Andrew Demetriou, Gillon McLachlan and Andrew Dillon were possibly guilty of conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or to bring the game of football into disrepute (as defined by rule 1.6).
The AFL ignored its conflict of interest

My Comment:

1. Demetriou failed to ensure that there was no conflict of interest with respect to the AFL-ASADA joint investigation into possible breaches by Essendon of the WADA / ASADA Anti-Doping Codes
   
   
2. As it was impossible to assess Essendon’s degree of responsibility without assessing the AFL’s degree of responsibility, even Stevie Wonder could see it was essential that the investigation was completely independent of the AFL. Any investigation that involved the AFL as investigators meant that there would be a conflict of interest, that would not only deny Essendon procedural fairness (natural justice) but would compromise the integrity of the investigation.
   
   
3. The AFL’s responsibility needed to be assessed because it had at least four agreements which carried governance and legal occupational, health and safety (OH&S) responsibilities to the Essendon Football Club and its players:
   
   i. The bi-lateral agreement it had with Essendon Football Club to compete in the competition.
   
   ii. The tripartite agreement it had with Essendon and each player. Clause 7.3 of the AFL / Essendon / Player Contract says: “The AFL club shall provide a playing, training and working environment which is, so far as practicable, free of any risk to the health, safety and welfare of the Player. Without limitation, the AFL Club shall observe and carry out its obligations under the applicable Occupational Health and Safety Act or its equivalent.” Clause 12 of the tripartite agreement says: “The parties to this contract (AFL/Essendon/the player) shall use their best endeavours, in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this Contract.”
   
   iii. The bi-lateral agreement it had with the Australia Sports Commission in its capacity as a national sporting organisation (NSO). Those responsibilities are set out in the Australian Sports Commission Policy Statement: NSOs Governance – Mandatory Requirements for ASC large partner NSOs.
   
   iv. The agreement with ASADA and its responsibilities under its own anti-doping code
   
   
4. Additionally, the AFL commissioners had onerous statutory obligations under the Corporations Act. Simply put, the AFL had similar occupational, health and safety, and duty of care responsibilities, to each player at Essendon as the Essendon board. AFL chief executive, Andrew Demetriou, acknowledged this when he said: “The AFL has a duty to all its stakeholders that we look after our players.”
   
   
5. There is no doubt the AFL failed to meet those OH&S and duty of care responsibilities. For a conflict of interest to exist, all the AFL needed was to have OH&S and duty of care responsibilities to Essendon and its players.
   
   
6. To determine the extent of Essendon’s alleged governance and OH&S failures and to ascertain whether there were any mitigating circumstances that would reduce penalties, the AFL should have been investigated along with Essendon and its officials.
   
   
7. On 8 February 2013, News Limited papers quoted from Jacquelin Magnay’s London Daily Telegraph’s column. Magnay wrote a scathing column accusing the administrators of both football codes (AFL & NRL) of allowing “insidious cheating to fester and prosper. The (ACC report) shouldn’t have shocked (AFL and NRL) administrators who have repeatedly turned a blind eye to what was going on under their noses.” Given these allegations, it was inappropriate for the AFL to be involved in a joint investigation.
   
   
8. Participating in a joint investigation with ASADA not only enabled all AFL officials to avoid being questioned but made it impossible to ascertain whether the AFL was culpable. Inexplicably, at no stage were the AFL’s governance and OH&S obligations scrutinised, nor was its compliance.
   
   
9. One of the key incidents that highlighted the conflict of interest was the dispute over whether Demetriou tipped-off Essendon chairman David Evans that the ACC was about to expose Essendon for having breached the AFL’s Anti-Doping Code. Demetriou and Evans denied that he did. Hird, Hamilton, Corcoran and Dr Reid claim that he did. Once, Demetriou learnt that Hird’s and Danny Corcoran’s understanding about his phone call to David Evans was different from his, he should have withdrawn the AFL from the joint investigation because of the conflict of interest.
   
   
10. Shamefully, for Demetriou, AFL colleagues Gillion McLachlan and Brett Clothier inadvertently exposed him as a liar on 5 February 2013 when they told Hird that the ACC had named the prohibited substance in their meeting on 31 January 2013.
    
    
11. Participating in the joint investigation also put the AFL in a position where it could steer the investigation away from itself as well as influencing the timing of the release of the report.
    
    
12. As the investigation unfolded, more and more conflicts of interest arose and the AFL should have withdrawn from the investigation. Inter alia, Caroline Wilson writing in the Age at 3.00 AM on 17 July 2013, said: “The AFL warned James Hird in late 2011 to not involve his players in a peptides program” and said “Sources close to the joint investigation by ASADA and the AFL into Essendon have told Fairfax Media that the AFL warning came after senior league officials had learnt that Hird had been investigating the anti-doping status of certain peptides.”
    
    
13. Incomprehensibly, Wilson was quoting from an email that was created and sent by Clothier nine hours later at 12:33 PM

The AFL didn’t fulfill its OH&S responsibilities and therefore failed to provide a safe workplace for the Essendon players

1. Demetriou was aware of Essendon’s interest in supplements in 2011 and aware that its doctor was marginalised by its sports scientists. He was quoted on 12 April 2013 saying “he had erred early last year in not acting more strongly on his fears sports scientists were overruling club doctors”.
   
   
2. Demetriou clearly acknowledged that he didn’t fulfil his responsibilities and in a Freudian slip was accepting some blame for what happened at Essendon. Consequently, he should have been called as a witness in the investigation. The fact that the AFL was investigating Essendon when it too should have been investigated meant there was a conflict of interest. Inter alia, some of the questions Demetriou should have been asked:
   
   • What action did he take to alleviate “his fears sports scientists were overruling club doctors”? I opine, he did nothing
   • What stronger action could he have taken?
   • Why didn’t he take stronger action when he knew that the integrity of the competition could have been at risk, as well as the health of the players?
   • Which club doctors were marginalised?
   • If he had taken stronger action, does he support McLachlan’s contention that the whole Essendon saga could have been avoided?
   • Did he and McLachlan discuss the Australian Crime Commission report with Essendon chairman, David Evans, on, or before, Sunday 3 February 2013?
   • Did he tip-off Evans that Essendon was named in the Australian Crime Commission report that he was given access to on 31 January 2013?
   • Did he discuss with Evans that Essendon should consider self-reporting?
   • Did he discuss Essendon requesting the AFL and ASADA conducting an investigation?
   • When did he become aware Essendon expressed an interest in supplements in 2011?
   • As he believed he was telling the truth about his conversations with David Evans and given his honesty was being questioned, why didn’t he insist the Australian Crime Commission conduct an investigation into the matter?
   • Was Demetriou aware Brett Clothier met with Paul Hamilton, James Hird and Danny Corcoran and an ASADA official on 5 August 2011?
   • Did Clothier inform him before, or after, the 5 August 2011 meeting that he was meeting with, or had met, Essendon officials?
   • Did Clothier inform him in writing of the action he took against the Essendon officials?
   • Why didn’t he instruct Clothier to inform Essendon chief executive, Ian Robson that he had allegedly warned Hamilton and Hird that Essendon weren’t to use supplements?
   • Was he happy to support Clothier’s alleged decision to stop Essendon from using any supplements?
   • Why didn’t he order Clothier to conduct an investigation into Essendon to ensure it was complying with its OH&S responsibilities?
   • If Essendon were found guilty of wrong doing or failing to fulfil its governance and occupational, health and safety obligations, should the penalties be reduced if the AFL contributed to the failures

The AFL failed to protect the integrity of the competition

1. Demetriou, AFL deputy chief executive Gillon McLachlan, general counsel Andrew Dillon and integrity manager Brett Clothier should have been in the metaphorical ‘dock’ to answer questions as to whether they did everything possible to not only protect the integrity of the competition, but whether they did everything possible to ensure the AFL and Essendon fulfilled its duty of care to the players.

The AFL breached its confidentiality responsibilities

2. Inexcusably, AFL media officer, James Tonkin, was given access to the evidence from the investigation and used it in public statements in an attempt to exonerate Demetriou. This was a conflict of interest and it compromised the integrity of the investigation.

The AFL was complicit in breaching the ASADA Act

1. The ASADA Act indicated that the joint investigation was outside ASADA’s charter when it conducted a second, secret investigation of human resource issues at Essendon and therefore, may have been unlawful.
   
   
2. The AFL’s participation with ASADA was a weasel’s way of enabling ASADA to acquire information the law says it wasn’t entitled. Sadly, the AFL’s involvement also allowed it to obtain information it wasn’t entitled. That is, until there was an actual doping assertion by ASADA and then it used this information for an improper purpose – bringing the game into disrepute charge.
   
