Doping, Sport and the Law: A Day in the Federal Court, Essendon Football Club v ASADA (2014)
Published 03 October 2014 By: Jack Anderson
In early February 2013, the Australian Crime Commission (ACC) published a report that found widespread drug use in Australian sport.
The report suggested that the use of substances such as peptides, hormones and drugs still at an experimental stage were being used by professional athletes to enhance performance and that this was being actively facilitated by scientists, coaches and officials within leading clubs and notably in Australian rules football (Australian Football League “AFL”) and in rugby league (National Rugby League “NRL”).
Shortly after the publication of the ACC’s report, entitled Organised Crime and Drugs in Sport, a press conference took place led by the federal justice and sports ministers, the then CEO of Australian Sports Anti-Doping Authority and the head of the major sporting codes in Australia. Amid some political posturing and much melodrama, that February day in Canberra was labelled the “darkest day in Australian sport”. In tune with another story prominent at the time (the Lance Armstrong confession on the Oprah Winfrey show) the day was further summarized by some at the press conference as follows: “We are all Lance Armstrong now.”1 A comment and sentiment appropriate for Oprah’s couch but not for an investigation that posed serious structural, reputational and economic difficulties for many within Australian sport.
Essendon Football Club in the AFL was implicated in the ACC’s report with particular focus on a marked increase in the use of “exotic” supplements at the club in 2012. The AFL and ASADA immediately agreed to conduct a joint investigation into those Essendon players and personnel involved in the supplements programme. Twenty months later the legality of that joint investigation was subject to judicial review in the Federal Court of Australia. This brief article provided a background to and analysis of that judgment, delivered on 19 September 2014.
Background –the Switkowski Report
In parallel to AFL/ASADA joint investigation, Essendon commissioned an independent report (“the Switkowski Report”) to review the stated period; a period which, according to the report, began “with the recruitment of new personnel and leaders for [Essendon’s] High Performance team at the end of the 2011 season.” Switkowski immediately noted that this new “confident, opinionated” group of experts in player strength and conditioning was “given considerable space within which to operate and found little early resistance to their sometimes unconventional ideas” and which included “the rapid diversification into exotic supplements, sharp increase in frequency of injections, the shift to treatment offsite in alternative medicine clinics, emergence of unfamiliar suppliers, marginalization of traditional medical staff…”. Although as the Report observed, the leaders of the high performance supplements programme continue to insist that their methods were “always legal and compliant”; the hiring and supervision of these staff leaders by the club was not, according to Switkowski, “accompanied by a number of management processes normally associated with good governance… during this period, and as a result, suspicions and concerns have arisen about [Essendon].”2 In the wake of the Switkowski Report, published in May 2013, various key officers within Essendon and including its CEO and Chairman, stood down.3
In early August 2013, ASADA released an interim report into Essendon’s supplements programme to the AFL and within two weeks the AFL had announced that the club and a number of key personnel, including the senior coach James Hird, were to face various charges relating to breaches of AFL Rule 1.6 – conduct unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute.4 That AFL charge sheet, dated 13 August 2013, determined that Essendon had, in attempting to “implement a scientifically pioneering program relating to the administration of supplements to its players”, prejudiced the interests of the AFL in three principal ways: (a) by engaging in practices that exposed players to significant risks to their health and safety as well as the risk of using substances that were prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code; (b) by failing to ensure that persons with the necessary integrity, reputation, qualifications and training were engaged by the club to implement their high performance program; and (c) by failing to ensure that those implementing the programme were adequately supervised.
In August 2013 therefore, the collective imagery of the ACC’s inquiry, the Switkowski report and the AFL charges was a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented by senior officials in Essendon during the period in question.
By the end of that month, and following a series of talks between the AFL and various accused parties, the AFL announced a series of sanctions against the club, its head and assistant coaches and other named parties. The club was fined Aus$2 million, the largest punitive fine imposed on a club in the history of Australian sport. The club’s position on the league table was downgraded by two positions, rendering it ineligible to compete in the 2013 AFL playoffs and the club had its draft options restricted for two years. Hird was suspended from involvement in any football club for a year.5
The AFL charges of August 2013 against Essendon Football club and leading personnel such as coach James Hird, arising out ASADA’s investigation into a supplements programme at the club in 2012, did not include charges against individual players. One of the reasons for this was that further investigation was needed into the depth of knowledge of, and the extent of use by, the players of the supplements programme. In June 2014, ASADA eventually got around to issuing “show cause” notices to 34 players on Essendon’s 2012 roster. Under the terms of that notice, the standard suspension imposed was 2 years (backdated), which could however be reduced up to 50% on mitigating evidence that a player had not knowingly ingested.
