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Legal implications from ‘very disturbing’ Hawthorn FC allegations

Allegations of forced separation and pregnancy terminations, arising from an independent review into Hawthorn Football Club, raise questions about various legal claims.

user iconJerome Doraisamy 23 September 2022 Big Law
Legal implications from ‘very disturbing’ Hawthorn FC allegations
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As reported on Wednesday (21 September) by ABC, an external review commissioned by the Hawthorn Football Club uncovers allegations that key figures, including the head coaches, at the AFL club demanded the separation of young First Nations players from their partners, and pressured one couple to terminate a pregnancy for the sake of the player’s career.

According to one anonymous player, the national broadcaster reported, “[four-time premiership-winning former coach Alastair] Clarkson just leaned over me and demanded that I needed to get rid of my unborn child and my partner”.

“I was then manipulated and convinced to remove my SIM card from my phone, so there was no further contact between my family and me. They told me I’d be living with one of the other coaches from that night onwards,” the player said.


The latest in discrimination claims against Hawthorn (and in AFL more broadly)

The news follows last month’s proceedings, launched in the Victorian Civil and Administrative Tribunal, by former Hawthorn account manager Sophia Salmon-Abbott, claiming she was discriminated against after being hospitalised with anxiety and depression, rendering her unable to work.

She claims that she was advised by her psychologist that she could return to work gradually following the hospitalisation, but that the football club did not permit this.

Ms Salmon-Abbott is being represented by Harmers Workplace Lawyers.

“I think the club decided pretty much after hospital, in my view, that I was too hard to manage, and it was easier just to push me out,” she told The Age at the time.

“This is an organisation that is very public-facing in how supportive they are with mental health. They are saying this publicly when they are not directly doing that for me.”

Hawthorn president Jeff Kennett is the founder of national mental health charity Beyond Blue.

The news is also the latest in a string of allegations and instances of racism in AFL over the years — most significantly, the incessant booing of former Sydney Swans great and 2014 Australian of the Year Adam Goodes, which drove him to early retirement.


The “highly disturbing” allegations, Maurice Blackburn national head of employment law Josh Bornstein said, raise questions about possible legal claims that may be pursued, including racial and/or unlawful discrimination claims, the latter in light of the “strong suggestion” in the report that players with family responsibilities were targeted.

In determining whether discrimination occurred in the wake of the “very disturbing” report, Swaab partner Michael Byrnes detailed, the following questions will have to be asked: “Were non-Indigenous players treated this way, or was it assumed, wrongly and offensively, that indigenous players were somehow incapable of managing their own lives and needed to be subject to a highly unorthodox, interventionist and paternalistic regime where they were denied the agency to make fundamental decisions about their personal lives?”

As well as race discrimination, he noted, “there is also the spectre of discrimination on the basis of family or carer’s responsibilities”.

“A recurring theme in the allegations was the notion that a player effectively needed to choose between football or family, as if they are somehow mutually incompatible,” Mr Byrnes said.


Absent the most exceptional and rare circumstances, Mr Byrnes explained, it is difficult to conceive how a purported direction to end a relationship is reasonable.

“Repeated conduct by a club (or club officials) designed to give effect to such a direction, which could clearly create a risk to the health and safety of the person to whom the direction was given, would fall squarely into the definition of bullying,” he advised.

“This includes steps such as ordering the replacement of SIM cards and isolating players from partners and family by seeking to dictate and enforce separate permanent living arrangements.”

Safety and duty of care

Professional footballers, Mr Bornstein noted, like all other workers, are owed a duty of care and the right to a safe workplace.

“If they have been injured as a result of the conduct claimed, they may have a right to sue at common law for negligence,” he said.

Mr Byrnes supported this: “Employers need to ensure, so far as is reasonably practicable, the health and safety of workers. Some of the conduct and treatment to which players were allegedly subject clearly posed a substantial risk to their mental health.”

“The club was not providing a safe system of work for them.”

Responses from AFL and Hawthorn

AFL CEO Gillon McLachlan praised the courage of those who shared their “harrowing stories”.

“These are serious allegations, it is important we treat them appropriately, while also … allowing natural justice to those people who are accused,” he said on Wednesday morning.

“This is a process that is appropriate to be held independent of the normal AFL Integrity Unit. There are harrowing stories, there is increasing courage of the complainants to speak out. Both sides need to be heard and the process will flesh that out. It’s inappropriate to make a comment before that.”

Hawthorn FC said that the external review has raised disturbing historical allegations that require further investigation.

“Upon learning of these allegations, the club immediately engaged AFL Integrity as is appropriate. The club will continue to provide support to those who have participated in this process, and their wellbeing remains our priority.

“While the process indicated the current environment at the club is culturally safe, it also recommended that some of the club’s current First Nations training and development programs should continue to be strengthened,” the club said.

“The club places the best interests and welfare of our players and staff as our number one priority.”

Where to from here for the AFL?

Karena Nicholls — a partner at Coutts Lawyers & Conveyancers, which won Diversity Law Firm of the Year at the 2021 Women in Law Awards — pointed out that the Australian Human Rights Commission affirms that all employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly.

“To ensure that employees are not discriminated against, harassed or bullied, workplaces should develop and implement workplace practices to address inappropriate workplace behaviour and respond to complaints effectively,” she outlined.

Moreover, the AFL, Mr Byrnes reflected, is in many respects an extraordinary, highly professional organisation, running a sport that is beloved by many in certain Australian states.

“It seems, however, that its laudable public commitment to diversity is not necessarily matched by what happens in clubs,” he deduced.

“Players are increasingly drawn from a narrow group of mostly privileged private school alumni, which is the very opposite of the general trend towards diversity and equal opportunity in corporate Australia.”

“While rugby league and football (soccer) are rich cultural melting pots, the AFL seems to lag behind offering a full representation of the diverse communities who ardently support the sport,” Mr Byrnes continued.

“The allegations are an example, sadly an extreme one, of what can occur when organisations fail to genuinely commit to diversity and inclusion. Rhetoric in support of diversity is hollow without substantive reflection and change.”