   
3. ASADA’s Interim Report, which was produced in haste under extreme pressure from the AFL, had a number of flaws and was undoubtedly in breach of its charter. ASADA’s role was to determine whether it has sufficient evidence to issue infraction notices for the taking of illegal substances. ASADA found no such evidence existed. That information could have been communicated to the AFL in one page. Instead, the ASADA Interim Report was over 400 pages and covered issues outside its charter. The AFL used this material to lay many of its vexatious charges against Essendon and the other four defendants.

Demetriou disregarded standard practices involving James Hird’s right to procedural fairness (natural justice)

On 7 October 2010, Chief Justice of the High Court of Australia, Robert S French, delivered the Sir Anthony Mason Lecture at The University of Melbourne Law School, Law Students’ Society. The subject was: Procedural Fairness – Indispensable to Justice? Inter alia, French said:

“Procedural fairness is part of our cultural heritage. It is deeply rooted in our law. It lies at the heart of the judicial function and conditions the exercise of a large array of administrative powers affecting the rights, duties, privileges and immunities of individuals and organisations. As a normative marker for decision-making, it predates by millennia the common law of England and its voyage to the Australian colonies.”

In his conclusion, the Chief Justice said: “The concept of procedural fairness has its origins in the natural law which informed the development of the rules of natural justice as part of the common law of England. Its scope has broadened, then narrowed, then broadened again, through its history. Despite incidents of legislative exclusion, procedural fairness is alive and well today in Australia. There is little doubt that the norms of procedural fairness reach well beyond the confines of the courtroom in judicial proceedings or judicial review of administrative decisions. They are important societal values applicable to any form of official decision-making which can affect individual interests. I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice (my emphasis). If the notion of a ‘fair go’ means anything in this context, it must mean that before a decision is made affecting a person’s interests, they should have a right to be heard by an impartial decision-maker (my emphasis).”

1. The AFL participated as a joint partner with ASADA in collecting witness statements when in fact it should have been required to give witness statements so that the investigators could assess its culpability;

• As the AFL and Essendon Football Club both had duty of care responsibilities to the Essendon players, it was impossible to assess the degree of culpability, if any, of Essendon, without assessing the AFL’s culpability, if any. Consequently, the AFL should have been in the ‘dock’ with Essendon. In absolving itself of responsibility and questioning, and in acting as an investigator, the AFL had a conflict of interest and therefore denied Essendon, James Hird, Mark Thompson and Danny Corcoran procedural fairness (natural justice).

• It should never have been a joint investigation. The AFL had a conflict of interest because Demetriou and McLachlan implied that if they had fulfilled their obligations under Clause 12 of the tripartite agreement between the AFL / Essendon / the players, the whole saga would not have occurred. Yet, unbelievably, instead of the AFL being in the ‘dock’, it became an investigator and metaphorically speaking the fox was in charge of the hen house. This was a flagrant denial of procedural fairness to Essendon, Hird, Corcoran, Thompson and Dr Reid.

• As soon as AFL chief executive, Andrew Demetriou, spoke to Essendon chairman, David Evans, on 1 February 2013, there was a conflict of interest and it was inevitable Essendon and its officials would be denied natural justice.

• The moment Demetriou incorrectly said the Australian Crime Commission cleared him of any wrong doing with respect to the Evans phone call there was a conflict of interest and Hird was denied procedural fairness.

• The AFL conducted a joint investigation, assessed the witness statements, influenced the cutting short of the investigation, laid the charges, assessed guilt, and negotiated a settlement without there being a hearing. This constituted procedural unfairness.

• Demetriou discussed the case with the other Commissioners. As the commissioners were to be the jury, they should not have discussed the case before the hearing. This was denial of natural justice.

• ASADA breached its charter in agreeing to a joint investigation and in so doing denied Hird procedural fairness.

• ASADA did not have the power to force interviewees to produce documents or phone records. It got around this restriction by inappropriately relying on AFL rules to acquire.

• The ASADA Act and the ASADA Regulations contain provisions that protect personal information. The AFL regulations don’t contain such provisions. Thus, the AFL wasn’t restrained by confidential information acquired through attending ASADA interviews.

Demetriou made many statements which implied Hird was guilty:

1. Andrew Demetriou was the AFL’s leading mouthpiece during the investigation and consequently, it was improper for him to acquaint himself with the witness statements, and then, through the media, before the investigation was completed, imply Hird was guilty:
   
   i. The Herald Sun (9 August 2013), quoted Demetriou saying the “league is yet to decide on penalties for Essendon”. Excuse me. The charges weren’t even conveyed to Essendon until 13 August 2013 and the hearing was scheduled for 26 August 2013. But here we have Demetriou implying Essendon was guilty.
   
   ii. The Age (2 March 2013): “It shocked me, not only as the CEO of the AFL but also as a parent … If it is right that there were instances of young men being taken across the road and injected for a period of time, then that is unacceptable.” Demetriou denied Hird a ‘fair-go’ and should not have commented on any aspect of the issue until the investigation was completed.
   
   iii. Demetriou (21 March 2013): “Our fans have quite reasonably been outraged by what’s been happening, and with great justification.” The investigation had barely begun. Demetriou was implying Essendon had done something wrong to enrage the fans. At this stage, the fans should have been outraged at Demetriou denying Essendon procedural fairness by implying it was guilty.
   
   iv. “I am shocked by the complexity of the substances, the potential injurious nature of these substances.” If the substances weren’t banned there was no potential injurious nature. In stating that they were potentially injurious, Demetriou had decided that the substances were illegal and potentially injurious.
   
   v. Demetriou interview with Neil Mitchell on radio 3AW (12 April 2013): “You can’t help but be disappointed, particularly as you find out more and understand more about what was going on.” Demetriou could only justify being disappointed if Essendon had breached the anti-doping rules. Thus, he implied Essendon and its officials were guilty of wrong doing.
   
   vi. “Well, I think the things that are allegedly in the public domain now. I mean they are very fine reporters the fellows from the Age, Baker and McKenzie. I don’t think people print things like that unless they are pretty sure of their facts. So, there is a lot of what has already been published which is very, very disappointing Neil.” Demetriou was basically stating that all the damaging allegations made by Baker and McKenzie against Essendon were true. Consequently, Demetriou turned Baker and McKenzie’s allegations into facts. This statement denied Essendon and Hird a ‘fair-go’.
   
   vii. “There are other things that are still yet to be determined, more substantive things about people and individuals. But all of it is disappointing Neil because I mean you know young men, young people have been subjected to injections of the nature of that’s been disclosed (so far [by Baker and McKenzie]) and substances is horrifying Neil.” As Demetriou implied everything Baker and McKenzie said must be true, he was implying Essendon was guilty. Furthermore, Demetriou’s use of the word horrifying to describe the nature of the substances left the world in no doubt that he believed Essendon and Hird were guilty.
   
   viii. “You’d appreciate I’ve got briefings that are more advanced than what’s in the public domain.” As Demetriou had already implied that what was in the public domain meant Essendon and Hird were guilty, this comment meant he had more substantial proof of their guilt. As this comment was made in the general context of whether Hird should resign, it could be interpreted as a veiled attempt by Demetriou to coerce Hird into resigning.
   
   ix. Mitchell: “If you or I were accused of dishonesty or unethical behaviour we would probably step down while it was being sorted out … should James Hird consider doing that? Demetriou “As he [Hird] goes through his thought process … that [considering standing aside] is an option he [Hird] has to consider.” This was an outrageous response by Demetriou. Journalists were the only ones who had accused Hird of dishonesty and unethical behaviour. The investigators hadn’t accused Hird of such things, let alone charged him with anything. We may as well turn out the lights if people have to resign because someone in the media accuses them of dishonesty. Demetriou should have told Mitchell that Hird hadn’t been accused of anything by people who count. Instead, he all but endorsed Mitchell’s comment by saying Hird had to consider standing aside.
   
   x. “Hird could return to the Essendon coaching job if cleared.” Cleared of what? At this stage Essendon was only being investigated to ascertain whether its players took WADA prohibited No charges had been laid against Hird.
   
   xi. Herald Sun (15 July 2013): “Essendon will not get a soft landing.” This implied Essendon was ‘guilty’ and the statement was made prior to the ASADA interim report being delivered and prior to any charges being levelled against Essendon or Hird. This was a prejudgment by a man who insisted he would sit on the jury. In such circumstances neither Essendon nor Hird would have been given a ‘fair-go’.
   
