In early 2011, the Australian Crime Commission (ACC) highlighted threats to the integrity of professional sport. Data from the ACC’s 2010-11 Illicit Drug Data Report indicated that the market for Performance and Image Enhancing Drugs (PIEDS) had expanded with record numbers of seizures, detections and arrests.
In early 2012, the ACC, with assistance from ASADA and the Therapeutic Goods Administration (TGA) commenced an investigation into drug use in sport and the involvement of organised crime. The investigation was named Project Aperio.
Based on intelligence provided to the ACC, the investigation concentrated primarily on two major codes, the AFL and the NRL. The report from Project Aperio was released on 7 February 2013.
On 31 January 2013, AFL CEO Andrew Demetriou, his deputy Gill McLachlan and manager integrity services Brett Clothier met with Australian Crime Commission’s Chief Executive John Lawler and his deputy Paul Jevtovic and ASADA CEO Aurora Andruska.
In a breach of the Crimes Act, the ACC convinced the AFL officials that they had proof that up to 45 Essendon players had been administered the World Anti-Doping Agency’s prohibited substances Thymosin Beta-4 and AOD-9604. As it transpires, the ACC only had very unreliable information and not proof.
Federal Court Justice John Middleton later remarked during the Federal Court proceedings on 12 August 2014 that, “It was a wink and a nod.” Demetriou, McLachlan and Clothier, all correctly accepted it was Essendon whose players had taken prohibited substances.
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].
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].
Later that day, Friday, 1 February 2013, Demetriou and McLachlan told Essendon chairman David Evans and CEO Ian Robson that the ACC had irrefutable proof that Essendon players had been administered WADA prohibited performance enhancing substances.
ASADA and the AFL launched a joint investigation the same day into illegal performance enhancing substances at Essendon.
This produced a major dilemma for both the AFL and the Essendon board. Someone had to be held responsible for the players taking banned substances. The possible guilty options were the AFL Commission and Essendon board for failing to fulfil their statutory and contractual obligations to provide a safe work place for the players; the players; the senior members of the football department or members of the coaching staff, who for some unknown reason were deemed not to be members of the football department.
If 45 players were suspended, Fox Sports and Channel Seven would only have been able to televise eight matches a week instead of nine. According to McLachlan’s erstwhile friend, the former Fox Sports football chief, that would have meant the AFL would have been required to refund an estimated $100 million to its broadcasters.
The AFL Commission and the Essendon board had a vested interest in exonerating each other, which meant that they had to bat on the same team against the football department, which ran the supplements programmes. However, as the football department didn’t include anyone of a high enough profile to satisfy the vultures in the media and supporters from other clubs, someone else had to be blamed.
According to former Essendon CEO Xavier Campbell, on either Saturday 2 February 2013 or Sunday 3 February, David Evans hired AFL consultant Elizabeth Lukin at the AFL’s insistence to control the case.
At a meeting with McLachlan and Brett Clothier on Tuesday 5 February 2013, McLachlan. Lukin and Evans demanded that James Hird accept full responsibility. Hird believed that the players had not been administered prohibited substances and initially refused. Clothier then told Hird the name of the two banned substances administered to the players. Ironically, that proved the ACC had breached the Crimes Act during its 31 January 2013 meeting with Demetriou and McLachlan. After further badgering from McLachlan, bullying from Lukin and insistence from Evans, Hird foolishly capitulated and agreed to take full responsibility.
But that wasn’t enough for McLachlan. Although the battle lines between the AFL/ASADA/Essendon board on the one hand, and Hird on the other, had been drawn on 1 February when the AFL and ASADA decided to investigate Essendon, McLachlan created the impression that he was helping Hird. But he turned out to be a wolf in sheep’s clothing and told Hird that at the upcoming media conference he had to admit that the players had taken banned substances.
The big dilemma was how to create a case against Hird given he wasn’t even a member of the football department and given that the Victorian OH&S Act implied that about 30 people at the AFL and Essendon had more OH&S responsibilities than Hird. For example, nine AFL commissioners, Demetriou, McLachlan, Clothier, the human resource director, the OH&S manager, the AFL chief medical officer Dr Peter Harcourt, nine Essendon board members, the human resources manager, the OH&S manager, the football manager, the high-performance manager and the two doctors.
ASADA solved the problem. In a major governance breach, an ASADA official corruptly changed Ian Robson’s evidence to the investigators. When asked to outline the reporting protocols at Essendon, Robson said “Stephen Dank reported to Dean Robinson and Robinson reported to Paul Hamilton.” The ASADA official corruptly added [and Hird] in square brackets. That created the false impression that not only was Hird responsible for Robinson, which he wasn’t, but that he had the legal power to interfere in the operation of the football department and the supplement programmes. Essendon’s unique matrix organisation structure was incomprehensively designed to ensure Hird had no such power or rights.
On 7 February 2013, the ACC released the findings of Project Aperio in a 43-page document. Inter alia, it stated: “The use of peptides and growth hormones by Australian athletes is widespread, facilitated by unscrupulous sports scientists, high-performance coaches and support staff.”
