Essendon Football Club supplements controversy

The Essendon Football Club supplements controversy is a sports controversy which began in late 2011. The Essendon Football Club, a professional Australian rules football club playing in the Australian Football League (AFL), has been investigated since February 2013 by the Australian Sports Anti-Doping Authority (ASADA) over the legality of its supplements program during the 2012 AFL season and the preceding preseason.

The initial stages of the investigation in 2013 made no findings regarding the legality of the supplements program, but highlighted a wide range of governance and duty-of-care failures relating to the program. In August 2013, the AFL fined Essendon $2,000,000, revoked its opportunity to play in the 2013 finals series, and suspended senior coach James Hird and general manager Danny Corcoran as a result of these findings.

The second phase of the investigation resulted in thirty-four players being issued show cause notices by ASADA and infraction notices by the AFL in 2014, alleging the use of the banned peptide Thymosin beta-4 during the 2012 season. After facing a tribunal hearing in the 2014/15 offseason, the players were found not guilty of these offences. The decision is open for an appeal of the World Anti-Doping Agency until 11/12 May 2015.

The controversy has had serious ramifications and adverse effects on the football club as a whole. A number of senior staff have either been dismissed or have resigned. Senior staff no longer at the club due to the controversy include David Evans (former chairman), Ian Robson (former CEO), Danny Corcoran (former head of football), Dean Robinson (former head of high performance) and Stephen Dank (former contracted biochemist and sports scientist). Dank was found guilty by the AFL tribunal of a number of breaches related to the program.

Background

In 2013 the Essendon Football Club was implicated in the Australian Crime Commission (ACC)'s report "Organised Crime and Drugs in Sport". The club conducted its own investigation into allegations of peptide use but also awaited findings from Australian Sports Anti-Doping Authority (ASADA)'s investigation.^[1]

Following the release of the ACC report on 3 February 2013 the club's then chairman, David Evans, commissioned Ziggy Switkowski to conduct an independent report that he described as a "full external and independent review of governance and processes of the club".^[2] On 23 May 2013, the club's CEO, Ian Robson, resigned and agreed with the Switkowski report's assessment that "lack of proper process" occurred in 2012.^[3] In late July, club chairman Evans and fitness coach Dean Robinson both resigned, with the former stating, "I strongly believe that the best thing for the club at this stage is for a new chairperson in order to see through the next phase of this challenging and difficult time for our club."^[4]

