The slogan for Essendon’s 2013 campaign was “Whatever it Takes”.
It is now the club’s mantra as it attempts to clear its name in regard to ASADA’s allegation that 34 of its players were administered a banned substance in 2012.
Essendon president Paul Little stated this afternoon that the club has launched a Federal Court challenge to the joint venture investigation of the club and its players.
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He maintains that the ASADA-AFL probe was flawed from the outset and that is now the basis of the club’s defence of its players.
Why the club did not launch legal action initially when the joint investigation was first undertaken, or even in August when it was hit with significant sanctions by the AFL, remains largely unanswered.
It raises the question whether the club would have been so vehemently and publicly opposed to the process had show cause letters not been issued, which it had repeatedly insisted would be the case.
One thing that was extremely evident during Little’s address to the media was his total dissatisfaction with ASADA. But he skirted around whether he held that same contempt for the entire investigation process, as he and his board sees it, on the part of the AFL.
In the end it was a joint venture investigation, yet the ire of the Essendon Football Club seems almost solely directed at ASADA.
The role of the ASADA CEO – of which there have been two during the investigation period – was highly criticised by Little. But no mention was made likewise with regard to AFL CEO Andrew Demetriou who was in charge of the league’s side of the investigation until the 11th hour, or his number two, Gillon McLachlan, now in the top job.
Essendon seems to have largely forgiven the AFL for its involvement while directing all its ire toward ASADA.
Little was at pains to say that neither he nor the club was offering any advice to the players with respect to the ASADA requirement to reply to the show cause letters within ten days of receiving them.
He said it was up to his players to seek that advice from the AFL Players’ Association.
Little did state, however, that the club would “carry the burden of their [the players] legal action”.
Essendon will have been advised that it has extremely strong legal grounds to launch its Federal Court challenge.
The action may prove successful and the entire probe may be ruled invalid. Allied to that, should it be the case, the club will petition the court to effectively seal any evidence that was garnered and rule that none of it be used in any subsequent actions.
If the club has its challenge granted the players may well dodge a bullet.
In the words of Ziggy Switkowski, who was engaged by the football club to investigate its own practices, they were “a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented”.
While the club has stated categorically that none of its players ever received any banned substances it has also equally been unable to tell them, or the public at large, just what it was they were administered.
In many ways the lack of proper reporting and documentation – as highlighted in the Switkowski report – may have been a plus for the players the same mismanagement massively contributed to the club losing its coach for a year, draft picks and a $2m fine.
In the end the truth of what actually occurred under James Hird and Steven Dank’s watch may never be known.
What ramifications the Federal Court determination has on the future workings of ASADA also remains to be seen.
However, regardless of what those deliberations may conclude, it is hoped that every sporting organisation in Australia will have learned from the Essendon experience.
And beyond that ASADA as well.
Liam
Guest
And what is it that the players and efc have been found guilty of , upto now it has been the lack of governance and bringing the game into disrepute , which they were penalised for. I believe that the players and the efc have always maintained that they have never used thymosin beta 4 all along ? Also to my knowledge there has been no evidence to the contrary , except constant innuendo and here's at? Regarding your comment on efc's lack of paperwork , if my memory serves me right efc self reported and admitted there was a definite lack of governance which , as you said they have already been punished for. It will be interesting to see the evidence of asada's case against the players considering in March last year they told the club players and the afl that there was no case to answer in regards to players.
Mikey
Guest
Liam - Firstly 9 other clubs being investigated doesn't mean they have done anything wrong. At this stage it is just an investigation to determine if they have done anything wrong. They may find nothing wrong. Secondly, if any of them have done something wrong that doesn't mitigate in any way what the EFC has been found guilty of so far. A person or entity that commits a crime is no less guilty because there are others that may have committed a similar crime. Thirdly, No-one has ever said Hird is solely responsible. The Club CEO lost his job, the fitness coach was sacked, the sports scientist was sacked and others in the club were also penalised. Hird was the head coach and ultimately responsible for what went on in the Footy Dept. The strong criticism of Hird is mainly because he has refused to accept any responsibility for what happened and a perception that his penalty of a highly paid suspension was too soft. (It appears agreeing to pay him was the only way he was going to accept the suspension). . Lastly your comment about other clubs having time to clean up the medical rooms and paperwork is ironic. Because it is the complete lack of paperwork that has made the EFC investigation so much tougher and contributed to the oenalties they have already received.
