Bombers players are facing possible doping bans after Essendon and James Hird failed in a court bid to throw out the ASADA/AFL investigation into the club.
Essendon's James Hird arrives at the Federal Court. Picture: Mark Dadswell Source: News Corp Australia
BOMBERS players are staring down the barrel of doping bans after Essendon and James Hird failed in a court bid to throw out the ASADA/AFL investigation into the club.
Justice John Middleton struck down every objection against ASADA and AFL's joint investigation into the Bombers, saying it was conducted within the parameters of the law.
The Bombers were also ordered to pay costs.
CLICK HERE TO READ THE COURT SUMMARY OF TODAY'S VERDICT
Hird and Essendon chairman Paul Little spoke briefly outside court, saying they would consider an appeal.
"I'm very disappointed for the players," Hird said, before refusing to be drawn on his own future.
Former Essendon coach James Hird says he is disappointed for the players following the Bombers' failed court bid against the ASADA/AFL investigation into the club.
The club issued a statement that read: "Before deciding the next steps, we will consider the reasons for the final judgement, including whether or not to appeal this decision.
"In taking these proceedings, our priority has been to protect and vindicate the legal rights and interests of the players.
"The club maintains its confidence that, on all the evidence available to us, neither harmful nor banned substances were given to the players during the supplements program of 2012."
Essendon's James Hird arrives at the Federal Court. Picture: Mark Dadswell Source: News Corp Australia
Controversial sports scientist Stephen Dank was also in attendance at the Federal Court to hear the verdict. He refused to speak to reporters as he left the building afterwards.
The AFL issued a statement acknowledging the court's verdict and saying it "reinforced that ASADA complied with the law in establishing and conducting the investigation and lawfully provided the interim report to the AFL."
The AFL Players Association also issued a statement saying its legal team "will review the judgment in coming days".
Essendon chairman Paul Little says the club is disappointed by the federal court's decision to uphold the ASADA/AFL investigation into the club. The Bombers are yet to decide if they will appeal the decision
Essendon and Hird argued in a three-day hearing in August that ASADA had gone beyond its lawful powers in conducting the joint investigation into the supplement program at Essendon.
"I will order the dismissal of the application by Essendon and Mr Hird," Justice Middleton said.
"The nature and the conduct of the investigation was lawful."
Justice Middleton said even if he had found the investigation was unlawful he would not have set aside the 34 show-cause notices issued to current and former Essendon players for the alleged use of banned peptide Thymoson beta-4.
He said the interim report provided to the AFL on August 2 last year was also lawful and dismissed objections to ASADA and the AFL sharing information, saying they did not breach ASADA's confidentiality laws.
He said Hird and the players voluntarily took part in interviews knowing both ASADA and AFL representatives were in the room.
"It can hardly be said Mr Hird and the Essendon players did not consent to the information being disclosed to all in the interview room," he said.
Justice Middleton said both Hird and the Essendon players voluntarily entered into a contract with the AFL subjecting them to the league's code, which meant relinquishing certain obligations and rights.
"One such right was the right to claim privilege against self-incrimination before the AFL," he said.
"There is no suggestion in these proceedings that Mr Hird or any of the 34 players did not understand the nature of the contractual obligations undertaken or the rights they were giving up, in return for the right or privilege to play or coach AFL football."
Essendon's chairman Paul Little arrives at the Federal Court. Picture: Mark Dadswell Source: News Corp Australia
Justice Middleton said the AFL, not ASADA, subsequently used those compulsory powers in the joint investigation, which was not in breach of the National Anti-Doping Scheme.
"No power of the state had been utilised by ASADA to compel Mr Hird or the 34 players to act in the way they did during the investigation."
Justice Middleton also said the former Labor federal government had pressured the then-ASADA chief executive Aurora Andruska to bring the investigation to a conclusion.
But he said that pressure did not result in any dereliction of duties by ASADA or Ms Andruska.
Essendon players are staring at doping bans after the Bombers and James Hird had their case against ASADA thrown out.
