Doping in court – the verdict

Essendon obliterated in the Federal Court

Prior to the stunning decision by Justice John Middleton in the Federal Court on Friday, there was talk in the legal community that the decision could go either way. The outcome is comprehensively in favour of the Australian Sports Anti-Doping Authority (ASADA) in its role in the ongoing doping saga that has recently marred the Australian Football League (AFL).

The Court outlined that the critical factor for the case was to ‘consider the nature, purpose and conduct of the investigation itself.’¹

For some further background into the issues of the case, refer to our earlier posts in the series: ‘Doping in court’ and ‘Doping in sport’.

Joint investigation

Essendon Football Club contended that the joint investigation undertaken by ASADA and the AFL was unlawful. The Court held that:

ASADA’s conduct ‘was for the purpose of investigating anti-doping violations.’²
ASADA’s CEO has the power to do all things ‘convenient’ to be done ‘in connection’ with the performance of his or her functions and using the AFL to assist and cooperate was held to be ‘convenient’ to the investigatory function of ASADA.³

This part of the ruling legitimised ASADA’s use of the AFL’s coercive powers to assist their investigation and made the joint interviews lawful. The Court held that the purpose of the interviews was for investigating possible anti-doping violations and not for using the AFL’s coercive powers. Ultimately, a legitimate purpose. This was Middleton’s first major blow for the Essendon case.

Disclosure between ASADA and the AFL

Essendon head coach James Hird contended that the sharing of information between ASADA and the AFL was to be used for disciplinary purposes and therefore contrary to the purposes in the Act. The Court dismissed this and held that the disclosure of information was ‘in connection’ with ASADA’s investigation, its purpose being to investigate doping violations. The related intention of the AFL to expose governance issues did not exclude the information from being shared by the sporting bodies.

Show cause notices

The Court decided that ‘no useful purpose would be served by setting aside the Notices’. Essentially, given that the Court ruled the procedures and investigation were lawful, the same process could be undertaken again to derive the same information. The Court also went on to say that it did not wish to remove from the memory of ASADA the information it had already obtained⁴.

The final blow for Essendon

The Court ordered Essendon and James Hird to pay ASADA’s costs. These are said to run into the millions of dollars.

Is this the end of the saga?

The decision provides clarity on the hotly debated open issues in this saga. The only remaining question is whether an appeal is likely. In the meantime it remains to be seen how the 34 Essendon players will respond to the show cause notices. One option is that they opt to cooperate with ASADA in the hope of reducing 2-year bans to 6 months. The legal and sporting communities will continue to watch with interest.

¹Essendon Football Club v Chief Executive Officer of the Australian Sports Anti- Doping Authority [2014] FCA 1019, at [1]
²ibid, at [406]
³ibid, at [407]
⁴ibid, at [490]

WADA appeals AFL decision
Doping in court – a thriller
Doping in court
Doping in sport