Secret demands on Alastair Clarkson and Chris Fagan as Human Rights Commission looms in Hawthorn racism scandal

An imperfect storm is brewing in the Hawthorn racism saga that could see the scandal destined for a hearing in the Human Rights Commission. Read the 18 demands on Clarkson and Fagan.

Alastair Clarkson and Chris Fagan while at Hawthorn. Picture: AFL Media

The Hawthorn racism scandal is teetering towards the Federal Court as all sides are being urged to park their demands and attend mediation with an open mind.

If mediation collapses – and it will if Alastair Clarkson and Chris Fagan are unwilling to participate – the scandal is destined for a hearing in the Human Rights Commission, which is under the umbrella of the Federal Court.

In what would be a dramatic turn of events, all parties would be required to take the stand at the Human Rights Commission.

An imperfect storm is brewing.

On top of the frantic desire for mediation, WorkSafe Victoria is also investigating whether Hawthorn supplied an unsafe workplace for its Indigenous players and, if found guilty, the club faces a considerable fine.

WorkSafe this week interviewed Phil Egan, who conducted the Cultural Safety Review: Of Past and Present Indigenous Players and Staff of the Hawthorn Football Club.

In January 2016, Essendon was fined $200,000 by WorkSafe for side-stepping medical staff and ignoring protocols during its controversial supplements program.

A source told the Herald Sun this week the WorkSafe investigation of Hawthorn had uncovered damning evidence against the Hawks and their staff between 2008-16.

Alastair Clarkson and Chris Fagan while at Hawthorn. Picture: AFL Media

Meanwhile, progress towards mediation continues, but there’s hope more than confidence it will take place.

“Multiple parties’’ have agreed to attend the proposed gathering. One of those parties is believed to be Hawthorn.

But it’s understood Clarkson, Fagan and a fellow former Hawks staffer Jason Burt have not agreed, and it’s highly unlikely they will attend if they have to agree to the demands put in place by lawyer Leon Zwier.

Zwier is acting for four of the five Indigenous players and their partners, but he will be encouraged to drop his demands in a bid to get Clarkson, Fagan and Burt to the table.

The Herald Sun can reveal the 18 demands imposed on the two coaches, Burt, and Hawthorn.

The most critical is them being asked to apologise for their behaviour while working at the Hawks and to drop all legal action.

The points of order are:

1. Truth-telling.

2. Acknowledgment.

3. Explanation.

4. Apologies.

5. Apologise for conduct of others.

6. Public apologies.

7. Contrition.

8. Education.

9. Revised club practices and policies.

10. AFL racism review.

11. Recommendations.

12. Compensation fund.

13. Re-capitalisation of the compensation fund.

14. Claims process.

15. Reparations.

16. Joint media statement.

17. Non-disparagement agreement.

18. Termination of all legal claims.

Alastair Clarkson and Chris Fagan have not agreed to attend mediation. Picture: AFL Media

It’s believed the independent panel set up by the AFL to investigate the claims of racism – which has hit a brick wall – has the authority under its terms of reference to appoint a mediator.

“The investigation panel has determined to try to pursue that avenue,’’ a source told the Herald Sun. “It is looking to appoint a mediator or mediators.’’

The source said the panel was “looking for a solution’’ and wanted to avoid a court hearing, as do the Indigenous players and their partners.

The players and partners are seeking compensation, but they are also determined to ensure the behaviour which they allege took place is not repeated at other AFL clubs, or sporting clubs or any institution throughout Australia.

They believe a positive outcome for them would be a monumental outcome for all Indigenous people and the ongoing fight against racism.

While the AFL is also keen for mediation between all parties, adviser Peter Jess stressed that the mediation needed to concentrate on the victims and not the alleged “perpetrators’’.

“It must be clearly understood that the proper context of vilification and discrimination is always about the victims,’’ Jess said.

“The perpetrators’ understanding of the situation is irrelevant.

“It is not about what the perpetrators think or feel, it is simply about the victims and the impact it has had on them.’’

He said the “evidence was clear’’ the players and their partners suffered racism.

“The mental and physical health of the victims can be independently medically confirmed and this is both a terrible trauma both individually and collectively,’’ Jess said.

“There is compelling independent corroboration of the evidence, both written and oral, that the events took place supporting the victims’ position they now find themselves in.’’

Clarkson and Fagan have denied any wrongdoing through their legal statements, while Clarkson has gone further, declaring he will take legal action to clear his name.

“The context that the perpetrators are portraying once again is irrelevant to the victims or the outcomes,’’ Jess said.

“I think the prospect of the perpetrators suing for defamation will be in fact welcomed by the victims.

“The truth is a powerful purveyor of justice in the end (and neither) the AFL nor Hawthorn and the perpetrators can escape that fact.’’

The most stunning of the claims by some of the Indigenous players is that they were allegedly forced into separating from their partners – which they say is a form of paternalistic racism – and that one player was told to tell his partner to terminate her pregnancy.

These allegations are strenuously denied by the subjects of the investigation.

Other allegations are emerging, such as the time one official, it is alleged, asked an Indigenous player why he was blacker than another, or another time, when an Indigenous player, it is alleged, was asked why all the Indigenous players sat together in team meetings.

The point there being why weren’t the white players asked the same question?

Clarkson and Fagan crossed paths earlier this year. Picture: Getty Images

It’s understood an acceptance that there had been a case or cases of cultural insensitivity – or naivety – could unlock the current stalemate.

Of course, that would require Clarkson mainly to admit this. Clarkson has strenuously denied all of the allegations being investigated, insisting: “I did not behave in the manner claimed.”

Jess has previously lamented that the panel’s investigation had been hijacked by criminal lawyers and that’s why lawyers are requested not to attend the proposed mediation.

The case against the criminal lawyers attending is that they will argue proof is needed beyond a reasonable doubt, whereas someone involved in dispute resolution will try to fix the dispute beyond a courtroom.

A source close to the situation said the talks would be about truth and reconciliation and not about punishment and crime.

“Mediation is the obvious pathway to a resolution,’’ the source said. “It’s looking positive.

“There would have to be a compromise from both sides in respect to demands.

“There’s also questions of cultural safety as well as procedural fairness involved for both sides, both in location of various participants as well as balancing the demands of those involved in the current AFL season.

“Everyone wants a solution.’’

It’s hoped the mediation talks could be held by the end of this month and that Darwin is a possible destination for the sit down. Perth, Melbourne and Adelaide are also being considered.