2. JACK RUSH QC: DISSECTION

JACK RUSH QC: DISSECTION: 11 January 2017

Dear xxxxxxxxxxxxxx

Thank you for sharing Mr Rush’s comments with me and for giving me the opportunity to critique his comments. I hope I have given you enough ammunition to have a reasonable follow up conversation with Mr Rush.

I should like to predicate my comments by saying as I know nothing about the law, I have tried to avoid making any legal observations in any of my writings. I have expressed thousands of opinions and have no issue with anyone attacking those opinions, particularly if the criticism is accompanied by supporting evidence.

Despite Mr Rush ripping me to pieces, I believe I know more about the facts of the case than anyone, including the Essendon lawyers, and should be surprised if I have made any factual errors.

You may not know that to protect my source, I retyped the 434-page ASADA interim report with one finger on one hand. It took twenty-six, 20-hour days to retype it. I then dissected the report line-by-line.

I have read the transcripts of the three hearings – Justice Middleton (Federal Court), AFL Anti-Doping Tribunal and Court of Arbitration for Sport (CAS) – a number of times and have dissected the CAS judgement line-by-line.

I have exchanged approximately 600 emails with James Hird and Mark Thompson and have spoken to Dr Reid at length. I have also spent over 70 hours on the phone with Stephen Dank and exchanged hundreds of emails with former ASADA CEO Richard Ings. I even paid for a university law lecturer to fly here from Melbourne and brief me for a week on the WADA Code and ASADA Act.

I think McLachlan is REDACTED xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Finally, it is hard to imagine that there has ever been a worse chairman of an Australian sporting organisation than AFL chairman Mike Fitzpatrick. The foul-mouthed Fitzpatrick must accept substantial responsibility for James Hird’s situation. Fitzpatrick allowed his CEO Andrew Demetriou to run wild before the joint ASADA/AFL investigation was completed. Although Fitzpatrick was to hear the case against Hird and EFC in August 2013, if charges were laid against them, he was told in June 2013 that they were guilty and he was told the penalty that would be imposed.

This was just one of many examples of misconduct. Another concerned Danny Corcoran, who was suspended for four months. Corcoran bumped into Fitzpatrick on 19 March 2016 and asked if there were any chance of him having some involvement in the game. Corcoran said: ‘He [Fitzpatrick] never answered my question. He simply turned and said to me: ‘Your mate Hird will never get back into football.’”

REDACTED Comments about SEN Radio’s approach to James Hird about a job. xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

I have tried to make my response as succinct as possible. However, in Mr Rush’s view, all I have done in the 10,000 plus hours I have spent on this saga is to “have created nothing but nonsense and drivel … and by setting up conspiracies where none exist, they have done nothing to assist me and in Mr Rush’s opinion have prolonged unnecessarily the whole saga”.

Given Mr Rush has trashed four years’ work, I feel I am entitled to be thorough in my response and I hope you read every word and are not biased in favour of Mr Rush just because I am a nobody. This is an attempt to prove to you that I am not the dill Mr Rush believes I am.

Item (Rush) 1: “I have read most of the material of Bruce Francis – in itself a task – it’s very long. I disagree with most of it and regret to say the majority of it is nonsense. An address book is not a qualification for accuracy or legitimacy I am afraid. I will deal with a couple of matters from his latest missive and you will get my point.”

My Comment:

I am extremely grateful and humble that Mr Rush has given us so much of his valuable time, even if he has made some unsupportable comments. Disappointingly, he knows very little of what happened and consequently, I am comfortably satisfied that he has erred in most of his comments.
Mr Rush implies in this item that I have made an address book of factual mistakes. My opinions may be absolute nonsense as he suggests but I should be surprised if I have made any factual errors.
My approach to dissecting documents is to address every issue. I believe if you ignore contentious points trying to be brief, the author can interpret a non-comment as agreement.
I eschew the approach of people who dismiss other’s work without attempting to provide evidence to support their allegations. Consequently, I try to identify other people’s mistakes so that they have an opportunity to challenge me. My allegations are always supported.

