Essendon Takes ASADA to Court

by Lisa Albergo reporting for AFANA from Chicago

On June 12 ASADA, after 16 months, finally took the first step towards charging Essendon players with the use of illegal substances during the club's 2012 supplements program. ASADA has issued "show cause" notices to 34 past and current Essendon players. The notices are not infraction notices, rather they are notices for the players to respond to and explain why they should not be charged. They have ten days from notification to respond. The notices refer to the use of a peptide known as thymosin Beta 4. There has been no mention of the controversial anti-obesity drug AOD-9604.

If ASADA does not accept the players' explanations, the agency may then compile a report on each player who may have breached the code. This report is then given to an independent group of experts who assess the evidence and decide whether an infraction notice should be issued by ASADA and the AFL. If an infraction notice were to be issued, the player would be suspended immediately until the matter is resolved at a Tribunal. It is the AFL Tribunal which is responsible for issuing penalties. However ASADA can push for revised penalties if they decide any penalties are not harsh enough. Any player found guilty could face a ban of up to two years. Banned players would have the right to appeal the penalties.

In response Essendon has filed an application in the Australian Federal Court to have ASADA's case declared "null and void". Essendon chairman Paul Little said in a statement that the action had been taken on the basis that the joint investigation conducted by ASADA with the AFL contravened the ASADA Act. Little said 'There is no power or capacity under the ASADA act to conduct a joint investigation and there never was ... The application ... seeks to enforce the rule of the law. If we are right ... the court will declare the investigation null and void. We will seek an injunction of all the information collected in that investigation." Little also said the club believed the letters the players received did not contain any evidence supporting the allegations and questioned how the players could respond without understanding the evidence against them. He also blasted what he called ASADA's "media blitz and grandstanding" with newly installed ASADA CEO Ben McDevitt doing multiple rounds of media interviews. Little said the club's action was to protect the players. 'Enough is enough, we will not be bullied and we will not allow our players to be hung out any longer ... we accepted those sanctions (imposed by the AFL last year), accepted responsibility and our players paid an enormous price ... missing ... the Finals ... our players have been forced to endure 16 months of uncertainty, breaches of confidentiality, conflicts of interest, leaks through the media, baseless allegations and indisputable reputational damage." He said while the club had cooperated after self-reporting last year and accepted the penalties given them, the club now felt "honor bound" to challenge the notices and protect the rights of the players. He added that "The process undertaken by ASADA has been severely compromised ... to the extent that it is impossible for natural justice to occur."

Ben McDevitt, a former federal police commissioner, said he had read ASADA's act and had sought independent legal advice and is of the opinion that it "always contemplated a co-regulatory regime" in which ASADA would work with the relevant sports bodies. He said such a joint effort is the only way it can work but did temper that statement by saying that there also had to be "clear rules of engagement". McDevitt also said the AFL was required to hand over pertinent information to ASADA, saying “Whether ASADA was sitting in that interview room ... or not, everything gathered would have had to have been provided to ASADA anyway ... I have independent legal advice saying that we are on firm ground in terms of the joint investigation". McDevitt added that even if the court ruled some evidence had been unlawfully obtained, it may still be able to be used in (Tribunal) hearings.

McDevitt said the notices were issued with the belief that there may have been violations. In response to Essendon's legal action, he defended the investigations, saying that those interviewed had legal counsel present and no one had objected to both ASADA and AFL representatives being present during the interviews. Regarding the drug AOD-9604, McDevitt said ASADA would not pursue any cases which began before April 22, 2013. That was the date when WADA cleared up the ambiguous status of the drug by confirming it was banned. McDevitt said he would stand firm in the face of a legal challenge and added it was his belief that players were responsible for what they ingest. However he flagged the possibility of working out a deal with the players involved. He said penalties could be reduced for full cooperation and/or if players were unaware of what was being administered. He said "if they have shown that they have provided substantial assistance to ASADA, they've come forward, they've made full admissions ... there is the possibility of ... reduction on the original penalty." According to McDevitt, any penalties incurred from possible infraction notices and subsequent Tribunal hearings could be reduced from the maximum two years to as little as six months.

The case will be heard at the end of June. As a result, the ten day response requirement is on hold until the court makes a ruling. Should it rule in favor of ASADA, the whole process will begin again, with the first step being the players having to reply to the notices. Should the court rule in favor of Essendon, ASADA could start all over from scratch using the information they have in hand. McDevitt did concede that ASADA would eventually have to prove guilt to a “comfortable satisfaction” but was unsure “what the burden of proof would be”.

Essendon great Tim Watson - and father of current Essendon captain and 2012 Brownlow Medal winner Jobe Watson - said "the players are in shock" and face a huge challenge for the rest of the season. "How they’re going to do that, I’ve got no idea ... What we will know ... is there will be some legal action launched by the Essendon Football Club ... what happens after that is anyone’s guess." Watson, like many others, believe the saga could drag on for several years.