   xii. The Age (12 April 2013): “They are very disturbing (allegations by Baker and McKenzie) particularly when they relate to the health and welfare of young men. It is very clear that if any coach or official puts the duty of care of their players at risk then they should be held accountable. There is no place for them in the game.” As Demetriou had already implied everything Baker and McKenzie wrote was factual, he was once again proclaiming Essendon’s and Hird’s guilt. Demetriou obviously forgot that in condemning Hird he was on a suicide mission. Demetriou had the same duty of care to the Essendon players as Essendon and Hird, and he and his deputy admitted they didn’t do enough [to protect the players]. By definition, Demetriou is suggesting there is no room in the game for him and McLachlan.
   
   xiii. Demetriou implied in his interview with Mike Sheahan on 27 September 2013 Essendon was guilty the moment he read [many months before] the Dr Reid letter to Paul Hamilton and James Hird, which complained about being marginalised.
   
   xiv. Weekly Times (6 February 2013): “Last night he (Demetriou) said: ‘They (Essendon) don’t know what they have taken or alleged to have taken, they don’t even know if they have broken any WADA rules.’” This was an outrageous and factually incorrect comment by Demetriou. The investigation had already started so Demetriou was out of line saying anything. From day-one Demetriou was creating a bad impression of Essendon.
   
   xv. No one at Essendon believed they had broken ASADA rules
   
   xvi. The Age (2 March 2013): “It shocked me, not only as the CEO of the AFL but also as a parent … If it is right that there were instances of young men being taken across the road and injected for a period of time, then that is unacceptable.” Demetriou should not have commented on any aspect of the issue until the investigation was completed. He was wrong to say it was unacceptable to be injected across the road. If that’s where the registered nurse was that’s where the substances should have been administered.
   
   xvii. The Age (21 March 2013): “Demetriou used the opening address of the 2013 season to stress that the recent scandals involving Essendon, Melbourne and Adelaide had given fans reason to doubt the game.” There was no scandal at Essendon at this point, and stating there was implied Essendon was guilty of wrong doing. The investigation had barely begun. Consequently, it was outrageous for Demetriou to call it a scandal.
   
   xviii. Demetriou 21 March 2013: “If our game is reduced to a madcap philosophy of winning at all costs then we have lost the spirit of sport and we need to pull out all stops to get it back.” Demetriou was implying Essendon had done something outside the rules.
   
   xix. Demetriou 21 March 2013: “Our fans have quite reasonably been outraged by what’s been happening, and with great justification.” The investigation had barely begun. Demetriou was implying Essendon had done something wrong to enrage the fans. At this stage, the fans should have been outraged at Demetriou denying Essendon procedural fairness by implying it was guilty
   
   xx. “I am shocked by the complexity of the substances, the potential injurious nature of these substances.” If the substances weren’t banned there was no potential injurious nature. In stating that they were potentially injurious, Demetriou had decided that the substances were illegal and potentially injurious. Demetriou was denying Essendon and Hird procedural fairness by implying Essendon were guilty before the investigation was completed.
   
   xxi. Demetriou interview with Neil Mitchell on radio 3AW (12 April 2013): “You can’t help but be disappointed, particularly as you find out more and understand more about what was going on.” Demetriou could only justify being disappointed if Essendon had breached the anti-doping rules. Thus, he implied Essendon and its officials were guilty of wrong doing.
   
   “Well, I think the things that are allegedly in the public domain now. I mean they are very fine reporters the fellows from the Age, Baker and McKenzie. I don’t think people print things like that unless they are pretty sure of their facts. So, there is a lot of what has already been published which is very, very disappointing Neil.” Demetriou was basically stating that all the damaging allegations made by Baker and McKenzie against Essendon were true. Consequently, Demetriou turned Baker and McKenzie’s allegations into facts. AFL Chairman, Mike Fitzpatrick should have charged Demetriou with denying Hird procedural fairness, conducted a hearing, and then sacked Demetriou if found ‘guilty’.
   
   “There are other things that are still yet to be determined, more substantive things about people and individuals. But all of it is disappointing Neil because I mean you know young men, young people have been subjected to injections of the nature of that’s been disclosed (so far [by Baker and McKenzie]) and substances is horrifying Neil.” As Demetriou implied everything Baker and McKenzie said must be true, he was implying Essendon was guilty. Furthermore, Demetriou’s use of the word horrifying to describe the nature of the substances left the world in no doubt that he believed Essendon and Hird were guilty.
   
   “You’d appreciate I’ve got briefings that are more advanced than what’s in the public domain.” As Demetriou had already implied that what was in the public domain meant Essendon and Hird were guilty, this comment meant he had more substantial proof of their guilt. As this comment was made in the general context of Hird resigning, it could be interpreted as a veiled attempt by Demetriou to coerce Hird into resigning.
   
   xxii. Mitchell: “If you or I were accused of dishonesty or unethical behaviour we would probably step down while it was being sorted out … should James Hird consider doing that? Demetriou “As he [Hird] goes through his thought process … that [considering standing aside] is an option he [Hird] has to consider.” This was an outrageous response by Demetriou. Journalists were the only ones who had accused Hird of dishonesty and unethical behaviour. No one in authority had accused Hird of such things let alone charged him with anything. We may as well turn out the lights if people have to resign because someone in the media accuses them of dishonesty. Demetriou should have told Mitchell that Hird hadn’t been accused of anything by people who count. Instead, he all but endorsed Mitchell’s comment by saying Hird had to consider standing aside.
   
   xxiii. “Hird could return to the Essendon coaching job if cleared.” Cleared of what? At this stage Essendon was only being investigated to ascertain whether its players took illegal substances. No charges had been laid against Hird.
   
   xxiv. The Age 12 April 2013: “Demetriou says Hird will be held accountable if he has put the duty of care to his players at risk.”
   
   xxv. Although shocked by the very serious allegations levelled at Hird and Essendon, Demetriou said there would be no action taken until ASADA completed its investigations. But he warned any cheats would be thrown ‘out of the game’.
   
   xxvi. “’No person or action that seeks to gain advantage by improper means will be tolerated in this code.”’
   
   xxvii. Carowhine Wilson The Age (11 May 2013): “AFL chief Andrew Demetriou has said that while coaches could not be banned by ASADA for taking banned substances, they could face sanctions from the AFL for bringing the game into disrepute.”
   
   xxviii. Mike Sheahan: (27 September 2013): Demetriou implied in his interview with Mike Sheahan that Essendon was guilty the moment he read [many months before] the Dr Reid letter to Paul Hamilton and James Hird which complained about being marginalised. Despite having determined Essendon’s guilt, Demetriou claimed on a number of occasions he was entitled to sit on the commission (jury) because he hadn’t made up his mind about whether anyone was guilty.
   
   xxix. Herald Sun (9 August 2013), quoted Demetriou saying the “league is yet to decide on penalties for Essendon”. Excuse me. The charges weren’t even conveyed to Essendon until 13 August and the hearing was scheduled for 26 August. But here we have Demetriou implying Essendon was guilty.

Despite implying Hird was guilty, Demetriou unconscionably insisted on being on the jury to decide guilt or innocence

1. As Chief Justice Robert French said “There is little doubt that the norms of procedural fairness reach well beyond the confines of the courtroom in judicial proceedings or judicial review of administrative decisions. They are important societal values applicable to any form of official decision-making which can affect individual interests. I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice. If the notion of a ‘fair go’ means anything in this context, it must mean that before a decision is made affecting a person’s interests, they should have a right to be heard by an impartial decision-maker.”
   
   
2. As Demetriou believed Essendon and Hird were guilty, it was impossible for him to be “an impartial decision-maker”. Consequently, Essendon and Hird were denied procedural fairness.

Hird’s interview with the AFL/ASADA investigators contradicted Demetriou version of a key event and consequently it was human nature for Demetriou to be prejudiced against Hird

1. Hird told the AFL-ASADA investigators Demetriou phoned Evans at 9pm on 4 February 2013, and Demetriou told Evans that the ACC alleged Essendon had breached the AFL’s anti-doping code and that it should self-report and ask the AFL to investigate the matter.
   
   
2. Demetriou denied that he made such a revelation. If Hird’s view were correct, Demetriou could have been fined $50,000 and gaoled for two years.
   
   
3. Demetriou was so upset with the two Herald Sun journalists who wrote the story, Mark Robinson and Michael Warner, he refused to speak to them for many months. In an interview with Mike Sheahan on 27 September 2013 Demetriou expressed his anger towards Robinson and Warner: “It’s not Mike [a pretty savage response] If you think that it is okay to have your reputation impugned to such that you could go to gaol and it’s wrong and that you have actually stated that it’s wrong and you are still having your word doubted without any support, without any evidence when you couldn’t possibly tip off David Evans because you haven’t got the information and you continue to go on with it. I don’t think it is unreasonable Mike. You may think it is unreasonable.” If Demetriou were prepared to “shoot” the messenger, it is not hard to imagine what he would like to have done to Hird. In such circumstances, it was impossible for Demetriou to be an impartial decision-maker. In insisting he sat on the jury, Demetriou was polluting the process and denying Hird procedural fairness. Demetriou’s comment indicates how angry he felt about being accused of tipping off Essendon. Ironically, Demetriou not only didn’t have any evidence to support his comment but he had mis-lead 3AW’s Neil Mitchell on 26 July when trying to supply evidence. When he claimed incorrectly that ASADA and the ACC had cleared him.

