Essendon Football Club, a professional Australian Football League (AFL) team, and its suspended coach James Hird have instituted proceedings in the Federal Court of Australia against the Australian Sports Anti-Doping Authority (ASADA) claiming that ASADA acted outside its powers in the events leading up to 34 show cause notices being issued to existing and former players of the Club in relation to the alleged use of prohibited substances in 2012. The Applicants want the show cause notices set aside. Previous posts speculate about the legal basis of their claim (see here), and consider the Statements of Claim (see here). In this post we consider ASADA’s Defence.
ASADA admits a number of key matters. It clarifies areas of prior confusion. The Defence also has a significant sting in its tail.
To recap, Essendon and James Hird allege that ASADA lacked any power to conduct a joint investigation with the AFL. They also say that an Interim Report prepared in the course of this joint investigation involved the collection and disclosure of information in an impermissible manner. James Hird separately says he was denied the opportunity to assert his right to avoid answering questions on the basis they might self-incriminate him, during his own interview with ASADA. Essendon and Hird conclude that any information collected by ASADA as a result of this process cannot qualify as evidence, that the Court should order against its use, and that the show cause notices should be set aside.
THE ‘JOINT INVESTIGATION’
ASADA acknowledges that in early February 2013 the AFL and ASADA agreed to conduct a ‘joint investigation’. Essendon and Hird would be pleased by this concession given that they had pleaded this aspect of their claim in speculative terms, without direct evidence of ASADA’s intention. The admission will avoid a substantial factual dispute, and might reduce the scope of document discovery.
However, based on the careful text, expect the characterization of the ‘joint investigation’ to remain a significant issue. ASADA will likely argue that this mutual participation did not compromise the independent investigations each of the AFL and ASADA sought to conduct under their own Code and legislation respectively.
ASADA also admits that a reason it participated in the joint investigation was to use the AFL’s powers of compulsion to obtain information, and to compel Essendon players and support staff to attend interviews and answer questions.
This confirms the statement of Brett Clothier, Manager of Integrity Services, AFL that: “Owing to the contract arrangements binding the players and officials to a code of practice, the AFL had extensive and, at the time, superior investigative powers to that of ASADA, which facilitated the inquiry and substantially assisted both parties” (British Journal of Sports Medicine).
ASADA also acknowledges that its investigators discussed with the AFL investigators much of the information it obtained during ASADA’s investigation. According to ASADA, the AFL knew “nearly all” of this information anyway. For instance, ASADA and the AFL would discuss and plan interviews, and debrief them afterwards.
ASADA also confirmed that it shared with the AFL information obtained from “a number” of interviews which AFL representatives did not attend. This is curious because, according to a Schedule attached to the Statement of Claim, for each of the 34 players interviewed there were both AFL and ASADA representatives present. ASADA’s Defence does not identify what other interviews might have been conducted where AFL representatives were not present.
If these interviews concerned, say, Essendon support staff, then this does not sit comfortably with ASADA’s claim that the interviews (including those with Essendon support staff) “were conducted by the AFL pursuant to the exercise of the AFL’s compulsory powers” (emphasis added; see para 17 Defence). If this is the case (and it may not be), is it realistic for the AFL to conduct an interview process in which ASADA representatives and not AFL representatives would attend?
The players are not named in the Schedule but those representing them are identified. In this context, one can see that the approach each player took to the interview process was individualistic. Some players were more concerned about their representation and support during the interview process than others. A number of players simply had a single lawyer from the Players’ Association represent them. Contrast this to Player 22 and Player 25, for instance, who each had a Queens’ Counsel, a lawyer from the Players’ Association and a support person also attend the interview on their behalf.
In relation to James Hird’s interview specifically, ASADA said amongst other things in answer to his claims that ASADA failed to give him due process:
- The information disclosed by James Hird was to the AFL, and under the AFL’s powers he did not have the right to refuse to answer questions; and
- Hird was legally represented, and it was not a matter for ASADA to offer him the right to refuse to answer questions on the basis of self-incrimination, but for him to object, which he did not.
PREPARATION AND DISCLOSURE OF THE INTERIM REPORT
As to the preparation of the Interim Report (a document which formed the basis for sanctions against Essendon and James Hird for bringing the game into disrepute), ASADA explains that it drafted the Interim Report, and that both the AFL and ASADA reviewed it. How much input the AFL had into any subsequent revisions would need to be clarified either in ASADA’s evidence or in cross-examination at trial.
ASADA’s position in relation to the Interim Report, in summary, is that there was no breach of its powers in its preparation and dissemination. ASADA will likely contend at trial that Essendon and Hird have taken an unduly narrow interpretation of the legislation. ASADA points to the breadth of its powers, and to the incidental language in the ASADA Act providing ASADA with broad latitude to determine how it should exercise those powers. ASADA also notes that its mandate includes ‘safety matters’ concerning athletes, under which the investigation of an unregulated supplements program by a sporting club would likely qualify.
As for the detail, ASADA takes issue with the language and content of the Confidentiality Obligations it is alleged to have breached by providing the AFL with the Interim Report, both in draft and final form.
