No findings against Clarkson, Fagan and Burt in AFL deal, but Hawthorn could face charges

The AFL has reached an agreement with families who made allegations of historical racism at Hawthorn, and has made no findings against Alastair Clarkson, Chris Fagan and Jason Burt.

A deal was reached on Tuesday and the investigation by the AFL’s independent panel, chaired by Bernard Quinn KC, was closed.

Alastair Clarkson and Chris Fagan, pictured in 2015 when at Hawthorn, have denied any wrongdoing.Credit: AFL Photos

The trio were accused of mistreating First Nations players, allegations they continue to strenuously deny.

The AFL has made an apology and will introduce measures to make clubs more inclusive.

Hawthorn now face a separate investigation and, depending upon the outcome of that investigation, possible AFL charges over how the Hawks’ 2022 “cultural safety review”, or Binmada Report, was commissioned and handled. The report leaked before those subject to the serious accusations in it had an opportunity to respond.

AFL general counsel Stephen Meade will investigate Hawthorn, which could face charges of misconduct or bringing the game into disrepute.

“I’m not pre-empting it, but I am certainly not ruling it out,” AFL CEO Gillon McLachlan said in his press conference on Tuesday night.

This masthead revealed on May 18 that there was little chance Clarkson, Fagan or Burt would face AFL sanctions.

Gillon McLachlan at the AFL press conference on Tuesday night.Credit: Luis Enrique Ascui

According to a source with knowledge of the matter, who wanted to remain anonymous, Hawthorn were endeavouring to be a party to an agreement until at least late last week, but the eventual deal reached on Tuesday only included the families and the AFL.

Under the deal, which the accused trio were not party to, the former Hawthorn players and partners retain their rights to take further action in either the courts or the Australian Human Rights Commission, but not against the AFL.

McLachlan said the complainants had received no financial compensation as part of the agreement.

“Zero,” McLachlan said at a hastily convened media conference at AFL House when asked about financial settlement.

“The AFL knows that during the long history of our game there have been instances of racism and that players have been marginalised, hurt or discriminated against because of their race and for that we say sorry,” the league said in a statement.

The deal comes eight months after the ABC published a story containing interviews with First Nations players who had taken part in the review commissioned by the Hawks.

“This has been a very difficult period for everyone involved. It’s one of the more challenging things I have seen in the game and I want to acknowledge the pain and the toll of all involved,” McLachlan said.

Four-time premiership coach Clarkson, his former Hawks lieutenant Fagan, and former welfare manager Burt had strenuously denied all allegations in the ABC story and have said they look forward to clearing their names. Clarkson recently took indefinite leave from his role as North Melbourne senior coach due to mental health reasons from the toll of the Hawthorn inquiry.

Brisbane coach Fagan on Tuesday night released a statement criticising the “farce of the process”, re-asserting his innocence saying that he, Clarkson and Burt had suffered a “travesty of justice”.

“I am conscious that this farce of a process cannot have been easy on those First Nations people who were complainants. Those whom I knew, I hold no grudges against and hold only a wish that whatever pain they are suffering can be healed over time,” Fagan said.

“The combination of the AFL investigation, the ABC article that was published making very serious allegations against me, and the leaks that have occurred to the press, have amounted to a travesty of justice. It has caused tremendous hurt to me, those who care about me, and other people whom I know to be innocent of wrongdoing, such as Clarko and Jason Burt. These are fine men and they have been publicly shamed by false allegations.

“I have always categorically denied all of the allegations against me. The allegations are false. I am completely innocent. I have never deviated from that position as I knew from the beginning that the allegations were false. I have never had my chance to publicise my position on the allegations that the ABC chose to air publicly.”

Fagan said he remained bound by a confidentiality agreement but suggested that he recently had documents released to him by the inquiry which “support the categorical denials of the allegations against me that I have stated from the outset. I can also say that for my part, I would be completely happy for all of these documents to be made public.”

“I am not a party to the agreement between the complainants, the investigation panel and the AFL. But I stand vindicated by it,” Fagan said in the statement released by his lawyers.

“I have made no concessions. There are none to make. I have always vigorously defended myself, and will always do so, as I have done nothing wrong.”

The AFL said the complainants wanted to resolve their differences with the AFL and, under the agreement, would not make any claims against the league through the courts or the Australian Human Rights Commission in relation to their allegations.

“The AFL wishes to reiterate and acknowledge the significant emotional toll it has taken on everyone affected by this complex and delicate situation - those who told their stories and those who stood accused - and the public nature of how it has played out since late September 2022,” the AFL statement said.

