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What happens if Essendon players are issued ‘show cause’ notices?

Will Essendon players face sanction if it is proven that they took banned substances during the 2012 AFL season? AAP/Joe Castro

Speculation continues to mount that Essendon Football Club players will face sanctions from the Australian Sports Anti-Doping Authority (ASADA) over the club’s controversial 2011-12 supplements program.

Speaking on radio this morning, outgoing AFL boss Andrew Demetriou said the final outcome from ASADA may be imminent:

They’ve indicated that they’re probably a couple of weeks, a month at most [away from] coming to the AFL with anything further.

But how did we get here, and where to next?

What might happen next?

ASADA was obliged to act a result of concerns that Essendon players had been administered banned substances. Under its legislated powers, ASADA has a process to follow in managing these allegations where it is suspected the World Anti-Doping Agency (WADA) code, which ASADA is charged to implement in Australia, has been breached.

This process demands that ASADA first issue “show cause” notices. These ask potential offenders to explain why they should not be served with infraction notices over alleged breaches of the WADA code.

If the explanations are deemed to be unsatisfactory then ASADA will prepare dossiers for each person that might have committed violations. These dossiers will be submitted to its Anti-Doping Rule Violation Panel (ADRVP), an independent group of experts who will assess the dossiers, together with additional information provided by the offending players and officials.

If the ADRVP believes there is a case to answer – which, in Essendon’s case, may involve club officials as well as players – it will signal that an “infraction notice” will be issued by ASADA.

The ADRVP will deliver two recommendations. The first is whether to enter the offender’s details on a Register of Findings, which is a signal to ASADA that a rule violation has been committed. The second is whether to recommend a sanction, which can be anything from a six-month to two-year suspension from their sport for use of banned substances.

The AFL, on behalf of ASADA, issues the infraction notice. In line with the AFL’s anti-doping code, the notice is dealt with by another panel – or tribunal, as the AFL will most likely call it. If an infraction notice was issued, the player would be immediately suspended pending the final outcome. The AFL’s panel will use the ADRVP’s recommendations as a guide, but remains the arbiter on what penalties and suspensions will be applied.

Chances of appeal

Appeals against ASADA decisions have been made from time to time. Essendon has already foreshadowed that the club is in for the long (legal) haul, even before any show-cause notices have been issued.

The lengthy delays in the investigation process, together with the relentless spreading of rumours and hearsay, provide an opportunity for challenging the ASADA decision in the Federal Court on the grounds that there was a massive “abuse of process”. This could be used to apply for a “permanent stay”, which, if upheld, could mean the whole case against Essendon players unravels, resulting in it being comprehensively dismissed. The players could also appeal any sanctions to the Court of Arbitration for Sport.

ASADA could also appeal the AFL tribunal’s decision, as it did (unsuccessfully) in the case of suspended St Kilda footballer Ahmed Saad in a bid to increase his suspension from 18 months to two years.

Mass two-year suspensions would destroy the whole organisational fabric of Essendon in one clean swoop.

Essendon players are, under the WADA code, wholly responsible for avoiding the use of banned substances, no matter what advice they were given by officials, coaches, physicians, sports scientists, trainers, conditioners and the like. They also cannot get away with claiming that a product was improperly labelled, and that as a result they used substances inadvertently.

It is a case of player beware. These are the rules.

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