Essendon players face the prospect of suspensions after the AFL club lost its court battle with Australia’s anti-doping authority over its supplements program.
Federal Court Justice John Middleton dismissed Essendon’s and coach James Hird’s claim that the Australian Sports Anti-Doping Authority had conducted an illegal investigation into its 2012 supplements program.
“In my view ASADA complied with the rule of law in establishing and conducting, in the manner and for the purposes it did, the investigation,” he said on Friday.
“In addition, ASADA lawfully provided the interim report to the AFL which has subsequently been acted upon by the AFL.”
The ruling means the show cause notices issued to 34 past and present Essendon players alleging doping offences stand.
Justice Middleton said the former Labor federal government had pressured the then-ASADA chief executive Aurora Andruska to bring the investigation to a conclusion.
But he said that pressure did not result in any dereliction of duties by ASADA or Andruska.
“Ms Andruska was under some pressure from the then-federal government and the AFL to bring the investigation to an end as soon as possible, and to assist the AFL so that the AFL could take disciplinary proceedings against Mr Hird and Essendon prior to the 2013 AFL finals,” he said.
“However I do not regard such pressure as giving rise to any dereliction by Ms Andruska in respect of her responsibilities.”
He said he did not need to consider or comment on the the government’s intervention in the investigation for the purpose of his ruling.
Middleton said ASADA’s investigation of Essendon’s supplements program was lawful and conducted for the sole purpose of unearthing anti-doping violations.
“The investigation of ASADA, the subject of these proceedings, I have found was for the purpose of investigating anti-doping violations,” he said.
“In addition the nature and conduct of the investigation was lawful.”
Middleton said both Hird and the Essendon players voluntarily entered into a contract with the AFL subjecting them to the league’s code, which meant relinquishing certain obligations and rights.
“One such right was the right to claim privilege against self-incrimination before the AFL,” he said.
“There is no suggestion in these proceedings that Mr Hird or any of the 34 players did not understand the nature of the contractual obligations undertaken or the rights they were giving up, in return for the right or privilege to play or coach AFL football.”
Middleton said the AFL, not ASADA, subsequently used those compulsory powers in the joint investigation, which was not in breach of the National Anti-Doping Scheme.
“No power of the state had been utilised by ASADA to compel Mr Hird or the 34 players to act in the way they did during the investigation.”
ASADA CEO Ben McDevitt said the 34 current and former Essendon players still have a case to answer, after being issued with formal allegations of possible anti-doping rule violations three months ago.
“Today’s judgment vindicates Mr McDevitt’s strong belief that the Act always contemplated ASADA working with sports to uphold clean competition,” an ASADA statement said.
“The only way to stay ahead of sophisticated doping regimes is to partner with sports; not exclude them from the process.”
Essendon had argued ASADA ran a joint investigation with the AFL which was illegal.
The Bombers claimed that ASADA ran the joint probe in order to utilise the league’s coercive powers in its interviews with Essendon players and staff.
But ASADA argued during the three-day trial that it did nothing wrong and warned it could reissue doping allegations against Essendon players within 24 hours if the court sided with the club.
The AFL ejected Essendon from the 2013 finals series and suspended Hird after finding the club’s supplements program brought the game into disrepute.