Timeline of events

• 5 February 2013: The Essendon Football Club asked ASADA to investigate concerns over the club's possible use of prohibited supplements during the 2012 season.^[5]
• 7 February 2013: Federal ministers Jason Clare (Minister for Justice) and Kate Lundy (Minister for Sport) announced that the Australian Crime Commission had released the findings of a 12-month investigation into the integrity of Australian sport and the relationship between professional sporting bodies, prohibited substances and organised crime. The Australian Sports Anti-Doping Authority (ASADA) officially initiated action to investigate illegal substance use in the AFL and NRL.^[6]
• 7 February 2013: Essendon removed banners and murals from the façade at Windy Hill bearing the words "whatever it takes", which was the slogan of the club's membership drive, because the phrase now carried connotations of culpability in light of the investigation.^[7] The club has never since been able to distance itself the bad publicity associated with the slogan, which remains synonymous with negative effect that the investigation has had on the club's reputation.^[8]
• 27 February 2013: The Essendon Football Club announced an independent review to be conducted by former Telstra boss Ziggy Switkowski into the club's governance of its supplements program.^[9]
• 6 May 2013: Dr Switkowski's independent review into the governance of Essendon's supplements program was released to the public. It highlighted governance failures and uncontrolled changes to the way in which the club's player conditioning program was operated after August 2011.^[10]
• 23 May 2013: Ian Robson stood down as CEO of the Essendon Football Club.^[9][11]
• 24 June 2013: Essendon captain Jobe Watson admitted on the television show On the Couch that he believed he was given the substance AOD-9604 during the 2012 season with the assistance of his club.^[12]
• 12 July 2013: ABC sports commentator Gerard Whateley suggested that the prohibited drug AOD-9604 was not on the list of banned substances in 2012.^[9][13]
• 27 July 2013: David Evans stood down as chairman of the Essendon Football Club, amid speculation of a fallout with coach James Hird.^[14]
• 31 July 2013: In a Seven News television special hosted by AFL commentator Luke Darcy, sacked high performance manager Dean Robinson accused James Hird of masterminding the club's supplements program in 2012 and says that the club allowed him to operate the football club the way he wanted when he was appointed as head coach prior to the 2011 season.^[15][16]
• 2 August 2013: ASADA released its interim report on Essendon's supplements program to the AFL.^[17]
• 13 August 2013: The AFL announced that the Essendon Football Club, senior coach James Hird and other parties were to be charged over governance and duty-of-care breaches related to the club's supplements program, with a hearing set for 26 August.^[18]
• 21 August 2013: The AFL released a statement of charges against Essendon.
• 22 August 2013: James Hird lodged an action with the Supreme Court of Victoria, saying that he has been denied natural justice.^[19]
• 26 August 2013: Talks begin between the AFL and the accused parties (James Hird, Mark Thompson, Bruce Reid and Danny Corcoran) at AFL House. However, after more than 13 hours, the AFL and the accused were unable to come to an agreement regarding how Essendon should be penalised for the governance breaches in its supplements program.^[20]
• 27 August 2013: Talks between the AFL and the accused parties resumed,^[21] after which, following another long day of discussions, the AFL announces that the Essendon Football Club would be ruled ineligible to play in the 2013 AFL finals series, would lose of first and second round draft picks in the 2013 and 2014 AFL Drafts, and receive an Australian sporting record $2 million fine. Penalties for individuals included suspensions for both senior coach James Hird (12 months, backdated to 25 August 2013) and football operations manager Danny Corcoran (four months, starting 1 October 2013, and a further two months withheld) and a $30,000 fine for assistant coach Mark Thompson.
• 15 May 2014: The Victorian WorkCover Authority announced that it had launched a separate investigation into the matter.^[22]
• 12 June 2014: ASADA issued show cause notices to 34 players on Essendon's 2012 player list. If found guilty, the players faced infraction notices (sporting sanctions). These have, as a starting point, a two-year suspension, although players that demonstrate they were unwittingly given a prohibited substance may receive a 50 per cent reduction on their penalty.^[23][24]
• 13 June 2014: Essendon launched a Federal Court application challenging the legality of the AFL/ASADA joint investigative process.^[23] Suspended coach James Hird immediately announced that he is launching his own, simultaneous legal challenge to legality of the ASADA investigation of the club.^[25]
• 19 September 2014: Justice John Middleton ruled that ASADA's joint investigation was lawful, allowing ASADA to trigger the start of the show-cause response period, which gave charged players 14 days to answer doping allegations against them.^[26] Essendon is required to pay ASADA's costs of around $1 million.
• 1 October 2014: Essendon elected not to appeal the Justice Middleton's ruling; but Hird, acting in an individual capacity, announced that he intended to appeal.^[27]
• 17 October 2014: ASADA issued fresh show cause notices to the thirty-four players. The players were given a two-week deadline to respond before ASADA presents its evidence to the Anti-Doping Rule Violation Panel,^[28] but elected not to respond.^[29]
• 31 October 2014: the deadline for Mark Thompson to pay the $30,000 fine he was issued following the interim report passed without Thompson having paid the fine. The AFL later extended the deadline to 20 November 2014.^[30]
• 10-11 November 2014: Hird returned to the Federal Court to appeal Justice Middleton's decision that the AFL-ASADA joint investigation was legal. The hearing concluded on 11 November, but the decision was not revealed.^[31]
• 12 November 2014: Mark Thompson left the Essendon Football Club.^[32]
• 13 November 2014: following the Anti-Doping Rule Violation Panel concluding that sufficient evidence existed against the players, it was announced that the thirty-four players were placed on the register of findings.^[33]
• 14 November 2014: the AFL issued infraction notices to the thirty-four players, alleging that they used prohibited peptide Thymosin beta-4. The players were provisionally suspended until their AFL Tribunal hearing.^[29]
• 15 December 2014 – 17 February 2015: the tribunal hearing for the thirty-four players took place over several sessions.^[34]
• 29 January 2015: The Federal Court dismissed James Hird's appeal against the legality of the ASADA investigation.^[35]
• 13 February 2015: Arrangements were made between Essendon and the AFL for Essendon to have access to top-up players from the state leagues to enable the club to field a fill team during the pre-season competition (during which the thirty-four players were still to be serving provisional suspensions) and if necessary into the premiership season.^[36]
• 31 March 2015: The AFL Anti-Doping Tribunal announces that all 34 past and present Essendon players were found not guilty of using a banned supplement.^[37]
• 20 April 2015: ASADA announces that it will not appeal the AFL Anti-Doping Tribunal's ruling finding all 34 past and present Essednon players not guilty. The World Anti-Doping Agency (WADA) now has three weeks from 20 April to determine whether to appeal the tribunal's findings.^[38]

