The gulf between Essendon and the Australian Sports Anti-Doping Authority has exploded, with the anti-doping body accusing the Bombers of trying to stall the investigation and even break ASADA's rules.
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Bombers press for urgent injunction
Lawyers for Essendon say despite repeated requests, ASADA has refused to suspend the investigation into allegations of doping.
As the AFL Players Association on Monday updated the agents of the 34 players issued with show-cause notices in what was described as a "productive" meeting, the Bombers filed an injunction in the Federal Court, seeking to have the players not be required to respond to their show-cause notices until after the Federal Court hearing of the club's challenge to the legality of ASADA's investigation.
The players have until July 11 to respond but that could depend on how successful Essendon and suspended coach James Hird are with their bid to have the joint AFL and ASADA probe quashed. The directions hearing is on Friday.
As tensions appear to be rising, ASADA hit back in a statement. Referencing the undertakings sought by the Bombers on Friday, ASADA said it had granted an extension of time for players to respond to show-cause notices and confirmed "that it had not provided any material to the independent Anti-Doping Rule Violation Panel regarding the 34 AFL players and would not do so without seven days further written notice to the players".
"Essendon Football Club's lawyers (Maurice Blackburn Lawyers) were notified early Monday morning of the extension. A short time after this notice was given to Maurice Blackburn, and without any further conferral with ASADA, ASADA became aware of Essendon's application for an urgent injunction via a tweet from a principal at Maurice Blackburn," the statement said.
"Through its proposed undertakings, the Essendon Football Club was asking ASADA to stall its investigations and completely prevent the Authority from disclosing information in accordance with the act.
"To agree to the undertaking would have stopped ASADA performing its statutory functions until the conclusion of the Federal Court case and resulted in further delays."
ASADA said it had wanted to seek a quick resolution to a case that had dragged on for 16 months and suggested the Bombers had harmed this.
"The extension granted by ASADA today was a genuine attempt to seek a compromise to the undertakings sought by the Essendon Football Club and an effort to expedite matters. ASADA believes the decision by Essendon to lodge an application for an urgent injunction is premature, given the further extension provided by ASADA today," the ASADA statement said.
Through lawyer Josh Bornstein at Maurice Blackburn Lawyers, the Bombers have asked that the players not be required to respond to their show-cause notices until after the Federal Court hearing of the club's challenge to the legality of ASADA's investigation.
Beginning on Friday, lawyers for Hird and the Bombers will need to establish if there was a joint investigation. As ASADA chief Ben McDevitt has said, statutory powers allow it to share information during investigations. There are also rules requiring sporting bodies to hand over information to ASADA.
Having declared they would also seek an injunction preventing the Anti-Doping Rule Violation Panel from determining whether any players should be placed on ASADA's Register of Findings, Essendon's lawyers opted not to follow through on this when they made their submission at 4.30pm. Having a player put on the Register of Findings is the next step towards the AFL starting an infraction process.
Bornstein said he was disappointed the Bombers had needed to make an application for an urgent injunction. He said the anti-doping panel had refused to suspend the investigation despite repeated requests.
“We have written three times to ASADA's lawyers seeking their co-operation to ensure this matter is dealt with quickly by the court and that pending a quick hearing, the investigation and show-cause process be halted. On each occasion ASADA has failed to agree to our request for an appropriate undertaking," Bornstein said.
"It's in the interests of all concerned – the club, the players, the AFL and the football community more broadly – for this legal challenge to be dealt with as quickly as possible.
"It is only fair that ASADA commit to take no further steps in its investigation until after the Federal Court has ruled on the legality of the investigation. If ASADA proceeds, the court will be prevented from effectively ruling on the legality of the investigation because events will have overtaken the legal process.
"Extending the date for responses to the show-cause notices until 11 July and committing to not provide information to the ADRVP until 12 July does not go far enough."
The AFLPA also wants the show-cause period to be extended until after the Federal Court hearing. This could be months away, undermining yet another season for the Bombers.
The 34 current and former players issued with show-cause notices maintain that if they had been given illegal peptides, it was only because they had been duped. The Bombers, and Stephen Dank, the sports scientist at the centre of allegations, maintain nothing illegal was given.
The show-cause notices focus on Thymosin beta 4, classified as an S2 substance under the World Anti-Doping Agency Code. This would typically mean an athlete receiving a ban of between six months and two years. However, the Bombers and Dank argue thymomodulin, an immunity booster safely given to infants, was used. Essendon's former fitness chief Dean Robinson, seeking a $2 million payout from the club for breach of contract, also denies any illegal peptides were administered.
ASADA's evidence against the Bombers relies on evidence and testimony given by Shane Charter, a biochemist and convicted drug importer. He allegedly sourced the raw materials from China ASADA suspects were given to the Essendon players.
The directions hearing on Friday will be televised live on ABC television in an unprecedented move by the Federal Court.