In charging Essendon, WorkSafe puts all sport on notice

WorkSafe Victoria’s decision to prosecute the Essendon Football Club for occupational health and safety (OHS) breaches arising out of its 2011-12 supplements program has been a long time coming. On Monday, the club was charged with two breaches of the OHS Act for failing to provide a working environment that was “safe and without risks to health”.

That Essendon quickly agreed to the charges as reflective of the club’s governance failings should not come as a surprise. It had effectively admitted a breach before the charges were laid. A club-commissioned review from 2013 described:

… a pharmacologically experimental environment never adequately controlled or challenged or documented.

When accepting AFL sanctions in 2013, Essendon:

… acknowledged it had established a supplements program that was experimental, inappropriate and inadequately vetted and controlled, and … failed to ensure it adequately protected the health, welfare and safety of the players.

Essendon’s governance failures – especially its failure to maintain accurate documentation of the supplements given to its players – also forms part of the factual matrix from which its players are arguing the anti-doping case against them cannot be proven to a “comfortable satisfaction”.

Essendon will now have the ignominy of a criminal conviction. It is at risk of having to pay yet another significant financial penalty. A court also could order the club to undertake a project for the improvement of OHS within the industry.

The implications of the bringing of OHS charges extend far beyond Essendon. For WorkSafe Victoria and professional sporting competitions, it is the equivalent of crossing the Rubicon.

What now for OHS regulators?

OHS regulators have long been reluctant to intervene in the affairs of professional sporting competitions. They rightfully have been cautious when called upon to enter the sporting arena. The arena is complex, and their presence is contentious and contested.

By laying charges against Essendon, WorkSafe Victoria has accepted that its mandate extends to professional sports. In doing so, it has passed a point of no return.

WorkSafe Victoria now needs to act consistently with this expanded mandate. This does not mean that WorkSafe Victoria – and other OHS regulators – should be overzealous in their regulation of professional sports. OHS regulators should continue to exercise caution when entering what is for them still a new, complex and contentious field.

At the same time, however, they should not leave themselves open to criticism that they are inconsistently discharging their statutory responsibilities. All professional sports now need to be treated consistently with the precedent that has been set.

Greater transparency of the reasoning behind OHS regulators’ decisions to investigate or not to investigate professional sporting clubs for potential breaches of OHS law would increase public confidence in regulators and the decisions they make.

What about professional sporting clubs?

Professional sporting organisations always have been afforded a large degree of self-regulation. The AFL Commission already had penalised Essendon for its failure to adequately protect the health, welfare and safety of its players.

But in laying charges, WorkSafe Victoria sent two important messages to professional sporting organsations:

• That it – and not a sport’s governing body – is responsible for advancing the public interest served by OHS laws; and

• Professional sport is not beyond the reach of OHS regulators.

This is a development about which all professional sporting organisations should be alert, but not alarmed. They should be alert because the breadth and complexity of OHS laws have not always been recognised by those involved with professional sporting competitions.

Multiple persons involved in professional sporting competitions owe broad, concurrent, overlapping and non-delegable duties. Duties are owed by a sport’s governing body, individual clubs and their officers, as well as by doctors, sports scientists, trainers and other persons whose acts or omissions are capable of affecting athletes’ health, safety and welfare.

These duties apply to activities undertaken by athletes participating in matches and training, and ensuring they are in the best physical and mental condition. They also apply to other activities undertaken by athletes at their club’s direction or encouragement, regardless of time or place.

However, sporting organisations should not necessarily be alarmed. OHS is already in sport – albeit by another name. The Essendon supplements saga aside, most professional sporting clubs have a solid record in injury prevention and management.

There are few other activities in which an employer takes as much interest in an employee’s health, safety and welfare. The active involvement of OHS regulators should serve to reinforce this interest.

Eric Windholz worked with WorkSafe Victoria from 2001 to 2009, including as General Counsel and General Manager, Strategic Programs and Support.