As we follow the tortuous twists and turns of the litigation brought by Essendon Football Club and James Hird against the Australian Sports Anti Doping Authority (ASASA), it seems that each news bulletin discloses further ‘options’ or paths the protagonists might pursue. Why be taken by surprise by each revelation? In this post, Chris Kaias provides a comprehensive guide to the procedures and options involved.
Now that the three-day trial is done and dusted, we await to see Justice Middleton’s decision on the legality of the ASADA investigation, and its impact on the overall process.
This analysis assumes that there is no intervening agreement between ASADA and the affected Essendon players. If this were to happen and WADA was in agreement, the whole process would be brought to an end, save for any legal action the players might separately bring against Essendon for a breach of the Club’s duty of care and possible action taken by WorkCover.
The legal challenge to ASADA’s powers is likely to have four possible outcomes:
- The ASADA investigation is found to be legal. ASADA would then be free to proceed with the Show Cause Notice process;
- Illegality is found in the ASADA investigation, but relief is denied for discretionary reasons. ASADA would be found to have acted unlawfully, but would be free to proceed with the Show Cause Notice process;
- Illegality is found in the ASADA investigation, Show Cause Notices are set aside, however ASADA is not prevented from re-acquiring the existing evidence. In this scenario, ASADA could issue a Disclosure Notice under Clause 3.26B of the NAD scheme to obtain the existing evidence, and re-issue Show Cause Notices; or
- Illegality is found in the ASADA investigation, Show Cause Notices are set aside, ASADA is prevented from using the existing evidence. There are a range of potential methods by which the investigation could continue. For instance, ASADA could require the players to attend an interview based on its (new) compulsory powers (noting the players’ legislative right to refuse to answer questions on the grounds of self-incrimination per section 13D(1) of the ASADA Act). ASADA could issue new Show Cause Notices based on existing evidence separate to the joint investigation. Depending on the exact orders of Justice Middleton, it might even be possible for ASADA to request the AFL to re-interview the players (using the AFL’s coercive contractual powers) and then direct the AFL to produce the interview transcripts. Alternatively, ASADA could abandon the process altogether.
As a sidenote, the judgment has cost implications. Generally in Australia, ‘costs follow the event’. The general rule is that the losing party pays the legal costs of the winning party (which in this case would be likely to be substantial). This means that if Essendon and James Hird can show some illegality, ASADA may be liable to pay at least some of Essendon’s costs, even if Essendon do not get the relief they want.
What does the court appeal process involve?
If any of the parties are not satisfied with the outcome of the case, they can appeal to the Full Court of the Federal Court of Australia.
To succeed on appeal, a party has to convince a bench of three judges that the trial judge made an error of law of such significance that the decision should be overturned. For example, the trial judge might have applied an incorrect principle of law or failed to take into account relevant evidence or considerations.
The Full Court will not hear new evidence unless in exceptional circumstances, will not call witnesses, but will read all relevant documents filed by the parties and read relevant parts of transcript from the original case. Expect 9 to 12 months between the trial judgment and an appeal unless urgency can be shown.
The party losing an appeal cannot appeal to the High Court as of right. The party must obtain “special leave” to appeal, which will only be granted if the party can establish not just a likely error of law but also that the issue has broader implications justifying the High Court’s time. Expect 6 to 12 months between the Full Court judgment and a special leave application unless urgency can be shown. Expect up to 6 months between the outcome of the special leave application (if successful) and a High Court appeal.
Interestingly, ASADA CEO Ben McDevitt stated during an interview on ABC Radio on 14 June 2014 that ASADA would ‘go with the referee’s call’ on the legality of the joint investigation, although he may have left his options open as to which referee he meant!
What does the remaining Anti-Doping Rule Violation (ADRV) Process involve?
To understand what comes next, it is important to have an idea of the overall process. Generally a non-presence Anti-Doping Rule Violation will go through three main stages:
- the investigative stage;
- the Anti-Doping Rule Violation Panel (ADRVP) stage; and
- the sporting tribunal stage.
A. The investigative stage
On 3 February 2014, the Federal Minister for Sport, Peter Dutton, issued a media release announcing that ASADA had engaged former Federal Court judge and President of the Administrative Appeal Tribunal, Garry Downes AM, to help review the evidence compiled in the investigation to date. He undertook this task and it is unclear whether this is a continuing role.
