The Essendon Football Club and its coach James Hird pushed all their chips to the centre of the table with their Federal Court challenge of ASADA‘s investigation into the club’s controversial conditioning program.
That tactic has proved to be an unmitigated disaster.
In a brief few minutes earlier today Justice John Middleton ruled against the Bombers and its coach leaving the club and Hird to lick their wounds.
Justice Middleton struck down every objection that was made against ASADA and the AFL’s joint investigation.
The one-sided nature of the ruling was unequivocally in support of the way ASADA conducted its investigation in concert with the sport’s governing body.
In striking down the joint application, both parties were also ordered to pay costs.
Essendon chairman Paul Little stated that the club would assess the finding and consider whether it would lodge an appeal. The AFL has said it will remain mute until the conclusion of the finals series.
On the face of Justice Middleton’s reasoning and finding it is hard to see which areas the club could attack on appeal.
Time alone will tell what further action, if any, Little and his board will take.
That, of course, leaves Hird.
Surely after today’s ruling he has coached his last game.
It would be entirely proper for him to tender his resignation. Such a move would do much to help bring closure to this whole sorry saga.
34 past and present Essendon players will now be given limited time to respond to the show cause notices that were issued nearly two months ago.
An initial response was held in abeyance pending the outcome of the Federal Court hearing. With that roadblock now removed it is the players who will be under the spotlight.
Failure to convince ASADA of their innocence with respect to the use of Thymosin Beta-4 will result in infraction notices being passed onto the AFL where its tribunal will decide on the length and nature of penalties.
Now is the time for Hird to put his hand up and remove himself from the club.
At the media conference that launched this whole soap opera in February last year, Hird admitted that the buck stopped with him as senior coach.
Since that day however he has done all he can to distance himself from any possible wrongdoing. He even went so far as attacking the way the club went about handling things during his testimony in court.
Throughout the past 20 months Hird has displayed a large degree of arrogance.
Through a combination of poor advice and a belief that, as James Hird, he could do no wrong, he picked stoushes with then AFL CEO Andrew Demetriou as well as the league itself.
Hird believed it was a personal vendetta against his good name. He has fought it all the way to the Federal Court, and the result has been damning with respect to his belief that the whole investigation was a sham.
As part of Hird’s petition to the court, he stated that “I believe that if show cause notices are issued to current and former Essendon players by ASADA this would give rise to immeasurable and irremediable damage to my reputation, my earning capacity as an AFL coach and my business interests external to Essendon and the AFL”.
If Hird believes those words to still be true he has stated in effect that his coaching career is over and that his credibility in the role has been destroyed.
It would best serve Essendon and the football world in general if the Bombers drew a line in the sand and wore the court decision on the chin.
One could imagine that even the club’s members would not wish this saga to drag on any further.
If Hird does not fall on his sword, rather than launching a legal appeal, the club may be better served using the money that would require as part of a payout of Hird’s contract.
There is still considerable water to flow under the bridge, and much of it may be murkier than that in the Yarra.
Firstly, the players have to convince ASADA that they were not a party to any wrongdoing.
Secondly, those same players must weigh up their own future.
Paddy Ryder has already looked to exercise the clause provided by the AFL to players who believe they were wronged by the club with respect to its duty of care.
He is looking to leave the club as a result of the pharmaceutical program that it initiated.
Should currently contracted players receive suspensions it will be fascinating to see if they attempt to follow Ryder’s lead.
