Chief AFL medical officer Dr Peter Harcourt. Photo: Pat Scala
A lawyer who acted as a consultant to Essendon last season has claimed the fines and suspensions imposed on James Hird and the Bombers could be void because of comments made by the AFL's chief medical officer, Dr Peter Harcourt.
Martin Hardie, a lawyer and a lecturer at Deakin University, said the AFL and all parties sanctioned in the case last season had non-disparagement clauses as part of their settlements. This included the Bombers, Hird, Danny Corcoran and Mark Thompson.
Legal sources believe this clause may have been breached during a speech at the FIFA anti-doping conference in Zurich in November where Harcourt said it was "shocking to the extent at which experimental drugs were given to young athletes, and highlighted the craziness, or the madness, of certain individuals who were in the support staff who didn't come to grips to what they were doing''.
Hardie, who has attacked the manner in which the joint investigation between the Australian Sports Anti-Doping Authority and the AFL was handled, said Harcourt was in "clear breach" of one of the settlement's key points.
"I think it is quite possibly in breach of the non-disparagement clauses and it might be repudiation on the part of the AFL by the agreement, which means that the agreement is no longer in place," he said.
Essendon would not comment specifically on the non-disparagement clause on Thursday night but it's understood the club will consider investigating possible action.
Bombers chairman Paul Little has questioned whether new AFL chief Gillon McLachlan should sanction Harcourt.
"Dr Harcourt’s presentation raises many important questions including, whether or not he breached confidentiality? If he had the authority to make the presentation? And if not, what action will the AFL take?" he said.
As part of the club's sanctions for governance failures during its supplements program, the Bombers were fined $2 million, were banned from the finals last year and were banned from first- and second-round selections in the national draft last year and this season.
Hird was suspended with pay until August 25 this season, while Corcoran, the former football chief, was banned for six months, with two months suspended. Thompson was fined $30,000.
Any action against the penalties, however, would not make an impact on the 34 show-cause notices issued.
The AFL would not comment when contacted on Thursday.
In his speech, Harcourt feared "35-odd" players could eventually suffer from ''hormonal issues or cancers'' as a result of the injecting program run by sacked sports scientist Stephen Dank.
It emerged on Thursday that Harcourt had said this without any specific knowledge of what side-effects may or may not be felt by the players.
On their show-cause notices issued by ASADA, the players are alleged to have taken the banned peptide Thymosin beta-4.
Little said it was "regrettable" that Harcourt "chose to engage in irresponsible speculation about the health of our players at an international conference, without talking to the club and its players".
"Independent medical experts have provided information and feedback on the supplements issued to players, and given the club a high level of comfort regarding the short and long term health of our players," he said.
"Dr Harcourt also suggests our players ‘passively’ accepted the use of supplements. This statement is offensive - our players took considerable steps in this regard."
Little said players had insisted on consent forms. The players had insisted that club doctor Bruce Reid approve all supplements and that all supplements be WADA approved.
"In 2012 and 2013, we conducted comprehensive medical evaluations of our players and we continue to provide ongoing monitoring," he said.
AFL Players Association acting chief Ian Prendergast also defended the players against Harcourt's claims and criticised him for speculating on the players' health.
"We also believe Dr Harcourt’s comments with regards to potential health consequences are unhelpful and have the potential to create unnecessary stress and anxiety for players and their families," Prendergast said.fi
While Harcourt's comments have angered the Bombers, there is already much for them to consider, for they are due back in the Federal Court on Friday for a third directions hearing in front of Justice John Middleton. This hearing will decide whether the 34 players issued with show-cause notices will become a party as either a respondent or applicant to the case lodged against ASADA by Hird and Essendon and whether their anonymity can be protected.
Hird and the Bombers maintain the joint investigation conducted into the club's 2011-12 supplements program was unlawful as ASADA did not act as an independent body.