On the same day as the release of the ACC findings, the Minister for Justice, the Hon. Jason Clare MP, and the Minister for Sport, Senator Kate Lundy, released a joint media statement:
“The Australian Crime Commission today 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 investigation identifies widespread use of prohibited substances including peptides, hormones and illicit drugs in professional sport. It also found that this use has been facilitated by sports scientists, high-performance coaches and sports staff. The ACC also identified organised crime identities and groups that are involved in the distribution of PIEDs to athletes and professional sports staff. The ACC report notes increasing evidence of personal relationships of concern between professional athletes and organised crime identities and groups. This may have resulted in match fixing and the fraudulent manipulation of betting markets. The Australian Crime Commission has found that professional sport in Australia is highly vulnerable to infiltration by organised crime”, Mr Clare said. “Multiple athletes from a number of clubs in major Australian sporting codes are suspected of currently using or having previously used peptides, potentially constituting anti-doping rules violations. Officials from clubs have also been identified as administering, via injections and intravenous drips, a variety of substances. The report concluded that some coaches, sports scientists and support staff of elite athletes have orchestrated and/or condoned the use of prohibited substances [my emphasis]. Some sports scientists have indicated a preparedness to administer substances to elite athletes, which are untested or not yet approved for human use. The ACC has referred its findings in relation to suspected criminal activity to relevant law enforcement agencies including the Australian federal Police and all State and Territory Police Forces”.
Following the ACC media conference, Demetriou conducted his own media conference at which he stated: “I’d say to all our supporters: Don’t lose faith in the game … The AFL commission and the AFL management is going to tackle this head on, to clean this sport up, to rid the game of insidious infiltration of organised crime figures, to rid the game of the use of drugs, to rid the game of cocktails (my emphasis).”
It is incomprehensible that Demetriou accepted the ACC’s claim that the AFL had been infiltrated by organised crime figures. It is arguable whether anyone has brought the game more into disrepute than Demetriou did with his comments. By this time, the media and vast number, if not all AFL followers, believed the Essendon players were guilty of being administered WADA prohibited substances. So much for ACC, ASADA and AFL’s responsibilities for players’ confidentiality.
Demetriou’s comments were based on briefings he had received from the ACC and ASADA. Given that the ASADA/AFL joint investigation into Essendon had just commenced, he was arguably guilty of gross misconduct and impropriety in making such incendiary statements to the media that implied guilt.
It is incomprehensible that ASADA’s chief executive Aurora Andruska didn’t reprimand Demetriou for compromising the joint investigation in this way.
Although ASADA’s Interim Report (page 47) stated that: “The investigation sought to establish whether players and support persons from the Essendon FC used substances or engaged in methods prohibited by the World Anti-Doping Authority (sic) (WADA) and the AFL’s Anti-Doping Code,” it is clear that a second ‘de-facto investigation’ was set up by stealth to nail Hird and came to run parallel with it.
The first investigation, whose objective was well publicised, was supposed to ascertain whether the Essendon players had been administered banned substances. As it transpires, the investigators found no such evidence.
The second, unannounced ‘investigation’ of governance failures – outside the purview of ASADA – was run by the same unqualified investigators and without informing those questioned of the new intention. It is difficult to believe that this covert investigation was established for any reason other than the realisation that there was not a case to be made to find that banned substances had been administered to the players. Given the outlandish public display of shock and horror before the anti-doping investigation interviewed its first witness, a no case to answer was clearly an unpalatable option. This view was supported by current AFL chief executive Andrew Dillon when he told James Hird that the scandal ‘needs a face’.
Although Federal Court Justice John Middleton ruled that the ASADA Act permitted ASADA to conduct a joint investigation with the AFL, and although he ruled that ASADA was allowed to give the AFL a report, Middleton was never asked to determine whether the investigation was corrupted nor was he asked to determine whether the investigators and/or ASADA and/or AFL officials were guilty of misconduct or impropriety in the manner of the investigations, findings and determinations.
The Final Investigation Report was tabled with ASADA director Paul Simonsson on 4 March 2014. Inter alia, at page 93, the report said: “When considered at their totality these features presented a near insurmountable obstacle in determining with sufficient particularisation that a player injected from an amber vial was administered with a prohibited substance. The discrete use of clear vials by Mr Alavi however provides a compelling investigative basis upon which to discern the identity of those substances that were administered to players from clear vials.”
On 9 December 2014, Chip Le Grand wrote in the Australian that “ASADA’s investigators recommended against pursuing current and former Essendon footballers over the club’s supplements program, warning that any attempt to prosecute doping charges would face insurmountable problems”. (my emphasis).
ASADA Chief Executive Aurora Andruska accepted there were insurmountable obstacles and decided that there was insufficient evidence to make a case against the players to the Anti-Doping Review Violation Panel.
Ex cop Ben McDevitt replaced Andruska in May 2014 as ASADA CEO and he inexplicably decided to prosecute the players.
McDevitt negotiated the first stage of the process through his executives incomprehensibly persuading the Anti-Doping Review Violation Panel (ADRVP) that it was possible that the players were administered a WADA prohibited substance, which then resulted in the ADRVP issuing a Register of Findings.
ASADA then issued an Infraction Notice to 34 players. This was a charge of using a prohibited substance.
After an 18-day hearing, the players were found not guilty by the AFL Anti-Doping Tribunal. Importantly, Stephen Dank was found not guilty of administering or attempting to administer Thymosin Beta-4 nor had he assisted, encouraged, aided, abetted or covered up administration of the peptide.to the Essendon players.
As neither ASADA nor WADA appealed the not guilty verdict, Dank remains innocent of breaching the WADA Code at Essendon. Clearly, the whole saga should have ended at that point.
At the insistence of a (named by the Essendon CEO) senior Australian sports official, WADA appealed the not guilty decision against the players and the Court of Arbitration for Sport, having been presented with the corrupt investigation evidence, found that it was comfortably satisfied that all 34 players had been administered a prohibited substance by Stephen Dank.