Everyone walking upright has this week opined on the vexed matter of Jake Kolodjashnij and his treatment by his employer, the Geelong Football Club.

To recap, Kolodjashnij, a 30-year-old player with a history of concussive incidents, signed a waiver that saw him assume responsibility for future on-field head injuries in a secret deal with the Cats that was not approved by the AFL.

The latest development, of the AFL Commission instructing an independent lawyer to determine whether the clubhas contravened any AFL rule, is important. It’s equally irrespective.

Kolodjashnij’s injury history was in 2024 examined by the AFL’s concussion panel, which effectively green-lighted him to continue playing. That isn’t the same as being given an entirely clean bill of health. These things can be inconclusive and not sufficient to end a player’s career, but at the same time problematic.

What seems to have occurred next, though, is perplexing. In circumstances where AFL players are excluded from statutory worker’s compensation schemes, and where it’s vanishingly impossible for them to secure alternate coverage in the insurance marketplace that includes cover for head trauma and latent-onset neurological conditions, the Cats asked the player to execute a document as a condition of continued employment.

A document which apparently included provisions regarding Kolodjashnij’s informed consent (ie, an acknowledgement of what he would be exposing himself to by continuing to play) and what has been portrayed as a “liability waiver”, purported to exonerate the club.

This document – also, apparently – was produced under a cloak of secrecy, to the point it wasn’t disclosed to the AFL Players Association nor registered with the AFL. To me, that’s troubling stuff.If Geelong felt it had nothing to fear, why did its guiding minds think it had anything to hide?

If it’s true that there’s a chain of email correspondence between the AFL and the club about the concept and development of this document, then that’s relevant evidence but doesn’t free anyone from blame. Sporting rules are one thing, but one thing only.

The better focus is on asking what was going on inside the minds of those who signed off on this arrangement. The Geelong Football Club is a company. The Corporations Act requires that directors and officers of companies exercise their powers and discharge their duties with the degree of care and diligence a reasonable person would if they were a director or officer of a company in the same circumstances.

Legislation is, of course, for the courts to interpret. The test is not whether the directors did the right thing: Instead, it’s a question of was the decision, viewed prospectively, one that a reasonably careful director could make having regard to the risks and potential benefits?

On one side of the ledger is the prospect of continued services being provided by an experienced and, evidently, excellent footballer. On the other side sit the risks of brain injuries being sustained by an uninsurable player, and the associated risks and harm that might flow.

If what Kolodjashnij signed does incorporate words amounting to a “waiver”, in my experience clients don’t routinely instruct lawyers to draft special contractual waivers for risks never foreseen. The concealment of the waiver from the AFL and AFLPA – whether by deceitful intention, or a systems failure– strains the notion of any of this being implemented in good faith and for a proper purpose. Again, if you’ve nothing to fear you’ve nothing to hide.

Further, the Corporations Act also requires directors and officers more generally to exercise their powers and discharge their duties in good faith, for a proper purpose and in the best interests of the company. In the context of a professional sporting franchise, these “best interests” extend beyond filling shelves of a trophy cabinet. Consider its covenant with its 90,000-odd members, and its duty of candour.

Ask yourself again – is it in good faith and proper, for Geelong’s directors and senior management to have proceeded down this path? Knowing the apparent risks to which the player would be exposed?

Moreover, did those guiding minds turn to the question of whether this clandestine arrangement had any legal force? AFL standard playing contracts, buttressed by the collective bargaining agreement, do not permit “side deals” as to the reapportionment of legal liability. The contracting arrangements certainly don’t countenance the idea of secret deals.

It’s hardly certain this document would be enforceable. Moreover, a release signed in 2024 doesn’t easily swallow a neurodegenerative disease manifesting in 2046, absent the clearest imaginable words. Aside from any other factor, how could one satisfactorily demonstrate that what Kolodjashnij was exposed to before executing the document did not matter?

Further, it’s express under the CBA that AFL clubs provide and maintain safe working environments for players as far as is reasonably practicable. That’s consistent with the Victorian statutory position under the Occupational Health and Safety Act.

The words “reasonably practicable” constitute a defined calculus. This refers to the likelihood of the hazard, the degree of harm, what the employer knows or ought to know, and the availability and cost of controls. What’s absent is the matter of the employee’s consent.

These workplace duties are criminal in character, owed by the employer to the state and prosecuted by the regulator. The duties aren’t in the nature of private rights a footballer can bargain away, which is why a signed release isn’t an answer to any prosecution. The OH&S Act whether the risk was eliminated or reduced, where a “waiver” achieves neither, and instead is a liability instrument masquerading as something else.

Overall, though, the best question here that directors should ask, is not merely can we do this, but should we? For the law of directors’ duties sets a floor, not a licence.

And here’s where the analysis ceases being merely legal, because duties were never designed as a ceiling on conscience. The genuinely hard decisions in any boardroom aren’t choices between right and wrong; they’re choices between defensible and right.

It strikes me that Geelong’s board had three roads to choose to roll down. The easy road, which it seemingly did. The middle road, of disclosing this special arrangement to the AFL and the AFLPA, and letting the sun shine on it. Or the hard road, of sitting with Jake Kolodjashnij, his manager and his family, and having the difficult, career-ending and tear-stained conversation.

The perverse elegance here, is that the hardest road was simultaneously the safest one to traverse; legally, ethically and reputationally. The concept of courage appears nowhere in the Corporations Act, yet it’s the substrate on which every duty in the legislation depends – because a director who can’t say the hardest word has outsourced the job to whoever can.

None of this is a charge against Kolodjashnij; nor entirely against the individuals on Geelong’s board, several of whom are experienced, decent directors – who I suspect know precisely how this looks.

Rather, it’s a charge against a system that abandons clubs and players in a room with an uninsurable risk; and against a boardroom culture that mistook a defensible YES for quite possibly a contrary, correct answer.