clubs and suffer
a financial loss as a consequence. Players may then have additional claims for damage to their reputation arising from their ban
and loss of their right to perform work.
In traversing this legal minefield, it is important to remember that a professional sports player’s success is dependant on viable
clubs and competition. Protracted legal disputes may advantage one party but damage the sport overall, to the ultimate detriment
of all parties, including the successful litigant.
The potential long-term impacts that these substances may have on the health of players are unknown. Research shows that side
effects from some prohibited substances can include impotence, increased risk of diabetes and cancer.
If players sustain a serious injury as a result of taking prohibited substances, they may be able to pursue a common law claim.
Holding Redlich In The News
If a player was left impotent as a result of being administered a banned substance, then this may constitute a serious injury and
may enable players to claim for pain and suffering.
It would be necessary to establish that clubs have breached their duty of care to players, by failing to take reasonable care to
avoid exposing them to unnecessary risks of injury. This is not to say a player may not also have a claim against any doctor who
administered the banned substances.
The question as to whether players who sustain an illness as a result of taking a banned substance, even long after the end of
their careers, are eligible for no-fault ‘’workers compensation’’ also raises complex issues, as there are different laws in different
states and different schemes to cover the various football codes. These schemes do not appear to deal adequately with late-onset
illnesses, which may later prevent a former player working in a post-football career.
Players, clubs and sporting administrators will need to consider the possible implications of claims in respect of late onset illness
and how these should be addressed.