Legal Challenges aplenty with ASADA

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

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. 

A Theory

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.

 

 

AFL Sign of the Times

A sign was confiscated from a fan at the Essendon v Richmond Round 23 game at the MCG on Saturday night 31 August, 2013.  It was bizarre incident that bordered on impinging on freedom of speech. What is going on with our game?

Firstly, if you really wanted to be offensive and have a sign forcibly removed from you there are several levels of protest/offense one could inflict on the AFL that might justify such an action.

For example:

1. Subtle

“Vlad the Impaler”

2. Less subtle

“Demetriou the Destroyer”

3. Direct

“The AFL has brought its own Game into Disrepute”

4. Cranky

“James Hird has been denied natural Justice by the Arrogant AFL”

5. Very cranky

“Definition of Demetriou : Liar, Bully, Miscreant?”

6. Run to the Hills

“Good Evening Mr Demetriou the Australian Crime Commission are Watching”.

Now any of these could signs could be considered offensive by the AFL and laughing boy Demetriou.

But instead a literal “little ol lady” and Essendon member of 50 years held up a sign that preposterously roared: “AFL can take whatever it wants but it can’t take our Passion!”

In a nutshell, a fan wants to express their passion for their football club who rightly or wrongly in terms of severity has been sanctioned by the AFL.

Any fair minded person would agree the sign was not offensive and if anything completely understandable from an Essendon supporter in the circumstances. In other words, you can take our finals spot but you will never take our passion for Essendon.

I was located in the adjacent bay to the incident and keenly observed many fans telling MCG security to politely go away.  Ok it was perhaps a bit crankier than polite especially from those around the poor woman.

However, there was no need for the intervention in the first place. As 2 then 3 security guards tried to justify their actions the protests become louder. This had the potential to boil over into something more serious. The security guards were summarily booed out of the bay and had to return with the Police to extract the sign. (Yes they called the Police)

Essendon fans have put up with a fair bit of vitriol these past 6 months and are genuinely angry with the AFL and certain media types for how they have allowed and participated in the excessive vilification of the club and its people.

It was not an occasion to mess with Essendon fans that deserved a final chance to voice their support. Anyone who witnessed the scenes post siren as Essendon players came to salute the fans will understand. (We Are Essendon – had to get that in)

Rohan Connolly mentioned the sign incident in this article:  

http://www.theage.com.au/afl/afl-news/integrity-cuts-both-ways-20130901-2syyq.html

Connolly subsequently told SEN radio that the AFL had contacted him to advise they did not request the sign’s removal.

I believe Connolly took the call from the AFL and that even in this instance perhaps that they did not specifically request intervention, but one has to wonder if the “policy” for MCG security to follow was set long ago.

The message for fans is that the AFL deems their actions beyond question. I thought the fans owned the game. The fans certainly own the football clubs who via the AFL Commission own the game.

Is dissent not allowed? Is the AFL Commission so precious to be miffed by an elderly lady who is passionate about their own club?

Something stinks Demetriou – there’s a sign.

Is the AFL bringing its own game into disrepute?

I didn’t watch any of the Dean Robinson interview on Channel 7.

 

Dean Robinson deserves natural justice and the courts are the place for him to challenge his suspension and claims made by the Essendon Football Club against him.

 

Dean Robinson chose to end his employment on suspended full pay prior to the findings of the ASADA investigation, his choice. 

 

However, as soon as it was discovered Robinson was being paid a large sum of money by the official AFL Broadcaster Channel 7 I boycotted the interview. If Robinson hadn’t been stood down under full pay the payment for the interview would be understandable.

 

I have since read parts of the interview transcript on the AFL’s own website that pertain to his allegations against Essendon coach James Hird. I can read and hear the fallout uncoloured from seeing the Ch 7 TV special.

 

No matter who you believe this interview has brought the game into further disrepute.

 

The scrutiny on the AFL, clubs and players is immense. The media are doing their job in the main reporting on events and newsworthy claims.

 

I certainly do not blame Channel 7 for paying for another scandal ridden instalment in the soap opera that has become the Essendon ASADA investigation. However, the credibility of a paid interview in a “he said she said” type expose is low.

 

Nothing is proven.

 

The AFL sporting public are no doubt hooked on this story and eagerly await or dread the next development.

 

Depending on your allegiance the Robinson interview added more fuel to the fire and heat on James Hird or reaffirmed your belief that the high profile Essendon coach is an easy target.

 

Either way it’s a bad look for the game. The media attention the AFL crave and seek have lapped it up and made the entire ASADA investigation a tabloid circus.

