It's not over yet, warns Watson

[deltablues]

Voluntary assumption of risk (Volenti) is a complete defence against negligence, resulting in no damages.
Also very hard to argue. Have to prove that the person was completely aware of ALL the risks and accepted all those risks.
Also, the Civil Liability Act limits voluntary assumption of risk to 'extreme' recreational activities (bungee jumping and the like) doesn't it?

Pardon me for being a dull and leaden pedant, but, whether or not volenti non fit injuria is a complete defense depends on the jurisdiction/forum. For example, volenti is only a limited defense in the UK if there is held to be any contributory negligence (see Law Reform [ Contributory Negligence] Act); and ditto also in some USA states.

But it looks like the Civil Liability Act [Oz] you cited (haven't read it) sets a high bar re the volens of the player (e.g. extreme sports being the exception).

But what if the negligent acts amounted to a fiduciary breach of trust? A fiduciary breach of trust could lower the statutory bar. A number of commentators in the Press are talking about the "vulnerable" players ["vulnerable' being a PC code word in search of a victim, but let's not go there]. If they are "vulnerable", then arguably a fiduciary duty of care can arise which could trump the "complete" defense of volenti. If so,then that would favor the players.

And what if Swiss law applies in this CAS context?

And re being aware of all of the risks - absent any specific legislative parameters, a player would arguably be deemed to be aware of the usual risks in the usual sport, under the doctrine of constructive notice. For example, in the '60's being king-hit in Aussie Rules was a usual risk and constructive notice would have been a defense - but these days not so much...

 

[Suma Magic]

Good Thymosin, Bad Thymosin, you know I had my share;
I put my trust in a blonde haired man
Who now don't seem to care

 

[King Elvis]

If I were the player's lawyers, I would like to ask some questions of the AFL regarding their anti doping education, whether they test retention or do any validation of the program. Because it appears here that the education has failed the players (since I am a lawyer for the angelic players in this sceario).

Knowing a couple of AFL players and having discussed this with them, they are strictly and strongly aware of what they're meant to do - and what they can't do (as are the ex national level swimmers I'm mates with); they're absolutely hammered on it.

Which is why I keep coming back to the Cult of Hird as the driving force behind this; his aura and influence is the only thing that I think is strong enough to have the players go along with this.

 

[blackshadow]

Good Thymosin, Bad Thymosin, you know I had my share;
I put my trust in a blonde haired man
Who now don't seem to care

Very nice!

 

[King Elvis]

And this is the problem jumping into an argument halfway full cocked. Yes they had every right to go after the players, and yes I agree that they should have. My argument stems back a few pages where I made the point that the players were backed into a wall, and why they were defensive to ASADA.
That is the problem with Bigfooty, too many gun blazing halfwits jumping into the tailend of conversations, not knowing what it was really about in the first place.[/QUOTE]

A Club sanctioned doping program.

 

[imperial_oz]

Pardon me for being a dull and leaden pedant, but, whether or not volenti non fit injuria is a complete defense depends on the jurisdiction/forum. For example, volenti is only a limited defense in the UK if there is held to be any contributory negligence (see Law Reform [ Contributory Negligence] Act); and ditto also in some USA states.

But it looks like the Civil Liability Act [Oz] you cited (haven't read it) sets a high bar re the volens of the player (e.g. extreme sports being the exception).

But what if the negligent acts amounted to a fiduciary breach of trust? A fiduciary breach of trust could lower the statutory bar. A number of commentators in the Press are talking about the "vulnerable" players ["vulnerable' being a PC code word in search of a victim, but let's not go there]. If they are "vulnerable", then arguably a fiduciary duty of care can arise which could trump the "complete" defense of volenti. If so,then that would favor the players.

And what if Swiss law applies in this CAS context?

And re being aware of all of the risks - absent any specific legislative parameters, a player would arguably be deemed to be aware of the usual risks in the usual sport, under the doctrine of constructive notice. For example, in the '60's being king-hit in Aussie Rules was a usual risk and constructive notice would have been a defense - but these days not so much...

It won't be Swiss law with this one, that only applies to CAS and even only administratively. Even the matters of substance in CAS were managed under Oz law. This will be managed under Oz law all the way.

 

[deltablues]

It won't be Swiss law with this one, that only applies to CAS and even only administratively. Even the matters of substance in CAS were managed under Oz law. This will be managed under Oz law all the way.

OK, noted re jurisdiction. Haven't really gotten down into the weeds for a while on this saga.

 

[Tyrone Time]

So drug cheats want to make money for being drug cheats?
The side effects are already showing on Jabe.

 

[Number37]

Pardon me for being a dull and leaden pedant, but, whether or not volenti non fit injuria is a complete defense depends on the jurisdiction/forum. For example, volenti is only a limited defense in the UK if there is held to be any contributory negligence (see Law Reform [ Contributory Negligence] Act); and ditto also in some USA states.

