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

[Gigantor]

There are many people in prisons that still claim their innocence. Doesn't mean they are innocent.

at least those people received a fair trial based on the presumption of innocence

 

[Hearts to hearts]

So what are you saying,

That ASADAs investigation into players allegedly being administered PEDs by their club is the opening salvo to some covert attempt by the government to oppress any peoples with any views contrary to their own.

Does that seam plausible to you?
Or rather a Governing body (ASADA) placed in a difficult and unprecedented position attempting to deal with a complicated investigation making a few errors along the way?
My point is in THIS situation, based on the second scenario(my interpretation) , people are more worried about the truth coming out and justice being done. Rather than the investigative bodies evidence being thrown out due to procedural oversights.

Sorry, but it would be great if you could make these general points in one of the other threads. Bobby Charlton may be a pill, but his/her posts are (this time) on topic, focused on the legal processes.

 

[Malifice]

I have a silly "what if" question. What if Essendon make it to the end of the season before there is a decision and then decide to turn over 10 players (that had been issued SC letters). Could a player bring an action suggesting their delisting was adversely affected by the fact they received a SC letter? The club is punishing the player for their own wrongdoing by making this tactical decision to turn over so many players.

If a player got delisted on account of a SC notice that they got as a result of the clubs negligence, then yes.

 

[ScallyWag1]

I did find this part interesting...

Former ASADA boss Richard Ings said if the interim report made inferences that reflected poorly on an individual - and that individual was not given the opportunity to respond before the report was tabled - it could jeopardise the entire investigation. And a source closely involved in the case said the interim report appeared to contain "significant breaches of the ASADA Act" that could render the 400-page document - produced after six months of investigation - legally invalid.

It obviously flags to ASADA they type of tactic that EFC and Hird are now adopting and is probably why Gary Downes got involved.

Just speculating, but is it possible that even though the interim report was prepared based on info from the joint ASADA/AFL investigation, it was only released on an interim basis so that the AFL could act on it (subsequently removing Essendon from the 2013 finals, Hird suspension, etc) prior to the finals?

Technically speaking haven't ASADA only just tabled their report, (hence the SC notices)? Every affected party has well and truly had a chance to respond by now..So if anything they'd be arguing that it was unfair for the AFL, not ASADA to act on an interim report last year before all affected parties could respond?

 

[Malifice]

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?

No, it prejudices the players having their employers know that they are being investigated.

Your club could trade you, delist you etc before you even got a SC.

 

[Mordecai]

If a player got delisted on account of a SC notice that they got as a result of the clubs negligence, then yes.

Are you also saying this would be very difficult for a player to prove?

 

[Malifice]

The application is looking to impeach the investigation as a whole, so there shouldn't be any issue of standing in my view.

That and the EFC stand to lose tens of millions of dollars if the SC notices stick, so they have standing for sure.

Just found it intresting that the players arent getting involved. Wondering what to read into that.

 

[Gavstar]

Malifice

Any opinion on my previous post about how this process interacts with WADA and it's rights to take action in CAS? Where in the process does this right become active?

Also given that most of the confidential information that could lead to the identification of persons in the interim report was leaked by Hird/EFC camps (strange side effects in coaches etc) how does this effect the claim? In my view these "leaks" were made with the strategy to discredit the process as being unfair. EFC/Hird have directly contributed to the impact (damage) of what they claimed ASADA shouldn't have done.

 

[Malifice]

Are you also saying this would be very difficult for a player to prove?

Probably.

Pretty easy for a better player to prove. Fringe players or rookies not as much.

Essendon have already moved on 14 of the 34 players named in the SC's. Theyll no doubt trade or delist more this season, further limiting fallout.

 

[FrancisX]

I think I read somewhere today that the players are having a meeting today with the ALFPA to discuss their representation.
Will be interesting to see if they keep with the EFC line or if they go their own way an retain outside representation

Suspect they will be too intimidated to go on their own way.

 

[Thrawn]

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 believe the personal info was redacted before ASADA handed them the report. If that's the case, then Essendon can't argue for a breach, can they? Not that I think that in itself would have much affect on the evidence being considered (un)lawful.

 

[hoianbulldog]

Probably.

Pretty easy for a better player to prove. Fringe players or rookies not as much.

Essendon have already moved on 14 of the 34 players named in the SC's. Theyll no doubt trade or delist more this season, further limiting fallout.

if I was a young fringe player that got delisted id argue the trauma of the investigation impacted my ability to play football. Cutting short my 10 year $500k pa career.
would that fly?

 

[Malifice]

Malifice

Any opinion on my previous post about how this process interacts with WADA and it's rights to take action in CAS? Where in the process does this right become active?

