Illustration: Matt Golding
Australian Sports Anti-Doping Authority chief Ben McDevitt believes his case against Essendon is on safe legal ground but has warned the Bombers his brief may not fall apart even if the club is successful in having the Federal Court label its joint investigation with the AFL as unlawful.
As Fairfax Media was told on Saturday, the 34 current and former Essendon players slapped with show-cause notices remain firmly behind their AFLPA-backed legal team and would not splinter in order to accept an offer of a reduced sentence from ASADA, McDevitt said his understanding was that the investigation completed by the AFL and ASADA was strong.
The Bombers and suspended coach James Hird have both sought hearings in the Federal Court arguing for an injunction to permanently block what they feel is an illegally conceived case. The Bombers’ hearing will be on June 27.
However, McDevitt said legislation allowed for the anti-doping body and sports bodies, in this case the AFL, to work together.
“Let’s have a think about this. ASADA could not possibly do this job on its own. It’s got to be done in cooperation with the codes,” he said on Saturday.
“The codes have integrity units. ASADA has the role about administration and oversight. We need to be able to work together. At the end of the day, there were delays. I am first one to say these delays were not attributable to the players. I feel for the players as much as anybody else.”
Speaking on ABC Radio, McDevitt suggested his case was strengthened because those interviewed by the AFL and ASADA had not protested about representatives from both parties being in the room.
“My understanding is that no person who was interviewed refused to be interviewed on the basis that the interviews were being conducted jointly by ASADA and the AFL investigators. Most of these people were legally represented at the interviews and all agreed to the joint interview process,” he said.
McDevitt also said the AFL was required to hand over pertinent information to ASADA.
“Whether ASADA was sitting in that interview room at the time or not, everything gathered would have had to have been provided to ASADA anyway,” he said.
Referencing the Bombers’ internal report by Ziggy Switkowski last year which described “a disturbing picture of a pharmacologically experimental environment”, McDevitt questioned why the club was going to court.
“My sense is, why do people seek injunctions? There are probably a couple of things. One is it’s a delaying tactic. Let’s understand this – this will further prolong the process. That’s a reality. Choices have been made by others now to further prolong this process,” he said.
“The second bit is – you presumably want to exclude evidence. The environment described by Ziggy Switkowski is an environment which was in existence. That was accepted to some extent because the imposition of penalties on the club (in August last year) wasn’t fought, it was accepted.”
Asked specifically if he felt ASADA’s case was on safe legal ground, he responded: “This is a matter of debate. I have independent legal advice saying that we are on firm ground in terms of the joint investigation. Now let’s face it, nothing against lawyers, but you’ll get 47 different opinions about that. We will go with the referees call. That will be it.”
McDevitt said even if the Federal Court ruled some evidence had been unlawfully obtained, it may still be able to be used in hearings. He also reminded the Bombers that there was “evidence beyond” its initial joint investigation which culminated in an interim report delivered in August which led to Hird’s suspension.
However, it’s understood any recent evidence would not include player interviews, which ASADA is believed to be relying upon in its initial case.
McDevitt said each of the show-cause notices relates to the banned peptide thymosin Beta 4.
“We have not actually issued show-cause notices in relation to the presence in the blood or urine of thymosin Beta 4. They are separate matters,” he said.
On the banned anti-obesity drug AOD-9604, McDevitt said ASADA would not pursue any cases which began before April 22, 2013. That was the date when the World Anti-Doping Agency cleared up the drug’s status, confirming it was banned.
But McDevitt offered this chilling summation of the substance which Jobe Watson suggested he had taken under the program led by sacked former sports scientist Stephen Dank.
“That substance is an experimental substance with no clinical studies on the long-term health effects of that peptide on people,” he said. “This is something that actually has huge health effects on humans potentially. It is just grossly irresponsible in terms of the player welfare there.”
It's believed some players have interpreted McDevitt’s comments on Friday where he outlined how they could get a reduction of up to 75 per cent off a two-year ban should they be found to not have been responsible for what they were injected with, and were willing to help with inquiries, as a “bullying” tactic. Essendon great Tim Watson had also taken aim at suggestions the players had so far failed to tell the truth.
However, McDevitt, a former Australian Federal police deputy commissioner, said he was only outlining what was on offer.
As players fight for up to a six-week extension to the initial 10-day deadline to respond on the show-cause notices, McDevitt said ASADA would eventually have to prove guilt to a “comfortable satisfaction” but he was unsure “what the burden of proof would be”.
“This [case] needs to be heard. That’s why now, I think on very solid grounds, show-cause notices have been issued. This now needs to go through the process,” McDevitt said.