Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

[Malifice]

Do you remember there were complaints by Essendon, Hird, Dank etc. that they hadn't received their copies?

Yeah. From what I gather from the nondisclosure rules, the only information that is prescribed as forbidden to be released is 'personal information' so as long as it was all redacted, ASADA should still be OK.

 

[blackshadow]

Paragraph 7 of the Statement of claim seems to suggest that ASADA provided it.



http://www.fedcourt.gov.au/__data/assets/pdf_file/0015/25233/Essendon-Orginating-Appliation.pdf

Reading between the lines, it appears fairly clearly as if both the EFC and James Hird are claiming the process is flawed because both the EFC and James Hird recieved copies of the Interim report... when they shouldnt have as this breached the nondisclosure provisions of the ASADA Act and the NAD!

The cheeky buggers.



Looks like that a vital part of their case, so yeah.

My basic reading of it is that point 7.4 is the relevant one but the applicant doesn't know who these mysterious people are.... If the applicant doesn't even know who they are it will be interesting to prove how ASADA provided the interim report.

The parties listed under sections 7.1, 7.2 and 7.3 all appear to be entitled to receive copies.

Cleaver Green would have a field day with 7.4.

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[Malifice]

Cheeky yes, and I do not see how it will win them the case. Incorrectly providing the report does not render the entire investigation unlawful. They need the "joint investigation" to be considered unlawful to do that. Maybe its backup to the attack on the joint investigation, intended to prove some elements of their case re the "joint investigation".

The Statements of Claim state the joint investigation was unlawful under the ASADA Act, but give no legal explanation or reasoning as to why the Claimants assert this to be so aside from a very general statement.

IMO, both the Act and the NAD scheme clearly contemplates not only information sharing between the AFL (and other sporting administration bodies) and ASADA, but also expressly contemplates such a joint investigation.

Im at a loss as to how the EFC are challenging its validity.

They have a cheeky argument to run in relation to the Non-disclosure argument though.

 

[jenny61_99]

According to Gallbally, it was the AFL that provided the copies of the reports.

http://newsstore.fairfax.com.au/app...ls=15830&clsPage=1&docID=AGE130809HL68MFBM9ER

 

[Malifice]

According to Gallbally, it was the AFL that provided the copies of the reports.

http://newsstore.fairfax.com.au/app...ls=15830&clsPage=1&docID=AGE130809HL68MFBM9ER

Thats probably where the MOI kicked in:

(4) If a body mentioned in subclause (2) is not subject to the Information Privacy Principles or the National Privacy Principles contained in the Privacy Act 1988 or a law that is substantially similar to the Information Privacy Principles or the National Privacy Principles, before disclosing personal information to the body, ASADA must enter into a legally binding agreement with that body to ensure that any personal information that is disclosed is:

(a) not used or disclosed by that body for a purpose other than the purpose for which the information is given to the body; and

(b) securely retained and restrictions placed on who can access the information; and

(c) destroyed or returned to ASADA once the purpose for which the disclosure is made is completed.

http://www.comlaw.gov.au/Details/F2008L03530

 

[Chameleon75]

The Statement of claim seems to indicate that ASADA released the report to Hird and the EFC and 'persons unknown'.

If thats so, that could very well be a breach of the NDD provision in the Act (unless personal information was redacted - I'm not entirely sure when the redaction of player names occurred.)

I recall the acc report couldn't be released to sporting bodies initially, then they found some way of getting around that. Wonder if there is some loop hole used to enable it to be released to hird. The other unnamed parties seems to imply that it was leaked.

 

[Crankyhawk]

Would you plead innocent if you really knew you were guilty?

And how should you plead if you really don't know if you are innocent or guilty?

 

[NikkiNoo]

I think it's more likely that the AFL shared information they had been provided with by ASADA with Essendon, Hird and 'persons unknown' than ASADA providing this information.

Wouldn't Essendon categorically have to provide proof that ASADA shared information unlawfully for this to stand up?

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That was my understanding too. Essendon said it had to go to AFL House to view the interim report didn't they? So it was the AFL that released that information to them, not ASADA.

 

[Baldur]

The Statements of Claim state the joint investigation was unlawful under the ASADA Act, but give no legal explanation or reasoning as to why the Claimants assert this to be so aside from a very general statement.

