Recent speculation over the future of Essendon footballer Paddy Ryder has created further turmoil for the club, and the outcome may have far reaching repercussions not only for Essendon, but the rest of the league.
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Essendon have been blighted for two seasons by fallout from what independent investigator Ziggy Switkowski labelled “a pharmacologically experimental environment never adequately controlled or challenged or documented”.
Speculation on Ryder’s playing future has intensified since it was reported that he was disgruntled with the club’s handling of the 2012 supplements saga, and was now in the process of reviewing his contract, which is not due to expire until 2016.
Ryder is reportedly considering invoking a clause in his current agreement with the club, allowing him to terminate his contract due to a breach of a duty of care by the club.
Essendon would lose a quality player should the ruckman be able to prove an element of undue influence or unconscionable conduct by the club in its handling of the drug supplement experiment.
If Ryder is disgruntled, and was successful in having his contract declared void because he was wronged by a breach of trust from his employer, the ramification for the club could be a mass exodus of talent.
Other players issued with show-cause notices from ASADA, many of whom remain with the club, could follow Ryder’s lead, sending the club into uncertainty and turmoil, the likes never before experienced by a professional outfit in Australian sport.
Traditionally, it has always been the club – the employer – which has had the power when it comes to the termination or the tearing up of a player’s contract. But that could all change should Ryder pursue a release from the club, and the impact might not only rest with Essendon.
Richmond (Dan Connors), St Kilda (Jason Gram) and Carlton (Josh Bootsma) have all exercised ‘wronged party’ clauses to void contracts because of unacceptable behavior that was deemed detrimental to the broader club.
Historically, professional sports clubs have had the edge in these types of disputes, but the Ryder case shows signs of a shift – and the balance of power is moving towards the player.
Think for a moment about the potential impact on Carlton had this clause been in the AFLPA collective bargaining agreement when the Blues were found guilty of rorting their salary cap in the 2001 and 2002 seasons.
Denied draft picks in the 2002 national draft, all picks in the 2003 pre-season, and draft picks one and two in the 2003 national draft, the club fell heavily, crashing out of a finals position in 2001 to winning the ‘wooden spoon’ in 2002.
In six seasons between 2002 and 2007 the club finished last three times, and finished in the bottom two five times.
Their position could have been substantially graver had players exercised a clause of unconscionable conduct by its employer in their contracts, enabling them to void their contract.
Players could have elected to move to a more competitive club, one that had more opportunities to make the finals or win a premiership, or at least move to one that had a future.
Based on what Carlton pleaded guilty to in 2002, it would not have been difficult for players to argue that a confidential agreement existed between player and club, and that the club acted unconscionably in that agreement.
For Essendon, there is another storm on the horizon.
Based on its very own admissions towards breaches of governance alone, It would be difficult for the club to argue it did not breach its duty of care to its players in 2012 when the likes of former chief executive Ian Robson resigned, stating the club had “let down our players and their families: how seriously we let them down is still a matter of investigation”.
I believe that irrespective of the Essendon challenge in the Federal Court of the legality of the ASADA investigation, a disgruntled Patrick Ryder, whether he stays at Bomberland or not, may have opened up a can of worms.
Not only at the club where he has played all of his 170 games, but foreseeably towards all professional sporting clubs.
Neil Howard is a Melbourne barrister who has represented high profile sports people, including AFL footballers, in mediation and arbitration.
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