Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

[Malifice]

Got a burning question about the legal stuff behind the ASADA/ EFC investigation? Do the terms strict liability, Volenti non fit iniuria, waiver, balance of probabilities, onus of proof, evidentiary burden, show cause and so forth have your head in a spin? Wondering what recourse the players have if stood down, what defences they might be able to raise, what the process is for the appeal against the legality of the investigation or anything else related to the scandal and legal in nature?

This is your thread to ask. I'll do my best to answer what I can. Any other law speaking types are free to give their legal opinion as well naturally; the more the merrier and consensus is always a good thing.

Disclaimer: I'm not a party to the investigation, and most of what goes in here will be an educated legal guess, and an explanation (to the best of my abilities) of the legal principles and process during the investigation. In a nutshell, I could be wrong. Proceed at your own risk.

Edit: Great find by Armchair Critic for this link: http://sociallitigator.com/2014/06/...tion-against-asada-out-of-bounds-on-the-full/

Strongly suggest giving that link a read.

 

[The_Reaper]

Do you actually think the investigation breached the ASADA act?

 

[SBYM]

That's why you're the judge and I'm the law-talking-guy...

 

[ziad]

That's why you're the judge and I'm the law-talking-guy...

I fought the law and the law won.

 

[Miguel Sanchez]

Any other law speaking types are free to give their legal opinion as well naturally; the more the merrier and consensus is always a good thing.

Consensus? In my experience, the more law-talking guys offering their opinion, the more opinions!

 

[Malifice]

Do you actually think the investigation breached the ASADA act?

In a nutshell, possibly, but not fatally so.

Disclosure of 'personal information' is allowed under the ASADA Act in certain circumstances (See: Division 8 of Part 2 of the ASADA Act (Cth) 2006). One of those circumstances is when the disclosure was required 'for the purposes of this Act' - See: s71(2)(a) of the ASADA Act.

Personal information is defined in the Privacy Act to mean 'information or an opinion about an identified individual, or an individual who is reasonably identifiable.'

In other words, as long as ASADA didnt disclose any information about an identified individual or a reasonably identifiable individual, they are OK.

I find it hard to see how ASADA can conduct a joint investigation with the AFL and not breach non disclosure provisions. However the argument (by ASADA) would be that such disclosure (if made) was only made to enable the agency to perform its functions under the Act - in other words, ASADA should be OK.

The interrim report is particularly troubling however; it wasnt released for any purpose under the Act (it was just released so the AFL could smack Essendon) and it is here that the players may have a better argument. I fail to see how the release of that report (which identifies players by name) isnt (at the least)... sketchy.

That said, this is precisely what Judge Downes would have been asked to look into (administrative law and Federal legislation is his bag so to speak) and if he gave the investigation the 'green light' I'm going to side with him.

 

[SBYM]

That said, this is precisely what Judge Downes would have been asked to look into (administrative law and Federal legislation is his bag so to speak) and if he gave the investigation the 'green light' I'm going to side with him.

I know I jumped straight in with a smart arse remark , but I'd seriously like some clarification on this very point…

Would those of you with some legal experience be prepared to speculate (rationally, NON EMOTIONALLY) as to why ASADA would let it get this far if a retired Federal Court Judge (and a former career Federal copper) weren't completely satisfied by the correctness of their position? Do you honestly think they would make this mistake?

If you can't answer without the usual s**t-slnging, don't bother…

 

[Malifice]

Would those of you with some legal experience be prepared to speculate (rationally, NON EMOTIONALLY) as to why ASADA would let it get this far if a retired Federal Court Judge (and a former career Federal copper) weren't completely satisfied by the correctness of their position? Do you honestly think they would make this mistake?

Short answer: ASADA have been well aware that this is what EFC were going to do (challenge the legality of the joint investigation). Note McDevitts comments about 'joint investigations' when he was questioned by the Senate, and on taking up the position. Also note the AFP investigation (requested by ASADA) to confirm no leaks, and the (unusual) step of requesting an expert in administrative law to confirm ASADA acted in compliance with the ASADA Act.

ASADA have been very thorough in this. The reason for the delay in releasing the SC's (they had enough information to do so 12 months ago IMO) was to shore up its arguments and close any and all legal loopholes that might exist.

They are effectively taking on the AFL here (its the AFL who will ultimately foot the bill if players get suspended, and who have a vested interest in keeping the EFC in the competition). The AFL has a shitload of money to splurge on the best QC's in the land, and will protect their brand ferociously.