The AFL insisted upon being investigators; laying the charges; prosecuting the case; deciding on innocence or guilt and deciding on the penalties

1. The AFL provided staff members to the investigation. Thus, the AFL was playing the role of the policeman in collecting witness statements
   
   
2. A number of AFL staff members were given access to the witness statements before the investigation was completed. This enabled them to play “deep throat” and ingratiate themselves with selected media people, if they so desired.
   
   
3. The AFL’s general counsel, Andrew Dillon, read the ASADA-AFL interim report and the Switkowski report and decided on the charges. Thus, Dillon was playing the role of the attorney-general. But Dillon obviously had plenty of spare time on his hands and multi-tasked by also playing a PR role. He did this by releasing a 34-page document containing the charges to the media. In a normal court, the vast majority of charges would have been thrown out on the grounds of vexatiousness. Presumably, he also intended playing the role of prosecutor when the mythical hearing was to begin.
   
   
4. Demetriou, repeatedly told the public he would sit on the jury because he hadn’t formed an opinion of guilt or innocence. Demetriou had played so many roles in the previous six months it was impossible to know whether he wanted to be the premier and sit ex officio on every committee; the police commissioner by controlling the investigation; a policeman by taking witness statements; a PR person; a media tart; the jury; the judge; or the executioner.
   
   
5. The AFL informed the defendants that the hearing would be held on 26 August 2013.
   
   
6. Inexplicably, the AFL chairman, Mike Fitzpatrick called a meeting for the 22 August for all 18 club presidents. Miraculously, without discussing the case (because that would have been improper), Fitzpatrick was able to convince 17 presidents that the commissioners were doing the right thing.
   
   
7. Although Demetriou constantly assured the public that everything would be transparent and that no decision had been made about guilt or innocence, the AFL started negotiating penalties with Essendon before the hearing commenced.

Demetriou had access to the witness statements and used it in media interviews despite knowing it was inappropriate to do so

1. In an interview Demetriou said: “Again I’m not going to answer that. ASADA have an investigation underway and it would be inappropriate. Inappropriate for me to say anything about anything.” Nothing could be clearer. If Demetriou commented on anything involving the investigation it would be improper. The implication being that any comment would compromise the investigation and deny Essendon and Hird procedural fairness.
   
   
2. Inexplicably, Demetriou couldn’t help himself, and he compromised the investigation on many occasions by making public statements about the investigation – many of which appeared to be made to defend himself.
   
   
3. “It’s not leaked. There is a witness statement. I think you could probably form a good guess who that is. I won’t tell you who that is. You are smart enough [to work out who it is].” Demetriou should never have been told about a witness statement, particularly one that alleged he had broken the law and could have faced a two-year gaol sentence.
   
   
4. It was totally unacceptable that Demetriou not only talked publicly about the witness statement but alluded to whose it was. If that weren’t bad enough, AFL spokesman James Tonkin ran shotgun for Demetriou and was quoted in the Herald Sun saying: “We understand this claim was made by a particular witness in an interview with ASADA. The allegations, which were disputed and discredited by other witnesses, were examined by ASADA. They are completely untrue.” This comment by Tonkin was one of many times the AFL corrupted the investigation.
   
   
5. Tonkin had no right to have access to the witness statements
   
   • Tonkin was factually incorrect to claim Hird’s comments were discredited by other (plural) witnesses. David Evans was the only witness who gave a contrary view to Hird
   • Evans’s statement wasn’t tested under oath
   • Danny Corcoran supported Hird’s view in his witness statement.
   • Essendon doctor, Bruce Reid, claimed on numerous occasions that Evans told him Demetriou had tipped him off. Amazingly, Reid was either never asked about the tip-off, or if he were, his response never appeared in the ASADA interim report.
   • Demetriou was never required to give his view of what he said to Evans
   • It is outrageous to claim ASADA examined the matter and outrageous to imply that ASADA ruled against Hird

1. “You’d appreciate I’ve got briefings that are more advanced than what’s in the public domain.” This gave credence to his implication that Hird and Essendon were ‘guilty’. Furthermore, it could be interpreted as a veiled attempt by Demetriou to coerce Hird into resigning.
   
   
2. “At any rate I am legally bound not to disclose information passed on by the ACC [Australian Crime Commission].” Demetriou was given information from the investigation which directly involved him. As this statement contradicted Hird’s comments to the investigators, it implied Hird was not telling the truth. Hird’s witness statement created huge problems for Demetriou and it is illogical that Demetriou implied that he could be objective and that he could sit on the commission and judge Hird. Justice has not only to be done but it must be seen to be done. It was human nature for Demetriou to want to settle the score with Hird and consequently it was impossible for him to be impartial.
   
   
3. “My comments about the ‘classification issue’ of anti-obesity drug AOD 9604 should not be construed as a sign the league was pre-empting the outcome of the ASADA inquiry into the club’s supplement program.” Demetriou should have heeded his comments that “ASADA have an investigation underway and it would be inappropriate. Inappropriate for me to say anything about anything.”
   
   
4. “I was asked, ‘Does the AFL believe AOD-9604 was a banned substance?’ I said I am not giving a running commentary but I will say there is some uncertainty about the status of AOD-9604.” Demetriou must think we are all stupid? He says he won’t comment and then proceeds to comment in a way which inflamed the situation. This was one of many times he did the same thing in the media through having access to material from the investigation.
   
   
5. Wilson The Age (11 May 2013 “Demetriou said on Friday he remained unaware of all of the identities of those staffers alleged to have taken Hexarelin.”

Demetriou acknowledged that he pressured ASADA to deliver its report early


In an interview with SEN Radio (9 September 2013) Demetriou said: “We absolutely were asking ASADA to try and get to a conclusion by the end of July or early August so that we could have a final series that everybody in the system and the 18 clubs would know whether it would be a pure finals series.” Demetriou also said “that is not a deal, that is called managing expectations and making sure we act as professionally as possible”. Essendon, Hird, Thompson and Corcoran were entitled to receive a thorough investigation. The AFL wasn’t acting professionally in trying to influence its partner to speed up the process. The investigation was compromised by Demetriou’s demand for haste. Consequently, Essendon and its officials didn’t receive procedural fairness.

The AFL used the Switkowski report against Essendon and Hird – despite it having little credibility

1. Switkowski was commissioned by Essendon Football Club to review its governance processes. Switkowski’s role was to identify holes and shortcomings in those processes and recommend improvements. It was supposed to be an internal document for Essendon use only. It is inconceivable that it was commissioned by Essendon to give the AFL ammunition to use against it.
   
   
2. Inexplicably, the report was not only given to the AFL, but the AFL used it to fine Essendon $2 million; ban it from the finals; coerce Hird into accepting a 12-month suspension; fine Mark Thompson $30,000; suspend Danny Corcoran for four months; and deny Essendon draft picks. As the Essendon board had a fiduciary duty to act in Essendon’s best interests, it is arguable whether it failed to do that when it gave the Switkowski report to the AFL.
   
   
3. If the above weren’t bad enough, Hird and his legal team were only given a copy of the executive summary. Inexplicably, they were not given a copy of the full report. This made it impossible for Hird to prepare a proper defence and consequently, he was denied procedural fairness. The refusal to give Hird the full report could only have been instigated by Essendon or the AFL.
   
   
4. To compound a disastrous failure by the AFL to ensure Hird received procedural fairness, the Switkowski executive summary wasn’t worth the paper it was written on. In Switkowski’s own words “the work was inevitably constrained, in this case primarily by two factors:
   
   • “Firstly, there is a parallel review underway led by the AFL and ASADA into the nature of supplements administered by the EFC during this period, and their compliance or otherwise with various anti-doping codes. This was a no-go area for this report. Questions about the pharmacology of certain supplements, their possible performance affecting properties, compliance or otherwise with anti-doping codes etcetera are issues for the AFL and ASADA investigations, which still have some way to go. This review and report needed to be conducted in a manner careful not to inadvertently compromise their work.
   • “Secondly, a number of individuals key to a full analysis of this period, have been unavailable for interview.
   • “As well, performance enhancing and image enhancing drugs, their delivery processes, and legitimacy for elite sportspeople, fall well outside my expertise.”
   
