Over the course of the investigation, the question has arisen as to whether the players themselves are responsible for potentially contravening the World Anti Doping Agency’s code or whether the Essendon Football Club is to liable vicariously.
[Note: “Vicarious liability” is the responsibility of the superior at law for the actions of a subordinate under their control and is often found in employment or agency relationships.]
16 months after the initial investigation was launched, ASADA (Australian Sports Anti-Doping Authority) has issued ‘show-cause’ notices to Essendon Football Club players. These notices outline the alleged use of banned substances by the players and are intended to give players a chance to respond to the accusation before further action is taken.
The club may be vicariously liable for doping charges if they were administered by an ’employee’ of the club during the course of their employment. If the club is found to have knowingly supplied banned supplements to players (or to have made them readily accessible) it will be difficult for the club to escape liability.
If the players were aware that the substances were banned and ingested them voluntarily, then the players’ actions may be considered intentional and spontaneous and therefore cannot be attributed to a third party such as the club. This could remove or diminish the club’s responsibility. Whether or not the actions of the players were ‘voluntary’ is a matter of circumstance. For example, if the club imposing penalties on players for non-compliance may pressure players into compliance and conclude that compliance was involuntary.
It was also greatly within the interests of the Essendon Football Club for their players to ingest the substances, potentially giving the club an edge over other clubs and players within the AFL. Generally, an employer’s may be vicariously liable if an action by its employee is beneficial to the employer.
ASADA has indicated that players may be able to rely on a “no-fault” defence if they had no knowledge that they used a prohibited substance and took reasonable care to ensure they did not ingest prohibited substances. This would leave Essendon players in the clear, with their club still held accountable for any illegal doping.