Probe must be independent
Date
March 31, 2013
Tim Lane
Columnist
The report by Roy Masters, in Thursday's Fairfax press, of a preferential deal for Essendon in the current drug investigation (''Bombers' secret deal exposed'') was startling.
As an acid test of our national credentials on issues of performance-enhancing drugs is faced, any suggestion of deals being done is disturbing.
AFL boss Andrew Demetriou has denied it, while the Australian Sports Anti-Doping Authority says no deals have been offered to any ''athlete or support person''.
Yet according to Masters, the NRL chief, David Smith, was sufficiently concerned at the possibility of a preferential deal for the AFL to raise the matter in a pre-arranged meeting with the Prime Minister.
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Demetriou told Fairfax radio on Thursday: ''It's simply not true,'' adding, ''We don't even know what the investigation is going to find. I'm not quite sure how you do a deal based on what you don't know.''
Masters is a well-connected journalist whose experience of Australian sport is unique within the sports media. He has sat on the board of the Australian Sports Commission and is a former senior rugby league coach. As is well known, he prefers that code to the one popularised south of the Murray. His affection for rugby league is in equal proportion to his dislike of humbug.
Masters' detractors in this case will imagine he has fallen victim to rugby league misinformation and/or paranoia. But his report is given credibility by the knowledge of Smith's complaint to the Prime Minister, and also by his revelation of the withdrawal from the current ASADA investigation of the drug authority's long-time counsel, John Marshall.
The reason, according to Masters, was that Marshall had insisted at a March 4 meeting with Cronulla Sharks lawyers, among other parties, that a zero penalty outcome was not possible.
Then, the next day, Marshall informed the Sharks' lawyers that this was actually not the case.
Marshall, who, according to Masters, was ''irked by the revelation of a possible zero sanction'', won't comment on any aspect of the case other than to confirm that he withdrew as ASADA's counsel on the case on March 6. He will continue to represent ASADA on other matters.
It is impossible to reconcile the suggestion of a zero penalty for Essendon players (in the event of a substantiated charge) with what is in the World Anti-Doping Agency Code. And that raises questions as to how such a possibility could have arisen, if indeed it did arise.
The WADA Code offers two mitigating categories when athletes have performed with banned substances in their systems but have not wilfully doped.
One arises where there was absolutely no fault on the athlete's part: perhaps a banned substance was administered while the athlete was unconscious during a surgical procedure, or the athlete - despite due care - was sabotaged.
The other mitigating circumstance is covered by the ''no significant fault'' clause and can include cases where an athlete was administered a substance by, say, a trainer, doctor, or coach who did not disclose to the athlete the substance's banned status.
Application of the ''no significant fault'' clause can have a penalty halved, and this can be further reduced if there is co-operation on the part of the athlete. But the clause can't be applied to eliminate a penalty altogether.
ASADA chief executive Aurora Andruska told Masters in mid-March: ''The only time a zero sanction has been given was when the athlete has been unconscious during surgery by a doctor.''
That raises the question as to how Essendon's players - in the event of culpability being found - could possibly avoid suspension.
For now, at least, there are no answers. The ASADA inquiry is confidential and, beyond general statements such as Andruska's to Masters, those involved cannot comment. That public confidence in it has now been undermined is troubling.
So, with the credibility in question of one of the most significant inquiries in the history of Australian sport, we are left to wonder whether any possibility exists of ASADA's processes being compromised.
The fact of the matter is that the anti-doping authority is not independent. It is a federal government department and reports to the Minister for Sport.
Following its restructure seven years ago (and its re-branding from ASDA to ASADA), the organisation ceased to operate at arm's length from government. This contrasts with the American agency, USADA, which is recognised by US Congress but is non-governmental.
It now becomes apparent that the Australian model is inadequate. While the notion of government intervention in any drugs-in-sport investigation would, at first glance, appear fanciful, this is not necessarily so. It's said that when Shane Warne learnt of his doping charge, he rang Kerry Packer, who rang then prime minister John Howard. Even if Howard responded with total propriety, the possibility that exists in such a circumstance is obvious.
If only to ensure justice is seen to be properly done, the federal government should structure ASADA in such a way as to ensure that interference is procedurally impossible.
For the sake of a sporting nation, the Australian anti-doping authority's independence should be restored.