Interim report and governance charges

On 2 August 2013, ASADA released an interim report to the AFL and Essendon Football Club; the interim report made no findings regarding the legality of the supplements program, but highlighted a wide range of governance and duty-of-care failures relating to the program. On the evening of 13 August 2013, on the basis of the interim report, AFL general counsel Andrew Dillon charged Essendon with: "conduct that is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute" under AFL Rule 1.6". The charges against Essendon included:^[39]

• having "engaged in practices that exposed players to significant risks to their health and safety as well as the risk of using substances that were prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code";
• allowing "a culture of frequent, uninformed and unregulated use of the injection of supplements" at the club;
• had "failed to meaningfully inform players of the substances the subject of the program and obtain their informed consent to the administration of the substances"
• having an incomplete system of record keeping which had made it impossible to determine with certainty whether or not players had been administered banned supplements
• the bypassing of human resources practices relating specifically to the employment of high performance coach Dean Robinson and sports scientist Stephen Dank – the latter of whom was later implicated in the 2011 Cronulla-Sutherland Sharks supplements controversy and has since received a life ban from the National Rugby League for his involvement.^[40]

The interim report found that Essendon had commenced its supplements program in August 2011, had intended for it to be an innovative program of unprecedented scale to deliver a competitive edge to the club, but that it had not done adequate research nor established clear lines of accountability for the people implementing the program.^[39] The AFL Tribunal later commented that there was a "deplorable absence of records in the program relating to its administration."^[41]

The AFL laid charges against the Essendon Football Club, head coach James Hird, assistant coach Mark Thompson, club doctor Bruce Reid and sports administrator Danny Corcoran. On 27 August 2013, five days before Round 23 and after two days of discussions between the club and the league, the following penalties were imposed relating to these charges:

• Essendon was fined $2 million (staggered over three years). This was the largest fine imposed on a club in the history of Australian sport.
• Essendon was ruled ineligible to participate in the 2013 AFL finals series, which was achieved by relegating it from seventh to ninth position on the ladder.
• Essendon was stripped of draft picks in the following two drafts. In 2013, its first and second round draft picks were stripped; in 2014, it was stripped of the first and second round draft picks it would have received based on its finishing position, but was granted the last draft pick in the first round.
• Senior coach James Hird was suspended from involvement in any football club for twelve months, effective 25 August 2013.
• Football operations manager Danny Corcoran was suspended from involvement in any football club for four months, with a further two-month suspended sentence, effective 1 October 2013.
• Senior assistant coach Mark Thompson was fined $30,000.^[42] Ultimately, Thompson personally paid $5,000 of the fine, with Essendon covering the balance.^[43]
• Despite the connections between Essendon's AFL and VFL teams, an AFL notification to AFL Victoria confirmed that the VFL team was still permitted to play in the VFL finals series.^[44]

The fourth senior staff member charged at this time was club doctor Bruce Reid. Reid contested the charges against him and on 29 August 2013, counsel for Reid applied for a "prompt release of the transcript of argument and the commissioners' ruling, to enable the early issue of Supreme Court proceedings". He said Reid would apply for a judicial review of the decision and had identified a recently retired Supreme Court judge as an appropriate officer to preside over a decision in relation to the charges.^[45] On 18 September 2013, the AFL dropped all charges against Reid, thus allowing him to continue in his role as senior medical officer at the club. The league's official statement concluded: "Reid strongly supports the AFL in its fundamental priority of looking after the health and welfare of players. He shares its concern over the serious circumstances which gave rise to the supplements saga at the Essendon Football Club ... The AFL accepts Dr Reid’s position and withdraws all charges against him, without penalty."^[46]

At the time of the announcement of penalties for governance failures, no charges were laid against any players, and whether or not banned substances had been used was unproven. At the time, the ASADA and AFL investigation remained open, with further charges against officials individual players remaining a possibility if the use of illegal substances could be proven.^[47] The AFL's then-deputy chief executive, Gillon McLachlan, stated:

We can't control where ASADA goes. I think there would have to be definitive new evidence for them to issue infraction notices, but I don't want to speak on their behalf. Ultimately, ASADA have a power, I just think what's important for everyone to understand here is that there is not one scintilla of evidence that said the players had any knowledge of what was going on here, and that's incredibly important to remember.^[48]

