The Essendon 34 and the Nuremberg defence

People who aren’t interested in sport may have only taken (at most) a passing interest in the Essendon supplements scandal that’s plagued the AFL for the last four years. If one is at all interested in philosophy, however, the recent judgement in Switzerland is worth taking a look at, as it has serious implications on how we think about criminal culpability, personal responsibility and power.

For those not in the loop at all, the story goes like this: in 2012, the Essendon football club commenced a supplements regime aimed at giving their players an edge over the rest of the competition. The staff at the club assured the players that the supplements were consistent with the code’s anti-doping code. As it happened, one substance in the program, Thymosin Beta-4 wasn’t, and the club was subsequently investigated and found guilty of drug cheating. Essendon has suffered significant penalties as a result of this, but a more difficult question has been whether the players themselves should be penalised. Last week, a Swiss court found that they should be, and suspended all 34 players from training and competing at any level for a period of 12 months.

This is a significant blow for those players’ careers and livelihoods. In the context of the hyper-competitive and professional Australian Football League, a year out of the game is quite possibly career-ending. Certainly, on a psychological level, it will be very hard for many of the players (who have already had the spectre of this scandal hanging over their heads for three years) to rekindle their passion for the game.

As somebody who loves competitive sport and cares deeply about the health and welfare of players, I strongly oppose doping in sport and acknowledge the need for serious penalties in cases where it occurs. In the context of individual competition like Olympic events, that necessarily tends to entail individual sportspeople being levied with suspensions. Certainly, if a single AFL player sought out performance enhancing drugs off their own bat (as has happened in the past), I would support them being suspended.

But when an entire club imposes this decision on their players, is it fair to punish them? The conclusion of the Swiss court reflected the long-held view of anti-doping authorities that a player holds ultimate responsibility for what goes into their bodies. This is more or less the libertarian approach to criminal culpability: that, except perhaps in cases of extreme coercion, we always bear full responsibility for our actions. The opposing view, which is closer to my own, is that culpability is strongly mitigated by environment, structures and hierarchies, and that these factors always need to be taken into account in criminal justice and other contexts.

The most famous case in which these opposing principles came into dispute was the Nuremberg trials after World War 2, in which Nazi officials, soldiers and guards were brought to trial for their role in the killing of millions of civilians in concentration camps and elsewhere. In many cases, the defence they offered was that they were “just following orders” – that is, that their culpability was reduced or even voided by the hierarchical system in which they existed. For the lower ranking officers, this was more than just a lame excuse: dissent in Nazi Germany was, after all, often punishable by death. Just as importantly, they lived in a system in which their actions were both normalised and expected. It took exceptional people (or, alternatively, people with relatively exceptional beliefs in that cultural context and/or dispositions) to dissent, as it does in nearly any highly authoritarian society.

It may seem absurd to compare a football club with a society like Nazi Germany, but we have to examine similar operating principles in order to assess player culpability in this case: what freedom, real or perceived, did the players have to question the instructions they were given? What consequences, real or perceived, were there for dissent or disobedience (including social ostracism or a diminished role in the team)? Given these and other factors, what proportion of individuals did end up dissenting?

To answer that last question first, only one of the players to have been offered injections, David Zaharakis, is known to have refused them. His ostensible reason for doing so was not out of an ethical belief in fair competition or fear of punishment, but out of a pathological fear of needles. That this was the sole reason for dissent (or, alternatively, that this was the sole reason that any player felt they could offer as a justification for dissent) is perhaps the most illuminating information of all. Evidently, at that club at that time, no player felt in a position – or wished to be in a position – to defy his employer’s orders. Another player, Kyle Reimers, ended up alerting the AFL to his club’s activities, but only after having departed the club (to boot, on less than friendly terms that were apparently unrelated to the supplements program).

This wholesale compliance should not be particularly surprising to anyone. An AFL club is a highly authoritarian workplace in which players’ lives are managed as thoroughly as possible, from their diets to all of their public communication, to where they spend their holidays, to even, in some cases, who they can associate with outside the club. For the period of their employment, they are effectively owned by their clubs. It is also a hyper-competitive environment in which any loss of form in comparison with their teammates at any stage could see their contracts terminated.

