Essendon’s bitter lesson: don’t ask questions, cop the ban
The Australian
January 16, 2016 12:00AM
Gillon McLachlan, the heir apparent of the AFL, walks into the Fyshwick headquarters of the Australian Sports Anti-doping Authority like a man who owns the building. A tall, well-dressed figure with a commanding presence and languid charm, McLachlan is well used to doing deals. He sees no reason why he couldn’t strike another to spare Essendon players from doping bans.
It was a Saturday morning, February 9, 2013, just two days after the blackest day in Australian sport. With McLachlan was David Evans, president of the Essendon Football Club and an impeccably connected investment broker and company director whose network is a rollcall of Melbourne’s corporate, media and sporting elite.
Evans’s entire football club had been plunged into crisis but, like McLachlan, his overriding concern was the Essendon players.
The AFL and Essendon delegation had flown to Canberra to negotiate with ASADA an outcome to Australia’s biggest doping scandal. No player at the club had yet been formally interviewed about what took place at Essendon the previous year but McLachlan already knew how the scandal should be resolved.
The federal government, through sports minister Kate Lundy’s trusted adviser Richard Eccles, was also a party to discussions. Prompted by Eccles, McLachlan set out his desired outcome. The AFL, ASADA and Essendon would come to an arrangement. The club would be punished and the officials responsible held to account. The players would be found innocent.
His reasoning? If they took a banned substance, it was only because they were duped.
ASADA chief executive Aurora Andruska, a career public servant bound by the strict provisions of the World Anti-Doping Code and Australia’s adherence to the International Convention against Doping in Sport, listened intently to what Essendon and the AFL leaders had to say.
Well into a lengthy meeting, she became exasperated with the discussion and made a note to herself in a spiral notebook: “This debate is getting stupid.’’
Nearly three years later, in the aftermath of two-year bans imposed on 34 current and former Essendon players by the Court of Arbitration for Sport, the entire folly of any attempt by the AFL and one of its most powerful clubs to cut a deal with anti-doping authorities is exposed. “There was never, ever, any purpose to be doing a deal with the AFL,’’ Andruska told this reporter a year ago, when the case against the 34 players was still before an AFL tribunal and yet to be taken up by the World Anti-doping Agency.
“I’ll tell you why that would have been impossible. Whatever we did, it was going to be reviewed by WADA. Do you think that I, as the head of ASADA, would want to do a deal with the AFL that is then reviewed by WADA and WADA says we think ASADA went too soft?
“Can you imagine what that would look like? We would look like Russia to the rest of the world. There was never an option. Never, ever, ever, ever an option.’’
McLachlan in the years since the Fyshwick meeting has taken over the running of the AFL and consistently denied he tried to strike a deal with ASADA over the fate of Essendon’s players. During a television interview this week with Fox Sports’ AFL 360 program, he derided Andruska’s “scraps of paper’’ recording her dealings with the AFL.
Those scraps of paper — detailed diaries kept by Andruska during her time as ASADA chief — were accepted as reliable evidence by the Federal Court.
The CAS decision has done more than deliver the worst of all possible outcomes to the AFL, Essendon and 34 footballers who, though not blameless in the drugs scandal, were deceived into consenting to an injections regime by false assurances, lies and mis*information provided by people *employed in positions of responsibility at their club.
The judgment of the Swiss-based tribunal is a humbling reality check on the limits of AFL power and Melbourne’s ruling clique. Faced with its greatest crisis, the big end of a sports mad town could not influence the outcome that mattered most.
Andruska’s scraps of paper also record the day in early April she visited the East Melbourne offices of Evans’s investment firm Evans and Partners. The company’s advisory board included some of the most influential men in Melbourne sport, art and political life: investment banker, philanthropist and trusted corporate and government dealmaker John Wylie; media and football powerbroker Eddie McGuire; and union godfather and AFL commissioner Bill Kelty. All would later intervene in the drug scandal.