 

That the AFL website carried an article on Robinson’s interview transcript only adds to the damage to the image of AFL. What are they doing?

 

Essendon according to the AFL self reported to ASADA and the AFL to conduct a joint investigation into the 2012 season.

 

The AFL doesn’t appear to respect its own investigation nor be concerned about the damage to the game by publishing unproven allegations that it must know further damage the image of the game.

 

The AFL CEO Andrew Demetriou says it will not give a running commentary on the ASADA investigation yet its own website does just that reporting on what Robinson said and Hird in reply.

 

If ASADA clear Essendon players or offer no fault type penalties, the AFL it is reported still wants to severely punish Essendon for the reported practices within the High Performance Unit of the club in 2012. A unit headed by Dean Robinson.

 

The ‘Ziggy’ report into Essendon’s governance uncovered other gaps in processes and authority lines.

 

There is no doubt consideration must be given to correct these practices and appropriate penalties handed out to EFC such as a big fine.

 

The charge of ‘bringing the game into disrepute’ is much more complex. Just how much the game has been damaged is a product of the media coverage.

 

There is no escaping media scrutiny however when the AFL itself actively participates it plays a dangerous hypocritical game. I wonder now with Paul Little at the helm if EFC will allow the AFL to cripple with the club with severe punishments given these circumstances.

 

A prime example of the AFL’s own malfeasance.

 

When Andrew Demetriou said on 3AW back in April 2013 that James Hird would have to be considering standing down, this was widely understood to mean this is what Demetriou thinks should happen.

 

Demetriou could have batted it away with a no comment, but instead added that he has inside information about James Hird.

 

Demetriou knew the question on should Hird stand down was coming. As the AFL CEO he chose to answer it thus intensifying the pressure on Hird when the investigation was nowhere near complete.

 

Not long after Demetriou publically went quiet on his thoughts about James Hird.  The timing was around James Hird’s ASADA interview that we now know included Hird’s statement that the AFL CEO Demetriou tipped off Essendon about the ACC report.

 

The AFL will not sanction itself for bringing the game into disrepute. 

However, I would caution the AFL to appropriately sanction Essendon for its part in this sorry saga without the mayonnaise laid on by the media and the AFL itself.

 

 

 

In reply to Jake Niall (The Age)

Dear Jake,

Thank you for your letter and thoughts on the Essendon-ASADA investigation.

http://www.theage.com.au/afl/afl-news/dear-bomber-fans-20130720-2qbkc.html

You raise some good points although I don’t think anyone can predict the future especially with so many missing facts and elements yet to be revealed.

As an Essendon member it strikes me though that Fairfax Media in particular has spent an absurd amount of time trying to unravel Essendon and its people yet have spent so little time on external parties.

For example; the situation regarding the former Essendon sport scientist. Often the media paint the ‘scientist’ as an Essendon scapegoat.

However, I ask where is the media scrutiny on the supplement expenditure at Essendon? Why was the sport scientist allegedly sacked at Essendon?

Fairfax Media I assume are able to sniff the scent of the smoking gun in the ASADA investigation?

Unless of course Caroline Wilson can reveal through her sources that James Hird was in fact also secretly working with Cronulla and Manly in the NRL.

I am also surprised the media has not shown more than a modicum of interest in the organised crime elements of the ASADA investigation. Cynically, I say to myself perhaps James Hird sells more papers than the faceless men of the underworld.

It’s clear though that the ACC and ASADA have bigger fish to fry than a juicy golden fish finger like James Hird.

Essendon has stuffed up. The Ziggy report confirms this and Essendon members are rightfully disappointed that the club is in this situation. We will cop our whack as long as it is fair for the crime committed.

In the meantime, as delusional Essendon fans in a state of denial we will continue to support of our club and James Hird.  They need us more than ever.

I just ask, can the media lower their eyes and spot more than one target in the forward 50?

Yours Sincerely,

Darren Reid

Essendon member

What do Essendon & Cronulla have in common?

As the calamitous events around Cronulla unfold, the inevitable comparison with Essendon has begun.

The obvious common factor is sports scientist Stephen Dank. Dank worked at Cronulla for 3 months in 2011 and for 9 months at Essendon in 2012.

Dank is alleged to have stepped over the WADA line with both clubs with his use of supplements/drugs and intravenous injections. A clutch of NRL clubs are also under suspicion as they engaged Dank at some point. That is quite a trail of potential destruction to reputations due to one man.

However, it does not necessarily follow that what has occurred at Cronulla will be replicated at Essendon in terms of potential ASADA breaches and subsequent sanctions. Nor that the likely fallout and management action by the two clubs will follow the same course.