The war is not over, but a major battle was today lost by Essendon and Hird.
skeptical mullet
Guest
Ok so this is YOUR duty of care test, as opposed to 'real world' scenarios we were addressing? At any rate I think you have made some assumptions based on faulty or unproven premises. James Hird held a view that sports med be 'employed' at essendon...Every club holds this view and implements it. Hirds 'interests' and past associations are meaningless. As for Charters, Hird not only consulted him( when recovering from foot injury), so did Luke Darcy, Matthew Richardson and a raft of other 'big' names, but again, it's really irrelevent. I mentioned, at this time Charters stated 'Hird is one of the 'straightest' people I've ever met. I had to talk him into taking a vitamin pill' Your take is that no Hird, no hiring of Dank and Robinson. Well perhaps more accurately, no Bomber no hiring of Robinson in the first place. Bomber wanted him/recommended him. Again, this is largely irrelevant. Your premise seems to be the program was floored and whoever hired 'expertise'/wanted the program is to blame. Firstly, both Robinson and Dank had good reputations. In fact Dank helped pioneer GPS tracking and had worked at premiership NRL clubs for years. . Gold coast 'poached Robinson from Geelong, Essendon 'Poached' Robinson and Dank from Gold Coast. They obviously thought they were 'worthy'. robinson came first and it was he who pushed for Dank. Whilst at Gold Coast, Robinson told investigators he self injected CJC 1295 along with a 'friend'( thought to be Nathan Bock). Not long after Robinson got to Essendon, Hird asked an asada drug tester, "what can you tell me about 'pep-types'".When the press conference arrived it seems essendon were left holding the proverbial 'hot potato'. As an aside, you are aware Dank injected Melbourne players? AND, this was happening AFTER the famous press conference. Ask yourself why they copped nothing. The abc and other 'non-afl accredited'outlets have. The afl have precedents in acting unfairly and scapegoating. Integrity comes second, corporate image is first. You assert (rightly) Hird, etc aren't as adequetly qualified as a doctor. However, Dank is a scientist. Medical Dr's are not scientists. They should keep up with the 'literature'(if they can understand it) and seek specialist opinions for anything they are unfamiliar with. So, the most qualified was in fact Dank. However, everything that is administered should be signed off by the Dr. You assert the Dr was not involved. That is an unproven assertion, but like many things 'unproven', it is repeatly trotted out by the 'mainstream' media. the Dr signed every consent form. Interestingly, Jobe's revelation on TV he had AOD was followed by "yes, that is what I believe doc Ried gave me". As for the 'program', would we be having these conversations if indeed there was adequate record keeping?( assuming no beta thymosin 4). Is it Hird's job to ensure this? As you say, he is simply not qualified. Should Hird be overseeing the Dr's records, affairs? Of course not. Other people are employed to 'govern' these departments. Which leads us to who hired who?...Once again, not that it matters. Does anyone think A coach says to someone you can have an office and this much money? No. They would have had a presentation for the football department, and possibly the board, or at least some report/recommendation. Once ratified the relevant Dept's address paperwork, set up, etc...this is an assumption by me, but to assume the former seems silly. So if Hird is to blame, where do you see Robinson, Dank and even the AFL fitting in to all of this. The afl knew what essendon were doing. The fact they can treat people with impunity, destroy reputation. lives? should be a major red flag for us all. They knew the status of AOD (as the court revealled) so they hung the players out to dry by saying nothing because it didn't fit their agenda. They continually lied and spun their way into our hearts, but that's ok.....as long as Hird gets his whack.
Joke
Guest
So hird is the devil and bomber is an angel? Dank and Robinson came from Geelong, Dank is also a sports scientist. Sports scienists commenly inject and administer vitamins... Essendon are not dragging it out.. ASADA can end this whenever they want, But why wont they? No evidence of any illegal activity or wrong doing. If they had evidence why would they drag it out? I believe ASADA simply want essendon players to come forward to get enough evidence to take on Dank. Also calm down a bit on Hird, he has the right to clear his name if he wants to.. Even at trial through social media cant deny that.. Has anyone else noticed we are going to war again?