Also in the room were Paul Little, the billionaire businessman who would soon replace an exhausted and conflicted Evans as Essendon chairman, and the AFL’s McLachlan.
It was during this meeting that John Nolan, the former police detective who led ASADA’s investigation into Essendon and, more broadly, the activities of its unorthodox sports scientist Stephen Dank, read out a bewildering list of nearly 70 exotic substances, some banned and some not, that he suspected the Essendon players were given.
These included Thymosin Beta 4, the banned peptide that CAS this week found was injected into all 34 players.
Returning to the airport, Andruska shared a ride with David Lording, an experienced political spinner and crisis manager who had been called in to advise ASADA. “Do you realise who you have just met?’’ he asked her. “The Melbourne establishment.’’
Throughout the three years of the doping scandal, the AFL has been consistent in its view that whatever happened, the players should not be made to carry the can for the failings of their club. Until last November’s hearing before CAS in Sydney, ASADA was sympathetic to this view.
This is how ASADA investigator Aaron Walker expressed it in his final report on Operation Cobia, the investigation into the use of banned peptides at Essendon and Cronulla in the NRL: “The wilful disregard of ethical common sense and the inexplicably experimental nature of the 2012 supplement regime has set a shameful and disturbing precedent in the professional sporting community. The evidence has also readily identified that players were the subject of profoundly false assurances from those within positions at Essendon.
“The deception inflicted on the players is best exemplified by the content of the ‘player consent’ forms purportedly signed by the player group prior to undertaking the supplement program. The assertions within the document concerning the WADC compliance of the substance Thymosin … is simply untrue — a fact readily known to Mr Dank at the time.’’
The consent forms for Thymosin, the most important evidence in the entire doping case, were drafted by Essendon’s Dean Robinson, reviewed by club psychologist Jonah Oliver and signed by Dank.
They falsely claimed “all components of the intervention/s are in compliance with current WADA anti-doping policy and guidelines’’ and referred to an appendix of supporting documentation that has never been produced. When the players signed the forms, they were falsely assured that the club doctors had approved the use of every substance.
The ASADA investigators did not doubt Essendon players took banned substances. Yet, having interviewed all Essendon coaches, staff and players as well as the drug importer and pharmacist suspected of supplying banned peptides to Dank to use at Essendon, and gathered all the evidence, the investigators concluded there were “near insurmountable obstacles’’ to ever knowing exactly what the players took. More broadly, they questioned the public interest in pursuing such a case against the players in circumstances where they had limited culpability.
Ben McDevitt, who replaced Andruska as ASADA chief executive in May 2014 and brought the case against the players, also believed the players were not significantly at fault. At least this was his view until March 31 last year, the day an AFL tribunal comprising two retired Victorian County Court judges and a barrister tossed out ASADA’s entire case against all 34 players.
Andruska had already taken a decision to prosecute the players when she left ASADA. The day McDevitt started work, a completed brief was sitting on his desk. His first reading of it left him in no doubt that the players, if found guilty, could be treated as having “no significant fault or negligence’’, a mitigating provision in the World Anti-Doping Code that halves the mandatory two-year ban which applied in 2012.
During a radio interview in June 2014, McDevitt told the ABC: “I think what you’re looking at here is a case where there would be a good opportunity for a player to say no significant fault.’’
This was the assumption with which everyone approached the doping case against Essendon — until WADA took over the ASADA brief and appealed the AFL tribunal decision. When McDevitt informed the AFL and WADA in November 2014 that he was issuing infraction notices against the 34 players — a step that triggered the hearing before the AFL anti-doping tribunal — he noted that “based on the information that ASADA presently has, a maximum reduction of 50 per cent of the applicable period of ineligibility for no significant fault or negligence … would be appropriate.’’
In his closing submissions to the AFL tribunal in January last year, ASADA’s senior counsel Malcolm Holmes made it clear that although the authority did not endorse a mitigation for no significant fault or negligence, it did not oppose it. When the case came before CAS, the evidence had not changed but ASADA’s position had. It strongly opposed a no significant fault plea. The difference for the players is not just the season lost but the reputational damage.