Item (Rush) 2: “It is quite extraordinary to state “the AFL was totally responsible for Stephen Dank working at Essendon”. It was the EFC that negotiated with Dank, hired him and allowed him to operate with little or no supervision. The responsibility for the employment of Dank lies directly with the Club, the failure to investigate his background is that of the Club.”

My Comment:

I agree that the employment of Dank lies directly with the club and I agree that the club failed to properly investigate Dank’s background. That is a black mark for the human resource manager, for Paul Hamilton, Dean Robinson, Danny Corcoran, James Hird and Mark Thompson.
However, to his discredit, Mr Rush is cherry picking. He has conveniently ignored the AFL’s unforgivable breach of the WADA Code. Dank should never have been on the market for Essendon to interview.
It is my understanding from reading the WADA Code and from exchanging emails with former ASADA CEO Richard Ings on this specific subject, that the moment Stephen Dank administered or sold a WADA banned substance to a member of the public, he was automatically banned from working with a WADA affiliated athlete.
At 1.22am on 20 November 2016, I stated in an email to Richard Ings: “It is my understanding that because Stephen Dank used banned WADA substances at his clinic he wasn’t allowed to work with WADA affiliated athletes. Thus, the AFL owned Gold Coast Suns should not have employed him in 2010; nor should Cronulla; and nor should Essendon. Thus, the AFL was at fault for registering him in 2010. Am I correct?”
Richard Ings replied to my specific query at 6.24pm on 20 November 2016 as follows:

“Ah. I have [previously] tweeted [an answer] to this. Any non-medical person providing PED to anyone should be immediately disqualified by sports or clubs from working in their sport or club. The reason being is that the moment they are hired, that business makes them an immediate ADRV (Anti-Doping Rule Violator). The very first question you ask before employment or registration is: Do you have any direct or indirect involvement in the supply of PED’s to any person.” … “Hiring a non-medical PED distributor is an immediate Anti-Doping Rule Violation.” … “You need to look at the 2009 WADA Code as that is what applied at the time. Sections 2.7 and 2.8 cover it. Look at the definitions of trafficking and administration in the appendices.”

That means because Dank used banned WADA substances at his clinics he wasn’t allowed to work with WADA affiliated athletes. Thus, the AFL owned Gold Coast Suns should not have employed him; nor should Essendon; and nor should Cronulla rugby league club.
The AFL employed Dank at its own club in 2010, which was a breach of the WADA Code.
The AFL registered Dank to work within the AFL system and clearly did not ask him: “Do you have any direct or indirect involvement in the supply of PED’s to any person?”
If the AFL hadn’t employed Dank at the Suns, and if it had fulfilled its responsibilities to WADA by refusing to register Dank to work in the league because he was an ADRV, he would never have worked at Essendon. I have written over 800,000 words about the saga and I have often attacked Essendon for employing him.
On this issue, I am very happy to stand with the three AFL Anti-Doping tribunal members and former ASADA CEO Richard Ings against Mr Rush. When you are discussing my response with Mr Rush, I think that you should ask Mr Rush to substantiate his claim that the AFL Anti-Doping tribunal members, Richard Ings and I were factually wrong about the WADA Code.

Item (Rush) 3: “His engagement was part of a desire of the football department of the Club including the coach to institute a supplements program at the Club – ‘everyone else was doing it’ was the reasoning of those in football department. (And I do not believe that is right).”

My Comment:

At the risk of being pedantic, this is more cherry-picking by Mr Rush. WADA tabled Dank’s letter of employment (consulting agreement) as evidence in the CAS hearing. It contained many, many responsibilities. On 30 September 2011, Hamilton sent Dank the following letter:

“Dear Stephen, I formally confirm your offer of employment with the Essendon Football Club … Please find detailed below the relevant terms and conditions of your employment. Performance scientist. [You] report to Dean Robinson, the high-performance coach … On a weekly basis your job description can be summarised as follows: involvement in all sessions as required by Dean Robinson, the high performance coach; undertake research in the areas of biomechanics and physiology to aid the improvement of player development, the biomechanics and sprinting, including but not limited to ground contact time, stride frequency and stride length along the horizontal and lateral power generation, areas of resiliency, including but not limited to drawing screenings and injury profession action intervention, sleep studies in cardiovascular and respiratory testing, and its applications to performance. Involvement in research being conducted into other areas which relate to the performance of the team; responsible for collection and logging of all loading darker as it pertains to the condition of the players.” Responsible for the design of supplementation protocols and recovery procedures and their implementation.”