IMO, both the Act and the NAD scheme clearly contemplates not only information sharing between the AFL (and other sporting administration bodies) and ASADA, but also expressly contemplates such a joint investigation.

Im at a loss as to how the EFC are challenging its validity.

They have a cheeky argument to run in relation to the Non-disclosure argument though.

Yea

I just cannot see how the report being declared ultra vires gets the investigation declared ultra vires. Its the investigation they need to declared ultra vires.

 

[FrancisX]

Don't know if this has been asked... Any chance Thymosin is not the only drug that ASADA will prosecute and AOD will come up again in seperate charge ...among potential others ... Or is everything on Thymosin only?

 

[Malifice]

Yea

I just cannot see how the report being declared ultra vires gets the investigation declared ultra vires. Its the investigation they need to declared ultra vires.

They're (EFC and Hird) going to claim that the release of the interim report was a breach of the ND provisions of the ASADA Act, and as a direct consequence it invalidated the whole investigation and unfairly prejudiced the people being investigated.

Effectively the EFC and Hird look like theyre going to run an argument claiming (of all people) they shouldnt have been given a copy of the report containing list of player names and other 'protected information' as they are the very people whom employ the players, and as such it prejudices the players.

Its a bloody cheeky argument to run.

 

[Malifice]

Don't know if this has been asked... Any chance Thymosin is not the only drug that ASADA will prosecute and AOD will come up again in seperate charge ...among potential others ... Or is everything on Thymosin only?

Thymoisin only. Mcdevitt was clear that AOD is out the window pre WADA statement on its legaility.

They dont need AOD - the thymoisin argument (assuming it doesnt get turfed out for procedural reasons) is a slam dunk.

 

[Malifice]

I can see the thrust of the argument from the players perspective.

The player is entitled to privacy until such time as they are entered on the Register of Findings. ASADA are empowered to tell the AFL that they are invistigating the player, and to request assistance in the investigation, but neither the AFL or ASADA can tell anyone else (inclusing the players club or the head coach) that the player is being investigated.

Laughably, it seems the EFC and Hird are prepared to give evidence in Court that the AFL and/or ASADA breached the ND provisions of the ASADA Act by providing them both with 'personal information' in contravention of the ASADA Act.

Demetrious alleged tip off is also certainly also going to feature.

 

[Bobby Charlton]

Any of you legal wizz-kids got comments on this (extracts only)?
http://blogs.crikey.com.au/northern/2014/06/16/essendon-and-hird-v-asada/?wpmp_tp=0

Essendon and Hird v ASADA
by Bob Gosford
Australian politics
Deakin University law lecturer Martin Hardie looks at the Australian Sports Anti-Doping Agency (ASADA) and Australian Football League (AFL) joint investigation and recent developments.

The question of the joint investigation’s consistency with existing Australian legislation that governs the powers and activities of ASADA is the key issue for consideration in the case filed by Essendon and James Hird in the Federal Court last Friday.
.......
A jurisdictional error leads to the complete process being found to be invalid and unlawful. At no time prior to the disclosures that constitute the joint investigation did the CEO exercise the necessary discretion in order to be properly satisfied in law that the disclosures were for the purposes required by the NAD Scheme.

Last weekend, following the commencement of the Federal Court action to have the investigation declared in valid the new CEO of ASADA Ben McDevitt either doesn’t understand how the anti doping regime works or is deliberately obfuscating.
.......
What is clear is that the ASADA Act sets out is a regime for anti doping investigations to be conducted independently of sporting organisations .

The current legal situation is acknowledged by the AFL in its own Anti Doping Code. In Clause 4 the AFL recognises ASADA’s charter to conduct its own investigations.

That Clause states that ASADA will (or better may) provide regular reports to the AFL on ASADA’s conduct of its anti doping functions subject to ASADA’s enabling legislation and that ASADA will perform and conduct anti doping functions and powers in accordance with the AFL Anti Doping Code in so far as it does not conflict with ASADA Act and the NAD Scheme.

In flouting these provisions and those of the ASADA Act both the AFL and ASADA have conducted an investigation that manifests all the problems identified by the Anderson Enquiry – poor investigation skills, conflicts of interest and lack of legal capacity.

Isn't it also of legal interest that BM has been offering plea bargains via the media whilst the players are known to presently have counsel?

