The legal fight between Essendon and ASADA appears to be widening, as the anti-doping authority accused the club and its suspended coach of “enlarging” their case, and the involvement of players in the court action remained unresolved.
The case went to the Federal Court for a second directions hearing on Wednesday. But the way ahead was far from clear as potential new disputes opened up on a number of fronts.
Lawyers for ASADA were “deeply concerned” by the amendments to pleadings filed with the Federal Court this week by Essendon and James Hird.
The amendments implied that the joint investigation conducted by ASADA and the AFL was a deliberate conspiracy designed to overcome the shortfall in each body’s investigative powers, according to Daniel Starr, acting for ASADA.
Such an allegation would place the dispute beyond the orbit of administrative law under which the original application was made.
Mr Starr said this was the latest in a series of “rolling enlargements” to the Essendon case that threatened the viability of the three-day trial scheduled to commence on August 11, 2014.
Of more immediate concern is the reluctance of the 34 players issued with show cause notices to be formally joined as parties to the preceeding. Justice John Middleton said he was disquieted by the possibility that players would not have direct representation at the trial when they would be bound by its outcome.
This coincides with reports that players may be reconsidering the arms-length nature of their involvement in the case.
David Grace, QC, acting for the players in their limited present standing as “interested third-parties”, indicated there had been a softening of the players’ resistance to the joinder proposal, but said the issue was still unresolved. He did suggest, however, that the players would be prepared to be join the action if there was a guarantee that their identities not be disclosed.
Mr Grace argued that the players’ identities would be protected from disclosure in the event that Essendon succeeded in having the investigation declared illegal. Disclosure now would risk causing unfair and “irreparable” damage to their reputations, he said.
Justice Middleton said it was within his power to preserve the players’ anonymity by court order but gave no indication that he would do so.
“A court of law is different”, he said, referring to the confidentiality obligations that may or may not apply to ASADA.
His preference was for the joinder issue to be resolved by way of undertakings between the parties, on terms acceptable to both. But one way or another it would have to be resolved on Friday, he said.
Essendon and Hird claim that ASADA acted beyond its statutory authority in the way it conducted the joint investigation into allegations of doping at the club. They say ASADA relied on the AFL’s power to compel Essendon players and staff to give evidence because it lacked that authority itself.
The amended claims allege that in conducting joint interviews and sharing with the AFL information obtained from its own investigations, ASADA breached the confidentiality obligations imposed on it by the Act and the NAD Scheme.
That Essendon players and staff would face AFL sanctions if they did not answer all questions put to them – in Hird’s case, some 1300 questions – was a denial of the common law right against self-incrimination, the pleading alleged.
Justice Middleton said he did not consider that the amended claims amounted to a charge of conspiracy.
He said he regarded them as an attempt to characterise ASADA’s investigation as being conducted for an “improper purpose.” Nick Harrington, acting for Hird, mocked the ASADA team’s concerns as evidence of a “siege mentality” typical of people who operate from a bunker.
The rest of the hearing was spent trying to get the parties to agree on what documents to provide to each other in the discovery phase of the litigation. Needless to say, little progress was made.
The case will return to the Federal Court for further directions on Friday July 4.
Ben
Guest
1. In the case of Armstrong, the evidence you mention only coalesced with the publication of the USADA report. Prior to the publication of that report there was insufficient evidence to categorically state that Armstrong was guilty. At this stage the allegations against Essendon are allegations only - no evidence has been presented in support of those allegations. In this regard we are at an equivalent stage to June 2012 in the Armstrong investigation. 2. I think Hird is more revered than Armstrong ever was, at least by his team and the club. Part of the reason Armstrong's teammates testified against him was because he was such an a**hole. 3. Sorry, I will rephrase 3 - "Involvement of a doctor or sports scientist with alleged links to PEDs – check". 4. Yes. 5. A PR campaign attacking the AFL and ASADA, not the witnesses. Armstrong undertook a similar campaign against the UCI (threatening to blow the whistle on their alleged involvement in a cover up) and the USADA. 6. Sorry, I will rephrase 6 - "Attempts by the accused to deal with drug use allegations by attacking the legality of the investigative process, rather dealing with the allegations on their merits - check"
Col
Guest
Please provide evidence of what substances were given to the players. Perhaps you could get a list from Essendon - oh that's right they can't give you one. You are right supplement programs are at all AFL clubs but it is only Essendons that is being investigated.
CAllen
Guest
So Paul Little's outburst yesterday was "merely perusing the EFC legal options"................................looks like a public attack on the investigators to me.
Redb
Roar Guru
How about this: ASADA collect samples on a regular basis from AFL players..
