by Lisa Albergo reporting for AFANA from Chicago
James Hird has finally had his day – actually two days – in court as he tries to have the ASADA investigation declared illegal. Speaking on his behalf, James Hird’s attorney Peter Hanks told the court that ASADA had illegally recruited the AFL in an effort to coerce those under investigation to answer questions. ASADA, in and of itself, has no such coercive power while anyone working within the AFL industry must answer questions put to them by the League or face sanctions.
Tom Howe, a lawyer for ASADA, said everyone interviewed answered in front of both ASADA and AFL representatives. "The interviewees plainly and clearly, unmistakably understood they were giving … answers to and in the earshot of ... both the AFL and ASADA" he told the three panel bench in the Federal Court. Howe also reminded the court that Hird and the players had legal representatives present during the interviews and could have declined to reply and risk AFL sanctions.
Hanks countered by saying ASADA’s recruitment of the AFL was done for the sole purpose of compelling the players to talk but by doing so, they circumvented the limits on their own power. "The AFL's presence was … in order to provide the compulsion … By having the AFL present the gate was opened to that disclosure. It's to circumvent, to walk around the limits on its power. It was very convenient and efficient, but … unlawful." Hanks continued by stating that while ASADA ran the interviews and asked most of the questions, AFL representatives also asked questions. He argued that ASADA could be "assisted by and delegate to specific individuals" but it did not have the authority to bring in a sporting body – in this case the AFL.
Howe argued that ASADA would have been a “toothless regulator” without the AFL’s power of coercion and added that the joint investigation with the AFL was legal, saying "It obtained that benefit or advantage and it did so advertently." He stated that the National Anti-Doping (NAD) scheme required the AFL to put in place a strong anti-doping policy and that the scheme included ASADA working with the AFL due to their own lack of coercive powers.
Hanks argued that ASADA did not have the power to include the AFL in the interview process and did so only to "override its own lack of power." Howe's concluding address to the court included the point that Hird was appealing without the support of the club or the players, saying the players want to challenge the chargers on their own merits.
The court will hand down their final decision at a later date.
The day after Hird’s court hearing, Mark Thompson and Essendon parted company. The club had been in talks with Thompson in an effort to find a suitable role for him but the discussions broke down when it became clear that there was no place that would suit both parties. At the club’s best and fairest count in October, Thompson made veiled comments which indicated he wanted to remain senior coach, an impossibility with the club stating that Hird would remain coach. CEO Xavier Campbell said there were a number of contributing factors and that it had been a difficult decision. He acknowledged Thompson’s contributions as interim coach while Hird served out his suspension, saying “I would like to commend Mark on the job he did … He played a pivotal role in the ongoing development and improvement of our players."
Thompson played 202 games for Essendon and captained the team in their 1993 Premiership triumph. He began as an assistant at Essendon, then worked as an assistant with North Melbourne before taking over as senior coach at Geelong. He coached the Cats for 11 seasons during which time the Cats had tremendous success and won two premierships. He returned to Essendon at the end of 2011 as an assistant and mentor to James Hird. Thompson’s immediate future is in jeopardy due to his refusal to pay the $30,000 fine handed down by the AFL for his role in the supplements saga. The fine is now past due and he could face a ban within the AFL industry if he refuses to pay.
No sooner had Essendon split with Thompson than it was announced that the 34 players involved have had their names added to the Register of Findings by the Anti-Doping Rule Violation Panel. The next step lies with the AFL in determining if there is enough evidence to issue actual infraction notices. This would be up to the AFL general counsel Andrew Dillon. If infraction notices are issued, the players will finally have their cases heard before the AFL's Anti-Doping Tribunal. All are hoping this could happen before Christmas. If found guilty, players could face a two year suspension.
Legal representatives for the players were notified. AFLPA CEO Paul Marsh said he was glad that the next step had been taken so the matter could finally be resolved. However, the issuance of infraction notices and a Tribunal hearing could be delayed until the Federal Court rules on Hird's appeal.
Article last changed on Sunday, November 16, 2014 - 5:55 AM EST