Key points from the judgment
The day after the show cause notice, the Essendon chairman, and simultaneously James Hird, announced that they would seek to judicially review the legality of the AFL/ASADA joint investigation at the Federal Court.6 The subsequent judgment, delivered on 19 September, appeared at first instance to be a resounding victory for ASADA.7 Three points are of interest from Middleton J’s summary of judgment.
The first is that Essendon and Hird’s principal argument was threefold in nature: that ASADA had acted ultra vires (beyond its powers) in conducting a joint investigation on the matter with the AFL; that the joint nature of the investigation led to ASADA breaching its statutory confidentiality obligations during the course of the investigation as manifested by the presentation of an interim report to the AFL; and further, that in conducting the joint investigation ASADA, because it lacked the capacity to so compel, had improperly availed on the AFL’s contractual “compulsory powers” to investigate the players and disclose information.
The judge’s view of this contention was that ASADA’s statutory powers are extensive enough as to allow it unilaterally to investigate Essendon and, moreover, that under national anti-doping policy, the AFL was in any event obliged to cooperate with ASADA’s investigation. Furthermore, the judge held that not only did the joint nature of the investigation (during which at all times Hird and the 34 players were legally represented) enhance the quality and efficacy of the investigatory process as whole, it also reflected the fact that on occasions such bodies “may need to act jointly and cooperate with each other for the purposes of implementing their own responsibilities.”8
A second feature of the hearing was the focus by Essendon and Hird on the then CEO of ASADA (Aurora Andruska) and the contention that, under pressure from the Federal Government and the AFL, ASADA’s CEO had improperly hurried matters to the extent that the propriety and purpose of the investigation was questionable. The judge, acknowledging that pressure had been exerted, nevertheless firmly recognised that the CEO, an experienced civil servant, was not so distracted by events as to indicate any dereliction of her statutory duties.9
Finally (and in an aspect of the judgment that is likely to be welcomed by WADA and all sporting bodies who seek to pursue doping-related infractions intra vires their competency to do so) was the judge’s view that ASADA’s activities should be strongly supported because:
“ASADA has very important national and international functions to perform. The fight against doping requires constant vigilance, upgrading of investigatory techniques, and well-resourced and co-ordinated authorised bodies to educate, monitor, investigate and prosecute in appropriate situations…[and provided that ASADA as any statutory body complies with the rule of law and proceeds only with its investigations in a manner expressly or implied authorised by law]…the adoption of innovative processes and methods of investigations [in the fight against doping] is to be strongly supported.”10
Analysis of the decision to seek Judicial Review
In analysing the Federal Court judgment in Essendon Football Club v ASADA in which the applicant club sought to question the legality of the nature, purpose and conduct of a joint ASADA/AFL investigation into the use of supplements at the club in 2012, it must first be noted that the decision by the applicant club and its coach to legally challenge the joint investigation may have been somewhat impulsive and particularly by way of judicial review. The nature of judicial review is that once the decision-maker demonstrates it has adhered to its due process requirements under law; a “margin of appreciation” is usually granted in its favour by the court regarding any reasonable substantive outcome of that process. As the Federal Court stated, although judicial review is an important means of providing remedies to people adversely affected by unlawful government action; importantly, the purpose of judicial review is to ensure the legality of government action, rather than its correctness.11
In short, Essendon and Hird had a difficult task in judicial review in seeking to undermine the legality of the joint investigation. In addition, there was a question as to the aptness of the remedies sought by Hird and Essendon. The Federal Court held that, even if it had found that ASADA had acted unlawfully, the relief sought by Essendon and Hird (essentially declaratory and injunctive relief setting aside the show cause notices) would in any event likely have been refused on the ground of inevitable outcome and utility. Simply put, the Federal Court acknowledged that the CEO of ASADA could at some future point lawfully obtain effectively the same information by further interviews conducted independently by the AFL under its contractual powers, which could then be voluntarily given by the AFL to ASADA.12
Putting aside the “impulsive” nature of the proceedings, they have certainly been costly for the club, who will have to meet ASADA’s legal costs and their own and there has been some speculation that Hird has spent an estimated $500,000 on legal advice and representation over the 20-month period in question.13 Both parties may even consider appealing to the full Federal Court.
In the meantime the fate of the 34 individual players remains subject to ASADA’s investigation and open to a fragmented process of individual pleas for mitigation on sanction. In short, the “SAGA” continues,14 though it does seem to be reaching the same conclusion as the parallel ASADA/NRL investigation into activities at the Cronulla Sharks, which in August 2014 resulted in a number of individuals accepting (heavily back-dated) anti-doping related bans.15
The effectiveness of the ASADA Investigation
The cost, length and fragmented nature of the ASADA investigation highlights four final points of analysis.
