The hounds have been baying at Essendon for months but it is still a surprise to see the confidence with which sports writers explain what will and ought to happen over the doping allegations. This precedes any formal hearing of charges, as well as closer examination of their interpretation by the AFL; it also ignores questions about the propriety of the disciplinary procedure, recently raised by Jack Galbally, QC.
Media claims and conjecture are rife and a common theme is that those charged should not complain because they are clearly guilty. We know they were ‘pushing the boundaries’ with dietary supplements because this is what the Zwitkowski report, commissioned by the club itself, found. It found a ‘pharmacologically experimental’ culture and recommended that ‘the pioneering work of supplements should be left to the Australian Sports Commission. ’It was risky because of the innovative treatments, some of them esoteric. There is also the risk of cheating, arising from the uncertain distinction between diet supplements and performance-enhancing drugs.
The report cited deficiencies in the management of the club’s fitness program,which had developed at Windy Hill under former high-performance manager Dean Robinson and sports scientist Stephen Dank; both have since left. It is these deficiencies, the risks they involve, and the notoriety of the program which lie behind the present disciplinary hearings. The scandal has already claimed the jobs of former Essendon football manager Paul Hamilton, CEO Ian Robson and Chairman David Evans, who resigned following a health scare after the round eighteen loss to Hawthorn.
The Switkowski report was enough for chief sports writer of The Australian Patrick Smith to conclude, on April 12th, that highly respected coach and former champion player James Hird had no choice but to step down. After the charges were made he reminded readers (August 14th) that ‘no matter what the ASADA-AFL inquiry would find the case against the club and members of its football department had been well and truly established by Switkowski in March.’ Likewise Brian Matthews, writing in Eureka Street on August 13th, was aggrieved that Hird might thinkEssendon had a ‘right’ to play in the finals, suggesting he expected privileged treatment.
Other writers talked of stripping captain Jobe Watson of the Brownlow medal, the club of premiership points and draft picks, and the need for penalties which will destroy careers and reputations. The confidence became unshakeable after the AFL invoked Rule 1.6, which makes it an offence to be ‘involved in conduct which is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute’. Since the club’s actions have given rise to concern, those responsible must be guilty. Hence Smith: ‘a seven-month ASADA inquiry into allegations of drug abuse is by any definition bringing the game into disrepute.’
The AFL’s release of the 34 page summary has brought all this to concert pitch; but there is a world of difference between showing the program was badlymanaged, such that the pursuit of a competitive edge in fitness had become manic, and proving an infraction needed to justify the penalties under discussion. Because the ASADA report found no evidence of specific offences, the AFL is resorting to a fuzzy catch-all device to prove misbehaviour. The definition of liability in Rule 1.6 is close to a discretion to convict any person or club who does anything - legal or well-motivated - which the AFL deems ‘unbecoming’, which it thinks is against its interests, or which causes itself or the game to become the subject of public controversy.
The problem is exacerbated because the AFL has itself been the subject of criticism over its response to doping. The complaints contrast the once or twice a year tests on footballers with the rigorous standards for Olympic and other athletes. This weakness, and others, were discussed on ABC News (Feb. 13th) by Jeff Waters, Jennifer Browning and Josh Bavas; they cite Australian Swimmers Association President Brenton Rickard and World Anti-Doping Agency (WADA) chief, John Fahey, whose remarks are critical of Australian football standards.
This points to a conflict of interest because the obvious way to protect the AFL is to find Essendon guilty. That way few will ask if it ought to have been more thorough in addressing risks likely to arise from an excess of zeal in seeking an edge in health and fitness - an obvious risk in all competitive sports and one which might include vulnerability to deception. The prejudicial effect of this conflict of interest is clear from Smith’s opinion - if such an experienced journalist thinks those charged must be guilty because the inquiry has kept ASADA busy, what confidence can we have in the judgment of the AFL, with its own reputation in the balance?
Perhaps Smith thinks liability is strict - that there is no need to show conscious wrongdoing. Some commentators think this was established by the case of Andreea Raducan, a 16 year old Romanian Olympic gymnast who took cough medicine on the advice of her team doctor and was stripped of her individual gold medal in the 2000 games. But that case fell under Olympic Rules whereas the present is governed by AFL Rules; unless these rules say so, there is no reason to infer a strict liability, contrary to ordinary principles of interpretation.
Peter Ryan, writing in AFL News for August 14 , provides a summary of Rule 1.6 since 1985, ranging from serious offences involving drug taking and ‘tanking’ for draft picks, to acts of on-field violence and insulting gestures made by players to the crowd in the heat of a game. A brief perusal suggests a need to prove wilful and conscious wrongdoing - that excessive zeal and even serious deficiencies in management are not enough to justify the penalties contemplated.
There is, however, room for argument whether the Rule contemplates a vicarious or non-delegable liability, such that a club (but not coaches or other officials) might be punished for wrongs by employees or other members of its organisation. In February the AFL suspended a former Melbourne football manager,along with a former coach, for conduct prejudicial to its interests during the 2009 premiership season. Although the club was not guilty of tanking, it accepted responsibility for personnel in key roles, and agreed to a fine of $500,000.
There is, finally, a broader context and larger issues. The AFL could have stepped in as soon as the Switkowski report came out and, instead of a witch-hunt to throw the book at clubs pushing the margins, put an instant moratorium on additives and injections, other than those authorised for individual medical needs such as pain relief, diabetes and vitamin deficiency, and have its own staff sign off on dietary supplements, as well as innovative treatments for recovery of health and fitness. That way the AFL, not just the clubs and officials, would be responsible for protecting players against an excess of zeal in this murky area.
Instead, its concern appears to be to position itself in a battle for public opinion, to gain a competitive advantage in negotiations with Essendon to cut a deal. There is nothing improper about this; the need for sporting organisations to have this freedom is one reason why the courts respect their autonomy, and intervene only in exceptional circumstances, such as a denial of natural justice.
However that may be, if there is no proven dishonesty or wilful or reckless endangering of players’ health it is unfair to brand coaching and medical staff as persons of disreputable character. The severity of this penalty, the abstract nature of the liability under Rule 1.6, and the AFL’s self-interest in protecting its name, call for an independent hearing if charges are pursued. The League has a duty to all members who make the game possible - coaches, medical staff and clubs as well as players - it should not compromise this duty just to prove it is tough on drugs.
By the weekend, and after Essendon’s nail-biting victory over Carlton, it seemed the League had won the public relations battle when it became clear it had the support of other club presidents; there was also a widely publicised interview with the mother of an Essendon player, upset her son was used as a ‘guinea pig’. Commentators now seem confident of a settlement this week, with Hird standing down for a period and Essendon accepting substantial penalties.
Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and and international law.