Ultimately, the investigative stage has been completed once the ASADA CEO (presently Ben McDevitt) believes there is enough evidence to conclude that the players have a case to answer. Prior to issuing the show cause notices to the 34 Essendon players, Mr McDevitt stated he reached this conclusion based on the advice of legal counsel (the Australian Government Solicitor) and on the review of evidence by Mr Downes.
B. The ADRVP stage
This is an additional stage that is unique to Australia, and will be abolished if the Australian Sports Anti-Doping Authority Amendment Bill 2014 (Cth) becomes law.
In order to proceed to the infraction notice stage, there is an in-built mechanism in the NAD scheme that the player must be first placed on what is referred to as the ‘Register of Findings’. Players are added to the register by the Anti-Doping Rule Violation Panel (ADRVP), which is an independent panel made up of the following people:
- Andrew McLachlan (Chairman) – Professor of Pharmacy at the University of Sydney;
- Hayden Opie – Director of Sports Law at the University of Melbourne;
- Peter Fricker – sports physician, ex-Director of the Australian Institute of Sport;
- Diana Robinson – sports physician, ex-Australian Commonwealth Games Team Doctor;
- Paul Carey – former NSW Police Assistant Commissioner; and
- Stuart Thorn – former official in the Attorney-General’s department.
It is useful to emphasise here that ASADA is not the decision-maker (they are more like the police), with the ADRVP acting more like a tribunal or judge.
Under Clause 4.07A of the NAD scheme, the CEO of ASADA is required to notify each player of their possible anti-doping rule violation and invite the player to make a written submission as to why they ought not to be entered onto the Register. These are what are referred to as ‘show cause notices’. The CEO is not obliged to provide the players with the full evidentiary picture, and the onus is on the player to explain – in accordance with the relevant time frame – why no breach has occurred.
The player usually has 10 working days to respond (the ‘response period’), however, in this case the 34 Essendon players were granted extra time to respond. Any written submission must be considered by the ADRVP in making their decision.
ASADA CEO Ben McDevitt issued 34 show cause notices to Essendon players on 12 June 2014. Essendon and James Hird then began proceedings in the Federal Court on 13 June 2014. Essendon was unsuccessful in obtaining an interim injunction to restrain ASADA from continuing with the show cause notice process pending the outcome of the trial. That said, ASADA offered to extend the response period. It did not provide a fixed deadline, instead stating that any new deadline would involve 14 days’ notice. It seems very unlikely ASADA will seek to enforce the existing show cause notices pending Justice Middleton’s judgment. This is where the ADRVP process will resume after the court case if the original notices stand or ASADA can issue new show cause notices.
After any responses are provided to the show cause notices by players, the ADRVP will review the evidence and decide whether or not to make an entry on the Register ‘as soon as practicable’ (Clause 4.09 NAD scheme). The ADRVP may make an entry onto the Register if “it is possible that an athlete…has committed a non-presence anti-doping rule violation” (Clause 1.05A NAD scheme) (emphasis added). Contrary to paragraph 11(a) of the players’ Federal Court submissions, the ability of the ADRVP to recommend sanctions to the sporting organisations was removed by the Australian Sports Anti-Doping Authority Amendment Regulation 2013 (No. 1).
ASADA CEO Ben McDevitt confirmed in an ABC television interview on Offsiders 24 August 2014 (transcript here) that Stephen Dank has been placed on the Register of Findings. His show cause notices reportedly related only to his time at Essendon, which suggests that the ADRVP found sufficient evidence that possible violations occurred at Essendon. Such evidence may be relevant to the ADRVP’s decision with respect to the players.
If a player is added to the Register of Findings, ASADA may publicly disclose details of their entry on the Register (Clause 4.07A(3)(g) NAD scheme) if the requirements of Clause 4.22 of the NAD scheme are met.
The role of the Administrative Appeals Tribunal (AAT)
Players adversely impacted by the ADRVP’s decision to place them on the Register can seek review of the decision by the AAT (Clause 4.12 NAD scheme). In administrative law this is referred to as ‘merits review’, as opposed to ‘judicial review’. Unlike in appeals to the Federal Court which are on strict points of law, the AAT will review the evidence and ‘stand in the shoes’ of the ADRVP in order to arrive at the ‘correct or preferable decision’ (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).