   
5. Despite those three constraining factors, Switkowski made comments that he couldn’t support, or were outside his area of expertise. Inter alia, he said: “In particular the rapid diversification into exotic supplements, sharp increase in frequency of injections, the shift to treatment offsite in alternative medicine clinics, emergence of unfamiliar suppliers, marginalization of traditional medical staff etcetera combine to create a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review.”
   
   • Sadly, for Hird, this comment was used repeatedly by the media to harm him, despite it having no validity
   • Exotic supplements conjures-up something sinister. Exotic means from overseas. At some stage in their lives, every person in Australia would have taken a pill or substance that was manufactured overseas.
   • “Frequency of injections” conjured up something sinister. The method of administering is irrelevant. Many people inject themselves twice a day with blood thinners, as do diabetics.
   • The term “pharmacologically experimental environment” caused more damage to Hird than anything except the bogus phone call to Eddie McGuire from the alleged Essendon mother. The term had no negative validity whatsoever but the AFL and the media used it to undermine Hird. Hird instructed Dank and Reid that all substances administered to Essendon players had to be WADA / ASADA compliant. Dank claimed they were WADA / ASADA compliant. Doctors experiment with legal drugs every day. My doctor has experimented with me with at least half a dozen blood pressure drugs. Every AFL doctor would have experimented with different legal drugs to treat their players. (antibiotics)
   
   
6. To save itself from the recycle bin, the Switkowski review had to:
   
   • Identify Essendon’s governance and OH&S responsibilities
   • Identify the batting order of responsibility for all Essendon officials. At least 12 Essendon people had more responsibility than James Hird
   • Assess the degree of failure of those Essendon officials to fulfil their responsibilities
   • Identify the AFL’s governance and OH&S responsibilities to Essendon
   • Assess the degree of failure of the AFL officials to fulfil their responsibilities to Essendon
   • Determine whether the AFL breached Clause 12 of the tripartite agreement which says: “The parties to this contract (AFL/Essendon/the player) shall use their best endeavours, in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this Contract.”
   
   
7. Inexplicably, “occupational, health and safety” was never mentioned in the executive summary. The term “AFL” was used five times but it wasn’t used even once in reference to its governance or occupational, health and safety responsibilities to the Essendon players.
   
   
8. As the executive report didn’t canvass any of the above, Hird was denied natural justice when the AFL used such a poor report against him.

The initial charges against Essendon contained many vexatious charges. These charges caused Hird severe damage. Those charges were dropped without explanation or an apology

1. In his first charge document of 34 pages, AFL general counsel, Andrew Dillon, lifted verbatim meaningless sentences from Switkowski’s report and created nonsense charges that would have been kicked out by any court.
   
   
2. Inter alia, between August 2011 and the end of 2011, the Club became aware that:
   
   i. the program was to push to the legal limit; [My comment: WADA had only two categories of drugs. Legal and illegal. It didn’t have a third category called “pushing to the legal limit”. There is nothing wrong with operating within the legal limit. This charge is the equivalent of charging a motorist doing 59km per hour in a 60 zone because he was pushing towards the legal limit]
   
   ii. the program involved innovative supplement practices and compounds; [My Comment: WADA only classifies substances as legal or illegal. Innovative is not mentioned in the code]
   
   iii. the program involved the use of allegedly beneficial, if exotic, mysterious and unfamiliar, compounds; [My Comment: Exotic means they came from overseas. Every person in Australia has taken a substance or pill manufacture overseas. The substances may have been mysterious and unfamiliar person such as the self-confessed ignorant Dr Switkowski, but they weren’t mysterious to Stephen Dank]
   
   iv. the program’s fitness strategy and use of supplements varied sharply from prior practices at the Club; [My Comment: So, what. Every club’s fitness strategy and use of supplements vary from year-to-year].
   
   v. the program involved injecting players with an unprecedented frequency.

[My Comment: So, what. I’ve doubled my dose of vitamin C and vitamin D this year.

3. There was nothing sinister or illegal in any of the above five points. They were vexatious and should not have been included in the charge document. Dillon dropped these points from his re-released charge sheet which proves they should not have been included in the first charge sheet.
   
   i. “The Club, including, in particular, Robson, Hird and Robinson proposed that the program, which related to the physical and physiological development of the players, would be “cutting edge”. The stupidity of this charge is the ASC boasts on its web site that it has cutting edge supplements programs which enhance performance
   
   ii. The AFL laid at least four different sets of charges. The first set, which covered over 30 pages was made public and created an incredibly bad image of the defendants. Obviously, those charges were released to the public for PR and propaganda purposes. Subsequently, three further sets of charges were laid – each following set of charges being reduced in number from the previous set. The AFL did not release any of the amended charges to the public, which meant the public didn’t know which charges had been dropped. This was reprehensible behaviour by Demetriou and Dillon and denied Hird natural justice.
   
   iii. Although ASADA couldn’t find reason to issue infraction notices against Essendon players, Dillon, in the first of his four charge sheets, unbelievably charged Essendon [clause 1(o) (i)] with its players being administered prohibited substances. It was reprehensible for Dillon to make such a charge when ASADA was unable to do so. If Dillon had done this in a court he would have received a severe dressing down by the judge. Unfortunately for Hird Thompson and Corcoran this charge would have caused many people to think very negatively about them.
   
   iv. Clothier’s witness statement of what he alleged was said at his meeting on 5 August 2011 was used to lay the first set of charges against Hird. Inexplicably, Clothier’s recollection was never tested.

The AFL coerced the support of the other 17 clubs before a hearing was conducted. To do this it must have informed the 17 clubs, Essendon and its officials were guilty

1. The AFL’s decision to summon the presidents / chairman of the 18 clubs to a meeting a few days before the defendants were scheduled to attend the AFL hearing was inappropriate and was obviously designed for PR and propaganda purposes.
   
   
2. The presidents didn’t need to know the AFL commission’s position at that stage. In fact, the commission should not have had a position then
   
   
3. Insufficient time was devoted to the meeting for the AFL to go through the case let alone provide sufficient time for them to grasp the details. The fact that the presidents, through Bulldogs president, Peter Gordon, released a statement supporting the AFL is a sad indictment on their sense of fair play.

AFL integrity manager Brett Clothier was an investigator and inexplicably was allowed to submit a witness statement. His statement was never tested but was used against Hird

1. The AFL’s integrity officer, Brett Clothier, was an investigator on the AFL-ASADA investigation panel. He conducted interviews and had access to all the evidence, including that given by James Hird, Danny Corcoran and Paul Hamilton. All three were asked about a meeting they attended on 5 August 2011 with Clothier and a representative from ASADA. None was asked about an alleged warning given by Clothier about the use of peptides.
   
   
2. At 12:31 PM on 17 July 2013, Clothier informed ASADA in writing that he issued a warning at the 5 August 2011 meeting to the three Essendon officials to stay away from all peptides. Unbelievably, Clothier’s document was accepted as evidence and appeared in the Interim Report. Unconscionably, the story written by Caroline Wilson appeared in Age at 3:00 Am – nine hours before Clothier created and sent the email to ASADA.
   
   
3. Incredibly, Hird, Hamilton and Corcoran were not recalled to be asked about Clothier’s claims
   
   
4. The alleged warning by Clothier was used against Hird in establishing his “guilt” and determining the starting point for the bargaining over his penalty.
   
   
5. Clothier breached the AFL’s anti-doping code by not informing Essendon chief executive Ian Robson of the meeting and warning.
   
   
6. The public was entitled to know:
   
   i. Whether the actions above by ASADA meant the investigation was corrupt.
   
   ii. If the investigation were corrupt, should the interim report have been thrown in the bin.
   
   iii. If the investigation were corrupt, should all penalties have been over-turned.
   
   iv. What proof can Clothier provide to substantiate his claim that he warned Hird, Hamilton and Corcoran not to use any peptides.
   
   v. Why Clothier’s notes of his meeting with Hird, Hamilton and Corcoran did not have any reference to a warning to the three.
   
   vi. Given, peptides are supplements, and given 80% are legal, what right did Clothier have to issue a blanket ban on all supplements, particularly, as the Australian Institute of Sport boasts about its cutting-edge supplements program, which enhance performance. As other clubs were using supplements, potentially Clothier was putting Essendon at a severe handicap if in fact he issued such a warning.
   
   vii. Whether Clothier informed Demetriou that he had given a verbal warning to the three Essendon officials.
   
   viii. Whether Clothier, as required by the AFL’s anti-doping code, informed the Essendon chief executive, Ian Robson, about his warning to Hird, Hamilton and Corcoran.
   
   ix. If it is determined that the AFL-ASADA investigation was corrupt because of its treatment of Clothier and his evidence, can a case be made that the AFL and ASADA should have known that such behaviour was corrupt.
   
   x. Given Hird’s reputation was damaged by Clothier’s evidence and the interim report, if the proceedings were deemed to be corrupt, could Hird mount a case for criminal defamation against the AFL and/or the Australian Government or any of their officials.
   
   xi. Who leaked Clothier’s evidence to Caroline Wilson from the Age newspaper.
   
   xii. Why the AFL or ASADA or the Australian Crime Commission did not launch an investigation into the leak.