Consequently, I think it is a bit misleading for Mr Rush to imply that Dank was engaged mainly to institute a supplements programme. I proffer that most people would interpret Mr Rush’s comment as being the major reason for employing him. That is not true.
As with the media and the AFL cheer squad, it appears that Mr Rush does not know how the supplements programmes evolved. The Reader’s Digest version is:

i. In May 2011, David Evans, Ian Robson, James Hird, Danny Corcoran and Mark Thompson met and agreed that the Essendon players were too small and too slow.

I believe that most supporters of most AFL, rugby, league and soccer clubs, which were not in the four at that stage, would echo the same sentiments. Evans, Robson, Corcoran, Hird and Thompson agreed that the club had to adopt a more scientific approach to training. In my view, Evans and Robson agreed to the decision in their capacity as board members.

ii. On 16 June 2011, Essendon’s high performance manager Stuart Cormack resigned. This created an opportunity to employ a person with a more scientific background. Just on 100 people applied for the job. Twelve people were shortlisted. Three people were subsequently offered the job and because of their overseas commitments refused it. The preferred candidate was subsequently employed by Port Adelaide and has since been described as a Guru (and has recently been contracted to Arsenal). That person may, or may not, have administered a single supplement if he had taken the Essendon job.

iii. Although Dean Robinson did not respond to the job advertisement, he subsequently wrote to assistant coach Brendan McCartney expressing an interest in returning to Melbourne, and furthermore enquired whether there were any jobs available. As the three preferred candidates had refused the job offers, Mark Thompson suggested that Robinson would be an able replacement for Cormack because he had done a very good job for Thompson at Geelong.

iv. Robinson was interviewed and was offered the job. He agreed to take the job on the condition that he brought with him a few members of his team. Stephen Dank was one of those team members.

v. During Dank’s interview that was headed by general manager – football Paul Hamilton, Dank stated that most top AFL, union, rugby league and soccer clubs were using supplements. James Hird informed Dank, and those at the interview, that he had no issue with the use of supplements on the condition that they were WADA, ASADA and AFL compliant; that Dr Reid approved the use of each substance; that the players were free to decide whether they wanted to take each substance; and that no supplement could be used if there were any chance of it causing any harm to the player. During the course of the following 12 months Hird repeated those conditions verbally and in writing a number of times.

vi. The AFL belatedly conducted a league-wide survey in late 2013. The AFL press release indicated that 12 clubs ran supplements programmes that “lacked a single point of accountability”. Players at nine clubs sourced their own supplements. The AFL laughingly accepted the clubs’ words that none involved banned substances and no investigation was conducted. As most of us in the community take supplements such as vitamin ‘B’, ‘C’ and ‘D’, I suggest six of the clubs were lying. I contacted a senior support person in an Australian cricket team and he said that all the players take supplements.

vii. The Australian Institute of Sport boasted on its Web site that since 2001 it has been using cutting edge supplements that enhance performance. As one of the AFL’s major sponsors distributes supplements that enhance performance, I should be interested to know what Mr Rush has against supplements. As you know, I have never drunk alcohol or smoked a single cigarette, or had a hot drink (tea, coffee, milk, milo, etcetera) and refuse to take pain killers for my chronic health problems, but I have no issues with people taking WADA permitted supplements.

viii. During ASADA CEO Ben McDevitt’s Senate Estimates hearing on 3 March 2016, Senator Nova Peris told the gathering that when she competed at the Olympics the team doctor handed out supplements to all the athletes. Scuttlebutt has it that when Tommy Smith walked past his first winner’s stall, Bragger opened his mouth on every occasion for Tommy to give him his pills.
Given the above, I am comfortably satisfied that Mr Rush was mistaken when he said: “And I do not believe that [all clubs are taking supplements] is right”. Furthermore, Mr Rush implied that Dank was appointed for sinister motives. There is no evidence to support Mr Rush’s allegation. I am comfortably satisfied that Mr Rush is incorrect.

