ASADA investigation into Drugs in Australian Sports - Lessons for Employers

Posted on 25 June 2013

In our two (2) part blog on the lessons employers should learn from the current ASADA investigation into Drugs in Australian Sports we will examine the need for:

  1. Pre Employment/Engagement Background Checks to be undertaken on all prospective employees or contractors prior them starting with your organisation; and
  2. All organisations to implement policies and procedures that endorse fair and consistent investigation and disciplinary processes are followed.

In part one (1) of our blog we focus on how the failure to perform pre employment background checks can damage your business and brand and what key information employers should seek from candidates when conducting pre employment background checks.

Background

On 4 February 2013, the AFL's Essendon Football Club (Essendon) requested ASADA investigate its sports science practices due to severe concerns that they had breached sports anti doping laws. At the centre of the allegations were the then High Performance Coach, Mr Dean Robinson, and his assistant sport scientist, Mr Stephen Dank.

Since the Drugs in Sport ASADA investigation began, it has been widely reported in the media that several football clubs from both the NRL and AFL had previously employed, or contracted the services of, Mr Dank in a role of sports scientist. It has been alleged that Mr Dank, who has previously worked with the Manly Sea Eagles from 2005-2009, left the Cronulla Sharks in 2011 as a result of concerns raised by a club Doctor in relation to his sports science program. From here, Mr Dank worked briefly with the AFL's Gold Coast Suns (again allegedly leaving due to concerns over his methods) before being employed by Essendon in mid to late 2011.

From early 2012, it has been alleged that Essendon's club Doctor raised his concerns about the irregular practices and methods of High Performance Sports Science team. By mid 2012, the concerns held by the club's administration were heightened and allegedly resulted in the termination or discontinuance of Mr Dank's services at Essendon in August 2012.

On 6 May 2013, after three (3) months of public speculation, Essendon released a report that reviewed the governance practices at the club during the 2011/12 period. Drafted by former Telstra Chief Executive, Dr Ziggy Switkowski, the report revealed "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".

Overall, the report elaborates on the lack of internal governance, practices and procedures, as well as highlighting a disconnection between the responsibilities of key senior officers within the administration, which lead to "a lack of clarity about who was in charge of the football department" and allowed an experimental supplement regime to reign free with no real oversight.

Employment law issue – Pre employment background checks

While the ASADA investigation into the methods and substances used by Essendon's High Performance team is still ongoing, several important issues relating to workplace and employment law and corporate governance have arisen. One such issue relates to whether pre employment/engagement background checks were performed by Essendon prior to the decision to employ and contract members of the High Performance team.

The importance of pre employment checks

Whether an organisation is a sporting club, a multinational company or a small business, it is extremely important to know who your employees and contractors are before hiring them. Not only should employers perform criminal record checks (especially in circumstances where the person will potentially be working with or around children) but it is extremely important for employers to check the veracity of the persons qualification and experience, including but not limited to seeking referrals from former employers of candidates and thoroughly checking their educational qualifications to be able to properly evaluate the candidate.

It has been reported in the media that Essendon had not performed pre employment background checks on members of its coaching and training staff. If this allegation is indeed true, then perhaps if such relevant background checks and evaluations had been undertaken for its High Performance workers, Essendon may have avoided the situation altogether.

Sporting clubs are not the only industry where poor corporate governance has led to the appointment of a person unqualified to a position of significant authority. In May 2012, Yahoo! Inc's Chief Operating Officer was found to have lied on his resume when he stated that he had been awarded a Bachelor degree in Computer Science when he had not. This case highlights the fact that potential employees, regardless of their seniority or experience, cannot be taken at face value in regard to the answers they give in interviews or the statements they make on their resumes.

Businesses need to be aware when hiring a new employee or contractor that they risk not only damaging the internal business, but also the external reputation of the organisation. There can be no denying that the Essendon brand has been damaged in the media and that the findings from the ASADA investigation could still result in the withdrawal of sponsorships, business and community opportunities in addition to government grants. Besides potential sanctions by the AFL and ASADA, Essendon's hardest challenge may be in redeeming its commercial reputation well enough to entice new sponsors to the club.

If nothing else, the ASADA investigation into Drugs in Sport provides all business owners and employers with an example of the damage that can be caused by not performing pre employment background checks.

Pre employment tips for employers

Employers must take steps to know who they are employing and learn the lessons from the ASADA scandal by establishing sound corporate governance procedures so that all employment candidates are vetted fairly and ensure they are in the best possible position to select the right person for the job and protect the interests and reputation of their brand.
Some key questions employers should look to have answered before hiring a new employee include:

  • Candidates references:
  • Has approval been given by the candidate to contact referees?;
  • Have referees been contacted by phone?; and
  • Are referees supportive of the potential employee?
  • It is important for employers to ask open ended questions and whether the referee would reemploy the candidate. This will help the employer gauge whether the comments made by the candidate in their interview about their previous employment are factual
  • Candidates online presence:
  • Does the potential employee have an online presence?; and
  • Is there any content online made by the Candidate that would breach your organisation's workplace policies or question whether this employee is right for the job?
  • Candidates academic record:
  • Has the candidate provided evidence of academic record and/or other relevant documentation that is essential to performing the role?; and
  • Has the educational institution been contacted to ascertain the validity of the documents.
  • Candidates criminal and medical history:
  • Have the relevant criminal and working with children checks been undertaken? In may even be necessary in some industries to require the candidate undertake a medical evaluation.

The scenario facing sporting clubs involved in the ASADA Investigation into Drugs in Australian Sport provide solid reminders for employers on the importance to perform stringent pre employment background checks on all potential employees and contractors to safeguard and protect their business from exposure to unnecessary liabilities.

Should you need any further information with regard to pre employment checks or workplace law in general please contact us
 

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