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Essendon v ASADA: Joint doping investigation legal, says Federal Court of Australia

On 19 September 2014, Australia’s Federal Court dismissed the Essendon Football Club’s (Essendon) litigation against the Australian Sports Anti-Doping Authority (ASADA). Justice Middleton determined that the “joint investigation” that ASADA conducted with the Australian Football League (AFL) was within the statutory powers granted to ASADA.

The court action was launched in response to 34 “show cause” notices issued by ASADA to players at the club for the supplements regime administered at Essendon in 2012. The supplement allegedly administered is Thymosin Beta 4, which is a substance banned under Class S2 of the WADA Code.

For more background, see our previous article here.

Issues in the proceedings

Did ASADA have the power to conduct the “joint investigation” with the AFL?

  1. Did ASADA conduct the investigation for improper purposes (to circumvent the limitations of its own powers by using the AFL’s contractual “compulsory powers” to compel the interviewees to respond; and to assist the AFL investigation)?
  2. Did ASADA breach obligations of confidentiality or restrictions on disclosure regarding the conduct of the investigation and the provision of information to the AFL?
  3. Did ASADA act for improper purposes in providing information (e.g. an Interim Report) from the investigation to the AFL?

ASADA’s broad powers under the Act permitted a “joint investigation”
There was no dispute from either party that in carrying out the “joint investigation”  with the AFL, ASADA obtained a benefit they did not otherwise have. Whilst ASADA had no power to sanction or compel the players to provide assistance, it obtained the benefit of what the AFL had –  the contractual power of the AFL to compel Essendon players and personnel under the “AFL Code” and “Players Rules” (contractual obligations) to participate in an investigation and to answer every question asked at an interview.[1]

Justice Middleton analysed the Australian Sports Anti-Doping Authority Act 2006 (the Act) in great detail and concluded that the powers and functions afforded to ASADA should be broadly construed to allow them to do all things “convenient to be done in connection with the performance of their functions”. In interpreting the text of the Act, Justice Middleton deemed that the Chief Executive Officer of ASADA was permitted:

  • “to do all things necessary or convenient to be done for or in connection with the performance of his or her functions” (section 22 of the Act);
  • to “investigate possible anti-doping rule violations” (section 13(1) of the Act;
  • to “disclose the information to all or any of the following: … a sporting administration body” for the purposes of, or in connection with, such investigations (clause 4.21 of the National Anti-Doping Scheme).

Therefore, Essendon’s submission that the investigation was unlawful as the Act makes no reference to a “joint investigation” was extinguished by ASADA’s broad power to do all things “convenient” to be done “in connection” with the performance of their functions.

No unlawful disclosure

Justice Middleton also rejected Essendon’s submissions that the nature and conduct of the “joint investigation” involved unlawful disclosure of information by ASADA, in breach of section 71 of the Act. In addition to ASADA’s entitlement to disclose information under clause 4.21 of the National Anti-Doping Scheme, his Honour’s found that the information was provided by and simultaneously divulged to personnel of the AFL and ASADA. Hence, there was no disclosure of any information by ASADA to the AFL in the interviews.

“Improper purpose”

The legal principles surrounding the exercise of statutory power for an improper purpose are reiterated by Justice Middleton:

 “a statutory power must be exercised for the purpose for which it was conferred. If the power is exercised for more than one purpose, where one of those purposes is improper, the exercise of the power will be vitiated if the improper purpose was a substantial purpose in the sense that the decision would not have been made but for the ulterior purpose.”

Justice Middleton held that ASADA acted within the confines of the Act – to investigate anti-doping matters – in deciding to utilise the AFL’s powers to conduct the investigations. Essendon contended that the investigation was conducted in breach of natural justice as the players were arguably precluded from their “right to remain silent”. This was a complex factual matrix as a claim to privilege against self-incrimination before the joint AFL – ASADA investigation would have put the interviewees in direct contravention with their contractual obligations to the AFL to respond to all questions. However, Justice Middleton dismissed this as a moot point as none of the interviewees claimed privilege against self-incrimination or objected to the manner of the interview.

Justice Middleton also noted that the provision of an Interim Report by ASADA to the AFL was not an “improper purpose”. Essendon alleged that it was beyond the power of ASADA to provide information to the AFL to facilitate the AFL’s sanctions in relation to failures in governance at Essendon. However, Justice Middleton noted that the Interim Report did not dwell extensively on matters of governance and its ultimate focus was the suspected anti-doping violations by Essendon players and personnel.[2]

“Crystal ball” – key stakeholders

 For ASADA, this was an important victory and it is now permitted to continue with its investigations into the alleged violations of the anti-doping rulesas it remains to be proved whether Essendon players actually took the banned substances as alleged.

For the AFL, this affirmed the procedures undertaken in their joint investigation with ASADA were lawful and have gone some way in vindicating its handling of the issue.[DLA1] .

Obviously Essendon and its players now face an uncertain future with the possible sanctions including player suspension, the loss of commercial sponsorship and the reputational damage to the Club.

Considerations for appeal

Essendon’s lawyers will undoubtedly be poring over the judgment of Justice Middleton to determine if there are grounds for appeal (such as an error of law) but ultimately the decision will be made by Essendon. Essendon will likely take into account the ramifications of not having a full roster of players (in the event of a mass doping suspension), the commercial factors such as membership and sponsorship, as well as the loss of prestige and reputation.

It is yet to be determined whether Essendon will appeal the decision but other key considerations for Essendon include the escalating costs of this litigation, the likelihood of success and the consequences of accepting the judgment of Justice Middleton.

The deadline for lodging an appeal (21 days) will elapse on 10 October 2014.

Contrasting approaches

 The approach of Essendon to the ASADA investigations is in stark contrast to the Cronulla rugby league club. Cronulla did not seek to challenge the ASADA investigation on technical grounds and the majority of its players who were charged received suspensions which were largely backdated meaning that they can play at the beginning of next season. The different approaches may be partly explained by the relative liquidity of both organisations but also perhaps how they consider that their reputations can be best protected. For Cronulla, it can now start to rebuild its reputation. For Essedon it would appear that the legal route has so far not achieved that goal and it remains to be seen if it will continue down this path.

 

Co-authored by Judith Miller, Partner, DLA Piper and Thomas Zhong, Graduate, DLA Piper


[1] [10]

[2] [461]

 

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