mcmanpp
Guest
For me, the duty of care tests depend on the following factors: relationship, nexus, responsibility, knowledge, and the reasonable man test. Not all are essential, but all provide clues to whether a person has a duty of care towards another. The relationship between Hird and the players was one of coach, a position of experiential and contractual authority over the individual players; he exercised that authority by directing how the players trained and played; in carrying out that exercise he had a fundamental interest in the performance levels of his players and to increase those levels he held the view that sports science could and should be employed at Essendon FC. This leads me to the second link, nexus: – take James Hird out of the picture and replace him with Coach John Anybody, and it is unlikely there would be any hiring of Dean Robinson, highly improbable there would be any hiring of Stephen Danks, and equally highly improbable that there would be a supplement programme such as eventuated at the club. Add what we know about Hird’s interest in sport science: his previous history with Shane Charters, his thoughts on rival clubs’ supplements, his willingness to be injected by Danks himself with substances – these confirm the link of Hird’s conceptual belief in the programme that was set up at the club. Put another way, the supplement programme that existed at Essendon FC did so only because of James Hird. James Hird is the critical link or nexus to the supplement programme. Hird’s responsibility came in 2 forms, before and after the fact. I believe he had a responsibility, sole or shared with others, for the supplement programme, primarily because it was his wish to put such a programme in place and because he was in a position to, and in fact by the use of his position as Essendon FC Coach, did enable it. But he also had a responsibility after the fact for how his coaching methods impacted on his players’ fitness specifically, health generally and well-being overall. Amongst the practices carried out at the club as integral parts of his coaching method, one of the most serious was the practice of administering supplements into the bodies of the individuals who comprised the player group. Which leads to the next link: knowledge. James Hird is a civil engineer. Stephen Danks is a biochemist. Dean Robinson is a fitness coach. None of these men have medical qualifications. Yet at the heart of the supplement programme lies the practice of some or all players taking supplements variously by mouth or needle or intravenously. The club’s qualified practicing medical practitioner was not part of the group that conceived, administered and monitored these supplements. The assertion that the supplements were safe and therefore did not require the participation of the doctor is negated by the fact that Hird sought cutting edge sports science and effectively excluded the club doctor from the programme, to the extent that some supplements were administered off-site away from the doctor’s observation, and presumably away from his intervention. How, it must be asked, can a supplement be so safe that one would not wish the local doctor to be fully informed about it and/or participate in it? Which leads to the reasonable person test. I contend that a person in a management position setting up such a programme for a team of men under his authority, lacking personal and professional expertise in the programme, and knowing (indeed intending) that the programme have a physical impact on the bodies of these team members, that a reasonable man or woman would expect such a person to have a responsibility, a duty, to make sufficient enquiries as to its safety both before, during and after the programme’s implementation, in order to be as sure as he is able that no harm, injury or illness is suffered by those team members as a result of the programme he has conceived and enabled.
skeptical mullet
Guest
In the 'world' we live in the 'improper conducts' you allude to do indeed have different standards. For starters, an individual or individuals would not be apportioned guilt before any investigation is finished nor completed. The governing 'head' would not be the judge and jury. In fact the governing head in 'the real world' would be required to partake (in the investigation) and divulge it's knowledge/actions in relation to any 'improper conduct'...in the essendon case, the afl knew of essendon's program..chose to do nothing until the press conference. Gillon even said "we should have asked more questions, checked up on them". How would that play out in the 'real world'. So the critical factor for you in regard to Hird is “If you were not responsible, who was?” ...responsible for a possible doping violation? or for bad practices? IF a doping violation occured, Hird cannot be held more accountable than others. He demanded a safe and legal program (his harshest critics -reluctantly- acknowledge this). As for bad practices, look above the coach. so Hird wont speak...well he cant. He has been in effect 'gagged' by the afl, signing a document as part of his sanctions...we all know he supposedly wanted to...so much so that he and essendon called for an independent, transparent hearing, suggesting a recently retired high court judge preside, and later, a supreme court 'hearing', they used the term 'natural justice' . The afl however didn't want that. Had essendon had its wish or if the afl hadn't scampered for cover when confronted with Dr Reid's supreme court challenge, we may ALL have some more insight, and, perhaps others to demonize....