Whateley: Unsatisfactory Geelong statement “doesn’t cut it”

Gerard Whateley has responded to the AFL and AFLPA's joint statement regarding Geelong's under-the-table agreement to void the legal concussion rights of an unnamed player.

It was revealed by The Herald Sun early on Thursday morning that an unnamed Cat, suffering from repeat concussion concerns, signed a waiver without public knowledge that assumed all legal risk for any future brain injuries in order to continue his playing career.

The AFL, in conjunction with the AFLPA, released a statement later in the afternoon.

Whateley was far from satisfied with their choice words.

“I’m as confused after reading it as I have been for much of the day,” Whateley told AFL Nation.

“That doesn’t really answer any of the questions that are on the table, to me.

“The line, ‘The AFL is satisfied the letter was not used by Geelong to allow a medically unfit player to return to play’ – does that absolve Geelong of any wrongdoing in this case?

“What did the AFL know along the way? The concussion panel is an AFL constituted body, so they had an awareness of what had been done, and he was successful through the assessment to be able to continue his career.

“‘The player then signed the letter acknowledging the potential risk and sought to risk some potential future legal rights.’ So again, the open question is, who suggested the waiver? The player or the club?

“That wasn’t lodged or approved. I feared all day that we would get something that didn’t answer any of the actual questions. I feel none the wiser.

“I think the AFL and Geelong have a long list of questions to answer to satisfy the football public as to what has taken place here.

“Of course there should be (a press conference). We are about five hours overdue. That statement answers none of the pertinent questions of the day.

“The position of the Chairman – who was the president of Geelong at the time, and this would have gone through the Geelong board – is Craig Drummond. Clearly, he has a role on both sides of this to sit and answer questions.

“Given the seriousness of the concussion issue, that doesn’t cut it. It doesn’t cut it for anyone with a working knowledge of it. It doesn’t cut it for anyone with engagement in it.

“That will do nothing but confuse people. Is their culpability or no culpability? Has Geelong been cleared or not cleared? What did the AFL know or not know?

“All of these questions matter.

“Unfortunately, that continues a pattern of behaviour from the AFL. You have to answer these questions. There is no wriggling out of this.

“For whatever pressure can be brought to bear, there needs to be the answering of the actual questions, not this.

“That can’t be the end. It’s too big an issue for that to be the AFL’s idea of bringing it to a close.”

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.