Bill
Guest
Jamees, I read you post again and still couldn't find any mention of the exceptions at sub (2). So, for the benefit of readers 71. Protection of NAD scheme personal information (1) A person commits an offence if: (a) the person is or was an entrusted person; and (b) when the person was an entrusted person, the person obtained NAD scheme personal information; and (c) the person discloses the information to someone else. (2) Each of the following is an exception to the prohibition in subsection (1): (a) a disclosure for the purposes of this Act; (b) a disclosure for the purposes of the NAD scheme; (c) a disclosure with the consent of the individual to whom the NAD scheme personal information relates; (d) a disclosure to the individual to whom the NAD scheme personal information relates; (e) a disclosure to the Australian Federal Police; (f) a disclosure to Customs; (fa) a disclosure to the body in a State or Territory responsible for the registration of medical practitioners in that State or Territory; (fb) a disclosure to a body in a foreign country responsible for the registration of medical practitioners in, or in a part of, that country; (fc) a disclosure to an authority of the Commonwealth, a State or a Territory that has functions relating to law enforcement; (fd) a disclosure to a national regulatory authority of another country that has national responsibility relating to law enforcement; (fe) a disclosure to an international organisation that has functions relating to law enforcement; (g) a disclosure prescribed by the regulations. Note 1: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ). Note 2: For prescribing by class, see subsection 13(3) of the Legislative Instruments Act 2003 . (3) If a disclosure of NAD scheme personal information is covered by subsection (2), the disclosure is authorised by this section. ....... The effect of your post was to infer strict liability for disclosure, where the legislation clearly provides for disclosure in certain circumstances. I don't mind if you want to argue that there was disclosure, however if you want to make a convincing argument that ASADA has committed a punishable offence you need to acknowledge and address the fact that a defence is available to ASADA, even if it has made disclosure (you can't simply ignore it).
Liam
Guest
9 other clubs being investigated by work cover over sports science hey? I believe the afl would like to squash that investigation. What else is going to come out? At least the other clubs had time to clean the medical rooms and paperwork. Can someone remind me why aod was banned as of April 2013 ? Geelong won a premiership on the stuff I would say and a number of stAff came from there, Dank, Robinson and co. Sounds like essendon may be a scape goat after all. Why was aod banned and what responsibility will the leaders of our great game take for the use of this drug prior to 2013 by all clubs ? Especially geelong considering they were so successful in dank , Thompson and robinsons time there? And James hird caused all this? Come on guys , I'm certainly not blaming James hird!
Mikey
Guest
Trying to prove a negative is where there is no evidence at all pointing towards the crime. In this case there is circumstantial evidence. For Hird to say he is confident that no illegal drugs were administered then he must know exactly what drugs were administered. Otherwise surely even you can see the inconsistency and lack of logic in saying I don't know what was administered but I know it wasn't illegal. You can't not know and know at the same time! I wouldn't say Hird was lying but I would say he is spinning a version of events that suits his personal predicament. Because if he does know exactly what the players were administered then for the sake of the players he should present this evidence immediately. But if he doesn't know then making statements about being "confident" or "certain" are just words without any substance. Re the murder scenario you keep referring to - there is one infamous murder trial where someone was accused of murder and got off - O.J. Simpson. Of course very few people (if any) actually believes he is innocent and the legal tactics EFC are using can at best only produce a similar outcome. It keeps coming back to the simple question - were the players given illegal substances? ASADA obviously believes they were and EFC should be doing everything it can to prove that the players were not. If instead the EFC are successful in suppressing the evidence (and again why would they want to do that?) then there will still be that lingering question which will leave a permanent stain on the game.
Jamees
Guest
@ Bill I didn't neglect anything. I was specifically referring to the press release which is unprecedented for a show cause notice. Due to the low standard of proof (possibility of anti-doping violation) required the right of the athlete(s) subject to the show cause notice to preserve an untarnished reputation is deemed of higher significance than the public good of naming that athlete. The athlete can be named later in the process when they are found guilty of an anti-doping violation. Hence the heavy penalty for a release of information. Of course information needs to be shared and can be shared under the NAD scheme but what was the benefit to anyone of announcing the show cause notices? Only damage has been done
Bill
Guest
James, you neglected to mention the exceptions...your post reads as if an entrusted person cannot disclose information to anyone or for any purpose. Which would make it very hard to get anything done.
Jamees
Guest
Once again you are asking to prove a negative. Lucky we live in a country where you have to prove guilt, or in this case to a comfortable satisfaction that a doping violation has occurred. Can you prove you didn't murder anyone in the last year? You know you didn't and hopefully you didn't but it should always be up to the accuser to prove their accusation. Hird has always said he is confident that no drugs were consumed. How is that a lie and what else has Essendon lied about?
Cat
Roar Guru
Oh I disagree Jamees, its quite simple, just provide the proof Hird and Essendon have been claiming they have since day one. Since its gone on this long without them providing it, I can only surmise it was just another lie amongst many told by them since this all started.
