Essendon players will seriously consider taking legal action against the club should they be found guilty of taking a banned substance.
ASADA 'suggesting players haven't fully cooperated'
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ASADA 'suggesting players haven't fully cooperated'
Acting AFLPA chief Ian Prendergast says Essendon players' legal teams want ASADA to provide them with all the documents they intend putting to the anti-doping panel.
The 34 players issued with show-cause notices by the Australian Sports Anti-Doping Authority discussed a range of issues with their five-man legal team on Monday night.
They remain united in their bid to clear their name, although coach Mark Thompson has even admitted some could be tempted to splinter and take what appears to be a reduced six-month ban if they are prepared to admit they were duped by club medical staff and are willing to assist ASADA with its investigation.
Players have yet to discuss in detail what the legal action would entail but those close to the players admit it will be a serious prospect if their individual cases fail. At least one player manager has said he will explore legal action for his clients.
Lawyers believe players would most likely not be paid should they be suspended. However, their wages could be offset by successful legal action. Lawyers believe the Bombers would almost certainly lose any case because they have admitted to governance failures during the club's 2011-12 supplements program.
The Bombers could also face legal action from clubs they have traded with if those players are also banned. This could include Port Adelaide, the Western Bulldogs and Fremantle, although the Bombers could argue rival clubs were aware of the possible fall-out from the injecting program.
The players continue to push for a six-week extension to when they can respond to show-cause notices.
While they debate their next step, the judge set to hear the separate cases brought by Essendon and James Hird against the ASADA believes resolution can be delivered relatively quickly and inexpensively.
And the lawyer representing the Bombers, Josh Bornstein, a principal at Maurice Blackburn, has revealed he has written to ASADA, urging it to co-operate in the hope of an “expedited hearing”, although this is still likely to mean the club’s on-field performances will be overshadowed for the rest of the season.
In an email to lawyers representing the Bombers and Hird on Tuesday, Justice John Middleton has asked both parties to deliver material he requires by Wednesday, June 25, with the directions hearing to be held two days later.
He has also given the parties the opportunity to seek resolution through mediation. This, however, seems unlikely.
Justice Middleton has spent recent days dissecting the applications put forward by the Bombers and Hird. Each has argued ASADA's joint investigation with the AFL into the Bombers' 2011-12 supplements program was unlawful and, therefore, the anti-doping body did not have the power to issue show-cause notices.
Justice Middleton says as the cases seem "relatively confined", they will be heard together.
"His Honour has had the opportunity to consider the applications and supporting material. As presently advised, the issues (at least those raised by the applicants) in both proceedings seem relatively confined, and would in the normal course be able to be determined with some expedition," the executive assistant to Justice Middleton wrote.
"At the directions hearing on 27 June 2014, his Honour would like to be in a position to set both proceedings down for trial (to be heard together)."
Just how long "some expedition" is remains unclear, although it could still take months to resolve.
Bornstein said he hopes the trial begins within three months.
“It is in the interests of all parties that the legality of the ASADA investigation is determined by the court at the earliest opportunity,” Bornstein said.
“The position of my client is very clear. It seeks to have its case heard and determined by the Federal Court as soon as possible.
“We hope at the directions hearing on the 27th June to have reached a joint position with ASADA on a quick timetable for the case to be heard, possibly within the next two or three months.”
Justice Middleton has asked for any further evidence and possible legal issues to be delivered to him by June 25 and also an indication of suitable trial dates, and how long the case is likely to last for.
"The court will assume that when the parties confer they will act consistently with the overarching purpose of civil practice and procedure, so as to facilitate the just resolution of these disputes according to law, and as quickly, inexpensively and efficiently as possible," the email says.
"If any party considers that both or either proceeding could be resolved by mediation, then this should be raised with the court immediately. A mediation through the court could be arranged expeditiously, but any mediation will not otherwise delay setting the proceedings down for trial on the appropriate date suitable to the parties and the court."
ASADA chief Ben McDevitt believes his case is on safe legal ground, arguing, for instance, anyone interviewed through last year's investigation had the opportunity to question why officials from the AFL and ASADA were in the room.
While the joint investigation was initially considered a blueprint for the future, there are questions now as to whether ASADA's independence, even if just from a perception point of view, may have been compromised.
Essendon's decision to attempt to have the investigation quashed through the Federal Court has angered some club presidents, who fear the game continues to be tarnished and held to ransom.
ASADA has issued 34 show-cause notices to former and current Essendon players. The players, who met as a group on Monday night, have their own AFL Players' Association-endorsed legal representation. They have been offered reduced bans of six months if they admit they were duped by the Bombers' medical staff and are prepared to offer assistance.
Stephen Dank, Essendon's former sports scientist, insists he did not give players any illegal drugs.