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

[IanW]

Nope. Good argument though, but for an estoppel argument to get up, you need to show reliance on an event, and ongoing detriment to the party if not estopped.

Also, the AFL (and the EFC) arent a party to these proceedings. Its ASADA the players are trying to stop, and ASADA have made no guarantees to the EFC or its players that the players can claim they have relied on to their detriment (that Im aware of anyway).

Funnily enough, Essendons insistence that the AFL scrub all references to drug use in the outcome, and make it clear that the penalites were for 'governance failures' only also kinda shuts out this argument should they try and 'estopp' the AFL (and not ASADA) from seeking further action at a later date. Essendon have maintained that they werent punished for drug use then, and the AFL were equally clear that the punishments for drug use could very well be forthcoming regardless of 'poor governance'.

That decision may very well come back to haunt the bombers if drug use is proven and the AFL want to hammer them seperately from ASADA.

Just on that, is there anything odd about the fact that the people named in the case dont appear to be actual players ?

Are there any standings issues ?

 

[Hearts to hearts]

In a nutshell, possibly, but not fatally so.

Disclosure of 'personal information' is allowed under the ASADA Act in certain circumstances (See: Division 8 of Part 2 of the ASADA Act (Cth) 2006). One of those circumstances is when the disclosure was required 'for the purposes of this Act' - See: s71(2)(a) of the ASADA Act.

Personal information is defined in the Privacy Act to mean 'information or an opinion about an identified individual, or an individual who is reasonably identifiable.'

In other words, as long as ASADA didnt disclose any information about an identified individual or a reasonably identifiable individual, they are OK.

I find it hard to see how ASADA can conduct a joint investigation with the AFL and not breach non disclosure provisions. However the argument (by ASADA) would be that such disclosure (if made) was only made to enable the agency to perform its functions under the Act - in other words, ASADA should be OK.

The interrim report is particularly troubling however; it wasnt released for any purpose under the Act (it was just released so the AFL could smack Essendon) and it is here that the players may have a better argument. I fail to see how the release of that report (which identifies players by name) isnt (at the least)... sketchy.

That said, this is precisely what Judge Downes would have been asked to look into (administrative law and Federal legislation is his bag so to speak) and if he gave the investigation the 'green light' I'm going to side with him.

Appreciate the information and comments.

A follow up question. If the handover of the interim report was judged to have been improper, as you suggest it might, would it follow that the investigation that preceded it was null and void? Is that stage of the process relevant to the acceptability of the evidence-gathering that came before?

And a separate question. It seems like common sense that if you ask for a joint investigation and co-operate wi a joint investigation for months, then you have more front that Myers to turn around and question the legal validity of a joint investigation. Legally, does their previous acceptance of the process impact the arguability of their case now?

 

[flamethrower]

One question I would have for ASADA is have you tested serum and plasma samples taken from Essendon players during the time in question for Thymosin beta4? If not, why not? There are ELISA tests available for this substance, and seeing that AFL players are constantly being screened for PEDs and illicit drugs, surely Tbeta4 would have shown in these tests if the Bomber players were taking it.

 

[Aerial Ping Pong]

l have a question of a different hue. What standIng does the EFC have to bring an injunction against ASADA and the AFL?
l just can't bring an action in the federal court if l f eel that I don't like the way a government is going about it's business. ASADA aren't issuing show Causes to the EFC.
Shouldn't the acion be bought by player?

 

[IanW]

One question I would have for ASADA is have you tested serum and plasma samples taken from Essendon players during the time in question for Thymosin beta4? If not, why not? There are ELISA tests available for this substance, and seeing that AFL players are constantly being screened for PEDs and illicit drugs, surely Tbeta4 would have shown in these tests if the Bomber players were taking it.

I'll take this one.

This is as good as it gets for TB4. And it's for horses.

http://www.pba2013.org/pdf/OC49_Leung_Gary_NW.pdf

 

[Malifice]

Just on that, is there anything odd about the fact that the people named in the case dont appear to be actual players ?

Are there any standings issues ?

Sorry, whose been named?

 

[enosis7]

Here's something I've been thinking about. Does EFC have standing under an ultra vires cause of action to bring an application seeking injunctive relief concerning ASADA's action against individual players. Surely it is the players that must be parties to the action.

 

[Armchair Critic]

I will ask in here as I didn't see this thread beforehand. Wouldn't the fact the AFL actually sat in on all Essendon interview means they already would have had all the information available regarding players/officials. If they already had that information how is it a breach of privacy handing the report to the AFL.

 

[IanW]

Sorry, whose been named?

What enosis7 said.

 

[Malifice]

A follow up question. If the handover of the interim report was judged to have been improper, as you suggest it might, would it follow that the investigation that preceded it was null and void? Is that stage of the process relevant to the acceptability of the evidence-gathering that came before?

Depends on whether the Court finds that the breach (if it is a breach) was sufficient to be proceduraly unfair to the players.

And I dont think it will.

