All stakeholders are presently denying the prospect of a settlement between the Australian Sports Anti-Doping Authority (ASADA) and affected players of Essendon Football Club’s supplements saga. However, the Chief Executive Officer of ASADA, Mr Ben McDevitt, has gone one step further and on 24 August 2014 suggested it would be “inappropriate” and “contemptuous” to do so given judgment is pending in concurrent proceedings attacking the lawfulness of ASADA’s investigative process.
These comments were hard on the heels of a claim reported in The Age newspaper (22 August 2014 edition) that any attempt by ASADA to broker a deal with Essendon players before the findings of the Federal Court case are released would be “improper”.
Yet it must be asked: why so shy?
Do we risk losing sight of the wood for the trees by focusing our attention so closely on this one anti-doping saga? Should we not consider the broader context of how litigation matters do, in fact, typically settle?
Cases settle all the time. The rule of thumb is that 85% of cases are resolved prior to judgment (although it is hard to find hard data supporting this statistic). Courts also promote settlement. They even have court officials trained in mediation techniques so that at any time during a case where the prospect of settlement seems realistic, the judge can refer the matter to mediation. There is a public interest in settling a case because it frees up court resources so that other disputes can be heard promptly and efficiently, and the presiding judge’s time can be re-directed to other outstanding obligations.
Further, for the parties involved, settlement ends the cost of litigation, which can be prohibitive. Settlement also ends the distraction and stress associated with lengthy disputes. A line is drawn under the issue, and people can move on with their lives.
Accordingly, rather than be persuaded by rhetoric, let us test the bases upon which it might be appropriate, or not, for ASADA to pursue settlement discussions.
The trial judge has already heard the case
Mr McDevitt expanded upon his reasoning when he said: “We have a learned Federal Court Judge, Justice Middleton who has heard 3 days of extensive argument, legal debate, I am respecting that process, I’m awaiting his judgment on those matters.”
Spare a thought then for Justice Forrest, the Victorian Supreme Court trial judge in the Kilmore East – Kinglake Bushfire Class Action. That case has also settled (court approval required) after the trial’s completion and prior to judgment.
In that case though, we are not talking about “three days of extensive argument, legal debate”. The trial of the Kilmore East – Kinglake Bushfire Class Action in fact ran for 16 months prior to settlement. According to a Maurice Blackburn information sheet, the proceeding included:
- 26 pre-trial directions hearings
- 34 pre-trial applications
- 60 court rulings
- evidence from 40 expert and 60 lay witnesses
- 22,466 documents loaded on to the electronic courtbook
- 10,364 documents tendered; and
- in excess of 20,300 pages of transcript.
The length of the trial of the legal challenge by Essendon and James Hird to ASADA’s powers is miniscule compared to this. Relative to trials typically occurring in Australian courts, three days would certainly be regarded at the lower end.
Publicity about the settlement of the Kilmore East – Kinglake Bushfire Class Action has not suggested that it was improper because judgment was pending. For the most part, the apparent attitude has been one of relief.
It is unexceptional for a settlement to occur after trial and before judgment. True it is, such settlements tend to occur less frequently than disputes resolved before the trial begins. This is because, by trial’s end, litigants are often entrenched in their positions after having experienced the blow torch of the adversarial process.
Judges also appreciate that if a settlement occurs whilst judgment is pending, it is part of the job, although they might feel a natural frustration if the ink is dry on a close to final version of the judgment.
That is why there is an unwritten protocol that, if a settlement is realistically likely, the parties’ lawyers should contact the Judge’s Associate to advise that settlement talks are taking place, so that the Judge can avoid spending further time on a judgment which may never be required.
It is important to know whether ASADA acted lawfully
Mr McDevitt also said in the same interview: “I would do nothing whatsoever to try to circumvent any of those processes or do anything which would impact in any way on the Essendon players involved there because that would be entirely inappropriate”.
Perhaps the reference to “circumvent” is intended to mean that important questions in the public interest about the legality of ASADA’s investigation should be determined before ASADA takes its next step.
The settlement of the Kilmore East – Kinglake Class Action has also left important public interest questions unresolved. The stakes were also a lot higher.
In the case of the Essendon supplements saga, whether ASADA’s procedures were correctly applied may bear directly on the playing futures of 34 Essendon players who have been issued show cause notices, and also the manner in which ASADA conducts future investigations.
However, how does this compare to the Kilmore East – Kinglake Class Action? It arose from a particular Black Saturday bushfire on 7 February 2009 where 119 people died, many suffered vast personal injury including terrible burns and disabling psychiatric injuries, 1,242 homes were destroyed, 1,084 homes were damaged, and 125,000 hectares of land were burnt. Schools, businesses, livestock, vehicles and personal belongings were damaged and destroyed in the blaze (source here).
Because of that settlement, no one will ever know whether the primary defendant, the electricity provider SP AusNet acted inter alia negligently by failing to fit vibration damages to electricity lines which might have prevented a line from breaking which remained electrified and sparked vegetation to flame.
Yet no one is second-guessing whether a settlement should have properly occurred. The defendant’s proposed settlement payment of almost $500 million is widely regarded as a just outcome.
After all, this was inter partes litigation. It was not a Royal Commission (which in the case of the Black Saturday bushfires had already occurred).