Constant leaks from the investigation caused damage to Hird

1. The joint investigation enabled the AFL to leak. There were so many leaks in the Age, people wondered whether the Age had become a branch office of the AFL.
   
   
2. Premature negative coverage of the Essendon saga by the media damaged the game’s reputation and image. Many of the articles, which Age reporter, Caroline Wilson, wrote about the Essendon saga, damaged Hird’s / Essendon’s reputation and image. Some of Wilson’s information was derived from leaks and those responsible for leaking should be held accountable.
   
   Item 1 – Caroline Wilson, The Age – (7 February 2013): “The AFL remains convinced that chairman David Evans had no knowledge of any questionable practices …”
   
   
   Item 2 – Caroline Wilson, The Age – (9 February 2013): “But Fairfax Media understands that Essendon was not the club singled out for ‘team-based’ doping …’
   
   
   Item 3 Caroline Wilson, The Age – (11 April 2013): “Two months later, as the evidence against Hird continued to deeply disturb those who are investigating him that claim seems fanciful
   
   
   Item 4 – Caroline Wilson, The Age (12 April 2013): “Reid had told the Australian Sports Ant-Doping Authority and the AFL he was marginalised by the inner sanctum after voicing his fears to several levels of the club’s hierarchy… That he (Reid) warned Hird and others about the practices being adopted by Dean Robinson and Stephan Dank has been a matter of grave concern for the AFL.”
   
   
   Item 5 – Caroline Wilson, The Age (13 April 2013): “This claim (by Hird’s camp) is inconsistent with previous information received by the AFL …”
   
   
   Item 6 – Caroline Wilson, The Age (7 May 2013): “The AFL and ASADA will also investigate Stephen Dank’s assertion that six Essendon staffers, including Hird and two of his assistant coaches, took substances which are prohibited by the World Anti-Doping Agency.”
   
   
   Item 7 – Caroline Wilson, The Age (7 May 2013): “That could not be said even after a heavily edited version of Switkowski’s findings were made public.”
   
   
   Item 8 – Caroline Wilson, The Age (11 May 2013): “Five Essendon staffers, including James Hird’s personal assistant, have admitted to the AFL and the Australian Sports Anti-Doping Authority that they were treated last year by Stephen Dank with a variety of injections and oral supplements.”
   
   
   Item 9 – Caroline Wilson, The Age (11 May 2013): “It is understood the staffers have said they were treated by Dank for a variety of reasons ranging from lack of sleep to weight management to being generally run down and suffering from poor immune systems.”
   
   
   Item 10 – Caroline Wilson, The Age (15 June 2013): “The game’s governing body appears well versed on the role Hird played in the high-risk chemical program. There appears no doubt he was aware of the jab-happy environment about the club.”
   
   
   Item 11 – Caroline Wilson, The Age (17 July 2013): “The AFL warned James Hird in late 2011 to not involve his players in a peptides program.”
   
   
   Item 12 – Caroline Wilson, The Age (17 July 2013): “Sources close to the joint investigation by ASADA and the AFL into Essendon have told Fairfax Media that the AFL warning came after senior league officials had leant, that Hird had been investigating the anti-doping status of certain peptides.”
   
   
   Item 13 – Caroline Wilson, The Age (17 July 2013): “Investigators appear to have built a compelling case that Bombers coach James Hird was an enthusiastic supporter of the club’s injecting program.”
   
   
   Item 14 – Caroline Wilson, The Age (17 July 2013): “Evidence has also emerged suggesting that Hird’s senior assistant, Mark Thompson, cautioned the Bombers’ coaching group and football staff against the injecting program.”
   
   
   Item – Caroline Wilson, The Age (17 July 2013): “While Hird has said he was confident the club would be in a ‘very good position’ once the investigation had been completed, that investigation appears to have built a compelling case that the Bombers’ senior coach was an enthusiastic supporter of Dank’s program, support strongly backed by his football operations boss, Danny Corcoran.”
   
   
   Item 17 – Caroline Wilson, The Age (17 July 2013): “It is believed that Hird’s performance in his interview in May with ASADA and the AFL did not completely convince investigators that the senior coach had acted appropriately in demonstrating due diligence.”
   
   
   Item 18 – Caroline Wilson, The Age (17 July 2013): “And evidence from some key witnesses has not been favourable to Hird painting a picture of a coach… Never adequately controlled or challenged within the club.”
   
   
   Item 19 – Caroline Wilson, The Age (17 July 2013): “It is understood the staffers have said they were treated by Dank for a variety of reasons ranging from lack of sleep to weight management to being generally run down …”
   
   
   Item 20 – Nick McKenzie and Richard Baker, The Age (11 April 2013): “Information gathered by ASADA corroborates this.”
   
   
   Item 21 – Nick McKenzie and Richard Baker, The Age (11 April 2013): “Governance and player welfare failings at Essendon may result in the AFL charging the club or its senior officials with improper conduct or bringing the game into disrepute.”
   
   
   Item 22 – Nick McKenzie and Richard Baker, The Age (12 April 2013): “… Reid has since told ant-doping authorities that he was frozen out of the supplements program after raising concerns about it.”
   
   
   Item 23 – Nick McKenzie and Richard Baker, The Age (12 April 2013): “While some cases are strong (one source aware of ASADA’s work says its investigators are confident of suspending 20 mostly NRL players).
   
   
   Item 24 – Nick McKenzie and Richard Baker, The Age (12 April 2013): “In relation to the Bombers’ use of AOD, even ASADA’s internal advice suggests the doping case around the drug is weak.”
   
   
   Item 25 – Nick McKenzie and Richard Baker, The Age (12 April 2013): “Hird is one of several Bombers senior staff against whom evidence of negligence is mounting.”
   
   
   Item 26 – Nick McKenzie and Richard Baker, The Age (2 May 2013): It is understood that the tape recording has not been provided by Carlton to the AFL and that the Australian Sports Anti-Doping Authority does not have a copy.”
   
   
   Item 27 – Nick McKenzie and Richard Baker, The Age (30 June 2013): “Fairfax Media can reveal that the Australian Sports Anti-Doping Authority is investigating whether the physical performance of Essendon players given certain supplements, including AOD-9604, was measured against teammates who had not received the drugs and whether results were passed to external parties.”
   
   
   Item 28– Nick McKenzie and Richard Baker, The Age (30 June 2013): “WADA were shocked by some of the substances going around Essendon and some of the NRL clubs. Some of those drugs had not been thought of in a sporting context before,” said a source familiar with the progress of the Australian Sports Anti-Doping inquiry. “We’ve got a playing generation of guinea pigs.”
   
   
   Item 29 – Nick McKenzie and Richard Baker, The Age (1 July 2013): “As the drugs-in-sport inquiry enters its fifth month, Fairfax Media has learnt that it seemingly slow pace can be largely attributed to Essendon players being given every opportunity to build a no-fault or mitigating-circumstances case that will meet WADA’s high evidentiary requirements.”
   
   
   Item 30 – Nick McKenzie and Richard Baker, The Age (1 July 2013): Investigators from the Australian Sports Anti-Doping Authority are examining whether players were given substances different to (sic) what they were told. There is also confusion over whether club medical staff had actually approved every substance administered.”
   
   
   Item 31 – Nick McKenzie and Richard Baker, The Age (1 July 2013): ‘”It appears that the players have effectively been sabotaged by their own club,” said a source aware of the disclosures made to ASADA.’
   
   
   Item 32 – Nick McKenzie and Richard Baker, The Age (4 July 2013): “Fairfax Media understands that Essendon players have been unable to explain to ant-doping investigators whether the club’s 2012 supplements program involved Thymosin beta 4.”
   
   
   Item 33 – Nick McKenzie and Richard Baker, The Age (4 July 2013): “It is understood that player testimony on the issue of Thymosin has been vague, with players unable to specify which type of drug was taken.”
   
   
   Item 34 – Nick McKenzie and Richard Baker, The Age (4 July 2013): “However, sources with a knowledge of the progress of the Australian Sports Anti-Doping Authority investigation believe there is a strong circumstantial case mounting to suggest the ‘Thymosin peptide’ referred to in the Essendon invoice was beta 4.”
   