Several leading attorneys had a different view from McDevitt's belief that ASADA was meant to act jointly with sports bodies. Lawyer Emily Lupo, from SportsLawyer, spoke to the "Herald Sun" and said the information gathered by ASADA, under the rules, was meant to determine whether or not a doping rule had been violated, not to determine any AFL rule violations. She reiterated the fact that all information gathered had to remain confidential and not be passed to another party, including the AFL. She concluded "The strengths or weaknesses of this argument would turn on the facts as they apply to each individual player.” Deakin University School of Law lecturer Martin Hardie has advised other athletes who have been through the ASADA process and has been a close observer of the Essendon case. He agreed with Lupo's statement that the joint investigation ran counter to the ASADA Act, saying “There is no power ... to have a joint investigation ... the whole purpose ... was to get ASADA to act and investigate independently of sporting bodies. What they did was produce an interim report for a purpose other than an anti-doping purpose ... bringing the game into disrepute charges ... I don’t think bringing the game into disrepute is an anti-doping purpose within the meaning of the ASADA Act.”

Another leading sports lawyer, Darren Kane who represented NRL club Cronulla, has also followed the saga closely. He described the affair as a "car crash ... that will only get worse ... ". He questioned whether one Tribunal would be sufficient to hear up to 40 cases. This, according to Kane, could prove to be a legal minefield with multiple hearings which could result in evidence on one case perhaps being ruled out in another. He asserted  "I don't think anyone properly appreciates the logistical problems of putting 40 players to the sword for doping accusations that don't involve positive tests, just in terms of proving the who, what, when, where and how ... go back to the Jobe Watson situation. He said 'I believe I have been administered a particular substance' … the fact that someone says they were administered something or they believed they were administered something, that doesn't prove the fact they were actually administered the substance." Kane has also questioned the legality of some of the evidence gathered by ASADA. He used the example of text messages obtained by ASADA from the Australian Crime Commission, saying such shared evidence cannot be used to prosecute. "I think there is going to be real issues through this joint ... investigation and how that was structured because the ASADA regulations - that's where the National Anti-Doping Scheme is. That doesn't really cater for joint investigations."

Essendon asked the AFL for - and was granted permission - to have all legal expenses excluded from the club's salary cap. The exemption will apply to former and current players. AFL general counsel Andrew Dillon said any reimbursement of legal expenses would be allowed, explaining “This is in accordance with current practice whereby clubs organize and pay for a player’s legal expenses when they are contesting a charge at the AFL Tribunal or appearing before the appeals board.” The club said it would also look after any player involved who was no longer with the club. James Hird, currently living abroad while serving his suspension, has also filed a legal motion in conjunction with Essendon.

Stephen Dank, the former sports scientist at the center of the scandal, was issued a show cause notice several weeks ago. However, he has again refused to respond although he will also file a court challenge. He has, since the investigation began, refused to cooperate with ASADA. He has always contended he did nothing wrong and will tell what he knows only in a court of law. On a side note, Shane Chartre, convicted several years ago for bringing illegal pharmaceuticals into the country, was recently arrested for again attempting to do so. The drugs were allegedly used to make compound pharmaceuticals, some of which he supposedly used in his anti-ageing clinics. It was previously reported that he allegedly supplied some compounds to a pharmacist and to Dank for Dank's supplements program at Essendon. Former high performance manager Dean Robinson is also suing the Bombers, seeking up to two million dollars in compensation for his dismissal.

2012 BOMBERS STILL AT THE CLUB
Mark Baguley, Tom Bellchambers, Alex Browne, Jake Carlisle, Travis Colyer, Lauchlan Dalgleish, Alwyn Davey, Cory Dell'Olio, Courtenay Dempsey, Dustin Fletcher, Kyle Hardingham, Dyson Heppell, Michael Hibberd, Heath Hocking, Cale Hooker, Ben Howlett, Michael Hurley, Leroy Jetta, Elliott Kavanagh, Jake Melksham, Jackson Merrett, David Myers, Nick O’Brien, Tayte Pears, Patrick Ryder, Brent Stanton, Ariel Steinberg, Jobe Watson, Jason Winderlich, David Zaharakis**

**As previously reported, Zaharakis refused to participate in the program due to his extreme dislike of needles.

PLAYERS AT OTHER CLUBS
Stewart Crameri (Western Bulldogs), Scott Gumbleton (Fremantle), Angus Monfries (Port Adelaide)

PLAYERS NO LONGER ON ESSENDON/AFL LISTS
Luke Davis, Ricky Dyson, David Hille, Hal Hunter, Brendan Lee, Sam Lonergan, Anthony Long, Nathan Lovett-Murray, Mark McVeigh, Brent Prismall, Kyle Reimers, Michael Ross, Henry Slattery

Source: Patrick Keane, AFL Media Release, theage.com.au, afl.com.au, sen.com.au (audio news)