19. BEN MCDEVITT

FORMER ASADA CHIEF EXECUTIVE

McDevitt’s thoughts on the investigation:

Ben McDevitt admitted on 24 August 2014 on the ABC’s ‘Offsiders’ programme that ASADA was not equipped to deal with the Essendon, Cronulla investigations. Yet, incomprehensibly, he pursued Essendon. Inter alia, McDevitt said: ‘The reality is that I don’t think ASADA was ready for an investigation of this magnitude.” Clearly, in pursuing the matter in such unsatisfactory circumstances was a major governance breach!

Breaches of confidentiality and procedural fairness
“McDevitt also launched a scathing attack on Stephen Dank, the sports scientist who ran the supplement programs at Cronulla and Essendon, saying: ‘If what we have gathered in relation to Stephen Dank’s activities is tested and proven, then in my view, and my strong recommendation is that Stephen Dank never ever should be allowed near any sporting venue or any athlete, anywhere in the world, ever.’” Clearly, McDevitt had overlooked the fact that the AFL had registered Dank with ASADA when he worked for the AFL Gold Coast Suns, Geelong and Essendon.
McDevitt also arguably defamed Dank when he falsely claimed: “The tribunal itself accepted that Stephen Dank made plans to use Thymosin Beta-4 as part of Essendon’s injection program.”
After an 18-day hearing of the AFL Anti-Doping Tribunal found Stephen Dank: ‘Not guilty of administering or attempting to administer Thymosin β4 to various Essendon players, and ruled that he had not assisted, nor encouraged, nor abetted, nor covered up administration of the peptide.’

Players denied justice
On 1 June 2014, the Herald Sun’s Michael Warner quoted ASADA chief executive Ben McDevitt saying: “In fairness to each of the people who have been the subject of inquiries – some of whom are players and some of whom are support staff – is that each needs to be considered individually and in their own right. And each, of course, are properly entitled to due process and respect of privacy.”
Hence, ASADA was required to make its case against each of the 34 players. Legally, ASADA was not able to treat the matter as one in, all in.
ASADA made no such attempt at the ADRVP nor at the AFL Anti-Doping Tribunal nor at the CAS hearing. Surely, ASADA’s correct governance protocols required McDevitt to read the minutes of the ADRVP meeting and the AFL Anti-Doping Tribunal and CAS hearing transcripts to ensure each player was prosecuted separately. And if not, governance required him to appeal the decision. Paraphrasing King Lear, the pain McDevitt caused Essendon and the players was sharper than a serpent’s tooth.
In response to my FOI request for documents that proved ASADA made its case against each player, ASADA’s Patrick Dale sent me an email at 9:54 PM on 18 July 2016, 9:54pm, that stated: “Whilst Ms Perdikogiannis and Ms Fitton may well have taken the ADRVP to particular pages of each player’s file, they spoke to the documents as a whole.” Clearly, ASADA breached its lawful responsibilities to make its case against each individual.

Senate Estimates hearing 3 March 2016:
During his appearance before the Senate Estimates Committee on 3 March 2016, ASADA CEO Ben McDevitt made a number of false outrageous claims. Inter alia, he said: “Thymosin was the vital cornerstone of that team-based program and that there were over 100 text messages that unveiled a plan to source Thymosin Beta-4 for the purpose of doping the Essendon team.” I knew that McDevitt had lied, and to prove so, made an FOI request (FOI 16-17) for “every one of the text messages that Mr McDevitt was referring to”.
On 6 September 2016, ASADA’s National Manager Operations, Judith Linde informed me that: “We have identified that there is no document which says Thymosin was the vital cornerstone of that team-based program.
On 23 May 2017, (348 days after my original FOI 16-17 request) one of ASADA’s lawyers informed the Information Commission that: ‘No document containing the clause “Thymosin Beta-4 for the purpose of doping the Essendon players, exists’” Clearly, McDevitt had lied to the committee, which means he misled Parliament.
McDevitt also told the Senate Estimates Committee that “In the words of Stephen Dank, Thymosin was the vital cornerstone of that team-based-programme.” Unconscionably, this was another McDevitt lie that misled Parliament.
Two members of the public subsequently complained to the Senate Community Affairs Committee, which included Senators Jonathon Duniam and Linda Reynolds, that McDevitt was lying, and consequently, had misled Parliament during that Senate Estimates hearing.
After hearing the allegations against McDevitt, Senators Duniam, Reynolds and the rest of the committee, whose names are apparently a national security secret, incomprehensibly, and unconscionably, decided that McDevitt “did not provide false or misleading evidence”.
Tragically, McDevitt’s lies implicating the 34 players and Dank are in Hansard forever. Clearly, Senators Duniam, Reynolds and their mates were incompetent or they covered-up McDevitt misleading Parliament. The damage to the players done by Senators Duniam and Reynolds et al must be expunged. Clearly, Senator Duniam should never be trusted again.
During his 3 March 2016 Senate Estimates hearing, McDevitt said: “If the players had gone to the ASADA website in 2012, they would have learnt that Thymosin Beta-4 was a banned substance.” McDevitt lied, and consequently, misled parliament. Ben McDevitt’s successor as CEO, David Sharpe, in response to Senate Estimates questions on notice in October 2019, admitted that the change to the status of Thymosin Beta-4 on the ‘Check Your Substances’ database was made on 4 February 2013.

Disclosure Notices
In order to issue a Disclosure Notice, ASADA must receive permission from three ADRVP members to do so. McDevitt was required to make his case as to why the recipients of Disclosure Notices should produce documents. As it transpired, following my FOI request, ASADA could only produce one ADRVP member’s approval document to issue a Disclosure Notice to Eagle Analytical Services in Texas USA.
Inter alia, McDevitt’s Disclosure Notice to Mr J D Wiley, General Manager, Eagle Analytical Services Texas USA included the following threats under the sub-heading ‘Offences’:
Section 137.1 of the Criminal Code Act 1995 makes it an offence in certain circumstances to knowingly provide false or misleading information. This offence is punishable on conviction by imprisonment for not more than 12 months;
Section 149.1 of the Criminal Code Act 1995 makes it an offence in certain circumstances to obstruct, hinder, intimidate or resist a Commonwealth public official in the performance of his or her functions as a Commonwealth public official. The offence is punishable on conviction by imprisonment for not more than 2 years.
Exhaustive searches of Australia’s laws, international treaties and United Nation obligations failed to find information that entitled an Australian organisation to threaten an overseas executive with gaol for non-compliance. It was one thing for ASADA to trash the basic rights of athletes, but surely McDevitt needed governance rules to stop this unacceptable power grab.
As former ASADA CEO, Ben McDevitt said to Age journalist, Fiona Harari, and quoted in her article of 15 August 2015, “Cheating is one of the worse things you can accuse an athlete of. I think sometimes they would rather be branded a criminal.”

Breach
Comments made by Mr McDevitt to Samantha Lane (The Age 1 April 2015) immediately after the AFL Anti-Doping Tribunal’s not guilty verdicts of wrong-doing at Essendon (by players and Mr Dank) were unconscionable. Ms Lane said: “ASADA head Ben McDevitt says he is very confident that Essendon players received banned drugs [plural] in a 2012 injection program, despite a tribunal finding to the contrary.” Clearly, at that point, McDevitt should have accepted the tribunal’s not guilty verdict.