Moderator
#6,401
The problem that the players and Essendon* will have with their federal court challenge is that they are attacking the process behind the joint AFL/ASADA investigation... which was for the governance issue that they got nailed for last year.
The players will argue in Court that they have been denied procedural fairness and natural justice by ASADA in the way its conducted its investigation.
Got nothing to do with AFL or the 'governance' thing. That was an internal (within the AFL only) penalty handed down by the AFL commission against one if its member clubs for failing to adhere to professional standards (and an excuse to turf them out of the finals).
If they were going to attack the process, they should have acted immediately last year.
Also, an early move to the courts could have resulted in ASADA starting afresh, and would have deprived the EFC of one of their better stalling tactics should (when) SC's get issued. Also, as the investigation wasnt yet complete, EFC wouldnt have had the chance to review the entire investigation (just one critical **** up and the whole thing could fall down). The best tactic for the EFC was to wait, plan and continue to sell hope to supporters (kool aid) in the meantime.
They didnt contest it then and therefore, jurisprudence says that they accepted the findings of the joint investigations then and therefore cant contest it now in a completely separate matter.
As it stands, they are going to try and attack the ASADA investigation by trying to link it into the joint investigation last year. Yes, there was a partial connection last year for the initial part of the investigation and up until the point where ASADA handed over their initial interim findings into the doping regime.
From the day that the AFL charged Hird, Corcoren et al, ASADA has been investigating other avenues and have been consolidating their cases against the individual players and against the staff involved in the establishment of a system doping regime.
From the day that the AFL charged Hird, Corcoren et al, ASADA has been investigating other avenues and have been consolidating their cases against the individual players and against the staff involved in the establishment of a system doping regime.
The thing that persuades me that ASADA have the players by the balls, is the review by retired Federal Court Judge Downes.
They would have asked him two things:
1) Is there enough evidence to substantiate a charge against the player? and
2) Have we complied with the ASADA Act, Administrative law principles, natural justice and procedural fairness in conducting this investigation?
Number 1) is an answer they could have gotten from 'in house' legal on review of the evidence. They ONLY would have called in a Federal Court Judge to look at the specific legal issues around number 2.
In other words, ASADA knew what EFC were going to do, planned for it accordingly and confirmed that their investigation was not legally flawed and would stand up to any legal challenges in the Federal Court (where this matter is headed).
My best legal guess is that the players and the club are utterly ******.