But it looks like the Civil Liability Act [Oz] you cited (haven't read it) sets a high bar re the volens of the player (e.g. extreme sports being the exception).

But what if the negligent acts amounted to a fiduciary breach of trust? A fiduciary breach of trust could lower the statutory bar. A number of commentators in the Press are talking about the "vulnerable" players ["vulnerable' being a PC code word in search of a victim, but let's not go there]. If they are "vulnerable", then arguably a fiduciary duty of care can arise which could trump the "complete" defense of volenti. If so,then that would favor the players.

And what if Swiss law applies in this CAS context?

And re being aware of all of the risks - absent any specific legislative parameters, a player would arguably be deemed to be aware of the usual risks in the usual sport, under the doctrine of constructive notice. For example, in the '60's being king-hit in Aussie Rules was a usual risk and constructive notice would have been a defense - but these days not so much...

A person can't half/quarter/20% voluntarily accept risk. When you voluntarily accept risk you can only do so 100%, otherwise how could you qualify your acceptance for say 50% of the risk?
Contributory negligence is not the same as volenti. It is a statutory defense brought in because the common law defense of volenti is so black and white.

The obligation by employers to employees is well established and uncontroversial and most importantly extensive. Of note it extends to situations where the harm arises where an employee is inattentive or makes an error of judgement.
Personally, I don't think it would be very difficult for the players to win an action in negligence. $50m worth, no.
In relation to being aware of all the risks, there is a clear distinction between risks from playing the game and other risks such as the risk of taking banned substances as part of a supplements program. In a perverse way the CAS finding helps them because it is almost entirely a contractual issue, their consent was for legal substances. The AFL and EFC are well and truly F*%#&. Take a line through medical negligence, same kind of thing special class (doctor/patient v employee/employer), therefore special duty owed, the consequences of effing up are severe, scope for damages is limited by your imagination.

 

[Foxx]

Rubbish. But carry on with your crap, that is exactly what is driving most Essendon supporters to show a greater level of support for their club. The more opposing forces stick the boots in, the more Essendon supporters will dig their heels in.
(Wouldn't let me quote King Elvis)

 

[Colonial]

Rubbish. But carry on with your crap, that is exactly what is driving most Essendon supporters to show a greater level of support for their club. The more opposing forces stick the boots in, the more Essendon supporters will dig their heels in.
(Wouldn't let me quote King Elvis)

So Essendon didnt have a club led doping program?

Wow CAS, ASADA, The AFL all got it wrong then

 

[ODNBlue]

Rubbish. But carry on with your crap, that is exactly what is driving most Essendon supporters to show a greater level of support for their club. The more opposing forces stick the boots in, the more Essendon supporters will dig their heels in.
(Wouldn't let me quote King Elvis)

There is no doubt that there is classic in-group/out-group psychology at work and that that is helping Essendon supporters to make more and more illogical attempts to support/defend their in-group.

EDIT: That was until Tuesday of course... only the really deluded ones are still on that failed bandwagon.

 

[deltablues]

A person can't half/quarter/20% voluntarily accept risk. When you voluntarily accept risk you can only do so 100%, otherwise how could you qualify your acceptance for say 50% of the risk?
Contributory negligence is not the same as volenti. It is a statutory defense brought in because the common law defense of volenti is so black and white.

The obligation by employers to employees is well established and uncontroversial and most importantly extensive. Of note it extends to situations where the harm arises where an employee is inattentive or makes an error of judgement.
Personally, I don't think it would be very difficult for the players to win an action in negligence. $50m worth, no.
In relation to being aware of all the risks, there is a clear distinction between risks from playing the game and other risks such as the risk of taking banned substances as part of a supplements program. In a perverse way the CAS finding helps them because it is almost entirely a contractual issue, their consent was for legal substances. The AFL and EFC are well and truly F*%#&. Take a line through medical negligence, same kind of thing special class (doctor/patient v employee/employer), therefore special duty owed, the consequences of effing up are severe, scope for damages is limited by your imagination.

This is probably not the forum/thread to debate in any detail legal issues arising, but your bolded is too sweeping a statement and in fact is not the case in some other jurisdictions, as I stated above (fact, not opinion). And in any event, it is not a matter of the volens accepting a portion of the risk - if it were then I might agree with your comment querying how this could be done: it is a matter of looking at the actual risk and seeing if that category of risk is included or excluded from the defense, either by statute or common law case law (e.g. extreme sports 100% excluded).

The 2 topics of negligence and volenti are linked in the context we are speaking about.

It will be very interesting to see how all of these factors play out over the coming months/years.

