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.
Timmuh
Roar Guru
While the court c$allenges were certainly responsible for a lot of the delays, it was probably necessary. And it would probably not "be all over by now" without them. I'm only surmising, but it seems as though TB-4 was used as a test case. Now that has been decided, once the Tribunal makes their call theremay be more SCNs for other substances. Only AOD has been rules out, from a number of possible breaches. I would not be at all surprised if a second set of SCNs are issued after the Tribunal decision. Nowthat ASADA know their evidence has ben confirmed as within the lawthey there is nothing left to be tested (below the High Court) and they can proceed with more charges if deemed necessary. They might do so, simply because any further suspensions would probably be concurrent if of the same length.
Scooter
Guest
Nothing could be more opposite to your words David. Reason for Hird at club still is the players demanding it. There is a lot to come out once Hird and club is free to openly talk(currently bound by confidentiality clause with investigation ongoing) Essendon are being investigated for a possible breach in doping in mid 2012. We are in Feb 2015? Hello!!!! 4 months lost is a scratch compared to the amount of time lost by AFL and ASADA. Can I remind people interim report came down on July 2013 and players did not get show cause notices until 10 months later....no justification by ASADA why. To make it worse the notices had not one definition of the charges or evidence against players which is part of the process under ASADA Act. Evidence was finally handed over 6 months later!!! at we are delaying? Well over 100 blood tests were done to Essendon players in 2012 and not ONE failed. Blood samples were sent to Zurich to get a more comprehensive test and again nothing was found. 2 years ASADA has tried to find something to get players guilt and the club, Hird and players know they did not take anything illegal and know what exactly happened concerning Dank(might want to look into his external businesses).
Aransan
Guest
Well said "This is ..."
Pumping Dougie
Guest
It's a pity in this world that too many people (and organisations) don't take responsibility for their actions and look to blame everything and everyone else for their mistakes. EFC, Hird and the Board have been a disgrace. Put the facts and evidence on the table instead of trying to dismiss proceedings, or trying to make the investigation or evidence ruled ineligible. Stop whining that it's unfair. I for one would be happy to have the whole club barred from the competition for a year, just for being turds, litigious and highly unethical - they need to be made a lesson of. Andrew Demetriou must have enjoyed the vindication in those court cases though.
andyl12
Guest
"If you believed you had done nothing wrong, which quite evidently the EFC, it’s coaches and players do, wouldn’t you enact every legal right you have to avoid persecution?" OK, so if they've done nothing wrong, why did they sack Stephen Dank, Dean Robinson, Ian Robson, David Evans, Bomber Thompson and many more? "ASADA took 17 months to issue show cause notices." It was actually 16 months so stop exaggerating. But no matter what, the threat of court action (which was always there) meant they had to have every legal base covered before issuing the SCN's. Events in court since then have justified any delays. "Imagine, ASADA carry out investigation behind closed doors, public oblivious to proceedings." Widespread drug-taking by elite sportsmen is a matter of public interest. I'm not sure what Essendon did to earn the right to keep this secret. You are most likely an Essendon supporter so you are viewing this saga through a biased lens. It's a good thing you weren't on the judiciary that dealt with this- you might've just ordered a closed hearing and then allowed the EFC to bribe its way out of it.
Andrew
Guest
Lost four months, the players tasted finals last year. I would consider those four months to be a loss.
Jack
Guest
The thrust of the article seems sound enough to me. ASADA issued show cause notices on June 12, after which the process basically becomes self-executing. It stopped while Essendon and Hird took their court action, and started again when the case was over. Three months, four months, whatever - the present issues wouldn’t be as bad if it was October or November and not February. That’s not to say last year would have been problem-free either, as someone says above. But there’s no point denying that the court case set the process back, and it was their choice. And they’re paying for it now.
This is a bs article
Guest
1. On face value, the reason for the application for injunction was to argue that the investigation was illegal. Perfectly legal, and well within rights, and had a decent argument. If you believed you had done nothing wrong, which quite evidently the EFC, it's coaches and players do, wouldn't you enact every legal right you have to avoid persecution? 2. If they hadn't lodged the application, provisional suspensions would have prevented Essendon's participation in 2014 finals series. On balance, a good decision - deal with it in the off season. 3. ASADA took 17 months to issue show cause notices. 17 months. After it was announced publicly. Who knows how long they were brewing this one before the "Doomsday of Australian sport"? Who is running that circus? 4. The public announcement made in February 2013 by the federal government on corruption and drugs in sport was the biggest bs show boating, and a major problem in this whole thing. Imagine, ASADA carry out investigation behind closed doors, public oblivious to proceedings. No FOI or public enquiries, no media interference, investigation runs faster, smoother, without public scrutiny and bias. Nobody would be sick of this ordeal. There have been many small mentions of other clubs that were on similar substance regimes, but have all been kept quite hush. Guinea pigs? Who knows? If the tribunal finds EFC players not guilty, ie no illegal substance was administered, EFC, it's members, and entire fan base should be entitled to sue the feds for damages. Guilty or not? The club and its players and supporters have been punished severely anyway. Bans and setting precedent is next to irrelevant. This shemozzel of an investigation has definitely done enough lasting damage to prevent any clubs from employing any such substance programs, legal or otherwise, for a long time.