It is my understanding that WADA (as an international body) and CAS (as a foreign court) technically have no authority in a domestic competiton within Australia at all.

They derive jurisdiction with the AFL (and other parties signed up the NAD scheme) via mandatory 'rules' Tthat the NAD requires to be contained in the specific sports anti doping code. Basically its a precondition of signing up to the NAD scheme that you agree to allow WADA to 'come in over the top' and appeal in your particular sports anti doping code.

In the case of the AFL, WADA has a very broad range of powers to go to the CAS for a number of appeals under the AFL doping code (see s17):

http://www.aflcommunityclub.com.au/fileadmin/user_upload/Play_AFL/AFLAnti-DopingCode2010ASADA.pdf

Of course the AFL isnt bound by the decision of a foreign court, but you would assume they would follow any such decision.

That said, WADA arent bound by Australian administrative law either. I would assume, if ASADA lost this case in court, WADA wouldnt intervene. Even if they did go to CAS independently, and even if CAS made a different ruling, WADA have no power to enforce such a ruling in Australia, and no Australian judge would (or could) let an international sporting quasi-judiciary body 'overrule' the inherent jurisdiction of the High Court of Australia!

Then the EFC would just thumb a big 'Come at me brah' to WADA.

Also given that most of the confidential information that could lead to the identification of persons in the interim report was leaked by Hird/EFC camps (strange side effects in coaches etc) how does this effect the claim? In my view these "leaks" were made with the strategy to discredit the process as being unfair. EFC/Hird have directly contributed to the impact (damage) of what they claimed ASADA shouldn't have done.

We're speculating - we technically dont know where the leaks have come from yet.

I think the argument really is that the Hird camp (and the EFC) shouldnt have seen the interim report (assuming it contained personal information) in the first place.

 

[Argy]

I suspect that, regardless of whether ASADA is found to have acted illegally and is injuncted from pursuing the players, EFC is not off the hook. The AFL has an ability (and probably a moral duty) independent of ASADA to prosecute the players, club and officials.

Clause 4.2 of the AFL Anti-Doping Code says...

4.2 The AFL has a responsibility to encourage and promote competition free from Prohibited Substances and Methods and to prevent doping practices in sport. To facilitate this object, the AFL specifically recognises ASADA and its functions and powers. ASADA agrees that the AFL retains all functions and power s relating to this Code, including all functions and powers relating to the issuing of an infraction notice, the convening of hearings, the presentation of allegations of an Anti Doping Rule Violations at a hearing and all matters incidental thereto.​

Of course, it needs the political will to do this. If the issue begins to harm the AFL enough then it might be motivated.

 

[Malifice]

I believe the personal info was redacted before ASADA handed them the report. If that's the case, then Essendon can't argue for a breach, can they? Not that I think that in itself would have much affect on the evidence being considered (un)lawful.

I dont know if it was redacted before the EFC or Hird saw it. The final version released to the public by the AFL certainly was.

Even then, it arguably probably still shouldnt have been released to enforce 'governance failings' (i.e. non NAD related charges) to Hird, the EFC or the public.

 

[Malifice]

I suspect that, regardless of whether ASADA is found to have acted illegally and is injuncted from pursuing the players, EFC is not off the hook. The AFL has an ability (and probably a moral duty) independent of ASADA to prosecute the players, club and officials.

Clause 4.2 of the AFL Anti-Doping Code says...

4.2 The AFL has a responsibility to encourage and promote competition free from Prohibited Substances and Methods and to prevent doping practices in sport. To facilitate this object, the AFL specifically recognises ASADA and its functions and powers. ASADA agrees that the AFL retains all functions and power s relating to this Code, including all functions and powers relating to the issuing of an infraction notice, the convening of hearings, the presentation of allegations of an Anti Doping Rule Violations at a hearing and all matters incidental thereto.​

Of course, it needs the political will to do this. If the issue begins to harm the AFL enough then it might be motivated.

The code doesnt overrule the inherent jurisdiction of the High Court im afraid.

Assuming (big 'IF') EFC are succesfull in this challenge, they would ask for a declaration that the process was unlawful and a permanent injunction against ASADA from entering a player on the register of findings.

If no player gets entered on the register, the AFL has no power to infract and stand a player down.

And even if they tried to, there would be another injunction application launched quick smart to stop them.

That said, I highly doubt that the EFC will get such an order even if they succeed here.

 

[Malifice]

if I was a young fringe player that got delisted id argue the trauma of the investigation impacted my ability to play football. Cutting short my 10 year $500k pa career.
would that fly?

Could do. Youd have to prove your case, and that the reasonableness of those damages to the required legal and evidentiary burden though.