Charges against players

Initial show-cause notices

After several months of investigations, ASADA issued show cause notices to 34 players on Essendon's 2012 player list on 12 June 2014, alleging that they had been administered the banned peptide Thymosin beta-4. ASADA did not allege that the players had used the substances intentionally; rather, it alleged that the club had knowingly injected the players with the banned substance, but that the players were unaware that what they were being administered was illegal.^[41] The notices gave the players ten days to respond, which would be followed by a tribunal hearing in which the burden of proof fell on ASADA to prove that the banned substance was administered to the players.^[24] Under the anti-doping codes, players found guilty of using banned substances receive, as a starting point, a two-year suspension; however, if the players were able to demonstrate they were unwittingly given a prohibited substance, they may receive a 50 per cent reduction on their penalty.^[23]

Federal court application

Shortly after the show-cause notices were issued, the Essendon Football Club and James Hird challenged the legal validity of ASADA's joint investigation with the AFL and the admissibility of evidence against the players from the investigation. The case came before the Melbourne division of the Federal Court on 27 June 2014.^[25][49] The names of the 34 Essendon players issued with show cause notices were suppressed under court order.^{[nb 1]} The players were not required to respond to ASADA's show cause notices until the case is resolved.

On 19 September 2014, Justice John Middleton of the Federal Court found that the ASADA investigation was lawful under the ASADA Act and that Essendon's application for the show cause notices to be scrapped was rejected.^[50] Essendon had until 10 October to lodge an appeal against Justice Middleton's judgement.

On 1 October 2014, Essendon chairman Paul Little announced that the club would not appeal the Federal Court's ruling, stating that to do so would act against the interests of the players. Hird, however, acting in an individual capacity and "on a matter of principle", appealed the ruling to a full bench of the Federal Court. Media commentators speculated that Hird's action would result in his termination as Essendon coach,^[51] but this did not occur.^[52] Hird returned to court in early November 2014,^[31] and his appeal was dismissed on 29 January 2015.^[35] Hird considered a High Court appeal, but on 27 February 2015 announced that he had decided against proceeding.^[53]

Hearing against players

After Essendon's Federal Court challenge was dismissed in October 2014, ASADA issued fresh show-cause notices to the thirty-four players on 17 October 2014.^[54] As was the case for the first issuing of show-cause notices, the players had two weeks to respond to the notices, and exercised their right not to respond. On 13 November 2014, the Anti-Doping Rule Violation Panel concluding that sufficient evidence existed against the players, and it was announced that the thirty-four players were placed on the register of findings.^[55] The following day, the AFL issued infraction notices to the thirty-four players, specifically alleging that they used prohibited peptide Thymosin beta-4.^[29] The players faced a closed hearing of the AFL Tribunal over several sessions between December 2014 and February 2015.^[56]

Upon issuing of the infractions notices on November 14, the thirty-four players were able to accept provisional suspensions, meaning they would be ineligible to play AFL matches until the Tribunal hearing was finalised, but that any time served during the provisional suspension would be counted as part of the final suspension if found guilty. The players accepted the provisional suspensions immediately with two possible exceptions: Dustin Fletcher and Jobe Watson (who were on Essendon's list during the time of the supplements program but have not been confirmed as being among the 34 players) who both participated in the 2014 international rules test on 22 November.^[57]

After the tribunal hearings were completed, it was announced that a final decision was expected in late March. This meant that the thirty-four players, including seventeen who were still at Essendon, would still be under provisional suspension during the NAB Challenge pre-season competition. It was determined that all twenty-five Essendon players who were at the club during the supplements program would receive permission to miss the series, including eight players who were not facing doping charges but were given permission to stand aside to protect their teammates' anonymity;^[58] of those eight players, four elected to play.^[59] In order to have sufficient players to field a full team, Essendon was given permission to sign players from state leagues to temporary contracts to serve as top-up players: under the rules, the players must have been on an AFL list in either 2013 or 2014, and the club could recruit no more than two players from any state league club. The same concessions would have be carried forward into the premiership season had a guilty verdict been returned and suspensions applied.^[60] The club's seven NAB Challenge top-up players who met these criteria were: Mitch Brown, Mitch Clisby, Clint Jones, James Magner, Sam Michael, Jared Petrenko and James Polkinghorne.^[61] The club was also permitted to field VFL-listed players from its own reserves team in the NAB Challenge, fielding Josh Freezer, Aaron Heppell, Anthony McDonald-Tipungwati, Marcus Marigliani, Jordan Schroder and Sam Tagliabue.^[62]

