One aspect of the Federal Court challenge by EFC will deal with the players potentially being coerced into supplying information on a false premise of immunity. In other words when they should have had the right to not say anything that might incriminate them.
By players even stating they received various injections they believed be to compliant & commentary around the injections ( colour of vials, etc) leaves open the possibility that they inadvertently received a banned substance which risks a Balance of Probabilities (BoP) decision going against them.
That is not to say they took a banned substance just that a BoP decision could go against them in a circumstantial case where the burden of proof on ASADA is less than beyond reasonable doubt.
This I believe is one reason EFC are going to the Federal Court to ‘knock’ out the ASADA/AFL joint investigation, to reduce the risk of a wrong verdict based on circumstantial evidence given under the belief of immunity.
The bottom line is the players don’t know if they took a banned substance and if they did they were unaware, in common law that should be enough. However, athletes via the AFL operate under the WADA code with strict liability which can be blatantly unfair in some circumstances.
Strict Liability was developed on the premise that athletes cannot blame anyone else but themselves if they take banned substances. Too many athletes have blamed Doctors or other officials in the past so WADA through the European Courts won the right to prosecute under Strict Liability.
However, that does not mean in the Essendon or Cronulla cases for that matter that athletes in a team environment could not be genuinely duped or incompetently given banned substances by the sports scientist in charge of their supplement program.
EFC was particularly vulnerable to a sports science saviour in 2011 as too many players had suffered soft tissue injuries again and again. Along comes a sports scientist with new ideas who seems to be cutting edge (hence the secrecy), knows how to put on the charm and loves the idea he can make a huge difference complete with halo. This gets him in the door and for a while at least free reign to save the club from its injury nightmares, in hindsight, foolish by Essendon but not cheating.
Not cheating by the EFC coaches or players!
Under common law principles, intent is paramount. You can accidentally kill someone and not be penalised, however if an athlete accidentally takes a banned drug they will be penalised.
Under the WADA code only in unrealistic exceptional circumstances, like being unconscious! can athletes escape with no penalty.
WADA/ASADA emphasise that it is the athletes responsibility to educate themselves due to strict liability, yet as with AOD 9604 the clarity around banned drugs is murky at best.
WADA made it clear in April 2013 that AOD had been banned since January 2011, EFC players admitted to a belief they took AOD in 2012, yet because ASADA was an unreliable source of information on banned substances, EFC players even under strict liability will escape penalty.
Does this appear strange to anyone? Are ASADA picking and choosing based on their reliability to communicate if a drug is banned?
How do we know if an athlete rang ASADA in 2012 with regard to TB4 that they would be told it’s banned or OK?
The fight against doping is akin to that against computer viruses. By the time a new drug is developed the anti-doping authorities play catch up and ban it. By all accounts most AFL clubs were skating close to the line as the explosion of supplements available and influence of sports scientist to gain an edge developed. The salary cap at work.
The supplement balloon has been pricked, the AFL and its clubs have been given a huge wake up call. Whether EFC players are suspended or not will not make any difference to the already greater awareness of the need for governance around supplements programs and sports scientists.
The moral crusaders like those in the media and many fans need to take a deep breath as seismic change has already occurred in this space. Calling for bans for bans sake to ‘save’ the reputation of the game is ludicrous & somewhat desperate. Justice should always prevail.
Come Friday in the Federal Court we will perhaps understand whether ASADA are either very clever (read sneaky) or incompetent. Nonetheless this is the first skirmish in a long legal battle.