AFL and James Hird: A sad history of ignorance … The Love-In

AFL must be the greatest game in the world because it continues to thrive despite being run by a number of people who make unfathomable decisions or statements.

Hawthorn coach, Alastair Clarkson, and AFL Coaches Association boss, Danny Frawley, are the latest in a long line of officials who are not afraid to embarrass themselves and show their ignorance.

Clarkson believes every coach should go through an accreditation / apprenticeship process before being allowed to coach a senior AFL team. He blames the Essendon saga (“ambush”) on the fact that James Hird didn’t serve an apprenticeship as an assistant coach. With logic such as that he must be auditioning for Andrew Demetriou’s job, which should be vacant soon. Apparently, Clarkson bases his argument on the fact that the senior coach has a demanding job. Try telling that to Mr Kennedy or Ron Barassi, or an interstate truck driver, or a surgeon. Clarkson has got to be kidding.

He has more teaser stallions to do the hard preliminary work than Redoute’s Choice. I’m told he even has his own plasterer on his support staff.

In making such a foolhardy claim about Hird, Clarkson has proved that in all his years of coaching he has learnt nothing about occupational, health and safety responsibilities, and thus, according to his rationale for being allowed to coach, he shouldn’t be permitted to be senior coach until he completes the correct OH&S training.

Instead of attacking Hird, Clarkson should be calling for all AFL club board members to be trained so they understand their legal OH&S responsibilities. According to the Victorian Occupational, Health and Safety Act, the batting order of responsibility is the board; the CEO; the Human Resource manager; the OH&S manager; the football manager; the doctor; the senior coach. As the AFL insists on a health and safety liaison manager at each club, he or she probably also has more responsibility than the senior coach. In blaming Hird for the “ambush”, Clarkson is inadvertently dobbing the Hawthorn board in as being just as ignorant as the Essendon board and AFL commissioners were.

AFL Coaching Association boss Danny Frawley proved there is more than one born every minute when he jumped into support Clarkson. Frawley obviously mistakenly thought he was supporting one of Jason Dunston’s stupid pranks he bores us with on FF After the Bounce program.

Frawley is just as ignorant about OH&S responsibilities as Clarkson (and Demetriou, the Commission and the media).

Frawley obviously doesn’t know his job is to represent his coaches. He had no right to make policy on the run or to support Clarkson without having reached a consensus with his coaches.

Frawley’s comment (in referring to ex-players dropping in to a senior coaching position) that “it’s like a student that gets a perfect score in English in year 12, and then the very next year asking them to go back to school and teach English” proves he put his head over the ball once too often, or Jason has wacked him in the head once too often during their pranks. Is Frawley seriously trying to compare a year 12 student’s experience with Hird’s? The audacity is breathtaking. Last year the players association did bugger all for Hird and Essendon, now it wants to dictate the criteria for Essendon selecting its coach.

Hird played 253 games over 15 years. He was coached by the master Kevin Sheedy and his coaching support staff. He captained the team. He had one of the best coaches of the modern era, Mark Thompson, sitting alongside him as a mentor. In Hird’s first year of coaching his team came 8th, which was over 50% better than the teams with coaches who had been through the Clarkson / Frawley model.

If Hird failed to fulfil his OH&S responsibilities it was because thirteen plus people at Essendon and thirteen plus people at the AFL, all with more responsibility than Hird, failed to fulfil their responsibilities. The fact that Mark Thompson was also unaware of the chain of responsibility indicates that Geelong were just as ignorant in his time there. Which begs the question how does Clarkson explain the reason for Thompson and Geelong’s ignorance?

All of the above notwithstanding, it astonishes me that anyone would want to give the AFL more power. To steal a line from Kerry Packer when asked why he didn’t pay more tax, he said “they’re pissing what I’m giving them now up against the wall.” That’s exactly what the AFL does with its excessive power. Surely, the clubs should be able to decide the criteria for selecting their coach. At the moment, the AFL has more power than a totalitarian leader. Instead of giving them power to decide the criteria for selecting a coach, the AFL should be required to fulfil its responsibilities and should also be made accountable for its mistakes.