On 31 March, the week before the opening of the 2015 AFL season, the tribunal announced that it had found the 34 players not guilty. The tribunal confirmed that Thymosin beta-4 was a banned substance during the time of the program—there had been questions raised during the hearings about whether or not some of the substances alleged to have been used were illegal at the time^[13]—but it determined that it was not comfortably satisfied that the players had been administered Thymosin beta-4. The three-member tribunal was unanimous in its decision.^[63] The tribunal's verdict contained strong criticism of the governance of the Essendon's supplements program.^[41]

As a result of the not guilty verdict, the provisional suspensions on the players were lifted, and all affected players became eligible to play in Round 1. ASADA and the AFL were given a window of 21 days in which they could lodge an appeal against the decision. The tribunal verdict was handed down in private, and few other details about the reasons for the decision have been released. They can only be released at the discretion of the parties involved, and it is considered unlikely that they will be released until all avenues for appeal are closed.^[63]

The AFL Tribunal also heard a case against sports scientist Stephen Dank during the summer of 2014/15, and he was found guilty of ten charges. The charges which were upheld against Dank covered a wide range of illegal supplements that he trafficked in, attempted to traffick in or was complicit in attempted trafficking in during the time he was registered by the AFL. The upheld charges were:

• Attempted trafficking and complicity in attempted trafficking in Thymosin Beta-4, Hexarelin and Humanofort to Essendon in 2012
• Trafficking in Mechano Growth Factor to a support staff member of the Carlton Football Club in 2012
• Attempted trafficking and complicity in attempted trafficking in CJC-1295 to the Gold Coast Football Club in 2010
• Trafficking in GHRP-6 and complicity in attempted trafficking in Hexarelin, SARMS, CJC-1295 and GHRP6 to a baseball club in 2012
• Trafficking in GHRP6 and Mechano Growth Factor to the Medical Rejuvenation Clinic in 2011-2012.

Dank was found not guilty of other trafficking charges, as well as all charges related to administering the supplements. Dank has a window of appeal. His sentence will be handed down in May 2015.^[64]

ASADA response

On 20 April, ASADA announced that it would not appeal the ruling of the AFL Anti-Doping Tribunal finding the 34 Essendon players not guilty. ASADA's decision allows the World Anti-Doping Agency (WADA) to initiate its own review. WADA is give three weeks from 20 April to decide whether to appeal the AFL Tribunal's decision.^[65] If WADA elects to appeal the findings of the tribunal, the appeal will most likely be heard by the international Court of Arbitration for Sport, rather than the AFL Anti-Doping Tribunal.^[66]

See also

• Cronulla-Sutherland Sharks supplements controversy
• Drugs in sport in Australia
• List of Australian sports controversies

Notes

References

External links

• Timeline: Essendon doping investigation: timeline, ABC News (Australian Broadcasting Corporation), 27 August 2013
• Essendon Bombers out of 2013 AFL finals as James Hird accepts 12-month suspension, ABC Grandstand Sport (Australian Broadcasting Corporation), 27 August 2013
• AFL announces Essendon out of this year's finals series, Hird banned and club fined $2 million, Fox Sports Australia, 27 August 2013
• The Essendon supplements saga - a full timeline of quotes, AFL.com.au website, 27 August 2013

Essendon Football Club History Premierships & Records Players Captains Coaches Awards W. S. Crichton Medal Leading Goalkickers Captain: Jobe Watson Coach: James Hird Nickname: Bombers Home grounds East Melbourne Cricket Ground (1897–1921) Windy Hill (1922–91) Princes Park (1993–97) Melbourne Cricket Ground (1992–present) Docklands Stadium (2000–present) Premierships (16) 1897 1901 1911 1912 1923 1924 1942 1946 1949 1950 1962 1965 1984 1985 1993 2000 Seasons 1897 1898 1899 1900 1901 1902 1903 1904 1905 1906 1907 1908 1909 1910 1911 1912 1913 1914 1915 1918 1919 1920 1921 1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934 1935 1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Related articles Anzac Day clash Carlton–Essendon AFL rivalry Dreamtime at the 'G Archer–Hird Medal Line in the Sand Match Round 16, 2001 comeback vs. North Melbourne Supplements controversy

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