Item (Rush) 4: “To say by the Club employing Dank the AFL has fallen foul of the WADA code is absolute nonsense.”

My Comment:

As former ASADA CEO Richard Ings has advised me in writing (see comment 5 to item 2 above) that he agreed with me that the AFL breached the WADA Code by not only employing Dank but by registering him, I am comfortably satisfied to say that Mr Rush was a bit harsh to say I was talking ‘absolute nonsense’.
The fact that the AFL Anti-Doping tribunal’s guilty findings against Dank echo my thoughts, suggest that I was also correct. The rationale behind my comment is that if the AFL had followed its WADA obligations it would have banned Dank from working in the AFL system and Essendon would not have had a chance to employ him.
My rationale is similar with those who claim that if an alleged rapist or murderer allegedly committed a similar offence while on bail, the judge may have a ‘misjudgement’ case to answer.
Perhaps a better example concerns Man Horan Moris, the hostage taker in the Lindt Café tragedy. He was on bail for 40 sexual charges and for being an accessory before and after the fact to the alleged murder of his wife. She was allegedly stabbed 18 times and set alight in the apartment stairwell. Just as I argue that if the AFL had fulfilled its obligations to WADA over the Gold Coast Suns, the Essendon saga would not have occurred, most people suggest that if the judge hadn’t granted Moris bail, the Lindt Cafe tragedy would not have occurred.

Item (Rush) 5: “How lack of compliance with R7.4 of the then AFL Anti-Doping Code by the Club is said to be the fault of the AFL as Francis contends is mystifying. The rule required an individual player to advise the Club medical officer of substances and medications he takes during the AFL competition year and for medical officer to keep a record of such medications and substances. The responsibility for compliance falls on player medical officer and in the end the Club- at a club where a regime of supplements was being used on players intravenously one might have thought there was a real necessity to ensure compliance.”

My Comment:

