Essendon saga: ASADA chief faces grilling by Senate estimates committee

Essendon saga: ASADA chief faces grilling by Senate estimates committee

As the 34 banned past and present Essendon players prepare for yet another fight, the head of Australia's anti-doping authority can also prepare for a grilling, this time before the Senate estimates committee.

It was confirmed on Thursday that a last-ditch bid to clear the names of the Essendon 34 found guilty of an anti-doping breach by the Court of Arbitration for Sport would go ahead through an appeal before the Swiss Federal Tribunal.

AFL Players Association boss Paul Marsh confirmed the appeal would be fought on a legal technicality, with the players resigned to still missing season 2016.

Marsh said the hearing was expected to be heard within six months, and confirmed the players had not sought an injunction. An injunction would have allowed the 17 players currently on an AFL list the chance to return to action immediately, but should the appeal ultimately fail, their bans could have been reset from that point.

Under fire: ASADA chief Ben McDevitt has been heavily criticsed by James Hird's father, Allan.

Under fire: ASADA chief Ben McDevitt has been heavily criticsed by James Hird's father, Allan.

Photo: Rohan Thomson

"The appeal has been made on the ground that the CAS erred in determining that the WADA appeal should be conducted as a 'de novo' hearing. That is, WADA should only have been allowed to appeal the unanimous decision of the AFL anti-doping tribunal on grounds of either legal error or that it was grossly unreasonable," Marsh said.

Ben McDevitt, the head of the Australian Sports Anti-Doping Authority, was due to appear before the Senate estimates committee on Wednesday night but, as earlier proceedings had run two hour's late, McDevitt's appearance was adjourned. A new hearing is likely within the next month, and as early as Friday fortnight.

Greens leader Senator Richard Di Natale, who sits on the estimates committee and has already made it clear he wants an inquiry into ASADA's handling of the Essendon case, was ready to question McDevitt about a case now into its fourth year.

He later took to social media to declare he was "frustrated that we won't be able to question" ASADA, and felt for Essendon supporters who had made the trip to Canberra.

Victorian senator John Madigan, another who wants an independent inquiry and has sought documents from the Prime Minister's office, including the full Australian Crime Commission report, was ready to question McDevitt from the floor.

Through a spokesman, Madigan told Fairfax Media he remained disappointed with how the 34 players had been treated by the World Anti-Doping Agency, and would follow the Swiss hearing with interest. WADA had appealed an earlier finding by the AFL anti-doping tribunal that there was insufficient evidence the players had been administered the banned drug, thymosin beta-4.

McDevitt would appear before Senate estimates up to three times a year. He said on Thursday night he had been ready to any questions directed at him.

In terms of the players' appeal, ASADA said in a statement: "ASADA has noted reports that the Essendon players have lodged an appeal of the CAS decision with the Swiss Federal Court. The players have exercised their right of appeal in this matter and no further comment will be made at this time."

The players were unanimous in their decision to appeal, which also will prompt a delay in the AFL Commission's decision on whether Jobe Watson should keep his 2012 Brownlow Medal.

The players argue that as the AFL anti-doping tribunal had operated under the 2010 doping code, which contained no right to "de novo" hearings, WADA had no right to such a hearing at CAS.

The doping code changed in 2015, while the anti-doping tribunal process was still ongoing.

"From where we sit, the players had an emphatic win at the AFL anti-doping tribunal hearing. WADA and ASADA had the ability to appeal that to the AFL appeals tribunal, they didn't do that," Marsh said.

"They had the ability to do that on an error of law, or that it was a grossly unreasonable outcome, and they didn't do that because in our view they didn't think they could actually win.

"Instead they went down a path of a completely new hearing and we believe that they didn't have the right to do that.

"This outcome has negatively affected the players' legal rights. So, it's not a technicality - we think that this is a fundamental legal right the players have."

Marsh said all parties involved with the players were " optimistic about the prospects" of a victory.

"We wouldn't be taking this on and the players certainly wouldn't be taking this on if they didn't think they had reasonable prospects," he said.

"It's difficult to be certain in these types of issues. We've got exceptional lawyers telling us that we have got reasonable prospects."

The appeal could also mean the players' compensation claims against the Bombers are not resolved until the appeal is over.



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