(doubt it though..even if true). I suspect Hird was happy to go to court as he did. He finally got to say something. Robinson's impending court case should be interesting. The excellent doco on coaches- interesting to note the sentiment - words to the effect, 'There are scores of people involved in the club process-the coach seems to take the brunt of any shortcomings'....the segment ended with Neil Craig's disdainful ' Gimmee a break'. So, you've plucked out 2 bits of info in 'the public domain'...there are thousands (literally) of documents relating to the case, a case which is not public. There was of course cherry picked bits of info 'leaked' to the media, presumably to win the pr war. One sentence taken out of a chain of emails can seem different, contextually, from the whole. Hell, a coma removed or added to a sentence can change the meaning. Your item (1) is a true statement btw. As for (2), it's murky (your assertions). It was addressed to Hamilton and Hird. Apparently it sat on then football manager Hamilton's desk? Amongst his concerns were that players had begun receiving supplements and he had only just received the literature he had been requesting - for awhile. When Hird learnt that injections were happening and the Dr wasn't informed( early on), he angrily informed Hamilton who chastised Robinson. Afl investigations are like onions...layers?....Again, we may know more from the Robinson case. A coach has ' a duty of care to SEEK advise on the health of his players'. I wouldn't have thought so...I would think any senior coach would demand it though. Players now record sleep times, diet etc with clubs. You would think that is monitored very closely. I'm sure every coach would be updated/informed in this area.The players are the core business and biggest asset. Hird more than likely was scapegoated, perhaps not without some portion of blame though....(governing?)most of the people who 'governed' him are gone, the people who governed them remain (the board), and the people who govern THEM, write the rules and 'steer' the media and hence, public opinion. It is the 'public opinion' that the afl cherishes (doesn't any corporation?). When the brand had become 'tarnished' (even though they could have nipped it in the bud early on), there needed to be a sacrifice. The brand is the demi-god. P.S. Last yr I heard 4-5 coaches and ex-coaches(at least 4 on fox's 360-including Buckley), say they have no idea what their supplements program consisted of...words from his peers.
CDXbow
Guest
Did Danks really give Rugby players Warfarin? If he did that's appalling. He's not a scientist, he's a witch doctor. Also warfarin should be prescribed, he's not a medical doctor is he? So who prescribed it? I know, he got it from the Ratsac,
mcmanpp
Guest
Ian, if you need concrete proof of Hird’s knowledge in order to be convinced that he is connected to the act of a doping violation, then fine, good for you. Elsewhere in the world you and I live and work in, there are other standards citizens have to achieve or be caught for improper conduct: these are the standards of duty of care, liability and negligence. These topics have all been canvassed by others – extensively – and Coach Hird has a case to answer under each of them. That is, of course, if he is willing to answer them; he stated in mid-2013 that he looked forward to explaining fully his side of events and we are still waiting. It is a pity that in the recent court case, Justice Middleton would not allow the question to be put to Hird, “If you were not responsible, who was?” because it was not relevant to the applicant’s case, although it is the critical factor for me. So, if Hird won’t speak in detail of the events of 2011-2012, let’s hear a few words from his peers – the other coaches of the 2014 AFL. Only 3 out of 9 Melbourne coaches attended a meeting with James Hird organised by the Coaches Association; not exactly a resounding vote of confidence in Hird the coach. Alastair Clarkson has initiated efforts to introduce mandatory assistant-coaching experience before a person can become a senior coach of an AFL team. Let’s call this “The Post-Hird-Matter Qualification Requirement.” In what was an excellent documentary that went to air Grand Final Eve on the subject of coaching, the events at Essendon were raised with the coaches. (All 18 coaches participated in the documentary plus former coaches Kennedy, Parkin, Pagan, Barassi and Matthews.) Paul Roos said his knowledge of medicine was limited to high school biology and he was completely reliant on the team doctor. Another coach said he spoke with the club doctor every day because he needed to be updated day by day on the health of his player group. Amongst the information in the public domain is (1) a comment by Hird that the medical practitioners were too conservative, behind the times in sport science, and (2) Essendon Dr Bruce Reid felt sufficiently sidelined in the performance of his duty as the club doctor that he believed it necessary to WRITE to Coach Hird to express his concerns about the supplement programme. The senior coach of an AFL team has a duty of care to his players; part of that duty of care is to seek and receive the advice of the club’s medical practitioner about the health of the player group. The deduction is that Coach Hird did not wish to hear what he had prejudged would be the negative comments of his medical practitioner, and avoided face to face contact, which in turn forced the doctor to communicate in writing that which the coach did not wish to receive orally. This alone is a failure to discharge his duty of care. And we haven’t even begun on the subject of being negligent.