Some will point out that nobody is forced to be an AFL footballer and that they are paid very well for giving up their freedom. Whether or not that justifies their treatment (I don’t believe it does), the point remains that, once they are within that environment, AFL players – young men, many of whom are barely past adulthood – exist at the bottom of a hierarchical system in which compliance is expected and non-compliance is punished. There is no reason to think that this instance of near-full compliance wouldn’t have occurred in any other football club. As in any authoritarian system, it would have required individuals of exceptional character or beliefs to defy their club’s instructions and perhaps encourage other players to do the same.

Is it ever just or useful to punish people for not being exceptional, or not acting exceptionally? To properly answer that, we need to understand what the purpose of criminal justice is, or at least a strong argument for what its purpose should be. The general defence of punishment in our society incorporates deterrence, rehabilitation, public safety and public perception of justice being carried out, with all of these resting on establishment of culpability. This approach broadly accords with my understanding of how a justice system should operate. Let us apply it to this case.

Under this approach, the first question should be “are they culpable?”. The second should be “if they are, is punishment justified?”. Note here that, while I have argued that the players’ culpability was substantially mitigated and rejected the libertarian “personal responsibility” approach, I have not so far argued that the players hold no culpability whatsoever. I would probably accept the argument that, except in cases of extreme and imminent coercion, all human actions entail some level of culpability. Nevertheless, I would argue that their culpability was mitigated to the extent that punishment was not justified. For that, I need to turn to the second question and consider each reason for punishment in turn.

The first, prevention of re-offence, is insufficient here. It is reasonable to conclude that, even without the loss of reputation and threat of personal sanctions hanging over their heads, the punishment and scandal inflicted upon the club (including fines, suspension of personnel and exclusion from the 2013 finals series) was sufficient that not one of these players would ever again consent to being subjected to such a system.

The second, rehabilitation, need not apply here as it seems fair to conclude that there was nothing wrong with the character of these particular players to begin with. If the evidence suggests that all but the most extraordinary individuals would have done the same in their situation, what ‘rehabilitation’ could possibly be required?

The third factor, deterrence, is the one that provides the strongest argument for punishment. There is no doubt that the suspension of the players sends a message to the rest of the competition that mere club sanctions could never have. It more or less ensures that no other AFL player will ever accept a supplements program that is not clearly within the rules, which in turn empowers players to stand up to their clubs and reduces the very power differential that played such a huge part in this scandal to begin with. These are all positive by-products of of these suspensions. But the question remains whether it is ever just to punish for the sake of deterrence alone. Should players be made scapegoats for the sole purpose of teaching others a lesson? I don’t believe so. In the absence of sufficient culpability to bring into play other reasons for punishment, focusing solely on deterrence leads to a draconian system that undervalues individual welfare.

We can think of other crimes that at first glance seem to be punished solely for reasons of deterrence, like drink-driving. But there are few power dynamics to be considered in that particular crime. While the disposition to drive while drunk might not seem malicious, it is a disposition that people need to be educated out of. In that instance, both reasons 1 and 2 are present: convicts need to be rehabilitated into a state where they are unlikely to drive while drunk again, and other punishments (such as a loss of license) need to be levied to keep them off the road for the near future. Therefore, in that instance, it is not unjust to factor deterrence into the sentencing of drink-drivers.

On the other hand, merely following orders of legitimate authorities cannot be considered a rehabilatatable offence in a system that not only allows such dynamics to exist, but arguably encourages them. And this is where, I think, both Essendon footballers and some Nazi war criminals have a valid defence. The essence of criminal punishment lies in addressing contravention of the social contract. If the fault is in the structure, then it is the structure and its architects, not the subordinates, who must take the lion’s share of the culpability.

Finally, to the last justification for punishment: the need to see justice done. The libertarian approach to this matter, enshrined in the WADA code and backed by the Swiss court, states that an athlete is primarily responsible for what goes into their bodies. As I hope I’ve shown, this approach completely fails to address the power dynamics in our society and the nature of hierarchical systems. It is a work of wishful fiction, not a rational representation of how things actually work in the real world. The just thing, and I hope I’ve adequately shown this, is to place the culpability primarily with those who held the power and authority in this system, namely the Essendon Football Club and its high-ranking staff. In punishing the players, an injustice has been done. And we ought to keep this principle in mind in all cases of this kind, whether in sport or wider society. An analysis of culpability that does not account for power is and always will be insufficient.

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