In assessing whether or not to seek review by the AAT, note the low threshold of proof for the ADRVP. The ADRVP only needs to be satisfied that it is possible that a violation has occurred, and so it may be hard to second guess this. The AAT does not consider possible sanctions, or whether a violation actually occurred.
If either party is unsatisfied with the decision of the AAT, they can appeal on points of law to the Federal Court. Of course, once in the Federal Court again any decision made by the Federal Court can be appealed to the Full Federal Court and parties could attempt to appeal decisions of the Full Federal Court to the High Court.
Assuming that after all appeals are exhausted (or not pursued) the player remains on the Register of Findings, ASADA can then begin the infraction notice process.
The scope of the Australian Football League (AFL) to bypass ASADA
The AFL General Manager of Football Operations has power to issue an infraction notice independently of ASADA. This power exists by reason of the AFL being an independent signatory to the WADA Code. The AFL Anti-Doping Code is the product of this process. The AFL enforces its own Code through its contractual arrangements with players. A similar clause was used by the National Rugby League (NRL) to issue an infraction notice against Sandor Earl prior to the Register of Findings process being undertaken.
“AFL Anti-Doping Code – 13.1 As soon as possible after the AFL General Manager – Football Operations has received notification from ASADA of an Adverse Analytical Finding or he believes on other grounds that there may have been committed an Anti Doping Rule Violation or a breach of this Code (other than as described in Clauses 13.4 and 13.5), he will give to the Person an infraction notice, together with a copy of this Code, and refer the matter to the Tribunal for hearing and determination.”
C. The sporting tribunal phase
Once a player is on the Register of Findings, ASADA can direct Mark Evans (General Manager – Football Operations, AFL) to issue an infraction notice.
Here is where it gets interesting – under clause 12.4 of the AFL Anti-Doping Code, players are ineligible to play in any match after the issuing of an infraction notice, unless otherwise determined by the AFL Commission. This ineligibility would normally apply until a determination by the AFL Anti-Doping Tribunal. Therefore, if this process occurs some time during the season, the AFL Commission would have the unenviable decision of determining whether to intervene in the process and make an exception for the Essendon players.
AFL Anti-Doping Tribunal
Players can elect to waive their right to a hearing before the AFL Anti-Doping Tribunal, and if they do, the AFL will impose the sanction in line with cl 13.5 of the AFL Anti-Doping Code.
Otherwise, the matter will first go before the AFL Anti-Doping Tribunal. The AFL has not confirmed who would sit on this Tribunal in the present case.
In the Ahmed Saad case in November 2013 the AFL Anti-Doping Tribunal consisted of AFL Tribunal Chairman David Jones, Dr Susan White from the Australian Sports Drug Medical Advisory Committee, and barrister and ex-AFL player Wayne Henwood.
Like all AFL Tribunal hearings, the AFL would primarily prosecute the case against the players. However, ASADA has the ability to ‘present its findings and its recommendations as to consequences at hearings of the AFL Tribunal…either at the AFL’s request or on its own initiative’ (Clause 4.1(d) AFL Anti-Doping Code). All tribunal hearings are conducted in private, unless Mark Evans (General Manager – Football Operations, AFL) authorises otherwise (Clause 16.5 AFL Anti-Doping Code).
An interesting question is whether any party would request a separate tribunal hearing, or whether the hearings against the 34 players would be conducted jointly.
AFL Appeals Board
Should any party not be satisfied with the decision or a certain aspect of a sanction, they have the right to appeal to the AFL Appeals Board.
Members of the AFL Appeals Board differ from those who preside at the AFL Anti-Doping Tribunal.
Those members of the AFL Appeals Board who heard the Saad case were all barristers: the Chairman Peter O’Callaghan QC, the ex-AFL umpire Shaun Ryan, and ex-Richmond player Stephen Jurica.
The decision made by the initial Anti-Doping Tribunal remains in effect while under appeal, unless the Appeals Board orders otherwise (Clause 17.1 AFL Anti-Doping Code).
One would generally expect the AFL Appeals Board to be the end of the line for the players, because they have contracted out of their rights to further avenues of appeal.
Clause 17.2(c) AFL Anti-Doping Code provides: The determination of the Appeals Board will be final and binding on the parties to the appeal and no Person may institute or maintain proceedings in any court or tribunal.
However – rightly or wrongly – ASADA and WADA do get one further bite of the cherry. They can appeal to the Court of Arbitration for Sport (CAS) (Clause 17.2(e) AFL Anti-Doping Code).
