ASADA’s AFL ‘deal’ revealed
The Australian
June 24, 2014 12:00AM
THE Australian Sports Anti-Doping Authority is accused of *reneging on an agreement to consider favourably a “no-fault or negligence’’ defence for Essendon footballers that would have *enabled players unwittingly given a banned substance to escape *penalty.
The Australian can reveal that a revised statement drafted by ASADA following National Rugby League outrage at the terms of a “comfort’’ letter provided earlier to Essendon players retained the possibility that footballers found guilty of a doping *offence would not face any sanction. Under the terms of the *revised statement, emailed to senior AFL officials by ASADA on March 7 last year, “where a player seeks to rely on the defence of no fault or negligence before a sport tribunal … ASADA will give favourable consideration to not *opposing an application”.
The Australian has confirmed that, two months later, when ASADA conducted formal interviews of Essendon players who took part in the club’s 2012 supplement regime, ASADA investigators told some players a defence of no fault or negligence might be open to them if they could show exceptional circumstances.
Public comments by ASADA chief executive Ben McDevitt since the anti-doping authority *issued show-cause notices to 34 current and past Essendon players alleging they took a banned peptide suggests that defence is now off the table.
Mr McDevitt’s best offer to any Essendon player found guilty of a doping offence is a six-month ban and only then if they plead guilty and offer substantial assistance to investigators.
“I think that what you’re looking at here is a case where there would be a good opportunity for a player to say no significant fault,’’ Mr McDevitt told ABC radio last Saturday.
AFL chief executive Gill McLachlan has maintained there was no deal between ASADA and the league, however the emergence of the document will fuel concerns among Essendon and the players that they were given false assurances about how the investigation would proceed.
Mr McDevitt declined to *respond to questions from The Australian yesterday.
In anti-doping parlance, the offer of “no fault or negligence’’ has been replaced by “no significant fault or negligence”. Although the change appears subtle, it is potentially the difference between no penalty and six months out of the game.
The shift has infuriated lawyers representing the players, Essendon and AFL officials who believed last year’s agreement with ASADA still stood.
“This is the document that caused the players to think they had a deal,’’ said a lawyer involved in the case.
Essendon president Paul Little said ASADA had reneged on previous undertakings.
“There had been some high level discussion that gave us at board level comfort that this was not going to end up with show-cause notices,’’ Mr Little said. “That clearly changed at some point in time.’’
The Australian today publishes ASADA’s original statement distributed to Essendon players on February 20 last year, its revised statement of March 7 and Mr McLachlan’s email objecting to the proposed changes. Read together, the documents reveal how ASADA’s approach to the biggest anti-doping in Australian sport shifted after the probe began.
ASADA’s original statement, which was explained to Essendon players by ASADA’s lead investigator Paul Simonsson and legal adviser Darren Mullaly during a meeting at Windy Hill on February 20 last year, was drafted to “provide an immediate level of comfort’’ for Essendon players at the centre of the national sports supplements scandal. The single-page briefing, which has handed to all Essendon players, club officials and lawyers acting for the club and the AFL Players Association at the meeting, contained an undertaking by ASADA to “fully explore all avenues in an attempt to provide a no-fault or negligence defence or substantial assistance’’.
The letter to Essendon players, when seen by NRL officials managing the fallout from doping allegations against Cronulla footballers, provoked accusations of a sweetheart deal between ASADA and the AFL.
Australian Rugby League commission chief executive Dave Smith raised the issue directly with then prime minister Julia Gillard. ASADA’s counsel John Marshall SC quit the case in protest.
Pressure from the NRL and the Gillard government forced ASADA to redraft its earlier statement. The new version, attached to an email sent to the AFL by Elen Perdikogiannis, ASADA’s general manager of anti-doping programs and legal service, removed the previous reference to a “complete elimination of sanction’’ and downgraded ASADA’s offer of support for a “no-fault or negligence” defence. However, the revised ASADA position kept open a door to Essendon players escaping punishment altogether. It is understood that Essendon players were not shown the revised statement by ASADA or their own legal and club representatives. A lawyer involved in the case said the rewording of ASADA’s statement would not have altered the legal advice previously given to players: to co-operate with investigators and be truthful in interviews. The interviews were conducted jointly by ASADA and the AFL using the coercive power of the AFL to seize phone records from players. Essendon and suspended coach James Hird have launched Federal Court proceedings challenging the legality of the joint investigation.
Maurice Blackburn principal lawyer Josh Bornstein, acting for Essendon, will this Friday seek an injunction preventing ASADA from proceeding with its anti-doping case until the court makes a determination.
Under the AFL anti-doping code, a no-fault or negligence defence applies when a player establishes “they could not reasonably have known or suspected even with the exercise of utmost caution’’ that they were being given a banned substance. In these circumstances, “the otherwise period of ineligibility shall be eliminated’’. A defence of no significant fault or negligence enables players to half the prescribed two-year penalty for taking a banned substance. That penalty can be halved again to six months if players give substantial assistance to investigators.
The ASADA case against Essendon is that Bombers players were unwittingly injected with a banned substance, Thymosin Beta-4, by sports scientist Stephen Dank.
Essendon and its players have not conceded they took a banned substance. Lawyers for the players have flagged to ASADA that if they were given a banned substance, they were deceived by Mr Dank and possibly, the club’s former high-performance coach Dean Robinson. Mr Dank and Mr Robinson have repeatedly denied that a banned substance was given to Essendon players.