 

[mickeyjuice]

I think AOD will not be an ASADA issue but a worksafe (although sen reported that players don't pay worksafe premiums so unknown if covered) or a TGA issue.

IIRC, there's two parts to the Worksafe deal, and so not paying premiums (and thus not being covered for workers compensation, etc.) is totally unrelated to the duty that Essendon Football Club has to provide a safe workplace (ie not run "chemistry experiments" on their playing staff).

 

[Malifice]

Any of you legal wizz-kids got comments on this (extracts only)?
http://blogs.crikey.com.au/northern/2014/06/16/essendon-and-hird-v-asada/?wpmp_tp=0

In a nutshell I disagree with his points. The NAD scheme clearly authorises information sharing between agencies and disclosure to sporting bodies. It expressly requires sporting bodies to cooperate with ASADA in any investigation.

If ASADA requested a joint investigation, the AFL are bound to assist under the NAD scheme.

Like Mcdevitt said, ASADA cant invstigate all Australian sports on its own. The way the NAD scheme is set up clearly acknowledges this fact IMO.

 

[blackshadow]

Any of you legal wizz-kids got comments on this (extracts only)?
http://blogs.crikey.com.au/northern/2014/06/16/essendon-and-hird-v-asada/?wpmp_tp=0

Isn't it also of legal interest that BM has been offering plea bargains via the media whilst the players are known to presently have counsel?

I'm no legal eagle but I take the words of a paid consultant for Essendon with a massive grain of salt. Especially someone who has had his own personal axe to grind against anti doping laws.

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[Belnakor]

Just on the players - i think it makes sense that they would have absolutely nothing to do with this first action. It is really a free kick for them. If Essendon win, all good. If Essendon lose, the players still have the option to beg ASADA for lighter penalties. if they were involved in the first action ASADA would quiet rightly say they didn't co-operate.

 

[Evelyn208]

Effectively the EFC and Hird look like theyre going to run an argument claiming (of all people) they shouldnt have been given a copy of the report containing list of player names and other 'protected information' as they are the very people whom employ the players, and as such it prejudices the players.

Its a bloody cheeky argument to run.

If the players are prejudiced against their Employer (EFC) how does this impact the AFL Tribunal? The AFL Tribunal decide the penalties not EFC.

Also as the AFL distributed the report, how can they claim ASADA was in the wrong?

 

[Armchair Critic]

Just on the players - i think it makes sense that they would have absolutely nothing to do with this first action. It is really a free kick for them. If Essendon win, all good. If Essendon lose, the players still have the option to beg ASADA for lighter penalties. if they were involved in the first action ASADA would quiet rightly say they didn't co-operate.

I disagree , if the players are going to wait to find out if they can get off on a technicality that could drag on for months ASADA are not going to let them run to them for a Substantial assistance discount if it falls over.

 

[Dicky_Knee]

What are the odds this will be thrown out of court in the first instance?

 

[jerry springer]

Pretty good read

http://sociallitigator.com/2014/06/...tion-against-asada-out-of-bounds-on-the-full/

 

[Belnakor]

I disagree , if the players are going to wait to find out if they can get off on a technicality that could drag on for months ASADA are not going to let them run to them for a Substantial assistance discount if it falls over.

they'll ask for 30 day extension so at the very least they wait and see what happens with the Essendon/Hird challenge. Costs them nothing to wait until the 26th, and then they can move from there.

 

[Bobby Charlton]

In a nutshell I disagree with his points. The NAD scheme clearly authorises information sharing between agencies and disclosure to sporting bodies. It expressly requires sporting bodies to cooperate with ASADA in any investigation.

If ASADA requested a joint investigation, the AFL are bound to assist under the NAD scheme.

Like Mcdevitt said, ASADA cant invstigate all Australian sports on its own. The way the NAD scheme is set up clearly acknowledges this fact IMO.

Wouldn't there be an issue if it could be shown or established that ASADA provided the AFL with personal and other information for the purposes of AFL pursuing governance breaches which did not constitute doping infringements? That could surely not be claimed to be an action under the Act.

 

[Armchair Critic]

If the AFL were sitting in on the interviews how can Essendon claim ASADA shared the information, didn't Essendon share the information.

Obviously if it's rules the investigation was illegal fair enough but if it's just the interim report then I cant see it