Bsically, no-one over at ASADA is shocked in the slightest by this challenge. Theyre prepared for it, and have a pretty damn good argument why this legal challenge is not gonna fly.

 

[SterlingArcher]

If the investigation was fundamentally flawed from the start due to the dual investigation/joint investigation/whatever, why did ASADA ever proceed with it? They would know their own rules, their own act etc surely?

edit: I guess that's a bit 'rhetorical' - more to the point: is it an obscure law that ASADA interpret differently to Essendon? does it always apply? When can it apply? etc

 

[SBYM]

Short answer: ASADA have been well aware that this is what EFC were going to do (challenge the legality of the joint investigation). Note McDevitts comments about 'joint investigations' when he was questioned by the Senate, and on taking up the position. Also note the AFP investigation (requested by ASADA) to confirm no leaks, and the (unusual) step of requesting an expert in administrative law to confirm ASADA acted in compliance with the ASADA Act.

ASADA have been very thorough in this. The reason for the delay in releasing the SC's (they had enough information to do so 12 months ago IMO) was to shore up its arguments and close any and all legal loopholes that might exist.

They are effectively taking on the AFL here (its the AFL who will ultimately foot the bill if players get suspended, and who have a vested interest in keeping the EFC in the competition). The AFL has a shitload of money to splurge on the best QC's in the land, and will protect their brand ferociously.

Bsically, no-one over at ASADA is shocked in the slightest by this challenge. Theyre prepared for it, and have a pretty damn good argument why this legal challenge is not gonna fly.

This is completely my way of thinking, and as I see it, your précis fits perfectly with what I believe to be the motives of both parties…grossly simplified; ASADA to get their man (leaving no stone unturned), and the EFC to go down swinging…

In my own job I look for the reasons behind human behaviour, and tbh I just cannot explain away how ASADA could possibly move forward if not certain.

Ta for the succinct clarification.

 

[SBYM]

If the investigation was fundamentally flawed from the start due to the dual investigation/joint investigation/whatever, why did ASADA ever proceed with it? They would know their own rules, their own act etc surely?

I get that…but blues are made all the time. Better to pull out now rather than later I would think.

 

[GOAUS!]

So if it gets to the stage of the tribunal stage I've seen others posting that the panel would have to be "comfortably satisfied" that the player did take TB4. Where does "comfortably satisfied" sit between "beyond reasonable doubt" and "balance of probabilities"?

 

[Malifice]

Where does "comfortably satisfied" sit between "beyond reasonable doubt" and "balance of probabilities"?

In the middle of the two.

You need to be satisfied 'beyond the balance of probabilities'.

Which going by what evidence I have seen in the interim report alone, Danks clear admission that he gave the players TB4 in a televised interview (retracted after he interview was concluded), and the numerous emails, texts, paper trail, preparation methods, and consent forms released to date, (and different effects between the two drugs) is a standard of proof that I feel has been met.

If that was put to me in court, I'd find against the players.

Might be other evidence (both ways) though. Might also find that some evidence gets excluded also. And never underestimate the skills of a good advocate (or the detrimental effect of a bad one).

 

[scarecrow2k1]

Question for the legal minds.
Essendon 'asked' to be investigated. ASADA proceeded with the joint investigation, which essendon never objected to. Does the fact that they asked for it to happen (although not specifically asking for the joint investigation ) and then watched the investigation unfold signify any form of legal consent and therefore reduce any claim Essendon may have? If so, can they suggest they were intimidated into the nature of the joint investigation and therefore didn't consent?

 

[d33my]

Someone mentioned the bill being footed by the AFL a few posts above -- any idea what an appeal like this would cost? Even a ballpark?

 

[Malifice]

Question for the legal minds.
Essendon 'asked' to be investigated. ASADA proceeded with the joint investigation, which essendon never objected to. Does the fact that they asked for it to happen (although not specifically asking for the joint investigation ) and then watched the investigation unfold signify any form of legal consent and therefore reduce any claim Essendon may have? If so, can they suggest they were intimidated into the nature of the joint investigation and therefore didn't consent?

Under the ASADA Act, a players personal information can be disclosed to third parties with the players express consent.

The EFC cant consent for the player. Its each players choice.

I'd be surprised if ASADA didnt sit each player down at the start of every interview and asked them if that player consented to sharing information with the AFL.

Thats only speculation though.