 

[ReaperX]

The AFL isn't ****ed at all lol.

The AFL as a league didn't make the players get on the supplements program, or even introduce it to them, and the AFL as a league has nothing to do with the poor governance of the Essendon Football Club.

The AFL has nothing to answer for, it's Essendon that has EVERYTHING to answer for, and they will be the ones in the firing line.

The AFL is only affected by this in the sense of needing to keep EFC viable due to television deals, stadium deals, etc. So it will definitely cost the league money, however they are not in danger of being sued by the players, and if the players tried suing the AFL, they'd fail miserably.

The EFC on the other hand... the players will destroy the club in court.

 

[jenny61_99]

The AFL isn't stuffed at all lol.

The AFL as a league didn't make the players get on the supplements program, or even introduce it to them, and the AFL as a league has nothing to do with the poor governance of the Essendon Football Club.

The AFL has nothing to answer for, it's Essendon that has EVERYTHING to answer for, and they will be the ones in the firing line.

The AFL is only affected by this in the sense of needing to keep EFC viable due to television deals, stadium deals, etc. So it will definitely cost the league money, however they are not in danger of being sued by the players, and if the players tried suing the AFL, they'd fail miserably.

The EFC on the other hand... the players will destroy the club in court.

I'm not convinced the AFL doesn't have things to answer for in all this.

 

[The Filth]

Rubbish. But carry on with your crap, that is exactly what is driving most Essendon supporters to show a greater level of support for their club. The more opposing forces stick the boots in, the more Essendon supporters will dig their heels in.
(Wouldn't let me quote King Elvis)

I thought that you were "Unlike a lot of Essendon supporters I'm not ignorant of what happened at Essendon" - my mistake. (continue to argue the case)

I thought you weren't going to follow Essendon "until they are a respectable club again" - my mistake. (greater level of support?)

I thought you admitted the "club is at fault" - my mistake. (Really?)

But you expect opposition supporters to accept "the players were not at fault" - your mistake (Players have been shown to be complicit in maintaining the cover up and secrecy surrounding the program)

Put yourself in their shoes, it is their job to play not worry about the medical staffs job.

In any case, performance enhancing drugs aside, players received over 4000 injections and IV's, including injections to the stomach, on and off site at Essendon. Anti aging drugs, anti obesity drugs, Alzheimer medication (cerebrolysin) extracted from a pigs brain etc, etc, etc, many of which were not approved for therapeutic use. My god, what sort of workplace encourages young athletes to be subjected to such a systematic program of potentially dangerous administering of drugs with unknown consequences. The Essendon players should be called the Essendon Sheep or the Essendon Guinea Pigs - not the Bombers.

March 9, the following exchange:
Hird: "Good work today mate, the boys were up and about, we have a lot to work with.
Dank: "IVs start next week and Thymosin with Uniquinon. We will start to see some real effects.
Then between March 27-28:
Dank: "That is the IV list that will be completed by Wednesday night.
Hird: "Good work mate, (name deleted) rang me tonight and said how good he felt after he saw you."
On April 3, Dank detailed more substances:
"We have cerebrolysin, we will re-oxygenate and re-circulate the brain. We will also be getting Solcoseryl."
Also in April:
Dank: "All IV and injections completed.
Hird: "Great work mate, it would be a great effort to have them feeling fresh for Anzac Day."
On May 11, Dank talks about an unspecified project.
"financials ready for you and David for AOD project. These financials cover all possible revenue streams, where the project applies."

("WHATEVER IT TAKES")
Disgusting.

 

[Colonial]

I'm not convinced the AFL doesn't have things to answer for in all this.

They had nothing to do with it. It was club led not AFL led.

 

[ReaperX]

They had nothing to do with it. It was club led not AFL led.

Exactly right mate.

Essendon are the ones that need to face the lawsuits and pay up.

In terms of the supplements program and who's liable for negligence, the AFL has absolutely nothing to do with any of that, so I don't know where this talk of players suing the AFL comes into play.

The ONLY thing that I can possibly think of, is the players suing the AFL because the AFL essentially cleared them, but is now banning them for 12 months. But they wouldn't have a case, simply because the AFL is bound by, and can't go against, the ruling that CAS gives. The AFL tribunal can clear them all they want, but they are not the highest authority on the matter, and it's not the AFL's fault that the decision was overturned.

So in essence, the players would be suing the AFL for "getting their hopes up", which is ridiculous.

i'd just love someone to explain to me the case that the players would have against the league aye, because I just don't get where that part is coming from.

It's between Essendon and the players.

 

[jenny61_99]

They had nothing to do with it. It was club led not AFL led.

Yes, but there were plenty of red flags around Essendon, that the AFL were obligated to keep an even closer eye on them. They failed to do so.

