What the Essendon Supplements Scandal Tells Architects 1

Friday, February 12th, 2016
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Essendon Supplements Scandal
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As registered construction professionals, architects can be subject to practitioner misconduct inquiries in much the same way as other practitioners, such as building surveyors and registered builders.

The only difference tends to be the forum where the investigation proceeds. In Victoria for example, practitioner misconduct inquiries have customarily been the domain of the Architects Registration Board, with other construction professionals having to face the Building Practitioners Board.

The duty to carry professional indemnity (PI) insurance generally carries with it the obligation of some form of professional registration. Both concepts (insurance and registration) are geared toward regulation of professional standards and the protection of the community from unsafe building practices.

As we know, the laws of professional misconduct advocacy can apply across a wide field, and principles applicable to building practitioners (including architects) can apply also to investigations for lawyers, doctors, veterinary surgeons and other professional disciplines – including professional athletes.

Over the last five years, I have participated occasionally on a disciplinary tribunal hearing misconduct allegations against soccer players, club officials and members. It is true that many of the concepts that I argue when appearing as a legal advocate before the Building Practitioners Board, including the onus of proof of “reasonable satisfaction” and matters relevant to a plea in mitigation (like a discount on penalty for remorse, or for pleading guilty) are also fundamental to sports misconduct tribunals.

Furthermore, and particularly given the importance of sport in the Australian psyche, professional misconduct in sport tends to be very high-profile and a magnet for media attention. One needs only look at the likes of the Lance Armstrong case and more recently, the players at the Essendon Football Club.

As many will know, the latest decision involving the AFL players was handed down at the start of the year by the Court of Arbitration for Sport (“CAS”) which overturned an internal AFL tribunal decision that exculpated the players.

While it certainly appeared that the football club had ‘done the wrong thing,’ at least in terms of a lack of governance (and this is basically acknowledged by the club recently pleading guilty to a charge of failing to provide a safe ‘work place’) what is the duty on the players as professional athletes and did they fail in that duty?

In the CAS decision as at the earlier AFL tribunal hearing, the onus of proof for the prosecutor to prove was that of “comfortable satisfaction” that the players had breached the rules/regulations regarding supplement use. In other words, could CAS be “comfortably satisfied” that the players were indeed guilty of the charges as alleged by WADA?

While most professional discipline case law refers to the onus of proof as being that of “reasonable satisfaction” (see the 1938 matrimonial misconduct case of Briginshaw v Briginshaw), I would argue that this slight difference in terminology employed in sports misconduct really means little; the test is basically the same thing whichever of these two phrases is employed.

The trier of fact does not need to be satisfied “beyond reasonable doubt” that the charges are proven, as would be the situation in a criminal case, but at the same time more proof is needed than just a “balance of probabilities” (that is, more likely than not).

I would argue that the AFL players would have been in a far better position now if they had fessed up to a breach much earlier in the process and then had legal advocates present a ‘plea in mitigation’ with the aim of obtaining the lightest possible penalty.

This would have allowed them to explore the virtues of contrition and remorse and a more favourable disposition would have emanated from the triers of fact (in this case, CAS). In short, they would have been in a position to mitigate and obtain a more positive outcome.

As professional individuals, clearly the players’ interests were not exactly the same as that of the club or the coach, and nor were their responsibilities as professional athletes under the WADA and ASADA regimes that had been signed up to.

In circumstances where you had evidence of a lack of due diligence by the players (they could not say for sure what they had taken, merely they had been assured by some within the club that it was ‘above board’ without apparently even going through the club doctor), and evidence of a problematic substance showing up in urine samples, this did not augur well for contesting the charges.

Added to all this was evidence of admissions of a lack of proper governance by the club’s sports science department and apparently incriminating emails between individuals within the club and others.

It is hard to fathom how the prospects of a successful defence would have been better than 50/50, and on those grounds the best option would have been a plea in mitigation.

This effectively means a full and proper explanation of what had occurred (rather than saying as little as possible), and highlighting all the good and positive steps that had in fact been taken. There would have been emphasis on ‘honest mistake’ and an explanation geared toward showing a lack of intent to be dishonest – if in fact omissions were more due to honest mistake or over-reliance on the advice of others.

There are other aspects to a successful plea in mitigation that are geared toward receiving the lightest possible penalty. These include arguments about having a ‘clean slate’ of no prior offences, steps taken to mitigate harm or prevent a re-occurrence of mistakes, and any available arguments about lack of public harm occasioned by incidents.

By contesting allegations where the contest is unlikely to be successful, one loses the potential benefits for fessing up at an early juncture and showing contrition for laws that have been broken. After all, how can one say you are contrite if you have attempted to deny and combat allegations, or indeed attack the prosecutorial system, throughout the process?

In addition to all this, significant time, costs and stress are added if it is deemed necessary to contest allegations – the hearing time alone would be significantly increased, in addition to necessary preparation.

I would suggest that all of these concepts are just as relevant for building practitioner misconduct, including for architects, when one makes the decision at an early stage on whether to contest or not contest misconduct allegations.

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  1. Malcolm Roberts

    I haven't been following it all that closely but from what I understand, the players weren't certain exactly what it is they took, and in such a case, I don't see how they could have 'fessed up' to anything. How can you confess when you don't know exactly what you are actually confessing to?

    Basically, it is true that the players probably should have done more than simply rely on the written assurances that they did. That said, the main party that was grossly negligent here is the club. The way the club jeopardised the players well being and didn't even keep records of what was going on was disgraceful.