Doping in court - wespokelaw

Is sunlight the best disinfectant?

The landmark Federal Court case of the Essendon Football Club and James Hird v Australian Sports Anti-Doping Authority¹ awaits a decision from Justice Middleton. The tortuous doping saga that has gripped the Australian sporting nation has played out in the public arena. The related litigation is no different, where the opening submissions were streamed live and the media hype has been unprecedented.

The facts

It seems that many of the facts in this case will be undisputed. They include;

the Australian Football League (AFL) and Australian Sports Anti-Doping Authority (ASADA) interviewed players and staff from the Essendon Football Club;
the power to interview the players and staff came from the AFL’s coercive powers (as ASADA has no coercive powers to compel interviews under their investigatory regime);
the investigation was considered to be a ‘joint investigation’ by the AFL and ASADA; and
the interim report released by ASADA to the AFL was done so in the knowledge that the AFL intended to use it for disciplinary purposes.

Applicants – Essendon and James Hird

The Essendon Football Club and James Hird will rely on numerous contentions to attempt to show that the joint investigation undertaken by ASADA and the AFL was unlawful. It should be noted that Justice Middleton indicated a preference for separate investigations rather than a joint investigation and that if the investigation was found to be unlawful the show cause notices could be set aside.

The 34 Essendon players who received show cause notices are not parties to the proceedings but they presented submissions to the court prior to the hearing. The crux of their submissions was that:

any negative impact on the players arising from the court’s decision should be considered by the court; and
the show cause notices should be removed if the joint investigation was considered unlawful by the court..

It will be intriguing to see whether this discretionary power to consider the rights of third parties (in this case, the players) is exercised by Justice Middleton.

Respondent – ASADA

ASADA submitted to the court that there is no express prohibition in the Australian Sports Anti‑Doping Authority Act 2006 (Cth) or National Anti-Doping Scheme against a joint investigation.

In addition, there is a requirement that the sporting administration body (in this instance the AFL) must ‘cooperate’ with ASADA. Further, the legislation contemplates disclosure of information by ASADA to sporting bodies such as the AFL. This could have an impact on the interim report that ASADA released which was used by the AFL to impose sanctions on James Hird and the Essendon Football Club. The report could be considered appropriate and within the scope of ASADA’s powers or alternatively, as Essendon have argued, obtained as a result of an unlawful ‘joint investigation’.

What next?

A major issue to be determined is the show cause notices that remain with the 34 unnamed Essendon players . If the joint investigation is considered ‘unlawful’, what impact will that have on the show cause notices?

Justice Middleton noted during the hearing that ASADA should make a fresh decision about the appropriateness of reissuing any show cause notices should it be necessary. Interestingly, ASADA’s lawyers claimed after the hearing that ASADA could reissue show cause notices within 24 hours if the outcome was that the investigation is unlawful.²

Stay tuned

The decision handed down by Justice Middleton will determine in which direction this protracted saga heads next. Only a brave person would attempt to predict an outcome at this point. Legal buffs and a sporting nation awaits.

¹Essendon Football Club v The Chief Executive Officer of the Australian Sports Anti-Doping Authority [FCA] VID327/2014
²http://www.theage.com.au/afl/afl-news/asada-could-reissue-showcause-notices-court-told-20140813-103q0d.html

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