Brett Clothier was AFL Manager Integrity Services and was inexplicably appointed by the AFL as one of its representatives to the AFL/ASADA investigation panel. In that capacity, he had access to all witnesses’ statements.
In an extraordinary decision, on 17 April 2013, Clothier gave evidence to the investigation. Thus, he turned from an investigator to a witness, having been armed with what other witnesses had said.
This action corrupted the entire investigation. It is incomprehensible that the AFL’s general counsel Andrew Dillon or chief executive. Andrew Demetriou or Gillon McLachlan or ASADA’s Aurora Andruska, didn’t prevent Clothier from testifying.
To compound the irreparable damage to the integrity of the investigation, at 12.33PM on 17 July 2013, Clothier, having resumed his role as an investigator, decided to play witness again and sent an email to the investigation in his capacity as a witness that referred to a meeting on 5 August 2011 with Essendon’s Paul Hamilton, James Hird Danny Corcoran and ASADA’s . Unbelievably, ASADA accepted the email as further evidence from Clothier.
Amazingly, astonishingly, unconscionably, Age journalist Carowhine Wilson’s column that appeared in the Age’s online edition nine hours before at 3.00AM, quoted from Clothier’s 12.33PM 17 July 2013 email to ASADA investigators. Who said Wilson couldn’t see into the future?
Although a number of lawyers believe Clothier, the investigator, should not have been allowed to act as a witness, once he was, it is impossible to comprehend that ASADA did not re-interview him (Clothier) about the email – particularly as his version was substantially different from the ASADA staff member who attended the 5 August 2011 meeting.
Clothier performed the dual role of witness and investigator which was a conflict of interest. This corrupted the whole investigation, which meant Hird was denied procedural fairness.
– Clothier was an AFL representative on the joint AFL-ASADA investigation, despite the fact he also should have been a star witness.
– He was responsible for the integrity of the competition. He was aware that Hird had asked about peptides in July 2011.
– He held a meeting with an ASADA official, Essendon football manager, Paul Hamilton, Danny Corcoran and James Hird on 5 August 2011.
– The Australian Crime Commission was apparently sufficiently concerned about Hird’s question to the ASADA staffer, it commenced a 12-month investigation in November 2011.
Clothier should have been asked a number of questions by the ASADA investigators but as his team were asking the questions, he got a “free ride”:
– Did he inform, as he was required, Demetriou or Andrew Dillon or Gillon McLachlan about his meeting on 5 August 2011?
– What instructions did he give Hamilton, Corcoran and Hird at that meeting?
– Why didn’t he send a formal letter to the Essendon chief executive, Ian Robson, informing him of the meeting on 5 August 2011 and his instructions to Hamilton, Corcoran and Hird?
– If it were good enough for the ACC to conduct an inquiry after hearing of Hird’s question, why didn’t he think it was necessary to investigate Essendon?
– Why didn’t he conduct an investigation into Essendon’s OH&S compliance?
– Why didn’t he conduct regular audits into Essendon, as McLachlan implied, he should have?
Page 16 of the Interim Report states: “On 5 August 2011, Hird was interviewed by ASADA and AFL Integrity Officers in relation to his enquiry with the DCO [doping control officer]. Hird explained that he had been approached by some colleagues from his cycling group who had asked him about ‘peptites’ and whether they were permitted to be used. At the conclusion of the ASADA interview, The AFL’s Manager Integrity Services ‘re-iterated’ to Hird that peptides were a serious risk to the integrity of the AFL, in the same category as steroids and HGH.’ Mr Clothier told Mr Hird that ‘peptides already appeared to be infiltrating other elite sports in Australia and that [the AFL] we could be next.’ Mr Clothier also ‘implored [Mr] Hird to report to [the AFL] if he came across any information relating to peptides.’”
ASADA was guilty of misconduct in accepting Clothier’s evidence as fact, particularly as it was not true. The comments were used against Hird, and given he had no responsibilities within the football department, undoubtedly contributed significantly to the AFL demanding he be suspended for twelve months.
