Illustration: Matt Golding
A leading sports lawyer says the ASADA investigation into the Essendon supplements scandal is already a "car crash" and has warned a "legal minefield" awaits if show-cause notices are issued.
Darren Kane, a lawyer who represented Cronulla in the NRL doping saga, has closely followed the probe into the Bombers. There is the possibility that up to 40 players and officials at the club during the 2011-12 period when it administered an unregulated injecting program could be issued with show-cause notices as part of ASADA's Operation Cobia by the end of June.
The players would then have 10 days to respond and show why they should not be placed on a Register of Findings by the independent Anti-Doping Rule Violation Panel. This panel then assesses the evidence and player submissions and make its call.
Kane, however, has questioned whether just the one tribunal would be suitable, a point players - who are being represented by David Grace QC through the AFL Players' Association, and are having their legal fees covered by the club - could take up.
"It's already a car crash but it's going to get a lot worse. We will still be talking about this next year, in two years time; we may still be talking about it in three or four years time because it's just that complicated," Kane said. "I don't think anyone properly appreciates the logistical problems of putting 40 players to the sword for doping accusations that don't involve positive tests, just in terms of proving the who, what, when, where and how.
"You go back to the Jobe Watson situation. He said 'I believe I have been administered a particular substance' … the fact that someone says they were administered something or they believed they were administered something, that doesn't prove the fact they were actually administered the substance.
"Given there are going to be similarities to the evidence, do you have different tribunals hearing the matter so that they don't take into account whether they allowed certain evidence to be admissible in other cases?
"If, for example, in the first case they allow certain evidence in, but then in subsequent cases people aren't taking objection, and the same tribunal has already allowed the evidence in the first time, does that prejudice the later people coming through?"
If a player is put on the Register of Findings, he has 28 days to appeal through the Administrative Appeals Tribunal.
Kane said it may yet be impossible for Grace and his team to solely represent the players, as this could depend on the "precise groupings of the evidence".
"Certainly when the show-cause notices are issued, it becomes a real legal mess," he said.
Having conducted 300 formal interviews and dissected more than 15,000 documents, ASADA chief Ben McDevitt says a decision on whether show-cause notices will be issued is just weeks away.
Kane said players could also argue whether any evidence gathered by ASADA was admissible.
"I think there might be real issues for ASADA proving some of these cases," he said.
"We are going to get into the territory of whether some of the evidence they have got - is that admissible because they have attained it in the right way or is it inadmissible evidence because they might have obtained text messages they got off the [Australian] Crime Commission. The evidence shared from the Crime Commission to ASADA can never be used to prosecute somebody."
Kane said lawyers could also take aim at ASADA's decision to partner the AFL in last year's initial investigation. This was hailed by some at the time as a blueprint for the future, but has since been questioned.
"I think there is going to be real issues through this joint AFL-ASADA investigation and how that was structured because the ASADA regulations - that's where the National Anti-Doping Scheme is. That doesn't really cater for joint investigations," Kane said.
"That caters for ASADA doing its own investigation … it doesn't conveniently cater for the sharing of information between organisations. I think you are going to get into problems there."
Once confronted with the possibility of two-year bans, and the careers of some coming to an end, Kane felt players would be prepared to "take the long road" in terms of protecting their livelihood. This would involve asking the AAT to investigate.
"You ask the AAT to review ASADA in terms of what processes they have gone through … and how they got their evidence," Kane said.
"Let's say for example there are 40 players. Each player individually and indeed [coach] James Hird, [then assistant] Mark Thompson and [former football chief] Danny Corcoran and whoever else is involved, is entitled to go to the AAT and challenge the methods by which ASADA has gone about its business. That could tie matters up for a long period of time."
Stephen Dank, the former sports scientist at the centre of the scandal, has already been issued with a show-cause notice. ASADA has refused to comment on whether he responded within the 10-day period, while his lawyers did not return calls.
Kane said Dank also had the right to test the regulations. Dank has maintained he will challenge any case in the Federal Court. Players ultimately could take their case there, as well as the AFL Anti-Doping Tribunal, its appeals board and the Court of Arbitration for Sport.
Bombers chairman Paul Little has also indicated the club could launch court action of its own.
The investigation has already gone on for 16 months.