Redb
Roar Guru
Please provide evidence that banned substances were given to the players. Supplement programs are at all AFL clubs, call them doping programs if it suits you.
deanp
Guest
That is a rather superficial, and inaccurate summation, if you don't mind me saying. 1. In the case of Armstrong there was years of evidence, an extensive paper trail, eye witness accounts by team mates claiming they has seen named substances being injected. A knowledge within the team of a deliberate intention to dope, and a strategy to avoid detection. At EFC we have no evidence of a similar conspiracy. Indeed, according to one theory, recounted a number of times on this very forum as evidence of EFC guilt, Dank was unaware that TB4 was a banned substance, and allegedly attempted to cover his tracks with the false invoice he sent to Alavi. But whether Dank even administered the players with anything illegal is still subject to question. At this point we simply do not know. 2. Lol. If you say so. 3. In fact, Dank was regarded as somewhat of a guru at the time he was employed. He had plied his trade at other clubs, so that claim is just a nonsense. 4. It could well be the AFL wanted to get some control over the investigation, and might have wanted to confine the investigation to just EFC, one rogue club, rather than risk the fallout of a wider investigation of Dank's activities at other clubs. 5. This one is a real beauty. It illustrates perfectly the delusion of the flogs. EFC are merely pursuing their legal options, which they are perfectly entitled to do. In contrast, Armstrong attacked and attempted to bully even team mates. I don't see Hird doing anything like this. So your alleged similarity would appear to be tosh, once more. What a surprise. Indeed, if anyone has been bullied and personally attacked, it has been Hird, in the media, and of course, in here. And EFC and the players have been the subject of a disgraceful media circus of leaks, innuendo, speculation and bullying. 6. What legal technicalities would these be? Oh, you mean the law? How inconvenient, eh?
Redb
Roar Guru
Your simplistic ramblings amuse me. You lost me at: "if it was my club" that is a cop out, it's not.
Bill
Guest
The Alberto Contador scenario. Got it, thanks Flick!
Bill
Guest
The Alberto Contador scenario. Got it, thanks Flick!
Flick
Roar Rookie
Yep, the complete opposite of Armstrong who knew he was taking banned drugs and attempted to mask it. We will find that no Essendon player thought he was taking banned drugs, no masking drugs or was in a group of 34 other players doing the same thing. Thanks Bill.
Bill
Guest
So are you saying that the complete opposite of Lance Armstrong are the following: (a) professional athletes who: (i) take performance enhancing drugs, but only those which are not banned by WADA; or (ii) mistakenly take performance enhancing drugs banned by WADA; and (b) amateur athletes who: (i) take performance enhancing drugs banned by WADA; or (ii) take performance enhancing drugs not banned by WADA? Are you saying that Essendon players fall into either the (a)(i) or (a)(ii) category and are therefore the complete opposite to Lance Armstrong. If so, your strongest argument seems to be (a)(i) (provided the evidence supports your belief that they didn't take banned PEDs). (a)(ii) is similar to the Alberto Contador situation...which you would have to be an incredible sophist to convincingly argue is on the polar opposite of the drug cheating scale as Lance Armstrong.
Bobbo7
Guest
So it's extremely clear that no one including the players know what was pumped in their veins? Enough said. EFC digging a bigger hole for itself. Just wait to the players start to take their own action
Flick
Roar Rookie
Pretty clear, not one player thinks he took something banned deliberately, if at all. The players, if they took something banned were duped by Dank, not one sample has returned a positive test, even the samples the AFL sent O/S without their knowledge were negative. Do you honestly think 34 players could all get together, take banned drugs and still all remain defiant after all this 2 year media storm that they did not take banned drugs, even the ones that don't even play in the AFL any more. Think logically. And where is the apology for AOD and what Watson has gone through.
Flick
Roar Rookie
It was not a argument, it was a statement.
Darren
Guest
Really clear something possibly didn't happen. Wow hope your the lawyer for the bombers players Flick.
Stan McCan
Guest
Really Flick? That's the argument that it's ok?
Ian Whitchurch
Guest
Its cute the way RedB puts weight on Hird's meaningless cover-my-ass email. In reality, when the club doctor stopped the doping program, James Hird got the meeting together that got it restarted. Remember, none of the conditions in Hird's email were met. None.
Flick
Roar Rookie
Wrong Bill, a high % of professional and amatuer athletes use performance inhancing drugs across many professional and many amatuer sports, the difference is some are banned ( but possibly not illegal) are some are not. Many performance enhancing drugs are neither banned nor illegal, what is not banned at amatuer level may be banned at professional level at the same sport.
Bill
Guest
The complete opposite to Lance Armstrong are professional athletes who have refused to use performance enhancing drugs, regardless of the payoff. Their motto would be 'No compromise to our integrity' rather than 'Whatever it takes'.
Flick
Roar Rookie
No it doesn't.