Essendon coach James Hird. Picture: Michael Klein Source: News Corp Australia
WHAT to expect when you're expecting the Essendon doping saga to end.
ON MARCH 31
THE AFL Anti-Doping Tribunal will deliver its verdict on whether 34 current and former Essendon players used the banned peptide Thymosin Beta 4.
It will almost certainly happen behind closed doors, so that players can be informed of their fate before the media and general public is told.
March 31 is a guilty or not guilty call — NOT a final determination of penalties.
Even if all 34 are found guilty, they most likely won't be named, as the anonymity provisions in the AFL's anti-doping code extend through their 21-day appeal period.
Stephen Dank's guilt or innocence on a range of charges should also be decided.
IF IT'S NOT GUILTY
THE players, now involved with three AFL clubs, are free to play in Round 1 matches beginning on April 2.
ASADA and the World Anti-Doping Authority both have appeal rights — ASADA at the first instance to the AFL Appeals Tribunal and WADA to either that body or directly to the Court of Arbitration for Sport.
James Hird talks to the media outside the Federal Court. Picture: Eugene Hyland Source: News Corp Australia
IF IT'S GUILTY
IF one or more of players is found guilty, brace yourself for more tribunal hearings.
The possibility that some players will be found guilty and others not is very real — sources close to the tribunal process say the players' experiences in the 2012 supplements program, and their recollections of those experiences are not all alike.
First, and shortly after the verdict, there will be a directions hearing to work out when and on what basis sanctions hearings will take place.
Players' lawyers will outline what provisions in the AFL Anti-Doping Code they believe should be applied to reduce what are normally inflexible sanctions.
If ASADA, which has not made submissions on penalty so far, and the AFL agree the discounts should apply, sanctions hearings could be mercifully short — a couple of days.
If the sanctions hearings are to be contested, then the merits of each of the 34 individual cases could be up for argument, with hearings taking weeks.
If any or all of the players don't like the final result, they can appeal to the AFL Appeals Tribunal and then CAS.
Essendon coach James Hird looks on during match simulation training. Picture: Wayne Ludbey Source: News Corp Australia
SANCTIONS & DISCOUNTS
A TWO-year ban is the starting point for a player found to have used a banned drug — but there are provisions in the code that could see the players cop no punishment (highly unlikely) or little if any further punishment than time already served.
The first, and least likely to succeed, argument open to players is that they bear No Fault or Negligence for the violation.
The definition of this provision in the code says: "He did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he had used or been administered the prohibited substance."
But the fine print appears to rule it out in the Essendon example, saying it should not apply when "the administration of a prohibited substance by the player's personal physician or trainer (is) without disclosure to the player".
An argument of No Significant Fault or Negligence is considered much more likely to be palatable to ASADA.
It means the players' "fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relationship to the violation".
If it is accepted the players were "duped" into taking something banned, without their knowledge or approval, this provision fits the bill.
It allows the two-year penalty to be cut in half to one year.
Next, is a provision that allows for a discount because of delays in the case not attributable to the player.
The code says: "Where there have been substantial delays in the hearing process or other aspects of doping control not attributable to the player, the tribunal determining the sanction may start the period of ineligibility at an earlier date commencing as early as the date … on which (the) anti-doping rule violation last occurred."
Players' lawyers will point out that the last of the player interviews was in June 2013. Show cause notices (the first time around) were not issued until 12 months later.
Further, the players were not party to Essendon and James Hird's court action, which accounted for a further five months' delay.
The bulk of the players have been provisionally suspended since they received infraction notices on November 14.
The months since then will also count against any ban.
This is how a two-year ban could result in no future suspension or one that amounts to a matter of weeks — not months or years.
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