First, ASADA says that these ‘obligations’ are better described as sources of authority to disclose information.
Secondly, ASADA says that:
- This disclosure was undertaken for the purposes of, and in connection with, ASADA’s investigation, something it says was expressly permitted by section 13(1)(g) of the ASADA Act and clause 4.21 of the NAD Scheme
Section 13(1)(g) of the ASADA Act requires the National Anti-Doping (NAD) Scheme to authorize ASADA to disclose information obtained during such investigations for the purposes of, or in connection with, such investigations. Clause 4.21 of the NAD Scheme embodies this requirement. It enables ASADA’s CEO to disclose information relating, or appearing to relate, to a sporting administration body (such as the AFL) in connection with a possible anti-doping rule violation by an athlete or support person.
- This disclosure was also permissible under Section 71(2)(a) and (b) of the ASADA Act
According to these provisions, ASADA can disclose NAD scheme personal information to a third party if the disclosure is for the purposes either of the Act or the NAD Scheme.
ASADA nails its colours to the mast about what its “purposes” relevantly include:
- Co-operating with a request from a sporting administration body if the request is reasonably necessary to enforce or give effect to the World Anti-Doping Code
This reflects the language of clause 1.03 of the NAD Scheme which authorizes ASADA’s CEO with this power
- Functions about performance of activities relating to ‘sports doping and safety matters’ referred to ASADA by a sporting administration body
This reflects the language of clause 1.02(1)(g) of the NAD Scheme
- Collecting, analyzing, interpreting and disseminating information about ‘sports doping and safety matters’
Sports drug and safety matter is defined to mean in the ASADA Act not just a matter relating to drugs and/or doping methods in one or more sporting activities but also a matter relating to the safety of athletes.
ASADA also points to the breadth of its incidental powers under the ASADA Act, which in connection with the above functions include its ability to do things ‘incidental or conducive’ or ‘necessary or convenient’.
ASADA adds in its Defence to Essendon’s claim that the disciplinary action taken by the AFL against Essendon and James Hird for bringing the game into disrepute by virtue of poor governance and accountability with respect to enforcement of anti-doping rules was a matter connected with ASADA’s investigation and the administration of the NAD Scheme and within the purposes of the ASADA Act and NAD Scheme.
CLAIM FOR RELIEF
As an overall point, ASADA says that, even if its conduct is found to be unlawful, the dispute is pointless because the relief sought cannot restrain the show cause process against the 34 players.
ASADA’s view is that the integrity of player information obtained by the AFL remains intact, and there is nothing stopping ASADA from seeking access to it after the case is over (even if the manner of ASADA’s own investigation is found to be unlawful) by virtue of the requirements in the NAD Scheme and the AFL Anti-Doping Code.
This means, according to ASADA, it can lawfully obtain all the exact same information against the 34 players by issuing fresh disclosure notices under the NAD Scheme, and then issuing fresh show cause notices to the players.
Had Essendon and James Hird adopted a ‘root and branch’ approach of attacking both limbs of the ‘joint investigation’, which would mean making the AFL a co-defendant to the legal action, ASADA’s Defence in this respect might be less robust.
ASADA also considers the court should be swayed against any grant of relief based on a range of discretionary matters.
In particular, ASADA says that James Hird cannot complain about the improper disclosure of information because he has expressly consented to this himself. ASADA points to a registration form James Hird signed under his contractual arrangements with the AFL consenting to the disclosure of personal information about him to third parties including ASADA (and for ASADA to disclose personal information about him to the AFL). Essendon is in a similar position, ASADA claims, by its adoption of the AFL Rules which incorporate the AFL Anti-Doping Code.
ASADA also says that relief should be denied in light of the Applicants’ delay in bringing court action. ASADA points both to Essendon and Hird knowing about and encouraging the investigation from the very beginning (including its ‘joint’ nature), and that the parties were legally represented but declined to take action. In light of this, says ASADA, an investigation was conducted “over many months” which led to the acquisition of a “vast amount of information”. Had action been taken earlier, ASADA claims it could have taken steps to acquire the same information lawfully.
The sting in the tail is in the last paragraph of the Defence. Effectively, ASADA asserts there should be no relief because neither Essendon nor James Hird have ‘clean hands’:
“[Essendon and James Hird], the AFL, followers of the AFL competition, and the public at large are all aware of the existence of very serious issues surrounding adherence to anti-doping rules by the Applicant, in circumstances where [Essendon and James Hird]’s own actions brought the game into disrepute by failing to implement proper governance and accountability mechanisms with respect to enforcement of those rules. There is, therefore, a compelling public interest against the grant of relief to [Essendon and James Hird].” [The bolded text is in ASADA’s Defence to James Hird’s claim, but not in its Defence to Essendon’s claim]
ASADA’s Defence raises the genuine prospect that relief could be denied because of factors personal to Essendon and James Hird’s circumstances. The players have not joined in the court case, but have agreed to be bound by its outcome, even if this occurs.