 

[IanW]

By cooperating with their 'disrepute' penalty, are EFC estopped from their current action ?

 

[Malifice]

Someone mentioned the bill being footed by the AFL a few posts above -- any idea what an appeal like this would cost? Even a ballpark?

QC's charge around $5000 an hour.

Theres at least one of them on the players side. Plus a few other counsel as well. Id suggest the players have racked up a substantial sum approahing (or into) six figures already.

 

[Magruder]

Consensus? In my experience, the more law-talking guys offering their opinion, the more opinions!

And the bigger the bill.

 

[IanW]

Actually, let me turn on my full 'talking with lawyers' mode.

If I wanted to know if EFC are estopped from their current case by their actions in the previous 'disrepute' penalty last year, what question should I ask you ?

 

[Goosecat]

Ok here's my two cents.
I'm no legal expert so take it for what it's worth.
Behind all legal document and frameworks in Australia's legal system lies "Intent".
No matter how far a legal argument may progress, including all the way to the High Court. Where there is ambiguity, the ruling is always based on "intent".
I have no doubt the intent of ASADAs' investigations fall within the intent of the act and it's powers. Rest assured, even if ASADA was to lose at any early stage it will be appealed all the way to the High Court if necessary. I firmly believe a high court would rule in favour of ASADA.
Even the legislated powers belonging to ASADAs' CEO (see below) give an indication of the acts "intent". There are also numerous "catch all" references within the act.
EFC will loose this battle in my opinion. I believe it is a futile attempt to mitigate future legal actions from players.
Powers:
The CEO has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

(g) authorise the CEO to disclose information, documents or things obtained in relation to the administration of the NAD scheme (including information obtained during investigations of possible violations of the anti‑doping rules) for the purposes of, or in connection with, that administration; and

 

[jenny61_99]

Question for the legal minds.
Essendon 'asked' to be investigated. ASADA proceeded with the joint investigation, which essendon never objected to. Does the fact that they asked for it to happen (although not specifically asking for the joint investigation ) and then watched the investigation unfold signify any form of legal consent and therefore reduce any claim Essendon may have? If so, can they suggest they were intimidated into the nature of the joint investigation and therefore didn't consent?

Essendon actually asked both the afl and ASADA to investigate. The statement to their members after "self-reporting" :

Secondly, we contacted the AFL and earlier today we met with Gillon McLachlan and Brett Clothier to brief them, and to seek advice. Following that discussion we requested that the AFL commence an immediate investigation.

Thirdly, today the Essendon Football Club contacted ASADA, the Australian Sports Anti-Doping Authority and requested their assistance in an investigation, and we offered the full cooperation of everyone at the club. ASADA has informed us that they will commence the investigation immediately.

 

[Malifice]

By cooperating with their 'disrepute' penalty, are EFC estopped from their current action ?

Nope. Good argument though, but for an estoppel argument to get up, you need to show reliance on an event, and ongoing detriment to the party if not estopped.

Also, the AFL (and the EFC) arent a party to these proceedings. Its ASADA the players are trying to stop, and ASADA have made no guarantees to the EFC or its players that the players can claim they have relied on to their detriment (that Im aware of anyway).

Funnily enough, Essendons insistence that the AFL scrub all references to drug use in the outcome, and make it clear that the penalites were for 'governance failures' only also kinda shuts out this argument should they try and 'estopp' the AFL (and not ASADA) from seeking further action at a later date. Essendon have maintained that they werent punished for drug use then, and the AFL were equally clear that the punishments for drug use could very well be forthcoming regardless of 'poor governance'.

That decision may very well come back to haunt the bombers if drug use is proven and the AFL want to hammer them seperately from ASADA.

 

[stormee]

Thanks for this Malifice. I'd managed to find the Powers section of the act but not the non-disclosure one.

Isn't there an inherent contradiction between a section limiting disclosure and a section allowing the CEO (and by extension ASADA) to do '
do all things necessary or convenient' to carry out their duties?

 

[Malifice]

Thanks for this Malifice. I'd managed to find the Powers section of the act but not the non-disclosure one.

Isn't there an inherent contradiction between a section limiting disclosure and a section allowing the CEO (and by extension ASADA) to do '
do all things necessary or convenient' to carry out their duties?

The old legislative interpretation rule of the specific overriding the general kicks in here IMO.

As long as the CEO of ASADA can show that it was reasonably necessary to disclose the information in pursuit of a statutory function under the ACT, they (ASADA) should be ok.