Bobbo7
Guest
Correct. Essendon had the chance to deal with this properly and failed the club, members and players. Hird has to go or else the club will continue to be associated with drugs. Complete mess and worst of all too many supporters blindly support all this rubbish because Hird was good at football 10 years ago and is supposedly a legend.
Jamees
Guest
@ Hansie Still think he hasn't made it possible for reasonable ascertainment of their identity. The Herald-Sun has an article dedicated to identifying the players. Richard Ings has tweeted about it (in case you accuse me of taking him out of context). Now, I wonder if the reasonableness test will be that Lord Denning postulated rode the Clapham Omnibus....Remember you said I know nothing about it and was way off. Should I be using the Literal Rule, the Golden Rule or Mischief Rule in interpreting this statute? I hope you're in conveyancing or something because your basic ability read statutes sucks pretty dramatically.
Mikey
Guest
Well it is compelling circumstantial evidence.. In terms of the narrative - the only alternative narrative from the EFC I have heard is about the process that has lead to the Show Cause letters. That's their right, but iIf I was a EFC player I would much prefer to hear a narrative that clarifies exactly what was injected into my body. No I don't think they should be penalised again for poor governance. Now they are dealing with the outcome of that poor governance . But rather than prove the players weren't injected with anything illegal they are trying to stop the process. As I said even if they win that argument it still doesn't answer the most important questions. And if they lose the process argument it is likely to be much worse for the players and the EFC. So I don't see how the EFC can come out of this well regardless of the legal arguments.
Jamees
Guest
Mikey We have been over the issue of what he said, we will just have to agree to disagree. And I would argue that it isn't compelling evidence, it is circumstantial evidence that fits one narrative. With regard to the rest of what you say, you pretty much summarize the amended charge sheet that the AFL hit Essendon with last year. I have provided a link to it in my first comment. They were fined $2m and lost draft picks for 2 years as a result of this. Are you proposing that they get penalized again for this?
Mikey
Guest
Jamees - So he imported TB4 but didn't use it on EFC players - even though he said he did - and then said he didn't. I agree you are innocent until proven guilty. But on the other hand Dank, Hird and the EFC have asserted that the players were definitely not given anything illegal and yet cannot tell anyone - including the players - exactly what they were given. So you have a situation where there are a lack of records (which is in itself incredulous given that they have openly admitted they were pushing the boundary edge), compelling evidence that illegal drugs were purchased as well as evidence that those in charge either had a dodgy history or displayed a cavalier and arrogant attitude to anyone that questioned what was happening. Any impartial observer would smell a very big rat and the onus should very much be on those responsible to prove beyond any doubt that nothing illegal was given to the players. And I am not talking about the legal issues - I am talking about the ethical issues and the duty of care these people had to the players. Because at the moment regardless of the court rulings the players will still not know for certain what they were given and that is a disgrace and unacceptable.
Col in paradise
Guest
and the Winners are - The Lawyers.....the loosers will be the players...so they say the process is flawed but it did happen...so if by some small chance they get off on a technicality doesnt change the facts that Hird and company were highly incompetant at a minimum and the players put at risk....who I feel sorry for and If I was a player even if I escaped suspension I would really find it difficult to stay at a club that did this...
AR
Guest
MidF The behaviour of Essendon has been truly staggering through this whole sorry affair. I think the decisions it is making now will ensure it is a basket case club for the next decade or more. Just sad that a once great organisation has fallen so far...even sadder that it seems unable to recognise how badly it failed its young players.
Midfielder
Guest
Nar hardly ever ... but play the man not the issue...
Tad
Roar Rookie
For someone who knows so little, you seem to comment quite often.
Midfielder
Guest
Glenn I am a football person and know little about the AFL ... having said that I have always been envious of its management and often dreamed of my code have an administration as well connected and as well run... My personal feelings is to take the legal tack seems a statement of guilt and being scared to face up to your own responsibilities I guess the PR will start as to why this is not so... Leaving all the arguments on the legal tack taken that will come aside, I feel this is arguably the worst decision by a code I have seen in a very long time... and it reminds me very much of how the old ethnic NSL clubs often acted in their own interest often to determinant of Football...
Jamees
Guest
He doesn't have to name them. Perhaps you should read the legislation. They only have to be 'Reasonably Identifiable'. Wouldn't you say that issuing a press release saying that you have issued Show Cause Notices to 34 of a possible 38 players from the Essendon 2012 playing group is a cause of them being Reasonably Identifiable, especially when others such as David Zaharakis have previously stated that they didn't get injected because they hate needles. The fact that he has broken the law in his actions has nothing to do with whether the joint investigation was legal or not. That is the sole basis for the claim. As a lawyer you should know that. It may help when (if) players get off and when (if) they decide to launch legal action for damage to reputation as a result of being identified as part of the probe. If you follow Ings on Twitter you will see that what I say is correct