For starters, the investigation into the two clubs is quite different.

In the Australian Crime Commission’s report into Organised Crime & Drugs in Sport it makes mention of a club being under suspicion for systemic banned supplement use.

Most media commentators now assume this was a reference to Cronulla as they appear to be at the pointy end of the ASADA investigation compared to Essendon whose investigation has only been running for a month or so.

At the time the report was published most assumed ‘Page 17’ of the report must have referred to Essendon as it was the only club identified.

The Cronulla situation came to a head when media reports suggested up to 14 players were to be offered 6 month bans in exchange for a guilty plea due to alleged use of equine drugs banned by WADA.

What followed at Cronulla was a shambles. 4 senior staff sacked & the coach suspended by the Board, followed by the Chairman of the Board himself standing down.

This is not a way to manage your club in a crisis, hardly a blueprint for other sporting organisations to follow.

The NRL has had no choice but to parachute in management and key staff to rescue the club.  Although in the NRL’s case it might suit another agenda.

There has been no such collapse at Essendon, despite a similar threat posed by the ASADA investigation.

The Chairman, CEO and Coach at Essendon fronted a press conference and announced they were calling in ASADA and the AFL to investigate. This was followed by a request for an external management review of ‘irregular’ practices at the club.

The only similarity was the removal of the High performance Manager at each club, although in Essendon’s case Dean Robinson was stood down not sacked.

It would be naive though to suggest that both Cronulla and Essendon did not have some idea of a massive problem prior to these events. To that end there will be consequences at Essendon once the facts are known but not kneejerk sackings.

The type and nature of supplements in use at Cronulla v Essendon is a complete unknown. There appears to be evidence by virtue of the 6 month offers to players that banned substances have been taken at Cronulla.

External and internal messages to date suggest Essendon maybe in more trouble for the methods used (injections) rather than performance enhancing drug use.

A whistleblower exists in the Cronulla case, none to date at Essendon.

If the worst case occurs for both clubs and ASADA bans multiple players or the whole club, the outcome will also be different in terms of how each governing body manages the impact.

The NRL is behind the AFL in its expansion plans. It has designs on a team in Western Australia and South Australia where it has no presence. There is also an extra team in Queensland and New Zealand as possibilities.

The NRL perhaps might have engineered the removal of the entire management structure at Cronulla so it can effectively control the destiny of the licence depending on the severity of the ASADA bans.

The AFL on the other hand has already taken bold steps in expansion with two new clubs in NSW and Queensland. Consolidation is the mantra for the AFL. There is no need to weaken Essendon anymore than it deserves.

Cronulla is a relatively unsuccessful club with a small fan base. Essendon has been a very successful club for much of its existence with an enormous fan base.

The attitude of NRL v AFL fans is also different.  NRL fans of other clubs see a crippled or missing Cronulla perhaps as an opportunity; AFL fans in the main see a crippled or missing Essendon as unfavourable to the competition as a whole.

I think the latter response is correct for both NRL and AFL fans as the whole situation is tragic for the fans of the clubs involved and there are unforeseen serious consequences to the respective competitions.

The bottom line is that no-one really knows what has occurred so it is too early to make bold statements that Cronulla and Essendon are on the same trajectory.

White Line Cure

In the aftermath of the announcement of ASADA’s investigation into Essendon, Bomber fans feared for the first time in our lives for the actual survival of the football club.

That first week was truly gut wrenching. Running into fellow Bomber work colleagues the pervading feeling was despair at the possible fate of Essendon.

Caroline Wilson of The AGE and Patrick Smith of the Australian stabbed all Essendon fans through the heart with their attack on James Hird calling for him to be sacked.



James Hird is held in the highest regard by Bomber fans, this premature attack only compounded the pain and galvanised Essendon fans who banded together on Twitter and radio to share the pain and anger.

Amid constant media speculation a few voices of reason like David Parkin spoke out in defence of not only Essendon but also James Hird. The main message was we have to give ASADA time to investigate before passing judgement on what has occurred.

The mood has certainly turned, only a few people believe the Bombers have deliberately instigated a program of performance enhancing drugs or worse one conducted by James Hird.

Essendon are still potentially in trouble for some of the practices adopted by the sports science department. However, a glimmer of hope has emerged that it could have been a suspect by association due to a wider ACC/ASADA investigation into supplement importation and the shady characters that lurk around the corner from the local chemist.

You tend to become a news junkie in this situation reading everything on the subject fair or unfair. In the end more questions than answers emerge, the angst remains.