A short analogy may help explain the rationale for my comment. My understanding is parliaments make laws, and at the risk of oversimplification, let’s say policemen and women and inspectors ensure compliance, and judges/juries adjudicate on alleged offenders.
In the case of AFL football, WADA makes the rules with respect to Anti-Doping and the AFL has a role to play in policing the rules or ensuring compliance with its rules. Checking compliance inevitably helps prevention. Leaving the responsibility to someone else results in breaches, which leads to court cases to create a cure. Prevention is better than cure!
The AFL has a role to play in compliance because it boasts it has a crucial role to play in ensuring the health and safety of the players; because as the joint employer with the clubs of every player; because it has health and safety obligations under its various contracts; because it has various statutory obligations; and because it has a non-negotiable obligation to maintain the integrity of the competition. That means that it has an obligation to ensure that no club has an unfair advantage over the others by using banned supplements.
One way of ensuring the AFL fulfils the above obligations is to monitor compliance with clause 7.4 of the AFL’s Anti-Doping Code. As Mr Rush obviously believes that the AFL has no role to play in any of the above, I should be interested to know what he thinks the AFL should do to ensure compliance with its own rules.
On 21 August 2013 Andrew Demetriou said: “The duty of care to players is a FUNDAMENTAL DUTY (my emphasis) of the AFL Commission and all AFL clubs.”
On 28 August 2013, Gill McLachlan told SEN radio: “The AFL dropped the ball by not monitoring the Essendon supplement programme after advising coach James Hird to steer clear of using peptides in August 2011. The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.” NB McLachlan’s use of the word regularly is a gross misrepresentation. The AFL didn’t monitor anything.
The players’ employment contract is a tripartite agreement between the players, the AFL and the Essendon Football Club. That means that legally the AFL is a joint employer of the players. In my view, that means the AFL has a legal responsibility to comply with the Victorian Occupational Health and Safety Act (2004).
AFL medical director Dr Peter Harcourt stated during his Zürich presentation at an anti-doping conference that “under individual contracts all players are contracted to the league as opposed to the clubs” (my emphasis). That comment implies that the AFL has an obligation to ensure that the players operate in a safe work environment. I suspect that Mr Rush doesn’t know about the employment contract and it appears Mr Rush doesn’t believe the AFL checking compliance with one of its own rules (clause 7.4) would help.
The AFL and each of the 18 clubs have Master Governance Framework agreements which allow them to compete in the competition. Inter alia, in simple terms, it is a contract with bilateral responsibilities, which include OH&S responsibilities.
The tripartite agreement the AFL had with Essendon and each player states in clause 7.3: “The AFL club shall provide a playing, training and working environment which is, so far as practicable, free of any risk to the health and safety and welfare of the player. Without limitation, the AFL club shall observe and carry out its obligations under the applicable Occupational Health & Safety Act or its equivalent.” Clause 12 of the same agreement says: “The parties to this contract (AFL, Essendon and the players) 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.” Clearly, the AFL failed to fulfil its responsibilities to the players by not checking with compliance with 7.4.
The bilateral agreement the AFL had with the Australian Sports Commission in its capacity as a National Sporting Organisation (NSO). Those responsibilities are set out in the Australian Sports Commission policy statement: NSO’s governance – Mandatory Requirements for large partner NSOs. The AFL breached clause 2.3 of the Australian Sports Commission (NSO) Governance – mandatory requirements, which states: “An effective organisation must have a thorough system of audit and risk management including internal and external process. This committee must ensure there are adequate controls and systems in place to alert management and the board to potential risk associated with the operation of the sport.” The AFL made no attempt to ascertain whether Essendon had adequate OHS systems in place, or whether it was complying with the law, or whether it was complying with clause 7.4 of the AFL Anti-Doping Code.
On 19 October 2011 (the first day of 2012 pre-season training), Dr Bruce Reid phoned [AFL Medical Director] Dr Harcourt and told him that Dean Robinson had given the Essendon players peptides, including a peptide called Tribulus, without his permission. Dr Reid was not only concerned that he had been marginalised by high performance manager Robinson but that Tribulus was a prohibited substance. Incidentally, Hird was overseas at the time of this first breach and was never told about it.
Marginalising Dr Reid was a possible breach of the AFL’s anti-doping code and Dr Harcourt was required to report the possible breach immediately. 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.”
Dr Harcourt failed to report the matter to ASADA or anyone at the AFL or to anyone at Essendon. Dr Harcourt should have at least spoken to AFL integrity manager Brett Clothier who should have immediately investigated whether Essendon was complying with clause 7.4 of the AFL’s Anti-Doping code. If the AFL had checked with compliance just once at just one club after 2010, the Essendon saga would probably never have occurred. If the AFL had checked shortly after 5 August 2011 whether Essendon had complied with clause 7.4 the saga would not have occurred.
There is no point in having rules if no one ever checks with compliance. Even the RACV and the caravan park organisations such as Big4 and Top Tourist Parks check whether their members are complying with all their rules and the Occupational Health & Safety Act. They do not leave it up to the individual park owners.
At the risk of introducing an incorrect analogy, I think the BP Deep Water Horizon oil spill in the Gulf of Mexico in 2010 is similar. Ultimately, the English BP parent company was held responsible and its CEO Tony Haywood fell on his sword. Demetriou, Richard Goyder and Linda Dessau et al should also have done the same thing.

Item (Rush) 6: “Perhaps rather than blaming the AFL Francis would better direct his attention at questioning why the rule was not complied with in the circumstances extant at the Club, particularly inquire of the medical officer. You would appreciate from your flying- it is no excuse to a rule breach to say that everyone else was doing it- even if they were.”