   
   Item 35 – Nick McKenzie and Richard Baker, The Age (23 July 2013): “Fairfax Media understands the ASADA investigation is examining which of the external doctors associated with the supplements program wrote prescriptions for players, whether they actually physically examined them and whether prescriptions were written in the players’ names.”
   
   
   Item 36 – Nick McKenzie and Richard Baker, Border Chronicle (31 July 2013): ASADA’s investigators have seized documents found inside the Essendon Football Club’s headquarters …”
   
   
   Item 37 – Nick McKenzie and Richard Baker, Border Chronicle (31 July 2013): “The documents are among several pieces of information gained by ASADA that reveal the risky nature of Essendon’s sports science program …”
   
   
   Item 38 – Nick McKenzie and Richard Baker, Border Chronicle (31 July 2013): Fairfax Media can also reveal that ASADA has uncovered a bill sent to Essendon in late 2012 …”
   
   
   Item 39 – Nick McKenzie and Richard Baker, Border Chronicle (31 July 2013): “It is understood the AFL and ASADA have been unable to confirm what drug the ‘amino acids’ referred to, but have been told that despite the bill alarming several senior club officials …”
   
   
   Item 40 – Nick McKenzie and Richard Baker, Border Chronicle (31 July 2013): “Investigators have also obtained text messages from Essendon’s former high performance coach Dean Robinson …”
   
   
   Item 41 – Nick McKenzie and Richard Baker, The Age (1 August 2013): “Mr Robinson’s warning, sent via a text message … and recently obtained by the anti-doping investigators…”
   
   
   Item 42 – Nick McKenzie and Richard Baker, The Age (7 August 2013): “Players viewed as victims in leaked report.”
   
   
   Item 43 – Nick McKenzie and Richard Baker, The Age (7 August 2013): “Some Essendon players were given WADA-banned substances AOD9604 and Thymosin Beta 4 … according to circumstantial evidence detailed in the confidential ASADA report into the AFL’s club’s 2012 supplements program.
   
   
   Item 44 – Nick McKenzie and Richard Baker, The Age (7 August 2013): “Multiple sources aware of the contents of the report told Fairfax Media …”
   
   
   Item 45 – Nick McKenzie and Richard Baker, The Age (7 August 2013): ASADA has also found …”
   
   
   Item 46 – Nick McKenzie and Richard Baker, The Age (7 August 2013): “A source who has read the ASADA report …”
   
   
   Item 47 – Nick McKenzie and Richard Baker, The Age (7 August 2013): Separate to ASADA’s deliberations, the AFL is weighing whether to punish the club or officials … Punishment could include the loss of premiership points or the suspension of staff.”
   
   
   Item 48 – Nick McKenzie and Richard Baker, The Age (14 August 2013): “According to evidence gathered during the ASADA-AFL investigation, the Mexican supplement …” [came from New Mexico in the US] 16 August
   
   
   Item 49 – Nick McKenzie and Richard Baker, The Age (14 August 2013): “The revelation that an unknown substance was given to some Essendon players was raised by ASADA investigators during the interviews at AFL headquarters … The Mexican supplement …”
   
   
   Item 50 – Nick McKenzie and Richard Baker, The Age (14 August 2013): “ASADA has devoted considerable resources to examining the circumstances around the provision of the Mexican supplement…”
   
   
   Item 51 – Nick McKenzie and Richard Baker, The Age (21 August 2013): On August 5, 2011, James Hird sat across the table from an AFL integrity officer and an ASADA representative and was told to stay away from peptides. AFL integrity officer Brett Clothier told Hird that peptides were a ‘serious risk to the integrity of the AFL’ and they were viewed similarly to steroids and human growth hormone.”
   
   
3. Andrew Demetriou should have organised an independent body to conduct an investigation into the leaks or suggested the Australian Crime Commission conducted such an investigation.
   
   
4. The leaks were different from a whistleblowers’ leaks in that they weren’t intended to expose a problem swept under the carpet. These leaks were designed to hurt the defendants and influence the public, which was reprehensible.
   
   
5. My experience is such leakers / “sources” have ulterior motives. Wilson should have questioned the motives of her sources, before ‘assassinating’ her targets.
   
   
6. The “sources” in this instance were obviously using Wilson to manipulate the story, and in so doing have engaged in conduct unbecoming or likely to prejudice the interests of, or reputation of the Australian Football League or to bring the game of football into disrepute.
   
   
7. As Wilson played such a pivotal role in the negative coverage of the saga, James Hird could not possibly defend himself properly at the AFL Commission.

The AFL called head of the ASC to secure Essendon’s compliance with a guilty plea and acceptance of an outrageous $2 million penalty and draft picks

1. According to Age journalist, Roy Masters, Australian Sports Commission (ASC) chairman, John Wylie, was brought in by his business associate of twenty years, AFL chairman, Mike Fitzpatrick, to help negotiate the penalties with Essendon. “AFL chairman Mike Fitzpatrick drafted Wylie to the talks when they began badly . . . Wylie had studied the Australian Sports Anti-Doping Authority report and recognised a four-month ban was inadequate and was forced to retrieve the negotiations.” Wylie was brought back in and Hird ended up with a 12-month suspension. As the ASC and ASADA all but sleep in the same bed, and as ASADA is not empowered to hand out penalties, Hird was denied natural justice.
   
   
2. Subsequently, it was suggested that Essendon chairman, Paul Little, played a role in Wylie’s involvement in the negotiations. It doesn’t matter who was responsible for Wylie’s participation. Because of Wylie’s links to the government and ASADA, Hird was denied natural justice.

The AFL arguably blackmailed Essendon into accepting penalties prior to a hearing


The Age (15 August 2013): Caroline Wilson said: Had [coach James] Hird been prepared to plead guilty to having allowed the administering of banned and potentially harmful drugs to his players there is every chance that Essendon’s doctor of more than three decades, Bruce Reid, may have been spared. Ditto Danny Corcoran and Mark Thompson. This was a staggering allegation by Wilson. It implied the AFL was using Thompson, Corcoran and Reid to get at Hird. This was reprehensible and in Herald Sun’ Andrew Bolt’s words: “This is bizarre. Either the men are believed guilty of something, and thus should face charges, or they are believed innocent and should not be charged at all. Anything else would be a monstrous abuse of power, and quite possibly blackmail.”

The process was poisoned by ASADA not including all the evidence in its interim report.

1. Danny Corcoran’s evidence of what David Evans told him after the phone call from Andrew Demetriou on 4 February was omitted from the report.
   
   
2. Leaked information enabled the media to incorrectly suggest Essendon players took Thymosin Beta-4. This prompted Dr Stephan Brown to warn that Thymosin Beta-4 had been connected to cancer. This created much anguish at Essendon and could have been responsible for the hysterical phone call from an Essendon mother to Eddie McGuire. A call which should never gone to air, and a call to my knowledge, that still hasn’t been proven it was made by an Essendon mother.
   
   
3. Unfathomably, there is no reference in the ASADA interim report to Bruce Reid being asked about his meeting with David Evans on Sunday 3 February. If he weren’t asked, he should have been.
   
   
4. ASADA omitted James Hird’s drug testimony from the report (source Chip Le Grand the Australian 23 August 2013
   
   

Changed direction by the investigators


What must not be forgotten was that the AFL-ASADA investigation was set up to ascertain whether Essendon players had breached ASADA’s anti-doping regulations. At this stage, no such findings have been made against the players. It would appear that at some point during the investigation, faced with a PR disaster on its hands after the Australian Crime Commission’s claim on 7 February 2013 that it was “the blackest day in Australian sporting history”, someone decided to save the furniture and do a Labor Party. ASADA and the AFL changed horses. The new focus was on governance by Essendon,

Much to their shame, most members of the media and the AFL believed Hird was ‘guilty’ just because he asked about cutting-edge supplements. It seems Demetriou, Wilson, Patrick Smith and the rest of the hit squad were all wrongly hung-up on Hird’s interest in cutting-edge supplements. As the Australian Institute of Sport (AIS) has been boasting since 2000 about its “cutting-edge supplements program”, which enhances performance, and as every university with a sports science course brags about it being a “cutting-edge” program, it was unfair and hypocritical to attack Hird for showing interest in legal cutting-edge supplements. It is unfathomable that AFL General Counsel, Andrew Dillon, referred to “cutting-edge” supplements in his first charge sheet. A judge in normal proceedings would have laughed him out of court.