The sad thing about Clarkson’s and Frawley’s suggestion is that it also included a not very subtle attack on James Hird. If Frawley had done his job properly last year he would have launched a stinging attack on Demetriou and the commissioners for denying one of his members, James Hird, natural justice.

For Frawley’s and Clarkson’s edification, I have set out below a brief summary of the transgressions by the AFL with respect to denying Hird procedural fairness (natural justice). If the readers of this article agree with just one of the 16 points which follow, they are agreeing that Hird was denied procedural fairness. Interestingly, if they agree that Hird was denied procedural fairness they are more entitled to sit on the commission than the incumbents – even the judge who should have know better.

FACT: Andrew Demetriou oversaw a process which denied James Hird procedural fairness:

On 7 October 2010, Chief Justice of the High Court of Australia, Robert S French, delivered the Sir Anthony Mason Lecture at The University of Melbourne Law School, Law Students’ Society. The subject was: Procedural Fairness – Indispensable to Justice? Inter alia, French said:

“Procedural fairness is part of our cultural heritage. It is deeply rooted in our law. It lies at the heart of the judicial function and conditions the exercise of a large array of administrative powers affecting the rights, duties, privileges and immunities of individuals and organisations. As a normative marker for decision-making it predates by millennia the common law of England and its voyage to the Australian colonies.”

In his conclusion, the Chief Justice said: “The concept of procedural fairness has its origins in the natural law which informed the development of the rules of natural justice as part of the common law of England. Its scope has broadened, then narrowed, then broadened again, through its history. Despite incidents of legislative exclusion, procedural fairness is alive and well today in Australia.

There is little doubt that the norms of procedural fairness reach well beyond the confines of the courtroom in judicial proceedings or judicial review of administrative decisions. They are important societal values applicable to any form of official decision-making which can affect individual interests. I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice (my emphasis). If the notion of a ‘fair go’ means anything in this context, it must mean that before a decision is made affecting a person’s interests, they should have a right to be heard by an impartial decision-maker (my emphasis).”

Hird was denied natural justice (procedural fairness) in sixteen areas:

1. The AFL participated as a joint partner with ASADA in collecting witness statements when in fact it should have been required to give witness statements so that the investigators could assess its culpability;

1. Demetriou made many statements during the investigation which implied Hird was guilty;

2. Despite implying Hird was guilty, Demetriou insisted on being on the jury to decide guilt or ‘innocence’;

1. Hird’s interview with the AFL/ASADA investigators could have resulted in Demetriou being gaoled for two years. Consequently, it was human nature for Demetriou to be prejudiced against Hird;

1. The AFL insisted upon being investigators; laying the charges; prosecuting the case; deciding on innocence or guilt and deciding on the penalties;

2. Demetriou had access to the witness statements and used it in media interviews despite saying it was inappropriate to do so;

3. Demetriou acknowledged that he pressured ASADA to deliver an interim report solely to facilitate an incident free final series. Essendon and Hird were thus denied procedural fairness in being charged on the basis of an incomplete investigation and report;

4. The AFL used the Switkowski report against Essendon and Hird – despite it having little credibility;

5. The initial charges against Essendon contained many vexatious charges. These charges caused Hird severe damage. Those charges were dropped without explanation, but the damage had already been done;

6. The AFL coerced the support of the other 17 clubs before a hearing was conducted. To do this it must have informed the 17 clubs, Essendon and its officials were guilty;

1. AFL integrity manager Brett Clothier was an investigator and inexplicably was allowed to submit a witness statement. His statement was never tested but was used against Hird. This action corrupted the whole investigation and should lead to former judge Garry Downes declaring the investigation null and void;

2. Constant leaks from the investigation caused severe damage to Hird;

3. The AFL called in the head of the ASC to negotiate the penalty. As ASADA and the ASC are both government bodies that was inappropriate;

