The medical treatment consent forms signed by banned Essendon players were “incoherent” and could pave the way for more legal action, says Flinders University health law and ethics expert Associate Professor Brian Stoffell.
The Essendon players were misled into believing that they were agreeing to a medical treatment regime, so their excuse is quite close to saying they acted on medical advice in the matter, says Associate Professor Stoffell, who provided a legal and ethics opinion to the AFL Players’ Association (AFLPA).
The Court of Arbitration for Sport this month found 34 current and past Essendon players were in breach of the World Anti-Doping Agency’s code.
Associate Professor Stoffell, the Head of Social Health Science at the School of Health Sciences at Flinders, says the ruling “encourages us to reflect on the difference between a formal guilty verdict on a strict liability basis, and what natural justice might dictate for the duped players”.
“The AFLPA has known for a long time that the so-called consent forms presented to players as ‘consent to medical treatment’ forms were internally incoherent and legally void on their face. Their drafting was abysmal and the players should be seen as enrolled into a treated without any valid consent,” he says.
“This leads me to believe that any negligence action by the players against the club has a strong basis in treatment without consent.
“There can be different excuses given for violation of the strict liability provision that ‘each athlete is responsible for what goes into their body’.
“The ludicrous ‘my mum gave it to me’ Shane-Warne-excuse is at one end of the spectrum, while ‘my doctor prescribed it for me’ is close to the other end.
“The Essendon players were duped into believing that they were agreeing to medical treatment, so their excuse will be at the latter end of the spectrum.
“That is not quite the same as claiming that you were mugged and injected in the process – but it’s close.”
Associate Professor Stoffell says AFLPF officials, and many others, agree that the players in question were not cheats and should have been accorded coverage under the ‘no significant fault or negligence’ provision’ of the code.
“Here is a classic case of a formal finding of guilt being at odds with the widely held feelings about natural justice,” he says.