ASADA first contacted the Australian Crime Commission (ACC) on or about 21 November 2011, with the information which led to the Project Aperio investigation. It is reasonable to assume a meeting to discuss peptides held on 5 August 2011 between AFL integrity manager, Brett Clothier, ASADA and Essendon’s football operations manager, Paul Hamilton, senior coach, James Hird, and manager player development, Danny Corcoran, was the catalyst for ASADA contacting the ACC. Twenty-one months later, ASADA tabled its Interim Report, and as it stated that it could find no reason to issue infraction notices against Essendon, it seems most likely that Essendon will be cleared of administering WADA prohibited or harmful substances.

Demetriou was untruthful about David Evans self-reporting on Tuesday 5 February 2013.

1. During the 31 January 2013 ACC hosted meeting, the AFL expressed its desire to “share” and “co-operate” with ASADA. There was a general discussion about an investigation. [Source: Andruska affidavit, Clause 6, exhibit AA-2].
   
   
2. On 1 February 2013, Brett Clothier had a telephone conference with ASADA chief executive Aurora Andruska, Elen Perdikogiannis (ASADA National Manager Legal and Support), Paul Simonsson (ASADA Director of Intelligence and Investigations and Richard Eccles (then serving Sports Minister, Kate Lundy as a deputy secretary within the Department of Regional Australia, Local Government Arts and Sport the federal government’s senior sports bureaucrat). The telephone conference was to discuss a strategy for the investigation. [Source: Andruska affidavit, Clause 11; exhibit AA-3].
   
   
3. Res ipsa loquitur, as the AFL and ASADA agreed on Friday 1 February 2013 to conduct an investigation into alleged taking of prohibited substances at Essendon, it was IMPOSSIBLE for Essendon to self-report four days later.
   
   
4. In an interview with Neil Mitchell 3AW (26 July 2013) Demetriou said: “I did not (tip off Essendon) and I did not for one simple reason that I didn’t know who the club in question was. The AFL wasn’t aware who the club was in question because the ACC, who briefed us a few days earlier on the Thursday (31 January 2013), wouldn’t disclose to us who the clubs involved were… I had spoken to him throughout the day and I did ring him that night.
   
   
5. Shamefully, for Demetriou, McLachlan, Evans and the media, Justice Middleton determined that the Australian Commission had tip-off the AFL on Thursday 31 January 2013, thereby confirming that Demetriou and McLachlan were liars.

Breached the anti-doping code by not taking action when he learnt the Essendon doctor had become marginalised

1. Demetriou became aware in 2012 that Essendon doctor, Bruce Reid, had been marginalised. As he was already aware that the AFL’s integrity manager had allegedly warned Essendon officials to stay away from supplements, it is incomprehensible that he didn’t order Clothier to conduct an immediate audit of Essendon.
   
   
2. Furthermore, Clause 4.6 of the AFL’s anti-doping code says: “Where reasonable and as soon as the AFL becomes aware that a possible Anti-Doping Rule Violation may have occurred, the AFL will immediately advise ASADA of the possible violation. The AFL will provide ASADA with all information pertaining to the possible Anti-Doping Rule Violation.”
   
   
3. Marginalising Dr Reid was a possible anti-doping rule violation and to fulfil his obligations under Clause 4.6 of the AFL’s anti-doping code, Demetriou should have reported the possible breach to ASADA. Inexplicably, he failed to do so. If Demetriou had fulfilled his responsibilities the whole saga may not have occurred.
   
   
4. Given the AFL discussed supplements with Essendon in August 2011, and given Demetriou told Mike Sheahan in his 27 September 2013 interview that “We sought of had an inkling (in 2012). I was privy to some information and (was) hearing things and certain things were happening Mike. At a couple of clubs, we were having doctors being marginalised. There were just things happening and it was part of an unhealthy, and oh, it was just an awkward trend which we didn’t like and I regret that we didn’t do something earlier, I am surprised Demetriou said he didn’t know that the ACC was talking about Essendon. This was a misleading and disgraceful admission. First, it implies that the AFL did something. That is factually incorrect. The AFL did nothing until Evans self-reported on 5 February 2013. Second, it’s an admission that the AFL failed its governance obligations and that didn’t fulfil its duty of care obligations to the Essendon players. In those circumstances, how the AFL had the audacity to prosecute Essendon, Hird, Thompson and Corcoran and not itself, is beyond my comprehension.

Failed to ensure that the AFL integrity unit did everything possible to protect the integrity of the competition and the health of the Essendon players

The AFL had at least four agreements which carried governance and legal occupational, health and safety (OH&S) responsibilities to the Essendon Football Club and its players:

1. The bi-lateral agreement it had with Essendon Football Club to compete in the competition.
   
   
2. The tripartite agreement it had with Essendon and each player. Clause 7.3 of the AFL / Essendon / Player Contract says: “The AFL club shall provide a playing, training and working environment which is, so far as practicable, free of any risk to the health, safety and welfare of the Player. Without limitation, the AFL Club shall observe and carry out its obligations under the applicable Occupational Health and Safety Act or its equivalent.” Clause 12 of the tripartite agreement says: “The parties to this contract (AFL/Essendon/the player) shall use their best endeavours, in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this Contract.”
   
   
3. The bi-lateral agreement it had with the Australia Sports Commission in its capacity as a national sporting organisation (NSO). Those responsibilities are set out in the Australian Sports Commission Policy Statement: NSOs Governance – Mandatory Requirements for ASC large partner NSOs.
   
   
4. The agreement with ASADA and its responsibilities under its own anti-doping code
   
   
5. Additionally, the AFL commissioners had onerous statutory obligations under the Corporations Act. Simply put, the AFL had similar occupational, health and safety, and duty of care responsibilities, to each player at Essendon as the Essendon board.
   
   
6. It is reasonable to assume that integrity manager, Brett Clothier’s two main duties were to do everything possible to protect the integrity of the competition and the health of the players.
   
   
7. During a practice session in July 2011, Essendon senior coach, James Hird, asked an ASADA urine tester what a peptype was. The tester, unsurprisingly, couldn’t tell him because there was no such thing. The tester reported the conversation to one of his superiors and discovered that Hird must have meant peptides. Peptides are supplements and only 20 per cent of supplements are on the WADA / ASADA / banned list.
   
   
8. ASADA immediately contacted Clothier and informed him that Hird had been enquiring about peptides. In a commendable response, Clothier phoned Essendon football manager, Paul Hamilton and asked him to meet with him on 5 August 2011. The fact that Clothier phoned Hamilton is very important in assigning responsibility for subsequent governance issues because it proves the AFL / Clothier believed that as football manager, Hamilton was senior to Hird.
   
   
9. Hird and Danny Corcoran attended the meeting with Hamilton and an ASADA official also joined the meeting. What was discussed is very contentious. There are two very differing stories:
   
   i. Hamilton, Hird and Corcoran told the ASADA / AFL investigation that the meeting only involved a general friendly chat about peptides. All three claim that no warning was issued to stay away from peptides. All three made notes about the meeting. None of them recorded that a warning was issued by either Clothier or the ASADA official.
   
   ii. Clothier claimed on 17 July 2013 (712 days later) that he issued a warning to Hird not to become involved with peptides. He made some diary notes about the meeting but those notes did not mention that he had warned Hird not to involve his players in a peptide program.
   
   
10. To fulfil his responsibilities to protect the integrity of the competition and the health and safety of the Essendon players, Clothier should have taken the following action:
    
    • Sent Paul Hamilton and the ASADA official a copy of the minutes of the meeting. The minutes should have included the precise warning Clothier alleges he gave the Essendon officials
    • Sent Essendon chief executive, Ian Robson, formal notification of the alleged warning he gave Hamilton, Hird and Corcoran
    • Sent his immediate boss at the AFL a copy of the minutes of the meeting and a copy of the letter to Robson.
    • As Clothier’s alleged warning to Essendon to refrain from using any supplements put Essendon at a severe disadvantage to the other 17 clubs, he should have sent a copy of his correspondence to Demetriou and McLachlan
    • The potential fallout from Essendon not following Clothier’s instructions was such that Demetriou should have included a description of what had happened in his report at the next AFL board meeting.
    • Clothier should have immediately conducted an investigation into whether Essendon were fulfilling its occupational, health and safety obligations. Had he done so he would have discovered in five minutes that Essendon had a number of problems.
    • Clothier should have issued an infraction notice and ordered Essendon to fix the problems urgently. If he had done so, the whole Essendon saga would not have occurred.
    

Possible unlawful execution of a subpoena


AFL turned up with a subpoena at Essendon before the investigation started. The subpoena apparently gave them access to documents, computers etc. They interviewed and bullied Essendon staff. One lady was forced to go on leave. None of the staff was represented. A lawyer eventually turned up and told the AFL to get lost.