Although there are due process and scientific requirements that need to be followed in an investigation of this kind, the delay involved has resulted in the process as a whole being criticised for failing to act expeditiously in reaction to what we were led to believe was the “darkest day” in Australian sport. A small example of repercussions of the delay, and its possible impact on the future case management of this process, is that many of those prominent at the 7 February 2013 press conference, such as the federal ministers, the ACC Commissioner and the ASADA CEO, are now gone from their respective positions, as, moreover, are many of those key “high performance” and management officials employed at both Essendon and Cronulla during the stated period.16
In addition, a feature of this twenty month saga has been the leaks and (partial, self-serving) confessions to the media – there is always room on Oprah’s sofa – by some of those involved and thus leaving the investigation vulnerable to allegations of prejudice on the grounds that much of the evidence and many of the individuals involved have been trialled by media. Certainly, it is questionable whether any or all of the parties in question are in violation of principles on “coordination of anti-doping results” laid down by Article 14 of the World Anti –Doping Code and namely the need to balance the interests of public transparency and accountability against respect for the privacy interests of individuals alleged to have violated anti-doping rules. Given these privacy issues and in the context of the serious economic and reputational issues at hand, it is unsurprising that parties have reacted in an adversarial manner.
Lessons to be learned
In brief, lessons need to be learned from the Essendon and Cronulla affairs and particularly how such investigations can proceed on a more efficient basis by, for example, clarifying the investigatory/prosecutorial role of ASADA and the adjudicatory/sanctioning role of Australia’s national anti-doping panel, known as the Anti-Doping Rule Violation Panel (ADVRP). The primary role of the ADRVP – a review panelappointed by the federal minister for sport and consisting of people with legal, scientific, sport and policing experience – is to decide, based on evidence presented by ASADA, whether or not it is possible that an anti-doping rule violation has been committed. There is a right of appeal to the Administrative Appeals Tribunal (AAT) but this ASADA-ADVRP-AAT route seems to be have been largely bypassed by the some of the parties involved here and matters have gone directly to the Federal Court.17
Finally, and as befits a country obsessed by sport, the reaction to “ASADA” has been intense, varied and colourful. Some commentators, such as the Oxford University Professor of Ethics, Julian Savulescu, have suggested that ASADA’s pursuit of players for using supplements or drugs that, when used in a controlled way, aid such players’ recovery, is a “gross misuse of public funds”.18 While the Savulescu debate is of interest on the ethics of drug use in sport,19 one matter somewhat lost in the whole affair is that its origins lie in an Australian Crime Commission report on organised crime in sport. An underlying premise of that ACC report was that the trafficking of sports doping substances and methods must be seen in its wider societal context and namely the related and lucrative trade by criminal syndicates in the largely unregulated “vanity” or anti-aging products industry.20
In the US alone, for instance, the market in testosterone is estimated to be worth US$2 billion.21 The ACC Report’s findings – mirrored in the ongoing criminal investigations into the Biogenesis clinic in Florida and which saw the Yankees’s baseball player Alex Rodriguez suspended for a record 162 games22 – suggest that this industry not only poses significant health dangers to impressionable and often quite young users in gyms and clubs but also poses significant integrity dangers for sport. The supply and trafficking of drugs might be an attractive entry point for greater involvement by criminal syndicates in sport, as manifested in match fixing and illegal betting activity.23
In sum, the supplement programmes, uncovered by on-going investigations into Australian sport, were used to give athletes’ a competitive edge and yet hidden behind these substances is an industry peopled by criminals who could well push sport over the edge.
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- Tags: Anti-Corruption | Anti-Doping | Australia | Australia Rules Football | Australian Ant-Doping Agency (ASADA) | Australian Crime Commission (ACC) | Baseball | Criminal Law | Football | National Rugby League | Rugby | World Anti-Doping Agency (WADA)
- ASADA media statement - Response to media reports about Essendon sanction proposal
- ASADA Media Statement 27 June 2014 - Essendon Football Club
- ASADA response to Essendon Football Club’s proposed undertakings
- ASADA provides interim report on Essendon Football Club to AFL
Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.
Jack has published widely in the area including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018 with R Parrish and B Garcia). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016.
Appointed as an arbitrator to the Court of Arbitration for Sport in 2016, he became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017. In 2018, he was the sole CAS arbitrator at the Commonwealth Games on the Gold Coast, Australia. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for Australia