Whateley: AFL must condemn "unethical, reprehensible" secret concussion deal

Not worth the paper it’s written on.

And a club gone rogue.

That’s the first reaction to the Herald Sun’s alarming story of a secret deal struck by a Victorian club requiring an at-risk player to assume all legal risk regarding concussion to continue his career.

Once you start to get judgmental, I’m drawn to unethical, reprehensible and I struggle to see how it’s not illegal.

The notion of waivers for players indemnifying the AFL and its clubs from the responsibilities of head trauma has been the domain of talkback radio and online message boards.

The callous idea that players know the risks, now get out there and entertain us.

How it found its way into a club executive and through a board is breath-taking and damning.

Without action it’s very hard to accept the default statement from the AFL this morning.

The health and safety of players is the AFL’s highest priority.

You can say it, but do you live it?

And it’s all eyes to headquarters this morning.

Because it’s hard to see the priority being health and safety for the unnamed player in Jay Clark’s story.

We have a man so desperate to continue his career a club is prepared to exploit his talent but not shoulder any of the risk should things go wrong.

At its core this is unsafe practice.

So how has this happened?

A standard contract is signed by three parties – club, player and the AFL.

There are at times unique injury clauses identifying pre-existing conditions and limiting payouts in the event a long-term injury ends a player’s career before the contract expires.

But not when it comes to the notion of letting the club off the hook for a duty of care.

The AFL needs to be crystal clear this arrangement is not a clause in a contract to which it was a signatory.

From what I can gather, once the whistle was blown, the League’s legal team began questioning clubs trying to determine the source.

That wouldn’t have been necessary if it was contained in a lodged contract.

The mood from headquarters this morning is they don’t like it and don’t want it.

What they knew is critical and what they say next will be enlightening.

It’s more likely this is a side agreement – not binding under the CBA, not legally enforceable and not really permitted

Most industry sources I have spoken to this morning say it would never stand up in court.

Side agreements might typically cover future contractual terms, not triggers, but more good faith arrangements… if you meet these markers the next deal will look like this.

Or a future trade prospect… if a certain scenario unfolds best endeavours will be made.

And to my question, yes, it would be an A4 piece of paper in a drawer signed by club and player but never lodged.

It’s legal standing would be as good a zero, but everyone feels better having done it.

When it comes to concussion the side agreement is simply bad faith.

And it’s bad practice in every way.

1: It’s un-enforceable.

2: As we’ve seen today it guarantees reputational harm.

If the AFL is not a signatory to the clause, it must condemn the practice immediately.

It should make clear the side agreement has no standing and will never be tolerated as industry practice.

And if the player is at such risk that his club sought to absolve itself of legal responsibility, the League must begin the independent process of assessment as to whether the player can continue his career.

Because this ill-conceived and callous arrangement is not worth the paper it’s written on.

Do we really believe the health and safety of players is the AFL’s highest priority?

We should know in the hours ahead.