Legal lessons from the Essendon and Cronulla supplements sagas
The Essendon and Cronulla supplements sagas provide powerful reminders of the risks inherent in litigation on the one hand, and the wisdom of adopting a pragmatic approach and attempting to resolve disputes on a commercial basis as soon as possible on the other hand.
The factual situation facing each club was virtually identical in that:
- each club had engaged a sports scientist to provide a supplements program for its players
- each club was investigated by ASADA on the basis that prohibited substances were allegedly provided to its players under the program
- there was a lack of objective evidence in each case as to whether or not prohibited substances were provided to the players, and the available evidence was purely circumstantial
- the relevant tribunal was not required to be satisfied beyond reasonable doubt that prohibited substances had been provided to the players, but was simply required to be “comfortably satisfied” that this was the case.
The approach taken by each club
The approach taken by each club was however totally different.
Cronulla and its players adopted a pragmatic approach and negotiated a resolution with ASADA at an early stage on the basis that some Cronulla players had unknowingly been injected with prohibited substances. As a result those players were suspended from playing for in effect two months. This had minimal impact on the Cronulla club and the players and it is doubtful that their reputations were tarnished in any way.
Essendon and its players adopted a highly litigious approach, what some have referred to as the “Sydney or the bush” approach, with hearings taking place in various courts and tribunals over a number of years. The players initially prevailed in a tribunal set up by the AFL, but WADA took this decision on appeal to CAS (the Court of Arbitration for Sport), with CAS finding that it was “comfortably satisfied” that certain players had been administered prohibited substances. As a result these players were suspended for 12 months and cannot be involved in football in any way during the 2016 season.
Compared to Cronulla, Essendon has had several seasons of turmoil, and has had several of its players suspended for the whole season. This is probably not the end of the matter as there may well be further litigation as a result of the CAS decision.
The lessons to be learnt
At Tait & Co we always recommend to clients that they adopt a pragmatic approach and attempt to resolve disputes on a commercial basis as soon as possible. The “Sydney or the bush” approach is not in our view a sensible way to deal with commercial disputes. It invariably results in one, and often both, parties being unhappy – the loser for obvious reasons, and the winner because it may not have obtained everything it wanted, and the victory has come at a substantial cost (in terms of legal costs, management time and effort, disruption to business, uncertainty, etc).