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Drugs inquiry puts bosses under scrutiny

The Dominion Post - Tuesday, 26 February 2013

The Australian Crime Commission report that alleges widespread doping and illegal drug use in Australian sport has shaken the Australian sporting establishment and sports followers generally.

In response, our Sport Minister Murray McCully has ordered government officials to evaluate the need for a similar doping probe in New Zealand.

The revelations have struck the Australian psyche quite deeply, particularly given Australia's prowess on the sporting field. The former chief of the Australian Sports Anti-Doping Association (Asada), Richard Ings, has even described the release of the report as "the blackest day in Australian sport".

But what of New Zealand and New Zealand teams that play in Australian leagues?

The Phoenix, Warriors and the Breakers are but three examples of teams that compete regularly in Australia. Are they also implicated?

The report does not name players or teams as such, although no doubt the investigators have that knowledge. Early indications though are that the New Zealand teams are clean.

Some teams in Australia have, however, publicly admitted that they are implicated in the report's findings. One of the most significant is top AFL club Essendon,which is being investigated by Asada over concerns that it provided its players with a banned substance in 2012.

While the club has admitted that its players regularly take supplements it has refused to confirm what they are and whether or not they are banned.

Thereis a very fine line between legal and banned supplements. It is recommended byDrug Free Sport New Zealand (DFSNZ) that, to be safe, players should not takesupplements of any kind. However, All Blacks and Hurricanes prop Ben Franks hasspoken out saying that this is not realistic.

In light of the demands of professional sport, modern athletes have to take supplements to stay competitive. He has therefore called for DFSNZ to implement testing procedures to guarantee clean supplements that players can take.

So what obligations are there on clubs or sport organisations, as employers, to provide their employees with information on how they can stay clean?

Employers have an obligation to treat their staff fairly and reasonably. It doesn't seem too much to ask that they provide, at the very least, guidelines for players who are going to be under pressure to perform at a high level, and presumably to take at the very least lawful supplements.

It seems that, in New Zealand, athletes are relatively well supported by their employers. The New Zealand Rugby Union, which employs rugby players such as Franks, provides guidelines on supplements and products that can be used. More generally, a survey of athletes across all sports conducted by DFSNZ shows that a vast majority of them are satisfied, or very satisfied, with the quality andavailability of anti-doping information provided to them.

Whathappens though if the employer actively provides their employees withsubstances they know to be banned, as is alleged to have happened at Essendon?

Certainly, if a club provides its players with banned substances, it is exposing them to being suspended or expelled from the sporting code which is their livelihood.There is little doubt that any employer that did such a thing would breach its obligations to treat its employees fairly and reasonably, and also to provide a safe place of work.

Employers and employees are also both obliged to behave in a way that promotes trust and confidence. Both have obligations of good faith, which means being responsive and communicative. For an employer to knowingly put at risk the careers of employees by providing them with banned substances would undoubtedly amount to an egregious breach of these obligations.

Readers will watch the saga in Australia, and perhaps in New Zealand, unfold with interest. Fifty years ago, the taking of supplements to enhance sports performance would have been largely unheard of. But numerous revelations like those that emerged about Lance Armstrong have smashed that myth for the contemporary sporting world.

Valerie Adams, and all of New Zealand for that matter, will no doubt attest to the damage illegal drugs can do at the Olympics. It will be interesting to know how far drugs reach into the world of more modest sporting achievements. Hopefully we are soon to find out.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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