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What the Essendon players seem to have overlooked in their threat to boycott the NAB Challenge is just who is responsible for the delay that has prompted their perverse brinkmanship.
Two clues: it wasn’t the AFL, and it wasn’t ASADA
ASADA was ready to go in the first half of last year. It issued show-cause notices on June 12, formally setting the lengthy process in train.
On June 13 Essendon and James Hird filed applications for permanent and temporary injunctions in the Federal Court. The latter sought to stay the operation of the show-cause notices – put the process on ice, in effect – until after the determination of the case proper.
Justice John Middleton didn’t give them the interim order they wanted because he was confident it wouldn’t be necessary. “I’d be most surprised if ASADA started pressing any buttons”, he said, before apologising to Essendon’s assisting counsel – Catherine Button – amid some merriment.
In effect the judge was telling ASADA to hold fire on the notices until the legal challenge was out of the way. ASADA complied. And so the steps that would lead to the anti-doping tribunal hearing were halted in their tracks at the behest of Essendon and Hird, indeed under threat of more legal action from them.
Judgment was delivered on September 19, the first of two emphatic Federal Court rejections of the challenge. ASADA waited until Essendon formally ruled out appealing the judgment and then issued revised show causes.
After four months stalled by the court action taken by the club and its coach, the process was resumed – this despite Hird deciding to continue his legal fight in the appeal courts.
Little wonder ASADA is bristling at suggestions the AFL should remove its provisional ban and further backdate any penalties that might be imposed to September last year. If Essendon and Hird hadn’t put a four-month freeze on the process in June, the whole thing might be done by now.
ASADA could have waited longer. It wasn’t necessarily ideal, on the last working day before the tribunal hearing was due to begin, to have three related disputes simultaneously unresolved in three different jurisdictions. It may have had better things to do with its legal resources – such as prepare for the tribunal hearing, for example.
ASADA is the only party who has been involved at every obstructive, attritional stage of these legal actions – each time unwillingly, depending on how you read the last-minute recalcitrance of a couple of stand-up witnesses. The others have been one part participants or had controlled game-time, with regular interchanges.
That’s except for the players at the centre of it, who have apparently followed proceedings in bits and pieces in a movie theatre, probably the Gold Pass section.
If those four lost months end up wrecking their seasons, the players would do well to remember who lost them.
Meanwhile, with the pre-season dispute still unresolved, and Hird said to be “flirting” with the idea of taking his show to the High Court, one highly qualified and interested party speculated on the state of play at the tribunal.
Western Bulldogs President Peter Gordon told ABC Radio on Friday that the case was on a knife-edge.
Gordon, until recently one of the foremost figures in the corporate legal world, foreshadowed a “panorama of possible consequences” from the hearing. Should the tribunal decide that Thymosin Beta 4 was the substance administered, Gordon sees a real possibility that all liability would rest with Stephen Dank, and none with the players.
“And that may well have consequences for the Essendon Football Club,” he added.
Gordon also believes “interest in the integrity of the system” requires the tribunal to release most of the information from the closed hearing to the public as soon as possible.
Gordon is advising Bulldog forward Stewart Crameri, formerly of the Bombers. Crameri was one of only two players facing doping charges who supported an open hearing.
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