1. The AFL arguably xxxxxxxxxx Essendon into accepting penalties prior to a hearing;

2. The process was poisoned by ASADA not including all the evidence in its interim report;

1. The investigation was set up to ascertain whether Essendon players had breached the anti-doping rules. When that allegation could not be sustained the investigators changed direction to secure a conviction, despite earlier assurances from Demetriou that it wouldn’t. On 13 March 2013 Jennifer Phelan writing on the AFL website said “the AFL has denied suggestions it will punish Essendon for poor internal governance regardless of the outcome of the ongoing ASADA investigation.”

FACT: In failing to do anything, the AFL Commissioners – Mike Fitzpatrick, Chris Langford, Sam Mostyn, Justice Linda Dessau AO, Christopher Lynch, Richard Goyder and Paul Bassat – condoned Hird being denied natural justice

FACT: In supporting Fitzpatrick’s call for support on 22 August 2013, the 17 presidents / chairmen led by Peter Gordon condoned the AFL denying Hird natural justice. Gordon must have been absent the day his law lecturer covered natural justice.

FACT: AFL deputy chief executive, Gillon McLachlan acknowledged that if the AFL had taken every step open to it, the whole Essendon saga could have been prevented

• “The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011”

• “The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.”

• “I don’t think that we can shirk it in every instance, I’m happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldn’t be in this situation.”

• “People need to take various forms of accountability and I’ll take that.”

FACT: Clause 12 of the tripartite agreement says: “The parties to this contract (AFL/Essendon/the player) shall use their best endeavours, in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this Contract.”

FACT: Integrity manager Brett Clothier is responsible for protecting the integrity of the competition and he failed to fulfil his responsibilities as per clause 12 of the tripartite agreement.

FACT: Clause 11.2 (a) of the Players rules states “It is each Player’s personal duty to ensure that no Prohibited Substance enters his body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Player’s part be demonstrated in order to establish an Anti-Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.

FACT: It is the AFL Players Association’s responsibility to educate its members to comply with Clause 11.2 (a). If the 44 Essendon players didn’t comply, and we don’t know whether they did or not, the players association must accept some responsibility for failing to inculcate the players with the need to comply.

In summary, it is a sad state of affairs that James Hird is singled out for ridicule when Demetriou, the commissioners, McLachlan, Clothier, the Essendon board and senior staff, the AFLPA, Clarkson and Frawley don’t understand their roles or the law. Training should commence immediately from the top – from the commission to the club boards all the way down to every staff member. When that is completed it may be time to contemplate handing over power to the AFL to decide the criteria for selecting the senior coach.

• *Writer Bruce Francis is a seasoned observer of AFL, Essendon, and its associated controversies.

• nudger, in Comments: … this was a disgraceful abuse of process, a monumental over-reaction to what was (and in at least two cases we know of) still going on in other AFL clubs. Experts I know who have seen the program that Essendon were on say it was quite proper and properly chronicled. The AFL was spooked by the ACC. ASADA has found nothing in 12 months because there is nothing to find. None of the things given to the players were either harmful or illegal. The players know that. That’s why they’re still at Essendon. They were given the opportunity to walk but didn’t. They remain the firmest of friends with James Hird. As far back as February 6th last year, there was nothing to find, nothing to see at Essendon that was wrong … but a bull-headed AFL CEO and his ambitious Integrity Unit chose to believe everybody else but those at Essendon, aided of course by the media who will no doubt have influenced your view on this with their extravagant rantings. And yes Caro, we’re talking about you. There is still much to come here.

AND,
• The Windy Hill Four (Information and Resources on the Windy Hill Four): The Big Melbourne Love-In Thank heavens yesterday’s love-in with Andrew Demetriou and Mark Robinson was a newspaper interview and not a television interview. Watching Robinson lying on his back like a Labrador with Demetriou tickling his tummy would have had me reaching for the bucket.