Essendon's case against ASADA and AFL tossed out

Essendon Football Club have had their case against the joint AFL/ASADA investigation into doping in Australian sport thrown out by Justice Middleton of the Victorian Court.

Essendon were attempting to clear themselves of further action around their 2011/12 supplements program by having the case against them scuppered, but Justice Middleton declared “In my view ASADA complied with the rule of law.”

The Bombers’ players will not only have to face the music of infraction notices given to their players by ASADA now, but have also been ordered to pay the court costs of ASADA and the AFL for the month-long trial that has delayed any punitive action against the players.

Essendon and suspended coach James Hird now have until October 1 to appeal the decision, and should they decide not to proceed they will be required to pay ASADA’s court costs.

Essendon have released a statement, saying that they won’t make a decision until after the completion of the AFL competition.

The Essendon Football Club is understandably disappointed at today’s Federal Court decision.

Before deciding the next steps, we will consider the reasons for the final judgement, including whether or not to appeal this decision.

In taking these proceedings, our priority has been to protect and vindicate the legal rights and interests of the players.

The Club maintains its confidence that, on all the evidence available to us, neither harmful nor banned substances were given to the players during the supplements program of 2012.

Out of respect for the competition and the Clubs still competing this season, it is not our intention to provide any further commentary on this matter beyond today’s statement.

Former ASADA chief Richard Ings has weighed in after the case with the likeliest outcomes from today on Twitter, saying the next steps are for the investigations body to reimpose deadlines on the players to respond to the notices.

If Essendon had been successful in its case, the evidence gathered by ASADA and the AFL in their investigation into the club’s activities during the 2011/12 seasons would have been declared illegal.

It would have been a significant blow to the anti-doping body, who had issued the players with ‘show cause’ notices, which necessitate a response from a player. No response would result in a playing ban.

Justive Middleton was adamant that although the AFL sat in on investigations, ASADA had led the process, and it was lawful.

“In my view ASADA complied with the rule of law in establishing and conducting, in the manner and for the purposes it did, the investigation,” Justice Middleton said.

“In addition, ASADA lawfully provided the interim report to the AFL which has subsequently been acted upon by the AFL.”

34 former and current Essendon players have had infraction notices handed down to them by ASADA.

The judge also commented on the situation at the Essendon Football club during the time of the alleged misdemeanours, and the governance of the club during those years.

“On the evidence before the court, the investigation disclosed a strong link between deficient governance and management practices at Essendon and the possibility of Essendon players being involved in anti-doping violations,” Justice Middleton said in a summary of his reasons.

“The poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systematic, or may have occurred because proper governance and management practices were not in place.

“This seems to have been the very situation that existed at Essendon.”

Furthermore, the impunity of Aurora Andruska, the former head of ASADA, was called into question by Hird and Essendon.

“The only witness whose credit was impugned was Ms Andruska. It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses,” Justice Middleton said in a statement.

He concluded, however, that her testimony was valid.

“I do not consider these criticisms, to the extent they impact on [Ms Andruska’s] veracity, can be sustained. Ms Andruska was a truthful witness. Ms Andruska was careful in all her responses, and in my view wanted to consider properly each question, seeking to provide a truthful answer. Ms Andruska provided convincing and credible explanations for the steps she or her investigators took in undertaking the co-operative arrangement between ASADA and the AFL for the purposes she outlined in her affidavit evidence.”

You can read the full verdict here.