How secret Bombers deal came unstuck
Date
March 28, 2013
Roy Masters
Rugby League Columnist
A proposed deal between ASADA and Essendon whereby Bombers players would escape doping sanctions with zero penalty, while Cronulla players would be given a minimum six-month ban, was aborted following protests from lawyers acting for ASADA and Cronulla.
The very same day that ARLC chief executive, Dave Smith, learnt of a proposed preferential deal to his main competitor, he raised it with Prime Minister Julia Gillard at a pre-arranged meeting in Sydney. While Smith is now confident any discriminatory deals are off the table, the AFL can be expected to be frustrated that 45 players from one of its most prominent clubs may be suspended for the season.
Rumours of a secret deal have circulated since March 4, following a meeting in Sydney with representatives of the Sharks, ASADA and the NRL. Lawyers acting for Cronulla raised the question at the meeting whether Essendon players had been offered a lesser sanction.
ASADA counsel, John Marshall SC, denied such a deal would be possible but the following day provided advice to Cronulla's legal team, led by Trish Kavanagh, that this was not the case. He was so chagrined by the revelation of a possible zero sanction to Essendon he told Cronulla counsel he was withdrawing from representing ASADA, for whom he had acted for 20 years.
At the time 14 Cronulla players were considering their options, with 12 expected to accept guilt in the belief ASADA would propose a reduced six-month ban. Another two players were tipped to follow. But negotiations stalled as a result of the exposure of the Essendon deal.
Lawyers acting for the Sharks are furious because the settlement could have seen the players back on the field by September. Now, however, the players are acting individually with their own lawyers, ruling out any prompt, joint resolution. During the tense meeting, Marshall indicated it would not be possible for the two codes to be treated differently and ASADA officials present nodded accord.
The next morning, on March 5, Marshall revealed to counsel acting for Cronulla that he had been inadvertently misled and admitted there were preferred terms for Essendon. He said he had become aware of a letter to Essendon, and when Cronulla's counsel asked for it to be forwarded to them, Marshall did so. The letter, written in fluent legalese, made it clear that if the Essendon players met all of the qualifications asked, a zero sanction would apply.
But NRL players were told the standard two-year ban could be reduced to one year under a ‘‘no significant fault’’ defence and that this could be further discounted by six months if they provided ‘‘substantial assistance’’, including dobbing in teammates and football club officials.
It is not clear whether the substances used at both clubs are the same, giving rise to why the sanctions may have been different. However, the prospect of a difference forced Smith to raise it with the Prime Minister.
Eleven days later, as rumours circulated of Essendon’s proposed superior deal – prepared by a recently appointed ASADA lawyer – Fairfax Media met ASADA chief executive Aurora Andruska in Canberra. Andruska, who had not been present at the Sydney meeting, said both codes would be treated equally.
‘‘Whatever I do, I have the scrutiny of WADA,’’ she explained. ‘‘We put ourselves up as a world leader in the fight against drugs in sport. How would we look if WADA overturned our sanctions? It would be the worst thing for our international reputation. I have a document given to the AFL and the NRL. It is the same document.’’
Andruska also told the Herald the ‘‘no fault’’ defence could be sustained only during a medical procedure. ‘‘The only time a zero sanction has been given was when the athlete has been unconscious during surgery by a doctor,’’ she said.
Given reports that Essendon players were injected as many as 50 times, this defence would be difficult to sustain. Yet this was a possible outcome for Essendon players, according to the document provided by Cronulla’s lawyers. It was dated 12 days before the document was provided to Cronulla counsel on March 5. It begs the question why such a crucial deal, nearly two weeks old, was not revealed at the Sydney meeting, particularly when it was so forthcoming the following day.
Asked to explain the conflict, a spokesperson for ASADA, perhaps relying on the fact that ASADA cannot sanction anyone but merely make recommendations on penalty, said: ‘‘ASADA has not offered a zero sanction to any athlete or support person.’’ The Herald understands Essendon do not believe a zero sanction was ever an option, with a spokesman saying: ‘‘We have no comment.’’