McDevitt has latterly adopted a very different view towards player culpability. The day of the CAS judgment, which rejected all arguments for no significant fault and slapped the players with the full-strength bans reserved for drug cheats, McDevitt took aim at the Essendon footballers in a way he never previously had.
“Yes, they were told the injection was WADA compliant, but they adopted a head-in-the-sand approach in contravention of their anti-doping education,” he said. “They agreed to keep it secret. They failed to declare the injections to doping control officers, they accepted that they were walking close to the line and they deliberately kept it from the team doctor. At best, the players did not ask the questions of the people they should have. At worst, they were complicit in a culture of secrecy and concealment.’’
McDevitt, a former federal police assistant commissioner, this week described the prosecution of the footballers as more challenging than his involvement in the investigation into the Bali bombing. Throughout the scandal, a once close working relationship between the AFL and ASADA dissolved into acrimony and threats of legal action and shortly after McDevitt took over ASADA, a hard frost formed between the pugnacious anti-doping chief and Essendon’s Little. An ASADA insider said the pursuit of Essendon’s players became very personal for the boss.
For Essendon also, the personal nature of the scandal has obscured clear thinking. Former coach James Hird continues to defend a supplements regime that should never have been contemplated, much less imposed on footballers in his charge, and blame others for what went wrong. New club chairman Lindsay Tanner is right when he says what happened in 2012 was a collective failing and Hird is yet to accept his share. Tanner says the club accepts the CAS finding but not one of its consequences: captain Jobe Watson handing back the Brownlow Medal he won at the end of the 2012 season. The CAS panel’s rejection of Watson’s testimony, along with its finding that he and 33 of his teammates benefited from a banned substance that year, give the AFL commission no leeway.
CAS’s excoriation of Essendon players, led by British sports law expert Michael Beloff QC, who chaired the panel, was based less on what the players did than what they failed to do. In particular, Beloff was troubled that throughout the 2012 season, not one Essendon player listed peptides injected by Dank when asked by visiting drug testers to declare any medications or supplements they were taking.
Athletes are not compelled to do this but they are strongly advised by anti-doping authorities and their sporting bodies to do so in case there are any irregularities in their test results. Every year, Essendon players are shown doping education videos reminding them to declare anything they have taken seven days before a test.
Beloff’s point does not fairly apply to every Essendon player. There were 30 doping control missions at Essendon in 2012. One player was tested six times, another four times. Some of the tests were carried out in February and March, at the height of Dank’s injections program, others before or after the program was running. A total of 21 players were tested but 13 not at all. Those not tested had no opportunity to declare anything Dank was giving them.
This evidence was not new. The doping control forms were collated by ASADA investigators early in 2013 and formed part of the brief against the players outlined to the AFL tribunal. Curiously, however, ASADA buried the evidence. A single paragraph in its written submissions notes the lack of declarations and the details of each player’s declarations are contained in an appendix attached at the bottom of a lengthy document.
WADA’s subsequent exhumation of this evidence was telling. Lawyers involved in the CAS hearing believe the failure of the seven Essendon players who testified to explain the absence of declarations was a tipping point in the panel’s attitude towards them and their teammates. Added to their failure to seek medical advice or guidance from anti-doping hotlines about the substances, the vacant doping control forms were used to cast the players in a suspicious light. Having been asked by Dank and Robinson to keep the program secret, the players were far too willing to oblige.
Until the bitter end, the AFL maintained the players did not deserve to miss a game for their involvement in what McDevitt this week called the “worst case of team-based doping this country has ever seen’’. Appearing before CAS, the AFL’s senior counsel Geoff Gleeson QC led the arguments for why any footballer found to have taken a banned peptide should be asked to serve no penalty. The AFL’s pleas, like those of the players’ counsel, made no discernible impact on CAS. Australia’s most powerful sport was left with its nose against the glass, looking in, feeling small.