The role of the Court of Arbitration of Sport (CAS)
CAS is an international arbitration body based out of Switzerland. It was initially set up by the International Olympic Committee in the 1980’s to deal with disputes arising out of the Olympic Games. It now mainly adjudicates on issues such as national team selection disputes, soccer transfer disputes, and (relevantly for our purposes) is the final decision-maker when it comes to disputes arising out of the WADA Code. It gets this power from the contracts signed by the players, clubs, AFL, ASADA and WADA – which have all consented to CAS’s jurisdiction and to abide by the decisions it makes.
CAS also has an office in Sydney, which is where any case would be heard. Any case would likely be heard before three arbitrators. Their decision would be binding upon all parties without further avenue of appeal.
Note that if WADA so wishes, it alone can bypass the AFL Appeals Board and appeal directly to CAS (Clause 17.1(a) AFL Anti-Doping Code).
If you want to obtain a flavour of recent CAS decisions, they are available on the CAS website: http://www.tas-cas.org/recent-decision
WADA oversight of any ‘deal’
There has been considerable media attention over a possible ‘deal’ offered to the Essendon players by ASADA, which was subsequently denied by both ASADA and the AFL. However there must remain a future possibility of the kind of deal reportedly accepted by a majority of relevant NRL players at the Cronulla Sharks who also formed part of a controversial supplements program in the 2011 – 2012 seasons.
Such a deal might involve both the ‘No Significant Fault or Negligence’ reduction of 12 months under clause 14.4(b) of the AFL Anti-Doping Code, and a further 6 month reduction for providing ‘Substantial Assistance in Discovering or Establishing Anti-Doping Rule Violations’ under clause 14.4(c). In order to qualify for this discount, a player must provide:
‘substantial assistance to the AFL, ASADA or another Anti-Doping Organisation which results in that organisation discovering or establishing an Anti Doping Rule Violation by another Person which results in a criminal or disciplinary body discovering or establishing a criminal offence or the breach of professional rules by another Person.’
It is theoretically possible for a Tribunal to apply the 6 month reduction without approval from WADA (14.4(c) AFL Anti-Doping Code). However, all sanctions are subject to subsequent WADA oversight. In other words, on a worst case scenario for Essendon players, they could admit guilt and accept a 6 month sanction (recommended by ASADA and likely rubber stamped by the AFL Anti-Doping Tribunal) and have WADA exercise its power under clauses 17.2(e) and 17.1(a) of the AFL Anti-Doping Code to appeal the sanction directly to CAS. WADA would have 21 days from receiving the full tribunal decision to elect to appeal (17.5(i) AFL Anti-Doping Code).
In practical terms, this outcome would be unlikely if ASADA (and potentially the AFL) sought input from WADA prior to such a settlement.
It is not unheard of for WADA to exercise its power of appeal. In 2007, WADA appealed to CAS against the decision of ASADA and the Australian Weightlifting Federation to let weightlifter Aleksan Karapetyn keep his gold medal from the 2006 Commonwealth Games. That case revolved around a provision that results be stripped ‘unless fairness requires otherwise’, and ASADA’s recommendation that fairness in this case would allow Karapetyn to keep his gold medal. In the end, WADA lost the appeal and it was determined that the decision was within ASADA’s discretion.
There is no question that the process is tortuous, convoluted, and potentially never ending. If the Bill currently before Parliament becomes law, at least one step, namely the ‘the Register of Findings step’, will be removed from the process for future cases.
The prospect of significant delay before a final decision gives rise to a tension between public policy principles. There is the importance of a swift resolution so people can get on with their lives. Equally, there is the importance of offering a fair process so that those impacted by an adverse decision have appropriate avenues of review and appeal.
Further, whilst the process, in theory, could go on in perpetuity (it certainly feels like it), in practice, it will cease well before then. This is because the cost of pursuing every single avenue for appeal would be prohibitive, practical pressures such as the need to ‘get on with life’ would likely intervene, and the stress, inconvenience and financial cost of continuing litigation would exact its toll.
Chris is a law student at the University of Melbourne who currently works as a paralegal and volunteers at a community legal centre and with the Cancer Council. He is currently Assistant Editor of the Melbourne University Law Review. Prior to studying law he worked in online sports and racing bookmaking for seven years. He’s passionate about sports law, media law, administrative law, and litigation.