NASA
Guest
Ian, this is Houston - welcome back to Earth and congratulations on being off-planet for a year and a half!!!
Ian
Guest
I am not an Essendon Supporter but I have yet to find anywhere the 3evidence that Essendon player took a performance-enhancing drug with the full knowledge of the coach. In addition, I am suspicious that the rush t make the grand announcement by the Government of the day was a political move and that ASADA went along with it to demonstrate its power or to go along with the Government. I fear James Hird has been victimised in this entire sorry saga and that he is being p0resented as the sacrificial lamb to allow it all to be closed. Lessons need to be learned from the matter - but not the sacking of a coach who seems to have been unaware of the implications of the activities within the club (like many other coaches I suggest) . Leanr the lessons and move on - don't look for a scapegoat as this will achieve nothing.
peter
Guest
If thats in the judges report it establishes Essendon football club was negligent in its management and practices. Dank clearly rogue. EFC were already punished on that level. In that respect the trial seems to be a bad management decision too and sadly Hird has been swept up in this and his ego has been a problem in the process. I do not believe Hird sanction the use of the illegal drugs and wanted a program which was within the letter of the law but he was negligent in not keeping on top of it and Dank - if the compounds were on site then someone ordered them in. That is most likely Dank (yet still not proven). What riles me as an EFC supporter is the amount of crap the players have been through. And clearly still its a fine line in proving their guilt. Since EFC was banned it was all about the players. ASADA made promises to AFL and Essendon about them never recieving infraction notices. They did a U turn. Secondly, the players have clearly had no intent to cheat in my mind. Were they negligent? The entire team? Its all about the players now. Something falls short if they miss a single game. What are they guilty of? These are the questions that need to be answered. If the ASASA system takes them down it falls short , if they knew they were taking such substances (many of which like AOD965 were on and off wadas list or probably having negligible effects then it would be right for them to recieve bands. As Thompson says where is the decency through all of this to them and their families. ASADA has a right to investigate and should but it cut deals and upturned on them . AFL was all over the shop clearly in the process. so perhaps EFC and Hird had a go after their egos over ASADA initiated show cause notices. IT was the wrong decision but they have been jerked around by AFL and ASADA no doubt about it, and they have already been sanctioned most of the original board are gone, fine, draft loss, kicked out of finals. Back to the players. They dont deserve any bans, unless some really big evidence comes out indicating they were extremely negligent or had knowledge. Seems a farce to me on that level but ASADA rewrote its own code with wording changes in the last 9 months to have a go at EFC . Seems like they are desperate to get EFC players to do some time but they can't admit they are guilty unless they were . Cant carry that blemish on their records in my book
paul merritt
Guest
This whole thing with players exercising their rights to leave smells fishy, i believe essendon and the afl have instigated it as they wont be able to field a team next year if the players are suspended, watch over the next few weeks as more players ask to leave, nearly every club will have an ex essendon player on their list next year. essendon will trade good players that they have two of so as not lose out and be able to field a competitive team, this will suit the afl also as the tv rights deal wont suffer
Chris
Guest
I am an Essendon supporter and I am horrified that Hird may still be coming back to coach us next year. Hird has always been my favourite player and it looked like he may of been a good coach too. Not any more... #ClubNotHird
mcmanpp
Guest
Brava, Gemma.
skeptical mullet
Guest
Jenny, no judges have 'said' anyone is guilty of anything....unless you class the 'lazy & sensationalist' mainstream media 'judges'.
