In the thick of it: Steve Dank. Photo: Tim Clayton
Moves are under way to challenge the legal validity of ASADA's interim report into Essendon's supplements program. Meanwhile, a former boss of Australia's anti-doping agency has flagged potentially serious privacy issues that could jeopardise the case and prompt key figures to raise concerns with the Privacy Commissioner.
As the legal team acting for Stephen Dank requested a copy of the report delivered to the AFL last Friday night, Fairfax Media confirmed that the sports scientist was not formally presented with any information in the 400-page document.
One of Dank's lawyers, Greg Stanton, said he was concerned by suggestions that the architect of Essendon's supplements program was "allegedly adversely named" in the ASADA report. Stanton said on Wednesday: "We are currently in the throes of determining what action we will move against ASADA with.
"If newspaper reports are accurate they have made adverse findings against my client."
Stanton said he contacted ASADA on Wednesday morning to request a copy of the report. He said he had no response at all from ASADA by 7.30pm.
Separately, a source close to the investigation claimed that the interim report - tabled to help the AFL deal with Essendon before the imminent finals series appeared to contain "significant breaches of the ASADA Act". "This is about privacy provisions, and breaches of these provisions carry two years jail," the source said.
"There are serious doubts about the legality of the interim report, and any move against an Essendon player, or coach, or even Stephen Dank could see those issues litigated. And we may find that the court would determine that ASADA has exceeded its powers; that it has acted unlawfully.
"At its lowest, it seems there are inferences [in the report] that Dank has in some way broken the law. This is being used to hang him in the media and it appears, by association, to hang some people within Essendon.
"The Essendon Football Club, Essendon players, Stephen Dank, Dean Robinson, James Hird, and any other member of the football operations department… who by inference (in the ASADA interim report) are said to have done something wrong, could take legal action to suppress this report."
Criminal lawyer Tony Hargreaves, representing Essendon, would not respond to these suggestions when contacted on Wednesday.
Richard Ings, ASADA boss between 2006-10, refused to speak about individuals but outlined privacy rules regarding any athlete or "support person" in an anti-doping investigation and the ramifications if they were breached.
Dank was classed as a ‘‘support person'' when employed by Essendon.
"Failures to protect such privacy has the potential to adversely impact on any anti-doping prosecution," Ings said.
"The ASADA Act and the National Anti-Doping Scheme provide comprehensive confidentiality requirements for protecting personal information relating to persons under investigation.
"Any release of such NAD Scheme personal information could undermine an investigation or even a prosecution of a possible anti-doping rule violation.
"It is for these reasons that the protection of NAD Scheme personal information is critical, and that such information should only be disclosed to other individuals with the full and formal consent of the person under investigation.
"In any anti-doping investigation, it is critical to follow a process that will withstand thorough scrutiny before the administrative appeals tribunal or the Federal court.
"A concern is that information which appears to be NAD Scheme personal information is in the public domain. I would not be surprised if that may prompt certain individuals subject to this investigation to seek assurances from the Privacy Commissioner, and other government bodies, to ensure that their privacy is being fully protected.''
Dank is refusing to be interviewed by ASADA but Stanton confirmed that his client was not given the opportunity to respond to any information in ASADA's interim report. In what stands to be a significant legal point, this means Dank could not respond to any inferences, or allegations, contained in the document now being considered by the AFL.
ASADA's sole charter in its probe of Essendon is to investigate possible anti-doping rule violations committed by athletes or athlete support personnel. If it has enough evidence, it would use World Anti-Doping Agency rules in order to recommend sanctions. ASADA has no deadline on concluding its investigations. Its American equivalent, USADA, took two and a half years to mount a case that led to Lance Armstrong's demise.
The AFL, on the other hand, is desperate to have a response to the Essendon scandal that has tainted the 2013 season before the imminent finals series. Having received an interim report from ASADA, the league is taking legal counsel and the AFL Commission is on standby to determine potential sanctions.
Dank says he kept records of all substances administered to players last year on an Essendon intranet system. On Wednesday, he disputed Bomber players were given banned substance Thymosin Beta 4.