My Comment

I am staggered that Mr Rush would bag me when he clearly has no idea what I have said or written. Naturally, Mr Rush has not read all 800,000 words that I have written. If he had, he would be aware that I did discuss clause 7.4 with Dr Reid. He also would be aware that on numerous occasions I slammed the AFL Players Association for not educating the players well enough to know that it was compulsory for them to comply with clause 7.4.
Mr Rush would also know that at my request, the ABC’s xxxxxxxxxxxx contacted every AFL club on 1 April 2014 and asked whether the club had ever complied with clause 7.4 of the AFL’s Anti-Doping Code. Not a single club had heard of 7.4. All clubs promised to check with the AFL and all promised to get back to xxxxxxxxxxxx. News flash. xxxxxxxxxxxxxx
I have written to every club urging them to comply with clause 7.4. As an aside, to my knowledge, the AFL still hasn’t checked with compliance of 7.4. If the AFL had fulfilled its obligations and responsibilities, it would have identified the problems in the AFL system and no club, including Essendon, would have been extant.
On numerous occasions, I have attacked every Essendon supporter, including James Hird’s father, who has pushed the line, “it is unfair because other clubs are doing it”. I have repeatedly said “I don’t give a stuff what other clubs have done. If Essendon players have been administered a banned substance, ban them for four years.”

Item (Rush) 7: “Francis says the media should reveal the truth about Hird’s responsibilities at Essendon”. Please! what is the truth about the coaches (sic) responsibilities?”

My Comment:

I am surprised that a man of Mr Rush’s standing would comment on Hird’s responsibilities when he clearly has never seen Hird’s job description and responsibilities. Nor it appears, has he seen the Essendon organisation chart. My understanding from watching American TV law programmes is that lawyers should never ask a question if they do not know the answer. I am comfortably satisfied that once again Mr Rush has erred by asking this question.
The truth about the coach’s responsibilities is set out in the coach’s formal job description, which covers responsibilities and reporting protocols.
To date, I have been extremely careful to only express my response to Mr Rush’s comments. I have refrained from making personal comments about Mr Rush’s inane comments. But enough is enough. I have created scores and scores of organisation charts and written scores and scores of job descriptions. I wrote the 200 plus page human resource manual and the occupational health and safety manual for a top 200 listed company.
My understanding from the above experience is that rules are rules and cannot be ignored just because someone thinks that they are inappropriate. In reaching an opinion, I try to apply those rules in the same way I assume judges apply or interpret legislation and rules.
In my limited understanding of the law, I believe judges cannot ignore rules or laws just because they think it is a stupid law. In creating job descriptions for clients, I ensured that there were never any unwritten responsibilities. The reporting protocols contained in the organisation structure and job descriptions were gospel. If a staff member initiated proceedings in the Industrial Relation Commission or initiated proceedings with the Work Safe authorities, the job descriptions, the organisation structure and the relevant legislation were the key documents.
The coach’s responsibilities are not determined by the media or lawyers who have taken their guide from what happened 30 years ago.
Tragically, with respect to James Hird, the media took a guide to Hird’s responsibilities from the corrupted ASADA interim report. During his interview with ASADA, Essendon CEO Ian Robson was asked about the reporting structure at Essendon. I am paraphrasing but Robson said words to the effect that Dank, the doctors, the physios, the conditioners (etcetera) reported to Dean Robinson and he reported to Paul Hamilton. In the interim report one of the ASADA investigators added [and Hird] in square brackets to Robson’s statement. This corrupt changing of Robson’s evidence enabled the AFL and the media to make a case against Hird.
If Mr Rush had read the ASADA interim report or my 103-page dissection of the report he would know that this was one of many occasions that ASADA changed evidence. On 29 occasions ASADA Staff even falsified players’ answers to questions about substances that they had been administered. But who cares when it is easy to dismiss me as a peddler of conspiracies? xxxxxxxxxx, if Mr Rush wants proof of my claim, I can give him the names of the players whose evidence was tampered.
On numerous occasions, I begged the media to publish the Essendon organisation chart and Hird’s job description. From my perspective, for some inexplicable reason, Hird was placed on a different branch of the organisation structure from the football department.
I have been told that the reason Hird was placed on a different branch of the organisation structure was that Evans and Robson didn’t want Hird to use his standing and charisma to interfere with Hamilton and other senior members of the football department from doing their jobs!
Placing Hird on a separate branch created an impenetrable barrier. Hird had four assistant coaches reporting to him and he reported directly to CEO Ian Robson. Basically, all Hird had to do was some PR work, co-ordinate training, watch millions of videos and call the shots in the box on match day.
Dank was contracted as a consultant and he reported to high-performance manager Dean Robinson. Part of Dank’s job description, which was created by Paul Hamilton, was to make recommendations to Robinson about supplement use.
If Robinson believed that Dank’s recommendations had merit, Robinson was required to check WADA compliance and was required to put the case to Dr Reid. If Dr Reid were satisfied that the supplement could be beneficial and was WADA compliant, Robinson had to make the case to general manager – football operations Paul Hamilton who controlled the football budget.
Hamilton was senior to Hird and was on the Essendon executive committee and Hird wasn’t a member of that body. The support staff – physios, doctors, conditioners, nutritionists, weight trainers, psychologist etcetera all reported to Robinson who in turn reported to Hamilton.
Although Hird obviously spoke with Dr Reid regularly to obtain updates of players’ injuries, and had broken line contact with Corcoran and Robinson, legally, he had no right to interfere in the football department or to give instructions to anyone other than to the four assistant coaches who reported to him.
As a matter of interest, I understand that Hird never enquired about the food the nutritionist recommended; he didn’t interfere with the weights; trainer or the physios or the psychologist or the accountant. The reason being that he knew as little about those disciplines as he did about supplements. He assumed that the accountant was complying with the law just as he assumed that Dank, Robinson, the doctors and Hamilton were complying with his insistence on about five occasions that complying with the WADA Code was non-negotiable.
At some stage an AFL player will die at one of the pre-season high altitude training camps or army camps. The club conditioner calls the shots at those camps but I assume that if it had happened when Hird was coach, the media would have blamed him.

