Essendon and its outcast senior coach, James Hird, are combining forces in a stunning Federal Court appeal of the drugs investigation conducted jointly by the Australian Sports Anti-Doping Authority and the AFL.
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The AFL's new chief executive Gillon McLachlan tells 3AW's Neil Mitchell he only became aware of the 34 show-cause notices to players last night when the news was made public.
In another significant development late on Friday, it emerged that Hird was also party to the court action that Essendon hopes will render ASADA’s 16-month doping investigation invalid.
Fairfax Media has been told that the legal proceedings Essendon chairman Paul Little announced on Friday, following ASADA’s issuing of show-cause notices to 34 past and current Bomber players for alleged doping rule breaches, have been in the works for approximately three weeks.
The proceedings that named both the Essendon Football Club and Hird were filed with the Federal Court on Friday afternoon.
It is understood that Steven Amendola, a partner at Melbourne firm Ashurst who acted for Hird last year and has remained engaged by the 1996 Brownlow medallist throughout, is helping to lead the action for Essendon.
The Federal Court listings show that Hird will take on the CEO of ASADA – now Ben McDevitt after he succeeded Aurora Andruska in the position last month- and that the Essendon Football Club will also take on ASADA’s CEO.
There are six listings on the Commonwealth Courts website that outline administrative law applications that were all filed on June 13.
The matter is scheduled to come before the Federal Court in Melbourne on June 27. Essendon chairman Little explained the decision at a press conference on Friday afternoon at the club's Tullamarine training base.
"The board concluded unanimously that the club is left with no alternative but to fight to protect the reputations and the livelihoods of our players. As such, today we filed an application in the Federal Court of Australia challenging the legality of the AFL-ASADA joint investigation process and all that now flows from it,” he said.
"The club will contend that the joint investigation was unlawful and ASADA acted ultra-vires and exceeded powers under its statute. There is no power or capacity under the ASADA Act to conduct a joint investigation and there never was.
"If we are right and we believe we are, the court will declare the investigation null and void. We will seek a permanent injunction on the use of all the information collected in that investigation. The board does not take that decision lightly."
Little said the club was prepared to fight in court for two years if necessary.
"We have contemplated the impact of our actions on the broader AFL and sporting community and obviously we have assessed what is in the best interests of our players and the club as a whole," he said.
Last year, former AFL CEO Andrew Demetriou termed the joint investigation that was conducted by the ASADA and the AFL a "template" arrangement for sports.
Hird and his legal team, however, have consistently objected to the arrangement that was struck to help ASADA gain fast and smooth access to players and other club staff it wanted to interview.
On Friday, Little criticised the "media blitz" and "grandstanding" of ASADA, saying its chief executive Ben McDevitt had not answered his calls despite going on a "media roadshow" today.
"Despite being subjected to this unfair and unjust speculation in the court of public opinion, our players have acted with the utmost of professionalism and integrity throughout this entire process.
"Enough is enough, we will not be bullied and we will not allow our players to be hung out any longer, they have suffered enough." Little said.
"We accepted those sanctions (delivered last year), accepted responsibility and our players paid an enormous price missing out on the opportunity to compete in the finals series last year. Not only that, our players have been forced to endure 16 months of uncertainty, breaches of confidentiality, conflicts of interest, leaks through the media, baseless allegations and indisputable reputational damage.
"The club has accepted the sanctions handed down... We've moved on from that. This is about protecting the rights of the players"
Little said his club had agreed not to challenge the investigation process when it self-reported, but now that show-cause notices had been issued, it felt "honour-bound to challenge".
"The process undertaken by ASADA has been severely compromised from the outset and to the extent that it is impossible for natural justice to occur.
"As such, we have been left with no other option than to challenge this flawed process through the courts. It was unlawful from the outset and it remains unlawful today..
"We have co-operated all the way through this process and part of that co-operation was not challenging the legality of the structure that was put in place initially. And we respected that. Now that show-cause notices have been issued we believe it’s time to change that approach."
Little said he was "very positive" about the level of success the action would achieve.
Essendon will seek to have the challenge heard as soon as possible. Little hopes that Essendon players will take some relief from the club becoming "more proactive with its approach", which would allow them to focus on their football.
"Some of them are carrying this better than others. Obviously they won’t be able to totally disregard what’s going on."
Little said the club would look after players who had moved to other clubs.
The club "self-reported" concerns over its sports science injections on February 5, 2013, prompting the investigation, which eventually led to the resignation of then chairman David Evans, the suspension of coach James Hird, and the club's demotion from the 2013 finals series.
Investigator Ziggy Switkowski reported "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".
The media was locked out of the club's training facility for most of Friday as Essendon contemplated its next move.
McDevitt said this afternoon that though he wanted the matter dealt with promptly, if a challenge came, he would stand firm.
"I intend to see this through to resolution," he said on SEN radio.
He confirmed that banned substance Thymosin Beta 4 was central to his agency's investigation.
"I've got a really strong mandate... I've got to do this without fear or favour."
McDevitt would not confirm whether he had spoken to controversial sports scientist Stephen Dank, who was employed by Essendon to run the supplements campaign. He said that the ASADA act only worked if it had a "co-operative relationship" with the sports it oversees.
He reaffirmed that he considered it the responsibility of individual players to govern what supplements they ingested.
McDevitt signalled his intention to talk through potential deals with Essendon players, flagging reduced penalties for co-operation. He also refused to rule out the possibility of other non-players bring drawn into the investigation.
"If a player is found to have no significant fault, which means for example if a player didn’t know what was being administered to them ... (it) would mean a reduction of up to 50 per cent of the original penalty," he said.
"Beyond that, if they have shown that have provided substantial assistance to ASADA, they’ve come forward, they’ve made full admissions, said this is the circumstances, then there is the possibility of a further 75 per cent reduction on the original penalty.
"You could end up going from two years to 12 months to six months."
McDevitt said he had not spoken to the Bombers before the issuing of notices as it would have been improper.
"I was in a potential conflict of interest situation. I was assessing the (Essendon investigation) material and it would have been highly inappropriate of me," he said.
There are fears the process could take years to resolve.
McDevitt said his decision to issue notices was based on a considerable body of evidence collected in the investigation.
"I am satisfied that a potential violation or possible violation of our anti-doping code has occurred," he said.
Earlier on Friday, AFL chief executive Gillon McLachlan said the show-cause notices were only allegations and the first stage of the process.
"It’s essentially a proposition, an allegation to which they have to respond," he said. "It’s just the start of a long process, it’s not an indication of guilt."