“With this backdrop, any investigation was going to be challenging. We believe strongly, as we did in setting up the independent investigation in October 2022, that the appointment of an independent panel is and was the best possible way to deal with these serious allegations.”

The Hawks review was sparked by an interview in The Age in April last year with Hawks champion Cyril Rioli and his wife, Shannyn Ah Sam-Rioli, in which they said they were poorly treated during Cyril’s playing career, and in which Shannyn said she was “belittled and humiliated”.

The couple did not feature in the ABC report but later joined the players and partners known by pseudonyms Ian, Liam and Jacqui in making submissions to the AFL inquiry.

The complainants, known by the pseudonyms Zac and Kylie, opted out of the AFL process, their legal representative questioning its independence.

In a statement at the time the ABC report was published, Clarkson said: “I was not afforded any due process and I refute any allegation of wrongdoing or misconduct and look forward to the opportunity to be heard as part of the AFL external investigation.”

On Tuesday night Hawthorn also released a statement saying they welcomed the decision by the AFL to “end the Independent Panel process, reach an agreement with the complainants and make no adverse finding against any of the parties involved.

“It has been a complex and delicate situation for everyone. We acknowledge that it has had a significant emotional toll on all those involved. The club is committed to continue to listen and learn to ensure we create an inclusive environment for our First Nations people. Since the panel was set up, the club has cooperated fully with the process, and we have always wanted to see it resolved fairly and quickly. Hawthorn thanks the AFL and the Independent Panel for their work during this process.

“The club hopes this creates an opportunity for healing and to address the hurt felt by many.”

AFL STATEMENT – HAWTHORN INDEPENDENT INVESTIGATION

(Released on Tuesday night)

The AFL today announced outcomes in relation to the Independent Panel Investigation into allegations of inappropriate conduct at the Hawthorn Football Club.

From the moment that the Hawthorn Football Club’s Binmada report was leaked without any opportunity for input from the persons against whom serious allegations were made, it has been a period of high distress for all parties.

The AFL wishes to reiterate and acknowledge the significant emotional toll it has taken on everyone affected by this complex and delicate situation - those who told their stories and those who stood accused - and the public nature of how it has played out since late September 2022.

With this backdrop, any investigation was going to be challenging. We believe strongly, as we did in setting up the Independent Investigation in October 2022, that the appointment of an independent panel is and was the best possible way to deal with these serious allegations. The AFL thanks panel Chairman Bernard Quinn KC and panel members Tim Goodwin, Jacqualyn Turfrey and Julie Buxton for their work over the last seven months.

The purpose of the Independent Panel Investigation was to investigate relevant matters and make recommendations to the AFL including as to whether any persons should be the subject of disciplinary action for breach of AFL Rules and the resolution today should be viewed through that lens.

The AFL is only able to impose sanctions for breaches of AFL Rules on persons subject to the AFL Rules and respects the right of the various parties to the Investigation (and those who decided not to participate) to pursue claims in other legal forums.  Today’s outcomes do not interfere with those rights.

Today the AFL, and the six complainants (“Complainants”) who took part in the process (“Parties”), with the endorsement of the Independent Panel including panel Chairman Bernard Quinn KC, have resolved as follows:

1. No adverse findings have been made in the Independent Investigation against any of the individuals against whom allegations have been made (“Individual Respondents”).
2. The Complainants wish to resolve all differences with the AFL.
3. As a result of this agreement, the Complainants do not wish to pursue the Independent Panel Investigation (which they wholeheartedly supported), or make any claims against the AFL in any other process (including the AHRC) or Court in relation to their allegations.
4. The Complainants agree that their allegations should not be further investigated by the Independent Panel.
5. The AFL has now terminated the Independent Panel Investigation with the consent of the Complainants with no charges to be brought against any Person subject to the AFL Rules as a result of the Independent Investigation.

The Parties make the following acknowledgements:

1. The AFL acknowledges each one of the Complainants feels hurt, pain and anguish following their time at the Hawthorn FC.
2. The Parties acknowledge that the manner in which their allegations were leaked to the media was not in any party’s best interests.
3. The Complainants acknowledge that the Independent Panel established by the AFL was a positive and constructive process for their allegations to be fully and fairly investigated in a culturally safe way and that they have only agreed to the termination of that process because of this agreement.

This agreement does not preclude the AFL from bringing a charge under AFL Rules against Hawthorn FC with respect to the commissioning and oversight of the Binmada Report.

The AFL greatly values all players and officials in our game and commits to working with all the clubs and all its people in continually improving the environments and ensuring they are welcoming, supportive and understanding of everyone who comes to our game.