 

[Aussie in exile]

I'm not convinced the AFL doesn't have things to answer for in all this.

I think the person i would like to see answer some questions, after Dank and others, and yes he no longer works there is 'Fat Andy Demetriou" IMO if anybody knows what else is swept under the rug its him.
For a man you couldn't keep out of the newspapers and off the TV he went very quiet.
He use to express he opinions about other sports and how they should be run etc, then disappears down a hole it appears.

 

[Colonial]

Yes, but there were plenty of red flags around Essendon, that the AFL were obligated to keep an even closer eye on them. They failed to do so.

So because essendon cheated the AFL are to blame for not catching them earlier?

Thats a ******* long bow youre drawing there.

Im also POSITIVE that it would not hold up in court.
Have never seen a convicted crim win a litigation case against the police for not catching them earlier.

 

[blackshadow]

I'm not convinced the AFL doesn't have things to answer for in all this.

At the very least the AFL needs to answer for the decision not to sanction Essendon for what is clearly a systemic doping program that was implemented by the club.

 

[jenny61_99]

So because essendon cheated the AFL are to blame for not catching them earlier?

Thats a ******* long bow youre drawing there.

Im also POSITIVE that it would not hold up in court.
Have never seen a convicted crim win a litigation case against the police for not catching them earlier.

As the players employer (remember both Essendon AND the afl sign player contracts), they are obliged to ensure the health and safety of the players. If they suspected Essendon were heading down the peptide path, and by all accounts they did, then they owe it to the players to ensure Essendon didn't go there.

Look, I'm not saying it's all the AFLs fault, but I believe they should have done more to protect the players, rather than cover up and protect Essendon after the fact.

 

[Foxx]

I thought that you were "Unlike a lot of Essendon supporters I'm not ignorant of what happened at Essendon" - my mistake. (continue to argue the case)

I thought you weren't going to follow Essendon "until they are a respectable club again" - my mistake. (greater level of support?)

I thought you admitted the "club is at fault" - my mistake. (Really?)

But you expect opposition supporters to accept "the players were not at fault" - your mistake (Players have been shown to be complicit in maintaining the cover up and secrecy surrounding the program)



In any case, performance enhancing drugs aside, players received over 4000 injections and IV's, including injections to the stomach, on and off site at Essendon. Anti aging drugs, anti obesity drugs, Alzheimer medication (cerebrolysin) extracted from a pigs brain etc, etc, etc, many of which were not approved for therapeutic use. My god, what sort of workplace encourages young athletes to be subjected to such a systematic program of potentially dangerous administering of drugs with unknown consequences. The Essendon players should be called the Essendon Sheep or the Essendon Guinea Pigs - not the Bombers.

March 9, the following exchange:
Hird: "Good work today mate, the boys were up and about, we have a lot to work with.
Dank: "IVs start next week and Thymosin with Uniquinon. We will start to see some real effects.
Then between March 27-28:
Dank: "That is the IV list that will be completed by Wednesday night.
Hird: "Good work mate, (name deleted) rang me tonight and said how good he felt after he saw you."
On April 3, Dank detailed more substances:
"We have cerebrolysin, we will re-oxygenate and re-circulate the brain. We will also be getting Solcoseryl."
Also in April:
Dank: "All IV and injections completed.
Hird: "Great work mate, it would be a great effort to have them feeling fresh for Anzac Day."
On May 11, Dank talks about an unspecified project.
"financials ready for you and David for AOD project. These financials cover all possible revenue streams, where the project applies."

("WHATEVER IT TAKES")
Disgusting.

I don't condone nor like what happened at Essendon and am totally against it. And I won't follow them until they are a respectable club again. I'm not ignorant to what happened, but I will attack the one sided ignorance from others. There's always two sides to a story.
I was replying to a comment that it was a "club sanctioned doping program". Which is rubbish. It was club system failure that allowed a couple of cheats to take over. So yes the club is at fault, but not to the level of what a lot of opposing supporters are claiming.

You also left out the email from Hird to Dank stating "Make sure everything you give them is legal and WADA approved".

I'm not going to repeat my argument again to every poster that quotes me in relation to the level of player fault. Go back and read that if you want.

Some opposition supporters are very honest and realistic of what happened at Essendon, but some, especially keyboard warriors on here, are the very reason why I don't blame the Essendon faithful for sticking true, and in fact uniting stronger. So good job

 

[blackshadow]

I was replying to a comment that it was a "club sanctioned doping program". Which is rubbish.

Sorry to burst your bubble but it was a club sanctioned doping program.

The players were found to have doped and the dope was administered by the club - whether the players meant to or not or whether Dank followed the "protocol" is immaterial, the players were found guilty to have been injected with drugs under a program implemented and paid for by Essendon football club.