Steven Amendola was James Hird’s Legal Counsel. Amendola said
“Its strikes me as very odd, that the Parliament or Legislature would intend that investigations would depend in what’s in the contract for the sport”
“With most regulators, who have coercive powers like ASIC, the ACCC…but there is a balance, there is a protection provided in respect to those coercive powers and that is, that having been required to attend and answer questions, you can’t be prosecuted…”.
but with the AFL joint investigation…
“…so you can be compelled to attend, compelled to answer questions, ASADA can listen to your answers, and then go and prosecute you. So there is no protection. There is no balance. Its pretty appalling , really”
Middleton hinted that if the club and Hird challenged the AFL contracts, his ruling may have been different. The AFL contracts and the AFL’s use of them to compelled players to give information used against them.
My take on that is that the compulsion by the AFL to make the players speak to ASADA could have been challenged in Middleton’s eyes, but he permitted ASADA to use the information once divulged. The legality of obtaining the information was never challenged.
The problem is at every turn the players, club and coaches were not allowed/coerced not to challenge the AFL.
It takes money for a major legal challenge to a major entity, and it seems the wealthy look out for each other in Melbourne, so anyone, including Jackson Taylor, who tried to challenge the AFL, were always defeated, because there was always coercion not to challenge, or their was never enough money to follow through a massive, expensive and time consuming legal challenge through to the end.
The whole issue need investigation. The Integrity Commission touted by the ALP should be explored. Perhaps a reference into ASADA should be prepared in anticipation of the Integrity Commission being established after the federal election,
As I see it, there are two distinct but related issues in the context of domestic law.
One is the issue of unfair terms of contract, including in relation to the object and purpose of the contract and what may be necessary as a contract term. It could be reasonable to bind athletes to anti-doping rules, but the processes may not be reasonable.
The ACCC is making a big push to reform legislation relating to unfair contract terms in consumer law. If no one has complained about athlete contracts, the ACCC has probably not considered them in its reform.
The second is the wider area of abuse of process in administrative law, in the context of the powers of statutory bodies. The High Court decision on the ACC/AFP has attracted interest in academic legal circles and would be of concern to the Attorney General ( the Commonwealth DPP prosecuted this case). The Federal Court decision on ASADA also needs to be taken into account by the likes of the Attorney General, the Shadow Attorney General and should be taken up by the Australian Law Reform Commission.
And; often it is NOT just about having the funds to challenge. You need to have the mental and emotional fortitude to outlast the adjournments and insidious game playing. The AFL have proven to be, exceptional adversaries.
If I had the money I am pretty sure I would have the mental & emotional fortitude to beat them at their own game!! …I am one of those people who just has to have the last word …just couldn’t let them win on principle …a waste of money?? not really especially if I could make them squirm … now all I need are billions of dollars !!!
Good post mate, but just to note that for a variety of jurisdictional reasons, the Unfair Contract Terms regime in the Competition and Consumer Act wouldn’t ever apply to athlete contracts.
Employment law may be separate. But there should be a set of underlying principles for unfair contract terms.
And when the AFL is a virtual monopoly and funds a large portion of the athletes representative body.
And when the AFLPA has been a career stepping stone into the AFL …