You basically have to prove your loss that flowed from the negligence by the EFC. Assuming a player lost their job as a consequence of negligence (not adequately supervising Dank) by their employer (the EFC), then that player (broadly speaking) has grounds to sue for any and all of those losses that flowed from the breach.

Now you see why the EFC are fighting this so damn hard. Players get stood down and lose careers over this, and its going to cost them tens of millions.

 

[QuietB]

I am curious about the SC process. I have just watched 360, and was listening to Voss on the weekend and others referring to the players should take the 6 months. Now based on what I understand the players cannot take anything. All they can do is present a response based on the facts as the players know them to ASADA, which for the players is a response based on not much when it comes to actual details of what substances they were injected with.

So presumably the players response would be along the lines;

• I had x number injections.
• I don't know exactly what they were
• I was injected by Dank or someone else?
• A, B and C Coach were part of the program
• I took my instructions from ???

That is about all the players can do isn't it, and then it is in the hands of ASADA to decide what happens next.

I also read somewhere that the players can voluntarily start a suspension - is this correct?

 

[Malifice]

I am curious about the SC process. I have just watched 360, and was listening to Voss on the weekend and others referring to the players should take the 6 months. Now based on what I understand the players cannot take anything. All they can do is present a response based on the facts as the players know them to ASADA, which for the players is a response based on not much when it comes to actual details of what substances they were injected with.

So presumably the players response would be along the lines;

• I had x number injections.
• I don't know exactly what they were
• I was injected by Dank or someone else?
• A, B and C Coach were part of the program
• I took my instructions from ???

That is about all the players can do isn't it, and then it is in the hands of ASADA to decide what happens next.

All ASADA can do is enter a player on the register of findings. But they can also make a recommendation to the AFL (who hear the case) that the player in question (if found guilty) has provided 'substantial assistance' or should be eligible for the 'no significant fault or negligence' reduction in sanctions.

The AFL ultimately determine guilt and hand down the sanctions; they will be more than happy to slap 12 months on instead of 2 years to a player if ASADA indicate that ASADA are happy with such a sentence (and do not intend to appeal such a sentence to CAS).

I also read somewhere that the players can voluntarily start a suspension - is this correct?

Yes. It can be done in private, and it is not to be treated as an admission of guilt either. Penalties get backdated accordingly.

A player in the position of Jobe Watson (assuming he has gotten a SC notice) would be bonkers not to have put his hand up already.

 

[Argy]

The code doesnt overrule the inherent jurisdiction of the High Court im afraid.

Assuming (big 'IF') EFC are succesfull in this challenge, they would ask for a declaration that the process was unlawful and a permanent injunction against ASADA from entering a player on the register of findings.

If no player gets entered on the register, the AFL has no power to infract and stand a player down.

And even if they tried to, there would be another injunction application launched quick smart to stop them.

That said, I highly doubt that the EFC will get such an order even if they succeed here.

I am not sure that is right. According to Clause 13.1 of the AFL code ...

13.1 As soon as possible after the AFL General Manager Football Operations has received notification from ASADA of an Adverse Analytical Finding or he believes on other grounds that there may have been committed an Anti Doping Rule Violation or a breach of this Code (other than as described in Clauses 13.4 and 13.5), he will give to the Person an infraction notice, together with a copy of this Code, and refer the matter to the Tribunal for hearing and determination.​

 

[Malifice]

I am not sure that is right. According to Clause 13.1 of the AFL code ...

13.1 As soon as possible after the AFL General Manager Football Operations has received notification from ASADA of an Adverse Analytical Finding or he believes on other grounds that there may have been committed an Anti Doping Rule Violation or a breach of this Code (other than as described in Clauses 13.4 and 13.5), he will give to the Person an infraction notice, together with a copy of this Code, and refer the matter to the Tribunal for hearing and determination.​

Well spotted.

No way the EFC would let that fly without another injunction however.

 

[mickeyjuice]

A player in the position of Jobe Watson (assuming he has gotten a SC notice) would be bonkers not to have put his hand up already.

Sensible decisions hasn't really been a hallmark of this whole affair up to this point...

 

[QuietB]

That and the EFC stand to lose tens of millions of dollars if the SC notices stick, so they have standing for sure.

Just found it intresting that the players arent getting involved. Wondering what to read into that.

Isn't that just to separate the players from the court action so they can hang onto the possible penalty discounts? It is hard to argue you are cooperating with them when you were at court with them just the other week.

 

[LoungeLizard]

Not sure if this has been brought up, but,
if the EFC are saying that the joint investigation was against process, then won't the court query why they accepted the penalties?

 

[Blueboy3]

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.

Sent from my Nexus 7 using Tapatalk

Im coming across as a Hardie fan boy which isnt the case. However he is no longer working for Essendon.