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Stakes high for Essendon, Hird and ASADA

It can be difficult to keep abreast of what is really going on in the Essendon supplements saga.

It can be difficult to keep abreast of what is really going on in the Essendon supplements saga.

The details, technicalities and, as one lawyer put it, "white noise" around the Federal Court case brought by Essendon and James Hird against the Australian Sports Anti-Doping Authority investigation means it can be difficult to keep abreast of what is really going on.

It's a game of high stakes, politics, leaks and, potentially, smoke screens, with the no-nonsense Justice John Middleton given the task of determining the primary outcome. However, the saga is unlikely to end even then.

A snapshot ofwhat's been happening.

Where are we at in the Federal Court?

There have been three directions hearings in front of Justice Middleton, who has made it clear he wants to have this mess sorted as soon as possible. Just what documents and affidavits will be lodged is now being debated by the parties, while ASADA will soon present its defence to suspended coach Hird and the Bombers. The trial begins on August 11 and is set to last three days. However, Justice Middleton could then take weeks to reach his decision.

What is the key contention?

It's about whether ASADA, an independent body, worked "ultra vires" - outside of its scope - in partnering with the AFL while investigating Essendon's supplements use last season. As Hird and the Bombers say in their joint submission regarding discovery: "Why did the CEO of ASADA decide to enter into an agreement with the AFL to conduct a joint investigation?" It then adds: "Was it because the CEO at the time sought, as alleged, to take advantage of powers not available to her, or was it for some other reason?"

What do the Bombers and Hird say?

They argue ASADA acted outside its jurisdiction by working closely with the AFL "to take advantage of its [AFL's] compulsive powers". They claim the show-cause notices issued to 34 current and former players are therefore void. They argue Hird and the players were not given the right to silence "against self-incrimination" during their interviews last year, having only been warned they had to be truthful under the AFL's anti-doping guidelines. Hird also says ASADA wanted to "obtain a benefit not otherwise available" to it but has denied claims he is alleging there was a conspiracy against him.

What evidence has been released in pointing to a ''joint'' probe?

In their joint submission regarding discovery, Hird and the Bombers have so far listed comments made by AFL chief medical officer Peter Harcourt in Zurich, an article by Harcourt and AFL investigator Brett Clothier in the British Journal of Sports Medicine and Andrew Demetriou's statements in a July 27 article. They are now seeking more official correspondence between the AFL and ASADA, including events and meetings from February 5 last year when the club self-reported. Just what David Evans, the Bombers' chairman at the time who has remained silent since his departure, said and ordered during the initial process remains one of the key missing pieces. Hird and the Bombers also want access to the full interim report released last August, and to a 100-page cover document that is likely to detail why new ASADA chief Ben McDevitt issued the show-cause notices.

What does ASADA say?

The anti-doping body says its Act and legislation allows it to work with sporting bodies. It also says it can compel any sporting body to hand over information relevant to the case it is conducting. ASADA lawyer Dan Star says the Bombers "were a proponent and supporter of the investigation ... that it wanted this and supported this as well".

When is Hird back?

According to his lawyers, he is scheduled to arrive home from a study tour in France on July 28. With his 12-month suspension by the AFL for governance issues expiring on August 25, he could be back in the coaching box for the round-23 clash against Carlton.

Where do the players stand?

Having opted to not join Hird and Essendon, they now do not have to give evidence, ensuring they retain their privacy. However, David Grace, QC, says the players back the club's claim that the investigation was illegal. If Hird and the Bombers win, they, at least temporarily, will not have to respond to the show-cause notices. However, ASADA could re-open the case using information gathered since last August when the joint probe ended.

What about Harcourt's fears the drugs administered to the players could result in cancer or hormone issues?

The Bombers maintain the players have nothing to worry about. The AFL's charge sheet last year listed 16 substances (one was redacted) given to players, including the banned Thymosin beta 4. This is the drug listed on the show-cause notices. However, the Bombers maintain the non-banned Thymomodulin, an immunity booster given to infants and also referred to as Thymosin - and not Thymosin beta 4 - was administered. Consent forms devised by sports scientist Stephen Dank and signed by Essendon players said only ‘‘Thymosin’’ without specifying what type. Coach Mark Thompson said last week one of the drugs injected was fine because it was used to treat cancer patients. That drug could have been Thymosin Alpha,  a legal variant that has been used to boost immune levels. It was not listed as one of the 16 drugs. 

Where are we at with Dean Robinson?

The former Essendon fitness chief is suing the Bombers for unfair dismissal and $2 million. He is set to subpoena major figures at the AFL and Essendon. His lawyer David Galbally says  he could yet even join the Hird and Essendon case.

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