Aransan
Guest
Sounds logical to me.
NathanS
Guest
Andruska did not "testify in court against Hird". Rather she was cross-examined by the prosecution (lawyers for both EssendonFC and Hird) over the legality of the investigation she was overseeing. I never stated that ASADA were part of the agreement. However, the AFL had at that stage the interim report which showed insufficient evidence to penalize players. To quote from the press release as part of the sanctions placed on Essendon: 'ASADA's interim report was handed to the AFL early this month, and later the league's general counsel Andrew Dillon stated "there is no specific anti-doping rule violation attributed to any individual player" and that no infraction notices would be issued'. Andrew Demetriou also said: "There is no evidence at the moment to issue infraction notices to players about the use of prohibitive substances", but later said, "ASADA has made it clear they have an ongoing investigation, so that part of it remains open". It was always the case that the Show Cause notices were the trigger for Essendon & Hird to launch legal action.
andyl12
Guest
Except that ASADA weren't part of any "gentleman's agreement"- the August 2013 penalties were handed down by the AFL only. And you're wrong that Andruska wanted the matter closed without SCN's- if that was true, she wouldn't have testified in court against Hird.
NathanS
Guest
Except that Hird (and Essendon) only launched legal proceedings as a result of the show cause notices. By August 2013, this was starting to hurt the brand, and the AFL wanted this behind them (in time for the finals series). ASADA at that stage did not have sufficient evidence to prosecute any players, so there was a gentlemen's agreement between Essendon and the AFL that Essendon would take the wrap for bad governance, and that would be the end of the matter; there would be no penalties handed down to the players. Hird was unhappy about his penalty, and considered legal action (as Dr Reid was successful with), but was talked out of it by Essendon so the team could start 2014 with a fresh slate. When Aurora Andruska retired from ASADA in March 2014 and Ben McDevitt took the reins, he ordered a review of the evidence. When he decided to issue show-cause notices against the players, this broke the gentleman's agreement, which made Essendon (and Hird) file legal proceedings.
andyl12
Guest
Good points David. Also, Hird could've launched his court action before the show-cause notices had ever issued, since the crux of his argument related to things that happened around about April 2013. Something tells me Hird didn't want this over quickly.
David Ward
Roar Guru
Show cause notices re-issued on October 17. I'm still a few days out, though, so thanks for the maths lesson. Appreciate it.
David Ward
Roar Guru
Middleton judgment September 19, SC notices reissued October 17. ASADA waited for Essendon's appeal period to expire, for the same reason it waited for the trial to finish. Pretty routine stuff. No idea why ASADA didn't wait for Hird to exhaust his appeal rights. It may have been looking for a reason not to make it more protracted than it had to be, and Essendon's decision provided that. Not sure ASADA would feel obliged to be breaking any land speed records, by that stage.
Milo
Guest
Yep agreed. Thanks Nathan.
andyl12
Guest
Except that 12th of June to 30th of January is 7 months and 18 days. And Hird hasn't even started at the High Court yet!
NathanS
Guest
Yes; TB4 is naturally occurring in the body (thought to be involved with tissue healing and repair). The results from the lab showed no player was above the legal threshold for what's considered normal. However, since there is a threshold, the negative result does not categorically prove that the players were never administered TB4 (although it does make it far less likely).
Phil
Guest
Quick maths lesson the 12th of June to 19th of September is three months and one week...... not four months. So three months and a week out of an investigation that started over two years ago now.... yep big bad EFC for delaying things!
Mister Football
Roar Guru
One would have thought that ignorance is not a defence, but in fact, we have seen recent examples of that being the case: 1. in Cronulla's wet lettuce leaf punishment, one of the reasons stated for allowing such a soft punishment was that the players were "duped", and ASADA accepted this explanation; and 2. the reason ASADA publicly gave for not pursuing AOD was that the players could not have known it was prohibited (which sort of reads like an acceptance that ignorance is an excuse afterall).