And a separate question. It seems like common sense that if you ask for a joint investigation and co-operate wi a joint investigation for months, then you have more front that Myers to turn around and question the legal validity of a joint investigation. Legally, does their previous acceptance of the process impact the arguability of their case now?

The players didnt ask for a joint investigation. The club did. The players also didnt consent to ASADA releasing information to the AFL.

We need to be careful with identifying the correct parties here.

 

[Malifice]

Here's something I've been thinking about. Does EFC have standing under an ultra vires cause of action to bring an application seeking injunctive relief concerning ASADA's action against individual players. Surely it is the players that must be parties to the action.

I agree completely.

Im baffled that EFC are named as a party.

 

[IanW]

I agree completely.

Im baffled that EFC are named as a party.

Given that, whats the odds of the judge saying 'Go get me a player' ?

 

[Malifice]

Given that, whats the odds of the judge saying 'Go get me a player' ?

Inevitable I would have thought.

I need to read the Statement of Claim to see what theyre up to.

Theyve had 16 months to prepare and have QC's representing them for gods sake. They wouldnt miss something this fundamental.

Something is up.

 

[IanW]

Inevitable I would have thought.

I need to read the Statement of Claim to see what theyre up to.

Theyve had 16 months to prepare and have QC's representing them for gods sake. They wouldnt miss something this fundamental.

Something is up.

Go read the Statement of Claim then

 

[Slax]

I agree completely.

Im baffled that EFC are named as a party.

That was my thought, but I have not actually seen the wording of the papers lodged in Federal Court. Essendon FC could actually only be acting as a representative body but the actual injunction is being sought by the 34 players not the club.

For me this is the last roll of the dice for Essendon, they win it goes away, lose and they have to face the fact they may not be able to field a side later this season. The financial consequences for Essendon are massive the club stands to lose over $10m if it loses. I don't like the cases, I think it is against the interests of the AFL, I think it is against the interests of sport in this country, it is though in the interests of the Essendon FC and the board of directors are appointed by the members to look after the interests of the club and that is what they are doing.

As they self disclosed and considering it took until now to actually challenge the process I don't think they have much chance of winning.

 

[Malifice]

Go read the Statement of Claim then

Link?

 

[Malifice]

The financial consequences for Essendon are massive the club stands to lose over $10m if it loses.

I working with $30 million as a conservative estimate.

Its worth a challenge on financial grounds alone. Also buys them time till the end of the season.

 

[Armchair Critic]

Depends on whether the Court finds that the breach (if it is a breach) was sufficient to be proceduraly unfair to the players.

And I dont think it will.



The players didnt ask for a joint investigation. The club did. The players also didnt consent to ASADA releasing information to the AFL.

We need to be careful with identifying the correct parties here.

I was told the players nominated the club to act on their behalf

 

[Malifice]

I was told the players nominated the club to act on their behalf

I wouldnt have thought they could?

 

[Mutt]

Great thread Malifice and all contributing. Wish there was more discussion of this standard on BF.

 

[Armchair Critic]

I wouldnt have thought they could?

The clubs legal team, I don't know at what stage that occurred though.

I also have no legal training so am just asking for the sake of answers.

The club invited the joint investigation but the players consented to the interviews didn't they.

The Cronulla players did it the right way, refusing at the time until they were happy with conditions

 

[IanW]

Link?

Found the old one

http://images.theage.com.au/file/2013/08/22/4682678/HirdvsAFL.pdf

 

[Oneiros]

Short answer: ASADA have been well aware that this is what EFC were going to do (challenge the legality of the joint investigation). Note McDevitts comments about 'joint investigations' when he was questioned by the Senate, and on taking up the position. Also note the AFP investigation (requested by ASADA) to confirm no leaks, and the (unusual) step of requesting an expert in administrative law to confirm ASADA acted in compliance with the ASADA Act.

ASADA have been very thorough in this. The reason for the delay in releasing the SC's (they had enough information to do so 12 months ago IMO) was to shore up its arguments and close any and all legal loopholes that might exist.

They are effectively taking on the AFL here (its the AFL who will ultimately foot the bill if players get suspended, and who have a vested interest in keeping the EFC in the competition). The AFL has a shitload of money to splurge on the best QC's in the land, and will protect their brand ferociously.

Bsically, no-one over at ASADA is shocked in the slightest by this challenge. Theyre prepared for it, and have a pretty damn good argument why this legal challenge is not gonna fly.

You know, for a Carltonian, you ain't half bad.

 

[Armchair Critic]

I wouldnt have thought they could?

Sorry last one I promise.

Couldn't ASADA just say they produced the report for the Club and relevant parties as an update for the investigation, The AFL was also given one due to being the governing body and ASADA did not know AFL would issue punishment from the report

 

[Sunbot]

What is your opinion about EFC conflicted position in this proceeding? They have a coercive relationship to players re contracts, team selection but claim to act on their behalf about investigations conducted into their behaviour towards those players. Since they appear to carry primary responsibility for any potential damages claimed by those players for infraction penalties yet to manifest how can they argue for an injunction re any breach of the players privacy, natural justice etc?