Essendon ASADA Round Two

by Lisa Albergo reporting for AFANA from Chicago

Just ahead of the court hearing between ASADA and Essendon, the briefs from all parties involved were made public. Essendon's brief was a 95 page document which detailed a timeline of the case while lawyers for the 34 players submitted a ten page document. That document revealed that the players were threatened with criminal action if they lied to AFL and ASADA investigators. ASADA's 58 page brief outlined notes of conversations between AFL officials, League investigators, ASADA officials and government representatives along with claims that high government officials wanted the matter settled quickly, that ASADA believed the interim report to be the end of its joint investigation with the AFL and that the AFL wanted the matter resolved before the 2013 Finals.

Essendon claimed ASADA went beyond its powers by running a joint investigation with the AFL and that there was no evidence that the club requested such a joint investigation. ASADA countered that claim with statements submitted by Essendon in June 2013 in which the club refers to the joint investigation, saying that the club and its players were fully co-operating with the investigation. The club claimed that under the law at the time, the players being interviewed had a right against self-incrimination "which was not available when the impugned investigation was undertaken under the auspices of the AFL's compulsive regime."

The brief prepared on behalf of the players asserted that they were placed in an "invidious position". There are also claims that the players were "subjected to a compulsory examination wherein their privilege against self-incrimination was abrogated ... it was made very clear to the players that they were obliged to attend interviews and answer questions truthfully and fully, or face possible sanction by the AFL." One player did, at the time of being interviewed, raise objections to AFL integrity officers being present.

Another submission to the court revealed growing tension within ASADA as well as between ASADA and the AFL with emails sent by investigator John Nolan to then ASADA CEO Andrea Andruska indicating that "the interim investigation report was the product of a joint endeavor with the AFL. If that is accepted, it is difficult to understand why ASADA is claiming sole ownership/control ... if ASADA wanted to maintain control of the joint interim investigation report, it should never have entered into a collaborative arrangement with the AFL." Who should have had access to the interim report was a bone of contention. It is believed the AFL had access in June of 2013. Hird and the Bombers both claim that the release of the report breached confidentiality and should never have been given to the AFL to be used as part of the League's case against Hird and the club. Andruska told Essendon lawyers that there was nothing to prevent a joint investigation by ASADA and the AFL. One ASADA lawyer also learned that the AFL wanted to pressure ASADA into being the "bad guy".

Not surprisingly, documents also allege once again that former AFL boss Andrew Demetriou knew that the Australian Crime Commission suspected Essendon and that he tipped the club off the night before they self-reported and requested an investigation. Documents reveal that then deputy chief Gillon McLachlan accompanied Demetriou to the meeting with the ACC. At that meeting, McLachlan asked the ACC, "Is it Essendon?" ACC investigator Paul Jevtovic replied: "Say no more."

The hearing was held for three days beginning on August 8. On the first day, James Hird took the stand. Key points of his testimony are summarized below.
Hird disagreed with the club's decision to self-report and objected to a joint AFL-ASADA investigation.
He was threatened and induced to accept responsibility for the supplements program.
He does not believe the club did anything wrong but agreed to "toe the club line".
The club signed a deed in August 2013 in which they accepted a fine, disqualification from the Finals and Hird's suspension. Hird testified he signed under duress.
He again stated that Demetriou warned the club, an allegation Demetriou continues to deny.
Hird told the court that it was McLachlan who told the club he believed the players had taken banned substances but Hird disagreed.
He was told by club officials that it would be better for the players if everyone cooperated with ASADA and the AFL.
Hird said the players were the most important priority so he followed Evans and Robson.

Afterward, outside the court, club chairman Paul Little and Hird both denied there was any rift between them regarding the club's handling of the scandal. Hird told reporters "There's been a lot of silly things said in the paper, but I fully support Paul and his board and they've been terrific of late". Little said Hird would return to coach in 2015 and hoped to meet with McLachlan soon to rebuild the club's relationship with the AFL.

Former ASADA CEO Andrea Andruska took the stand on the second day. She testified that both the federal government and former sports minister Kate Lundy wanted a quick resolution to the saga. In mid-2013, she met with ASADA media consultant David Lording. Lording told her that Lundy would "need something" from ASADA after a press conference the day before in which allegations of widespread drug in sports were made. Lording told Andruska that "... she (Lundy) ... needs probably a deal with the AFL, but she can't do anything without ASADA agreeing".

Andruska denied suggestions from Essendon lawyer Neil Young that corners had been cut due to political pressure. However she did decide that an interim status report on the investigation should be given to the AFL, but that ASADA did not want the AFL to use it to punish Essendon or the players, believing that the AFL had enough information from the player interviews to prepare its own report. Another witness, Tom Burgess of the AFL, stated that the AFL told ASADA that if no interim report was forthcoming, the League would prepare one themselves. Andruska said Essendon was not the only club being investigated and that there were several clubs from other codes with some investigations dating back to 2011. She testified that frozen blood and urine samples were sent to Germany for testing. Although inconclusive, she said there was enough to continue.

On the third and final day, lawyers for all parties gave their closing statements. Essendon lawyer Neil Young said ASADA had no right to include the AFL and should not have given information to the League which was used to accuse the Bombers of bringing the game into disrepute. He called the joint investigation a "mockery of anti-doping laws". He argued that ASADA involved the AFL to ensure it would be able to force the players to be interviewed. He further argued that allowing the AFL to be present during the interviews was "the price ASADA paid to tap into the League's powers to compel players". Young said ASADA could only pass information to a sporting body if it directly assisted the investigation. He again pointed out that the interim report given to the AFL was used only to punish the club over management issues. He said the process was unlawful and could crush the club, citing the prejudice towards the players would cascade onto the club and its officials and "destroy the business". Lawyer David Grace, speaking for the players, said it would be a grave injustice if findings were made against his clients on the basis of the "unlawful" joint investigation.

ASADA counsel Tom Howe countered that argument, saying "Essendon's "seriously derelict" and "toxic" governance and management were a major part of the investigation ... governance and management issues were the very thing which prompted senior Essendon officials to approach ASADA." He further contended that if the court ruled against the joint investigation, it would compromise ASADA's aims. He argued that ASADA was entitled to seek out AFL assistance and did nothing illegal. Information passed on from ASADA to the AFL could be used by the League to enforce its own anti-doping policy.

Justice John Middleton said he would have a decision in several weeks. Even when he finally hands down his decision, it won't be over with options still open to everyone. Options include:
If the judge rules against Essendon and Hird, they could appeal to the full Federal Court and the High Court.
If the judge rules in favor of Essendon and Hird, they could launch legal proceedings against the AFL for the penalties it imposed last year. Mark Thompson, who was fined by the AFL, and former football chief Danny Corcoran, who was suspended, could also join proceedings. Legal sources believe Essendon and Hird would have strong grounds to launch legal action.
If the judge rules in favor of ASADA, it is almost certain that ASADA will again issue notices to the 34 players who will then have to show why they should not be issued infraction notices.
If the judge rules against ASADA, they can also appeal to the full Federal Court and High Court. This would not prevent ASADA from re-issuing notices. When asked by Judge Middleton, ASADA lawyer Howe said ASADA could re-acquire the same information from the AFL within 24 hours and issue the notices.

Source: afl.com.au, theage.com.au