Evidence that Clothier’s recollection of the 5 August 2011 meeting was untrue:
i. Clothier’ email was submitted 713 days after the meeting on 5 August 2011. No mention was made of Clothier imploring Hird to do anything or that he had banned Essendon from using peptides, in the intervening period.
ii. If Clothier had delivered such a ‘warning’ to Hird he was required to inform his superiors at the AFL and Essendon chief executive, Ian Robson of the warning. He failed to do so.
iii. Clothier’s claim that [all] peptides were a serious risk to the integrity of the AFL, in the same category as steroids and HGH was factually untrue and would have been challenged by Hamilton or Corcoran, who knew far more than Hird about peptides
iv. Clothier’s evidence was that he warned Hird not to use peptides because, like steroids and HGH, they were banned. Some peptides are WADA prohibited, but most are not. Furthermore, Clothier had no authority to issue a blanket ban on peptides on the run because it would have put Essendon at a disadvantage because other clubs were using permitted peptides.
v. If Clothier had issued such a ban he would have been compelled to inform the AFL, Essendon and every other club in writing. He failed to do so.
vi. If Clothier had told Hird (and Hamilton and Corcoran, who Clothier didn’t record as having attended the meeting) that peptides were the same as steroids and HGH (Human Growth Hormones) none of the three would have countenanced using peptides at Essendon.
vii. As head of the football department, and the man responsible for the supplementation program, and knowing Clothier’s ban didn’t comply with the information contain in Appendix B of the Anti-Doping Code, Hamilton would have asked his chief executive, Ian Robson, to ask Demetriou when the rule changed.
viii. Hird attended the meeting on 5 August 2011 because Clothier phoned Essendon General Manager – Football Operations, Paul Hamilton, and requested he bring Hird to the meeting. In phoning Hamilton, Clothier demonstrated that he knew Hamilton was Hird’s superior and that Hamilton was responsible for the high-performance unit at Essendon. It’s illogical that Clothier only implored Hird and not Hamilton and the football manager, Danny Corcoran, who also attended the meeting
ix. Clothier did not recall in his evidence to ASADA on 17 April 2013, or in his email of 17 July 2013, or his notes, that Hamilton and Corcoran attended the 5 August 2011 meeting. This supports Hird’s, Corcoran’s and Hamilton’s view that Clothier’s notes of the meeting were created a long time after the meeting and that they were untrue.
x. Clothier didn’t table contemporaneous notes of the 5 August 2011 meeting.
xi. As the senior Essendon person at the meeting, Hamilton took contemporaneous notes during the meeting and they are substantially different from Clothier’s recollection.
xii. Hird testified on 16 April 2013, and inter alia, discussed what was said at the 5 August 2011 meeting. Hird said it was a general chat and his version of what was said is totally different from Clothier’s.
xiii. An ASADA employee attended the meeting with Clothier, Hamilton, Hird and Corcoran and his recollection is also totally different from Clothiers, which ASADA accepted as fact.
Page 56 of the Interim Report states: “According to the ASADA file note ‘Mr Hird stated that he had never heard of the substance before and the opportunity arose to ask ASADA testing staff on the day of the mission on his club on 26.7.11. Mr Hird reiterated that he had no knowledge of the substance whatsoever and was simply making inquiries to satisfy the original question put to him. A general discussion then followed covering off on ASADA’s belief that various forms of peptides were increasingly being detected by Customs and other agencies and that the products were banned in sport.’ (ASADA file note – xxxxxxxxxxxx). Hird and the ASADA official both describe the meeting as a general chat/discussion whereas Clothier evidence, which was accepted as fact by ASADA, was Hird was given a specific warning and instructions.
It is astonishing that once ASADA chief executive, Aurora Andruska and the Minister of Sport Kate Lundy learnt that Clothier had corrupted the investigation they didn’t abort it.
Given the damage the email caused Hird and given the flood of irrelevant SMSs and emails between Dank and non-Essendon people included in the report, it is inexplicable that this email was not included in full in the report.
Although a number of lawyers believe Clothier the investigator, should not have been allowed to act as a witness, once he was, it is impossible to comprehend that ASADA did not re-interview him (Clothier) about the email – particular as his version was different from the ASADA staff member, who attended the 5 August 2011 meeting.
Given, many witnesses were recalled to qualify things or refute things, it is mind-blowing that Hird wasn’t recalled to be re-questioned about the issue. Given Hird believes Clothier fabricated his evidence, Hird should have been given an opportunity to refute Clothier’s claim.
Danny Corcoran and Paul Hamilton, whose contemporaneous notes taken at the meeting disagreed with Clothier’s claim, should have been recalled by ASADA to be questioned about the matter.
Clothier did not record the above comments in his diary. Those comments were never mentioned to anybody until he trotted them out 713 days later.