On the move: Essendon players at training on Tuesday. Photo: Pat Scala
The 34 current and former Essendon players issued with show-cause notices could find out on Wednesday if they will be dragged into the Federal Court, as the Bombers and suspended coach James Hird seek to have the notices deemed invalid.
Hird and Essendon have again taken aim at the validity of the joint investigation by the AFL and ASADA into the Bombers' supplements program in 2011-12.
Justice John Middleton will hold a second directions hearing on Wednesday, with lawyers for Hird, Essendon, ASADA and the players arguing the merits of having players called to give evidence.
Hird and the Bombers maintain the joint investigation was unlawful and therefore the show-cause notices are invalid.
David Grace, QC, representing the players, has already argued that compelling his clients to give evidence would create undue "expense and distress" on them, with the "issue of anonymity" a concern. He has said the players endorsed the club's stance that the investigation was illegal.
But on Tuesday night, it emerged the players were now discussing the prospect of joing the club in its case.
"Whilst players didn't consent to being joined to the Federal Court action initially, we understand that any outcome will inevitably impact on the interests of players in some way," said the AFL PA acting CEO Ian Prendergast. "Therefore, the players' legal team have been working through a process with the players to determine whether it is appropriate for them to be joined as a party to the proceeding."
In a 19-page statement of claim lodged with the court on Tuesday, Hird alleged his legal team questioned the validity of the investigation even before his nine-hour interview in April last year, and was not told he had a right to silence.
He also claims ASADA provided draft versions of the interim report to the AFL before it was officially tabled on August 2 last year.
By doing this, ASADA had "acted in breach of the confidentiality obligations imposed on them" by its act and the National Anti-Doping Scheme.
Under the AFL's anti-doping code, Hird was obliged to "fully and truthfully answer any question asked for the purpose of such investigation". Hird said he was warned that if he refused to talk this could result in a sanction.
But Hird claims "that pursuant to the ASADA legislative regime, the applicant, upon being interviewed, had the right to remain silent without penalty or censure".
Hird details a conversation between his legal adviser, Tony Nolan, QC, and AFL investigator Abraham Haddad.
Nolan: ''We don’t want to enter into any debate as to the legal arguments today as to the nature of the joint investigation as distinct from two separate investigations. We’ll put that debate to the side for a later time, if necessary.''
Haddad: ''OK, that's good.''
Nolan: ''We understand that’s what you say.''
Nolan: ''And he understands what you say.''
Hird said the interview was "then principally conducted by ASADA investigators John Nolan and Aaron Walker". He later handed over his mobile phone for "forensic examination".
Hird argues the issuing of show-cause notices "from or relying on information obtained in the joint investigation is likely to cause ... damage to his reputation and business interests".
In pointing to proof of a joint investigation, Hird has used an article AFL investigator Brett Clothier co-authored in the British Journal of Sports Medicine where "the AFL and ASADA partnered to undertake" an investigation "into peptide use at three AFL clubs by using modern investigative techniques".
Hird's statement also points to a March 2013 email by then-AFL deputy chief executive Gillon McLachlan, an ABC radio interview with ASADA chief Ben McDevitt on June 14, 2014, and also mentions former AFL chief executive Andrew Demetriou as proof there was a joint investigation.
"Demetriou ... on or about 27 May, 2014, affirmed the fact of a joint investigation and further stated that the AFL's resources and ability to compel people to give evidence had assisted the investigation," the statement says.
Hird also alleges "on or about 13 August, 2013, Andrew Dillon, chief legal counsel for the AFL, stated that the joint investigation remained open".
This later led to a joint interview of former Essendon fitness coach Dean Robinson, who is suing Essendon for allegedly being made the scapegoat for the club's supplements scandal.
Essendon lodged a 10-page statement of claim on Tuesday, sharing many of the points raised by Hird. The club's clear message if that the investigation was "ultra vires" - beyond ASADA's power.
But ASADA maintains under legislation it is allowed to work closely with sporting organisations, but this investigation was separate.
Former ASADA chief Richard Ings said on Tuesday he eagerly awaited ASADA's response.
"Very interested to see the ASADA's response outlining the steps ASADA (surely???) took at each interview to outline rights and obligations," he said on Twitter.
In Hird's amended application for relief, he also questions what the information taken from interviews conducted by ASADA and the AFL was used for.
"ASADA provided the AFL with immediate access to confidential information provided by the applicant and [Essendon] players at interviews by permitting AFL staff to attend, jointly conduct, and tape record those interviews for purposes extraneous to ASADA's investigation," the statement said.
The AFL suspended Hird and punished Essendon in August for governance failures - not anti-doping breaches.
The AFL would not comment on Tuesday.
Hird is due to return from an extended study tour in France on July 28.
The case is set for a three-day trial, from August 11.