Essendon vs ASADA: Players walking both sides of the street

Among the 178 pages of submissions released ahead of today’s Federal Court trial, there’s little to suggest that any of the parties involved were particularly efficient or professional in the way they ran their operations.

Some aspects of ASADA’s investigation into Essendon’s peptide experiment seem cobbled-together, hobbled by unreasonable restrictions and disregarding of proper limitations.

Other parts appear to have been compromised by meddling from cabinet ministers, complicated by leadership changes and quid pro quo arrangements on all sides.

That doesn’t mean it was illegal. Nor does it alter what should be obvious to anyone with an attention span longer than a punchline: that Essendon and James Hird have every right to challenge the legality of the investigation. That’s why we have courts. It’s why we have rights.

It may not actually be such a bad thing, in the larger scheme, that a superior court now has the opportunity to establish the legal parameters that must be observed in doping investigations.

There’s also no lack of numbing repetition, especially in the Essendon submissions. That wouldn’t be newsworthy if QCs didn’t charge five figure sums – per day – for their skill in articulating a case. It’s also worth noting that Essendon’s legal team informed the judge on 28 July that the three days set down would be insufficient to complete the trial. Perhaps if they invested in a red pen and a ruler?

Of course, it’s wise to keep your expectations in check when dealing with the legal elite, particularly if you don’t have a Masters in Jurisprudence and you’re not paying for the privilege. Don’t expect anything so time-consuming as an answer, for example – an occasional yes or no, say.

Lawyers are apt to regard unschooled onlookers with the same condescension that shock jocks reserve for welfare mothers and chronic underachievers.

Even so, a few dumb questions are worth asking before the show kicks off.

One is: why would you establish an anti-doping authority and not give it the power to interview people suspected of committing doping violations?

Essendon’s case has advanced on multiple fronts since the action commenced in June. But its first line of attack is still that ASADA relied on powers it didn’t legally possess. It joined with the AFL because the AFL alone could force players into the interview room on an or-else basis. Then it told the AFL officer on duty – generally Abraham Haddad – to go sit in the corner and shut up while its own investigators rolled up their sleeves and ran the interrogation.

For this reason, says Essendon, the joint investigation was illegal from the start.

ASADA says the idea that a joint investigation is by definition ultra vires should be given “short shrift” by the court. It says the absence of the compulsive power in question shows that the legislature always envisaged cooperation with an appropriately-empowered “sporting administration body”, such as the AFL.

Justice Middleton alone will answer that.

But we do sometimes look for mala fides when the main reason for the mess is simply that these things tend to be messy – the process is messy, the paperwork is messy, the language is messy. Some of the interdepartmental communications could have been scripted by the Working Dog team. Much of the politicking is more Hollowmen than Machiavelli.

So, why didn’t our legislators equip ASADA with the basic tools necessary to do its job? Given all the diverse and competing agendas apparently vying for influence in the investigation, and the general atmosphere of improvisation, it could just as easily be that they forgot.

The other question is: why aren’t the players part of this?

Yes, we know “they have no desire to be involved” because their solicitors keep saying so, with the weary, eye-rolling mien that comes from having to walk dim-witted fools through the self-evident facts.

And we know “they’re particularly sensitive to the issue of their anonymity” because that’s what their QC said each time the judge encouraged them to give serious consideration to being joined to the proceeding – which is in itself an exceedingly rare thing for a judge to do, I’m told.

Those inviolable legal grounds aside, it’s difficult to see how the players are anything but absolutely central to this case. The action was launched for their benefit. Their careers will stand or fall on its outcome.

They’re not minors or wards of the state. They’re not victims of violent crime forced to revisit traumas under hostile questioning. They’re not seeking asylum from murderous regimes abroad.

They’re privileged individuals who still enjoy broad public sympathy, certainly compared to the other parties in the case.

And it’s not exactly impossible to hazard an educated guess at their identities anyway, if anyone cares. It’s about 85 per cent of the 2012 playing list, give or take.

No desire to be involved? Sensitive to their anonymity?

Well, tough.

Moreover, their non-involvement doesn’t make the case any easier to argue. Part of the alleged illegality rests on the way the “interrogative interviews” were conducted. The particular charge is that EFC players and staff were denied their common law rights against self-incrimination.

Fragments of exchanges from James Hird’s interrogation do in fact sound pretty disconcerting, not to say damning. But that’s one interview.

The Essendon submissions allege that such breaches were common. They say the patterns of interrogative conduct recurred across most or all of the interviews. They highlight particular questions asked of unnamed players.

But what does that mean?

A decent amount of independent legal commentary suggests ASADA’s functions are defined broadly enough to allow for a few missteps so long as the anti-doping authority acted – broadly – in line with its anti-doping functions. They will be regarded as “collateral” breaches committed in the course of an otherwise legal endeavour – not to be condoned, but not enough to have the investigation stopped and the evidence thrown out.

If the established breaches were limited to the one person prepared to give evidence – Hird – they would likely be regarded as “collateral”. If the pattern recurred across 30-odd players, it may well be a different story.

How Essendon’s crack legal team intends to sell that story without the players’ corroboration is not clear.

At the first directions hearing Neil Young, QC, told the court the players were happy to “fall in behind” the Essendon position. The interests of club and players were the same, he said.

That may be true, for now. Should the Bombers lose the case and the investigation goes on, those interests may diverge, and sharply.

And then the players might realise that walking both sides of the street wasn’t such a great idea after all.