There have been hundreds of Aboriginal and Torres Strait Islander players who have played our game and who have collectively played more than 25,000 games.

The AFL knows that during the long history of our game there have been instances of racism and that players have been marginalised, hurt or discriminated against because of their race and for that we say sorry.

The AFL further commits to devoting significantly increased resources to its continuous improvement model focussed on measures to combat racism and the improvement of cultural safety of First Nations players and their families in the AFL and AFLW.  We are wholeheartedly dedicated to meeting our obligations to make the game stronger and safer for all players, and we understand that requires us to continually address our structures and systems, and to this end, the AFL agrees to undertake a series of initiatives listed at the bottom of the statement.

Bernard Quinn KC, the Chairman of the Independent Panel said: “The panel supports the agreement and outcomes that have been announced today in connection with the investigation of the past several months and I can confirm that as part of the agreement the work of the Panel will cease.”

Finally, under the agreed terms for the resolution including the agreement of the Panel chairman to the immediate termination of the Independent Investigation, the AFL confirms that the Panel will not issue a report based on the information they have been provided to date.

AFL COMMITMENTS: The AFL continues to benefit greatly from the contributions of Aboriginal and Torres Strait Islander players and the increasing diversity of participants in our game whether it is players, staff, coaches, umpires, administrators, broadcasters, governance leaders, corporate partners and fans.

A number of steps have been taken over the years to improve our on and off-field environments, from the introduction of the Racial and Religious Vilification rule (now Peek rule) in 1995, to the introduction of the Aboriginal and Torres Strait Islander Council in 2015 to the mandating of Indigenous Player Development Managers at all 18 AFL clubs in 2022, but the AFL understands more needs to be done at all levels of the game to provide a safe and welcoming environment for all.

The AFL has committed to a series of initiatives designed to ensure everyone in our game from players on the ground to supporters in the stands have a role to play in ensuring football at every level provides an inclusive environment.

The AFL initiatives, some of which are well progressed and others which will be undertaken in the future, include:

GOVERNANCE AND STRATEGIC UNDERTAKINGS

1. Recommendation of Indigenous board representation across all 18 AFL Clubs and timeline established;
2. Plan to increase cultural diversity of AFL umpiring and officiating (tribunals) cohort and workforce;
3. Design and implement an Aboriginal and Torres Strait Islander employment and retention strategy for the AFL;
4. Ensure development of Risk management strategies and plans relating to cultural capability and related policies in Clubs;
5. Multicultural players – consider recommendations for these player cohorts specifically through a process as part of final recommendations of the Cultural Belonging and Inclusion Strategy;
6. Whistle-blower strategies – standardized education to assist understanding of these policies and how they work and in particular assist players to exercise their rights to make reports under those policies and more generally to seek support, ask questions and report concerns;
7. Multicultural players – consider recommendations for these player cohorts specifically through a process as part of final recommendations of the Cultural Belonging and Inclusion Strategy;
8. Player family engagement – establish a rules of engagement document to guide this work to establish some basic standards and principles to be observed and committed to.

TRAINING

1. Delivery of cultural safety and awareness training programs to AFLW / AFL Club, Player and AFL staff commenced – development of preferred providers list for cultural awareness.  Mandate cultural safety and awareness training (according to set timeline with deadlines) for all coaches (including assistant coaches) at AFLW/AFL level (and potentially other AFL and Club Officials and/or staff) with training to be completed to assure accreditation and therefore on entry into the Elite system and then undertaken periodically to maintain accreditation; 
2. Provide access to resources for cultural safety and awareness training to Community Leagues and Clubs. Training on vilification and discrimination to be available for community stakeholders in 2023;
3. Virtual information session from Facebook / Instagram to AFLW / AFL Players and Clubs on use of new features to protect against online abuse;
4. Ensure training and implementation of the Social and emotional well-being wheel that supports culturally appropriate and relevant well-being models for Aboriginal and Torres Strait Islander peoples as players and staff;
5. Aboriginal Mental Health First Aid Training for all relevant club staff beyond IPDM staff;
6. Player managers – improve cultural capability of player managers, including working with AFLPA to include as a requirement for accreditation.

COMMUNITY

1. Appointment of centralised racial vilification tribunal model for community football leagues and Clubs developed and implemented;
2. Support and collaborate with AFL and AFLW players on advocacy for community racism and inclusion issues.

PARTNERSHIPS 

1. Proposed strategic partnerships endorsed – spectator racism, social media, etc (partnerships include with eSafety Commissioner, working relationship with Meta, and signatory to the Australia Human Rights Commission guide to address spectator racism).

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