Gemma
Guest
Actually @Casper quite a lot of what has gone on has been funded by the AFL who own the brand under which EFC operate, so it is simplistic to suggest that only what Essendon members want matters. ASADA do not have to provide their evidence at this point and sports people know this. On the other hand Essendon should be able to provide exact details of what was injected, to whom and when - they can't. This at best suggests negligence and at worst something more sinister. Ask Hird's long time friends, David Evans, Doc Reid to name two, what they think of this man's integrity. At no point does the club seem to have said - we injected our players with unknown substances and as such can give no guarantees as to their legality or more importantly their safety. For this we take full responsibility. Hird should have done more than say the drugs were not to be illegal; he should have known what they were and had documentation so that he could assure those boys who followed his charismatic lead that they were behaving according to accepted protocols. Hird seems to want the adulation and cult following that allowed him to move in on Matthew Knights job and then divest himself of all the inherent accountability that very charisma brings. Courage is not going in head first on a footy field; it is standing up and saying "I made mistakes, others have been hurt and I am sorry."
joe b
Guest
The fact that ASADA has issued Show Cause notices to players suggests they have sufficient circumstantial evidence that this has occurred. But, it is your right to believe otherwise.
Jenny
Guest
Problem with what you are saying is your inability to accept other opinions. Lots of Essendon supporters keep saying "where is th evidence" I believe ASADA have it and don't have to let it be made public. We don't know police evidence do we when a crime is commited? I just don't know what else the supporters need to See or hear before they accept the EFC governance committee have done the wrong thing.
meenotu
Guest
James Hird & players investigated by asada should have an immediate cancellation of all contracts, promotion products, sponsorship ect.. ENOUGH IS ENOUGH....... Only so long can u flog a dead horse. If the truth b known Hirds parents have paid hansomely to EFC for him since the start of his career. To get him in n keep him there.
mcmanpp
Guest
Your question was to Mister Football, but may I step in? My impression is that we (meaning ASADA, the AFL, Essendon FC and the footy public in general) are in unchartered waters. I don’t believe an entire team has previously faced investigation into doping violations such as we are presently witnessing. Consequently, as a punter, I cut the authorities a lot of slack to get it right – as difficult as that has made it for the players. (The players, too, would rather ASADA get it right, I’m sure.) Many are hoping for a gotcha moment in the process, or a squeaky clean finding of innocence. That may not happen. The mystery of missing definitive records has shifted the weight of evidence to the factors surrounding the programme: the orders for supplements, the actions of the key personnel, various admissions here and there, the conflict within the club itself over the programme’s wisdom and merits, all of which are like traffic arrow signs down a one-way street, pointing to a conclusion with a high degree of irrefutability. A positive drug sample would return a positive analytical finding, which means the charge is sustained; the burden of proof falls on the athlete to disprove it. The lack of a positive drug sample means in all likelihood the burden becomes one on the balance of probabilities in order that a finding be made by the independent Anti Doping Violation Panel (ADVP) to put the athlete on the Register of Findings. At that time, the matter of infraction notices passes to the AFL Tribunal which determines which of the AFL rules have been broken. At its conclusion, it’s entirely possible that Essendon players will be suspended for violating other rules instead of (or in addition to) anti-doping charges (such as bringing the game into disrepute). Long story short: I expect every Essendon player to be convicted of something and suspended and fined; I would be surprised if there were any acquittals at all.
Hawks Mad
Guest
Hi Mister Football, Could you please elaborate on what "the concept of strict liability only applies in the case of an Adverse Analytical Finding." actually means for the average punter like myself.
Mister Football
Roar Guru
One would suffice.