"Ms Andruska was under some pressure from the then-federal government and the AFL to bring the investigation to an end as soon as possible, and to assist the AFL so that the AFL could take disciplinary proceedings against Mr Hird and Essendon prior to the 2013 AFL finals," he said.
"However I do not regard such pressure as giving rise to any dereliction by Ms Andruska in respect of her responsibilities."
He said he did not need to consider or comment on the government's intervention in the investigation for the purpose of his ruling.
Stephen Dank arrives at the Federal Court. Picture: Mark Dadswell Source: News Corp Australia
ASADA CEO Ben McDevitt said the 34 current and former Essendon players still have a case to answer, after being issued with formal allegations of possible anti-doping rule violations three months ago.
"Today's judgment vindicates Mr McDevitt's strong belief that the Act always contemplated ASADA working with sports to uphold clean competition," an ASADA statement said.
"The only way to stay ahead of sophisticated doping regimes is to partner with sports; not exclude them from the process."
The Bombers claimed that ASADA ran the joint probe in order to utilise the league's coercive powers in its interviews with Essendon players and staff.
But ASADA argued that it did nothing wrong and warned it could reissue doping allegations against Essendon players within 24 hours if the court sided with the club.
The AFL ejected Essendon from the 2013 finals series and suspended Hird after finding the club's supplements program had brought the game into disrepute.
CLICK HERE TO READ THE FEDERAL COURT JUDGMENT IN FULL
FOLLOW ALL THE REACTION TO THE VERDICT IN OUR BLOG BELOW
JUSTICE MIDDLETON'S KEY FINDINGS
ON WHETHER ASADA AND THE AFL ACTED ILLEGALLY BY WORKING TOGETHER
ASADA was clearly conducting an investigation into possible anti-doping violations. The AFL was undertaking its own inquiries, obtaining information for itself ... for the purposes of enforcing its own player rules.
The investigation of ASADA, the subject of these proceedings, I have found was for the purpose of investigating anti-doping violations. In addition, as I will indicate, the nature and conduct of the investigation was lawful.
ON WHETHER ASADA BREACHED CONFIDENTIALITY RULES BY PASSING ON DETAILS OF THE INVESTIGATION TO THE AFL
Mr Hird and the 34 players voluntarily and directly gave to the AFL the answers to questions and the information without complaint.
In any event, by actually being in the interview room, knowing that AFL personnel were present, being aware that the player rules were applicable to the interview process, and by responding to each and every question, it can hardly be said that Mr Hird and the Essendon players and personnel did not knowingly consent to any information being disclosed then and there to all in the interview room.
ON WHETHER ASADA'S INTERIM REPORT WAS GIVEN TO THE AFL FOR AN 'IMPROPER PURPOSE'
In my view, the interim report was given to the AFL for both "the purposes of" the continuing ASADA investigation, and "in connection with" the ASADA investigation.
The interim report did not (as was contended by Mr Hird and Essendon) dwell extensively on matters of governance. Its focus was the suspected anti-doping violations by Essendon players and personnel.
The poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systemic, or may have occurred because proper governance and management practices were not in place. This seems to have been the very situation that existed at Essendon.
ON FORMER ASADA BOSS AURORA ANDRUSKA
It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses. I do not consider these criticisms, to the extent they impact on her veracity, can be sustained. Ms Andruska was a truthful witness. I would have expected Ms Andruska to be careful in responding to the interrogation made of her on these matters, as indeed she was.
ON PRESSURE ON ASADA FROM THE AFL AND THE FEDERAL GOVERNMENT
I have come to the view that Ms Andruska was under some pressure from the then Federal Government and the AFL to bring the investigation to an end as soon as possible, and to assist the AFL so that the AFL could take disciplinary proceedings against Mr Hird and Essendon prior to the 2013 AFL finals season. However, I do not regard such pressure as giving rise to any dereliction by Ms Andruska in respect of her responsibilities, under the Act or the NAD Scheme.
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