Doping, Sport and the Law: A Day in the Federal Court, Essendon Football Club v ASADA (2014)

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”).  

Organised Crime and Drugs in Sport

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

AFL Charges

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.