The ASADA investigation is likely to take at least 3 months so we won’t know the fate of the players, coaches, officials or club as a whole for awhile yet.

The boys from AFL360 at half time,
 no doubt the ASADA investigation
 dominated discussion.

I attended the first NAB Cup game at Etihad Stadium with a group that included two Collingwood and two other Essendon fans. Some pre game beers and good conversation that touched on the drug issue which had permeated all football fan thoughts of late, well Essendon fans anyway.

Essendon were to be playing Collingwood and the Western Bulldogs.

I fully expected Essendon and its fans to cop a barrage of abuse from fans of the other clubs. Lining up for a ticket the queue was populated with all denominations, not a peep from any of them.

Entering the ground Essendon received a raucous welcome from the Bomber faithful, barely a boo could be detected.  This was unusual!

After occupying standing room on the first level I noted a good crowd of around 27,000 had come to the ground.

The game between Essendon and Bulldogs got under way and the relief was tangible, footy is back. Players chasing the Sherrin, calls for holding the ball, a great mark, snap at goal, some good teamwork. “Whose the new kid, no. 38 for Essendon looks a likely type?”

A game of Australian football, the reason we are all here was being played. It is the reason we come to watch and care about our club.

This wasn’t white line fever it was white line cure.

AFL CEO Succession Plan is in tatters

 In July 2012 Andrew Demetriou took an extended break from the game during the season. Sure the Olympics were on and that explains two weeks, however the break was more like two months.

This long break certainly raised a few eyebrows, for mine Demetriou has been off his game ever since. In my opinion, a number of factors add up to his likely resignation in the not too distant future. However, there could also be some collateral damage along the way.

Firstly, I think he is tired and ready to move on after 10 successful years at the helm.

Analogous to Jeff Kennett’s reign as Victorian Premier (ironic yes) Demetriou took some major decisions and has presided over significant step change development for the code.

The next few years will be much tougher and less interesting in a positive way. They will be about consolidation not expansion. They will be entangled in a complicated landscape of drugs both illicit and performance enhancing, issues around betting integrity and player injury management.  

None of those issues are easy to navigate but easy fodder for critics. You have to admit to a problem to be dealing with it.

Media foot soldiers from other codes like Francis Leach will regularly take their stick to whack the big AFL piñata as Leach called the AFL administration on the ABC Offsiders show last weekend.

The AFL CEO has been like the big dog of Australian sport with the little dogs always barking at his heels. In the past, the big dog would laugh and trundle off with his head held high, often justifiably.

Even the staunchest of AFL fans though are questioning how Demetriou has handled the tanking fiasco.

The second factor revolves around Gillon McLachlan now No.2 at AFL house.

According to the media the NRL went after McLachlan to secure him as their CEO with the dumping of David Gallop last year.

This seems to have prompted a “Kirribilli” type agreement between Demetriou and McLachlan to ensure he stays in the AFL and is groomed as the next AFL CEO.

There is no public evidence of this agreement beyond the elevation of McLachlan and the departure of Adrian Anderson in December 2012. Most people though have read between the lines and it’s pretty obvious a succession plan has been put in place.

This leads to the third factor centred on the handling of tanking.

It makes sense that if your grooming a CEO you get him out in the public eye as much as possible. This enables the fans to become familiar with McLachlan as the face of the game.

It was McLachlan who a few weeks ago held a press conference to provide an update on ASADA’s investigation into Essendon and at least one other player from another AFL club. This is a matter of the highest priority for the AFL.

It was McLachlan again on his own who conducted a presser to announce the fine and suspension at Melbourne FC for “not tanking”.

It is fact Demetriou’s own denial of tanking in the past that gave the AFL a much bigger head-ache from a PR perspective.

I’m sure the legal ramifications of admitting tanking occurred are far reaching and need to be handled carefully.

However, McLachlan was not only given a difficult message to sell he botched it through poor preparation by denying tanking occurred and then suggesting he doesn’t know what tanking is.

McLachlan should have been prepared on the tanking question and made a statement to the effect that whilst ‘tanking’ is American slang, the AFL deems its use by the media to mean tanking by players on the field.

 He did say there was no evidence of the players deliberately trying to lose games but should not have insulted everyone’s intelligence by feigning ignorance of tanking which has so permeated the game’s vernacular.

The upshot is Demetriou’s tenure as CEO is seriously in doubt beyond this season. However, his natural successor in McLachlan has taken an enormous public perception hit by association and also by his own doing.

Perhaps the fans are better off knowing that McLachlan is not up to the task as AFL CEO, one of the most difficult jobs in the sporting world. The AFL Commission though has the biggest issue, finding a successor for both.