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Essendon vs the AFL: what are the legal issues?

It looks likely to be lawyers at ten paces as Essendon and the AFL head to court over the supplements scandal. AAP/Julian Smith

The only real winners in the whole Essendon drug supplement saga are set to be the lawyers. With all parties “lawyering up” and multiple court actions either under way or threatened, legal eagles will be well placed to further feather their nests in what may be the biggest lawyers’ feast in AFL history.

But what are the actual legal issues in play? What issues will be contested? And what arguments will the various parties deploy?

In my constitutional law classes, I teach that government consists of the legislature that makes the law, the executive that implements it and the judiciary that decides disputes as to how it applies in a particular case.

In the football world, the AFL is seeking to fulfil all these functions. It may hold up from a strictly legal perspective - the AFL is simply seeking to apply the rules they wrote - but from the perspective of justice and good governance, it does not.

The AFL may protest that they have outsourced the area of doping surveillance to the Australian Sports Anti-Doping Authority (ASADA) and that it is based on the ASADA interim report that the charges have been laid, but the failure by ASADA to lay any charges of its own suggests that there is no hard evidence of any actual doping. In the absence of such evidence, the AFL has laid the charge that Essendon and four senior officials with having brought the game into disrepute contrary to Rule 1.6, to be decided by the AFL’s own commission.

The details of the charges run to 34 pages. There is a poetic touch in the list of “dramatis personae” in the affair. In the absence of proof that banned substances were administered, the charge alleges that the club took insufficient steps to ensure that the substances were safe. It is alleged that the substances were not administered by qualified persons and that insufficient care was taken in the appointment of Stephen Dank and Dean Robinson, the club’s former sport scientist and high performance manager, who administered the substances.

It is not clear what substances were administered, but it is also unclear which substances were banned and when and whether this was communicated to the club. So, the charge tries to hold against the club that it did not keep meticulous records of what was administered.

The AFL laid the charges on August 13 to be heard on at an AFL commission meeting on August 26. Essendon had already engaged lawyers and James Hird has arranged separate legal representation, including prominent human rights lawyer Julian Burnside. Hird has now launched an action against the AFL in the Supreme Court which to me looks sufficiently complex to be decided over months rather than before the 2013 finals.

The AFL has agreed to give the defendants more time to defend the charges. I think the AFL is desperately hoping that the defendants will cut a deal including fines and suspensions and possibly draft picks. I do not think the AFL wants to exclude Essendon from the finals, though recent performances suggest that the affair is taking its toll on the club. Essendon and especially Hird seem unlikely to roll over. Indeed, Hird has hit the AFL with some big legal guns.

The AFL charge looks unlikely to withstand the scrutiny of lawyers. The charge alleges either that banned substances were administered or that the club is unable to determine whether banned substances were administered. This is a sneaky attempt to reverse the onus of proof. The prosecution needs to prove that banned substances were administered. Essendon does not have to prove that they were not. It is not clear what evidence would sustain the charge of bringing the game into disrepute. That is a purely subjective matter.

It has been suggested that the charges be heard by an impartial tribunal. The AFL argues that the commission is such a tribunal. Indeed, it includes Linda Dessau, a recently retired Family Court judge, so it should at least provide due process. It might also be thought that the Commission is the logical body to decide if the game has been brought into disrepute, but as the AFL is also the prosecutor, the AFL ends up as judge in its own cause. The AFL must decide the matters according to its rules, but after these matters are over, the rules must be changed.

The AFL should establish a tribunal like the NRL’s judiciary to decide on matters such as this. This tribunal should be fully independent of the AFL but appointed by it. It should be chaired by a retired judge, but it should have some members who are ordinary football supporters. This would better resemble the system of judge and jury that we value so highly in our justice system.

The affair has also laid bare the governance systems at Essendon. It is clear, as the charge alleges, that key figures - including James Hird - decided to “push the envelope” with the supplements program. Normally pushing the envelope is highly regarded in sport. The AFL is now trying to make it a crime. On the other hand, administering substances experimentally without an ethics process is arguably unethical, but there is no clear ethical code in this area.

The charges also question the science behind the program. No-one has been able to challenge Dank’s qualifications, so his character is being questioned. The AFL is considering accreditation for sports scientists, but it is not clear what the criteria would be. Exercise and Sports Science Australia is a body that accredits sports scientists, but its accreditation is not compulsory.

Perhaps the most pressing need is for clubs to emulate universities and have ethics committees to approve experimental work. That might not be the only aspect that football clubs could learn from universities.

On the legal front, this case has revealed the inadequacy of the AFL’s judicial system and a separation of prosecution from judge and jury is the most pressing reform for the league, while some cool heads at club level with access to all areas could help to save clubs from ethical crises and save players from being treated as guinea pigs.

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