The AFL Tribunal’s hearing into the supplements charges against 34 past and present Essendon footballers, which started back in December, continues this week with the players’ representatives outlining their defences.

It is the latest step in the long-running saga that has already dominated headlines throughout the 2013 and 2014 seasons.  The hearing is being conducted behind closed doors, with only the bare minimum of updates being provided to the footy-loving public.  While that makes it virtually impossible to report on how the hearing is actually progressing, we can make some general comments about the process and the potential ramifications to the players.

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Recap

Firstly, a quick summary of what has happened to this point:

  • ASADA’s investigation into the supplements scandal began in February 2013.
  • In June 2014, ASADA issued notices to the 34 players inviting them to show cause why an adverse finding should not be made against them.
  • Essendon, along with then-suspended senior coach James Hird, brought proceedings in the Federal Court the following day seeking to set aside the notices on the ground that ASADA’s investigation was not conducted lawfully.
  • After an expedited three day trial, in September 2014 Justice Middleton handed down his finding, ruling that ASADA’s investigation had been lawfully conducted.  (Hird, but not Essendon, has appealed that finding).
  • Following the ruling, ASADA issued fresh show cause notices to the 34 players.  Each of them contained approximately 105 pages of evidence, although their lawyer Tony Hargreaves has called the material a “summary of evidence” that has been known since last year.
  • Under the NAD scheme, the players were given ten days to provide a written submission setting out information or evidence relating to the possible rules violation.  The players chose not to respond to the new show-cause notices and instead requested that the notices be considered by the Anti-Doping Rule Violation Panel urgently.
  • The ADRVP duly determined that there was sufficient evidence to make a finding against the players, and the AFL subsequently issued infraction notices to the players on 14 November.  A provisional suspension began on that date, although exceptions were granted to Jobe Watson and Dustin Fletcher to appear in the International Rules series.

Proof of an offence

For a charge to be made out under the anti-doping code, ASADA is required to demonstrate, to the “comfortable satisfaction of the hearing panel, bearing in mind the seriousness of the allegation” that an offence has occurred.  That is an unusual standard of proof in the legal world, sitting somewhere below the “beyond reasonable doubt” standard applying to criminal cases but above the “balance of probabilities” standard in most civil matters.  The standard of proof will be particularly relevant to the current Tribunal proceedings as the charges rely on a sizeable body of evidence rather than on a positive analytical finding.

The WADA Code is a strict liability regime and an underlying principle of the code is that each athlete has personal responsibility for the substances that enter their body.  Intent, knowledge, fault and negligence are not relevant factors when determining whether an offence has occurred (although they may be relevant in relation to penalty).  The question that the Tribunal will have to ask itself is whether it is “comfortably satisfied”, on the basis of the evidence presented by ASADA, that the 34 players used a prohibited substance.  The charges against each player must be considered separately, so it is possible that some players will be found guilty and others cleared.

Potential penalties

If any or all of the players are found guilty, the critical question (not only for the players themselves, but for Essendon and the AFL as a whole) will be the length of the suspension they are required to serve.

The standard penalty for a first offence is a two-year suspension. That may be reduced by up to a year where the player can demonstrate he bears no significant fault, or by up to 18 months if he has provided substantial assistance to the anti-doping body.   (On the other hand, it may be increased where “aggravating circumstances” exist, up to a maximum penalty of a four-year suspension for a first offence, but that is unlikely to apply in this case.  Similarly, the penalty can be reduced to zero if the player demonstrates that he bears no fault, but that is an almost impossible task and unlikely to be available to the Essendon players.  For example, the commentary within the WADA Code states that athletes bear responsibility for their choice of medical personnel and for advising medical personnel that they cannot be given prohibitive substances).

As a starting point, any suspension will be backdated to commence on the date on which the players’ provisional suspension began (November 14th).  The suspension may be backdated to an earlier date in a limited number of circumstances, including where there have been substantial delays beyond the players’ control.  The unsuccessful Federal Court action (which the players were careful not to be seen to support) would arguably provide a basis for the Tribunal to backdate any suspension.

A possible likely scenario, if the players are indeed found guilty, is that a 12 month suspension is imposed (due to the players demonstrating that they bear no significant fault for the offenses) and backdated to 13 June 2014, the date on which the original show-cause notices were issued.   That would result in players missing ten rounds, which would be a significant impost for Essendon who would lose at least 13 and up to 25 players for almost half the season