They seem to think that this is a criminal process and that due process and presumption of innocence stands instead of it being an investigation into a systematic doping regime that has no due process in a criminal court and that the burden of innocence is not applicable.
More to it than this mate. Clearly the Essendon players dont have a defence against the charges (they admit they have no records and no idea of what was actually injected).
Where they DO have a leg to stand on is to challenge that the process/ investigation was flawed. And I think they have an arguable case on this point.
They will seek an injunction from the Federal Court tomorrow stopping the matter going to the ADRVP and arguing that the whole investigation was fatally flawed by virtue of denying the players natural justice via improper collection of evidence, the (alleged) illegality of the joing investigation under the ASADA act, leaks by ASADA, the illegaility of releasing the interrum report and a few other points.
If they win on the injunction it buys them time before the matter is heard. If (when its finally heard) they win the case (and the investigation is flawed) then they'll get away with it.
For the record, in my legal opinion I dont think EFC will be succesful (caveat being that Im obviously not privy to the precise legal arguments, authorities and evidence in the case). Australia doesnt have anywhere near rhe same strength of 'improper evidence' laws that countries like the USA have. And thats in criminal matters, not administrative law matters. The breach of nondisclosure by ASADA (if proven) would unlikely wipe the whole case out, unless it could be found that the breach led to a denial of natural justice by the Crown. I assume that there is no issue of ASADA acting ultra vires (outside its jurisdiction) here either.
Im no administrative law guru mind you.
In a nutshell, its my best legal guess that the EFC players have an arguable case. I stand by what I said earlier though; they will most likely seek to tie the matter up in the courts as long as possible, while keeping as tight lipped as possible (ostensibly so as not to 'prejudice the case' but in reality just to keep it and their tactics off the front page). It will most likely get thrown out when it finally gets set down for a hearing.
It's an expensive tactic. Then again, from this point on and regardless of what happens, the EFC are going to be bleeding money like a faucet. Its going to cost them millions (legal fees, sponsorship, membership) even if they win. Its going to cost them
tens of millions if they lose.
The only way they'll survive this is with the direct help of the AFL (and likely the other clubs). Money, and special rules to let them actually participate.