The interests of the parties in reaching a settlement, and bringing the dispute to a premature end, trumps the public interest or curiosity in the umpire’s decision.
ASADA might put an offer “too good to refuse”
Lessons from another sporting code might fuel concern that ASADA could put an offer hard to resist, even though it means the affected Essendon players would concede anti-doping rule violations they did not believe occurred.
Last week ASADA entered into a reported settlement with a number of existing and former players of National Rugby League (NRL) Club, the Cronulla Sharks, which arose from an investigation ASADA conducted into a controversial supplements program at Cronulla in 2011.
By accepting responsibility for alleged anti-doping violations albeit on the basis of no significant fault, the affected NRL players have received vastly reduced anti-doping rule violation sanctions.
It seems that some found this settlement hard to take. As a Sydney Morning Herald headline puts it: “Cronulla Sharks players angry and upset over ASADA offer that was too good to refuse”.
However, that is often the very essence of a “deal”. There is compromise on both sides. When a settlement occurs, litigators often describe the outcome as “lose – lose” (avoiding the more politically correct language of “win – win”).
Of course, the option remains not to accept such an offer. It’ s a free country! In the case of the 34 Essendon players, that may be a path they choose to take. They might decide they cannot countenance the prospect of being called ‘drug cheats’.
If the strict liability nature of the WADA regime means that even a protein shake can cross the line, one does wonder whether reasonably minded, well informed people would characterize the impact of any concessions by the players about substances they took in such an emotive way.
However, before rejecting such an offer they would need to assess the alternatives just like the Cronulla Sharks’ players were required to do.
For the Cronulla Sharks’ players the assessment was reported as follows:
“Lawyers representing the players advised them that ASADA’s case was weak if they wanted to challenge the show-cause notices. But in rejecting the deal, which will see most of them banned for just three games, the players were told they would have to be prepared for a two-year legal fight which would see their names dragged through the mud and could cost them up to $300,000 in legal fees in addition to lost income if they were unsuccessful and received a ban from the NRL anti-doping tribunal.”
To settle, you have to give something up. However, the reason why you settle is because the alternative is worse.
ASADA might obtain an unjust outcome because it has a weak case
If a regulator has a weak case on the merits, but uses its leverage as regulator to secure a negotiated outcome, then the appropriateness of such conduct should be justifiably called to account.
In the context of a different regulator, the Australian Competition and Consumer Commission, refer here for my post about its recent settlement with Maggie Beer.
A regulator is not an ordinary civil litigant. Its function is closer to that of the police seeking to enter a plea bargain with a person charged with an offence, or to a disciplinary board seeking to resolve an allegation of misconduct against a member.
With power comes responsibility.
In the case of the Essendon supplements saga though, no one is yet able to provide any assessment of the strength of ASADA’s case. We simply do not know. ASADA’s case is not in the public domain. Nor it seems has ASADA’s case been fully disclosed to the affected players.
ASADA has a discretion about the information it can provide in a show cause process because it is the player which bears the onus of proving there is no case to answer. Apparently only limited information has been supplied by ASADA to the 34 Essendon players at this stage. It appears though that ASADA would need to disclose its hand to the Anti-Doping Rule Violation Panel.
What we do know is that Mr Garry Downes AM, a former Federal Court judge and President of the Administrative Appeals Tribunal, was retained to review ASADA’s evidence before the show cause notices were issued. Mr McDevitt, ASADA’s CEO, has stated that he relied on this review as well as legal advice in deciding to issue the show cause notices (Chris Kaias has a comprehensive review of the process here).
If ASADA’s case is weak then any settlement should simply involve it withdrawing the show cause notices. No one would suggest such a settlement inappropriate in those circumstances.
If ASADA’s case is strong and it nevertheless pursues a settlement, what can possibly be wrong with this? The prospect that ASADA might be subject to adverse findings about the nature of its investigation to date is a reason to settle now, not to keep going.
At this moment, the Essendon players have more bargaining power than ever before. They also face a risk: If they allow judgment to be delivered, they face the prospect of ASADA being permitted to carry on.
Now is the perfect time to settle
Ordinarily, parties might be poised to settle at this moment. Both sides have weaknesses in their position. Both sides face a prolonged, expensive, distracting dispute. Both sides have reasons to want to put this behind them.
If one were standing in the players’ shoes, here is one settlement strategy they could pursue (noting that there are many paths to settlement):
- Through their legal representatives, commence direct engagement with ASADA (no intermediaries, no AFL, no Essendon Football Club).
- Seek to understand more of the case put against them, should that information be relevant to their decision to settle (e.g. does the transcript of the Fairfax interview with Stephen Dank, obtained by ASADA pursuant to its disclosure powers, confirm Mr Dank’s apparent admission that he caused the players to use the prohibited substance Thymosin Beta 4?).
- Seek to negotiate sanctions applied retrospectively so that the actual impact is minimal and occurs in the off-season.
- Seek to group classes of players based on severity of conduct (or lack thereof) with the prospect of a range of sanctions thereby minimizing the impact on Essendon Football Club
- Seek that ASADA issue a media release, upon any settlement, clarifying the mitigating circumstances giving rise to the reduced sanctions in this particular case.