ASADA v Essendon: next steps for the winners and losers

Essendon faces the prospect of not being able to field a team next year. AAP Image/Julian Smith

Federal Court Justice John Middleton’s decision to uphold the legality of the Australian Sports Anti-Doping Authority (ASADA) investigation into the potential use of banned substances at the Essendon Football Club raises as many questions as its answers.

The “winners” (ASADA and, to a lesser extent, the AFL) are likely to come under pressure to resolve the matter quickly; the “losers” (Essendon and coach James Hird) will be assessing whether to appeal; and the “biggest losers”, the players, will be wondering what to do now.

The Federal Court decision might also nudge Victoria’s workplace health and safety regulator – the Victorian WorkCover Authority (VWA, formerly known as WorkSafe Victoria) – to investigate Essendon Football Club’s failure to protect the health and safety of its players.

ASADA

ASADA is the clear winner. Not only did Justice Middleton uphold the legality of its investigation, he interpreted ASADA’s enabling legislation broadly and strongly supported ASADA adopting “innovative processes and methods of investigation”.

First, Justice Middleton found ASADA had power “to do all things necessary or convenient” in connection with its investigation, including cooperating with sporting administration bodies such as the AFL.

Second, Justice Middleton found ASADA’s disclosure of information to sporting administration bodies was within ASADA’s powers if done for the purposes of, or in connection with, an ongoing investigation.

Justice Middleton found ASADA’s disclosure of its interim report to the AFL satisfied both these criteria: it was done to obtain comments from the AFL to inform its continuing investigation; and to assist the AFL’s investigation of Essendon’s internal governance concerning anti-doping matters, something closely connected with the ASADA investigation.

ASADA investigator Aaron Walker leaves the Federal Court hearing. AAP Image/Joe Castro

It is important to keep in mind the court case was about whether ASADA’s investigation was conducted in accordance with the law; it was not about whether that investigation has reached the right conclusions. Whether or not Essendon players took banned substances remains to be proven.

ASADA responded to the Federal Court decision by reiterating its determination to expose what happened at the Essendon Football Club.

But ASADA can also be expected to come under pressure to resolve the matter quickly, possibly by sanctioning a settlement similar to that reached with National Rugby League (NRL) Cronulla Rugby League Club players, whose backdated suspensions resulted in them missing only a handful of games. ASADA described the NRL settlement as a “good result for sport”.

AFL

The AFL was not part of the court action. Nevertheless, Justice Middleton’s decision is a vindication of its joint investigation with ASADA. This may prove to be a pyrrhic victory, however, as the AFL now faces the prospect of another compromised season should Essendon players be suspended.

The AFL, too, can be expected to come under pressure to resolve this matter quickly. An NRL-style settlement that minimises the games players miss clearly is in its interests.

Essendon Football Club and James Hird

The immediate issue the Essendon Football Club and James Hird face is whether to appeal Justice Middleton’s decision. Both will have their QCs pore over every word. If there are grounds for appeal, they will find them – although Justice Middleton has been very thorough in his analysis of the facts, and of the application of the law to those facts. There are no obvious errors in his 123-page decision.

If they do not appeal, both Essendon and Hird face legal bills that will run into many hundreds of thousands of dollars. They also face the prospect of not being able to field a team next year.

Equally concerning is the risk of more legal action being brought against them. Potentially the most damming finding in Justice Middleton’s decision was his assessment, based on the evidence before him, that poor governance and management practices at Essendon contributed to possible systemic anti-doping violations by Essendon players.

In highlighting this connection, Justice Middleton strengthens the case that Essendon and its officers may have breached their duty to provide players with a safe and healthy work environment. This is something that should interest both players and workplace health and safety regulators.

Players

The Essendon players are the biggest losers, even though were not party to the case. Unless there is an appeal, they will now have to respond to ASADA’s show-cause notices and face the prospect of being suspended for up to two years.

But the players do have choices. Do they continue their alliance with the Club or seek their own path – legally and/or professionally?

Do they seek an NRL-style deal, or keep faith with Club management that continues to argue there is no evidence they have taken banned substances?

Players have a number of choices but none are easy. AAP Image/Joe Castro

Do they look to the contractual clauses that provide them with redress in the event the Club has breached duties they owe them? And should they sue the Club for breach of those duties – a course already taken by some of their NRL colleagues?

The complexity of these choices is matched only by the implications for the players of getting them wrong.

VWA

The VWA remains the “wild card” in the pack. Originally reluctant to be involved, the VWA’s hand has been forced by three requests it has received from members of the public for it to investigate the Essendon Football Club, other Victorian AFL clubs, and the AFL itself. Under its legislation, the VWA is required to investigate the matters and advise within three months whether it will prosecute.

The VWA is reported to have been waiting for the outcome of the Federal Court case. Justice Middleton’s comments about Essendon’s poor governance and management practices reinforce the case for it to fully investigate the matter.

The VWA recently was criticised by the Hazelwood Mine Fire Inquiry for adopting a narrow reading of its statutory responsibilities, and for the passivity which it discharged those responsibilities. Failure to act on the Essendon supplements saga runs the risk the VWA will again be seen as failing to discharge its role as the state’s health and safety regulator.

Justice Middleton’s decision is far from the end of the Essendon supplements saga. All actors in the saga have important decisions to make. The next days, weeks and months may be as interesting as those just passed.

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