Item (Rush) 8: “Perhaps it would be more relevant to reveal who dreamt up the supplements regime, who agreed to it, who suggested and hired the persons involved, who knew about the regime of IV injections given by Dank, who and why there was no monitoring, how is it the players cannot be informed what they were injected with, who was happy to turn a blind eye to it all?”

My Comment:

Ideally, it would have been advantageous if Mr Rush had been aware that on a number of occasions, I distributed all the answers to all his questions in this item. There is not much I haven’t covered in the 800,000 plus words I have distributed.
[Rush comment] “Who dreamt up the supplements regime?” – As described earlier, the Essendon board, represented by David Evans and Ian Robson, together with Hird, Corcoran and Thompson agreed to embark on a more scientific approach to training.
All five people knew that would involve the players taking WADA permitted substances if Dr Reid approved and if the players agreed to take them. As it transpired, on occasions Dank and Robinson acted independently of Dr Reid. As Hird was not a member of the football department there was no requirement that he be informed of what the players were being administered.
In an attempt to ingratiate himself with Hird, Dank informed Hird when the players were administered their IV vitamin ‘B’ and ‘C’ injections. Hird was never told that Dank had commenced administering Thymosin. I am puzzled that Mr Rush doesn’t believe that the AFL had any obligation to check with compliance with clause 7.4 or any other rules or laws but that Hird should have checked with compliance with what was happening outside his area of responsibility. Incidentally, Evans and Robson were both aware that the players were administered AOD-9604.
[Rush comment] “Who agreed to it?” The Essendon board through Evans and Robson, and Hird, Thompson and Corcoran agreed to it on the condition that it was WADA compliant; that Dr Reid approved each substance; that the players were free to opt in or out and that the substances could do no damage.
As it transpires, Robinson and Dank by-passed Dr Reid. On 2 February 2012, Paul Hamilton emailed his staff, which didn’t include Hird, and insisted that everything to do with the supplements programme had to come across his desk. Interestingly on leaving Essendon, Hamilton was employed by the AFL.
[Rush] “Who suggested and hired the person involved?” As stated previously, Robinson, like most senior coaches in the AFL, Union, League, Soccer, Cricket and Hockey worlds insisted he brought key support staff with him. Robinson made the same demand to the AFL owned Gold Coast Suns when he joined that club. Dank was one of those people who Robinson insisted be employed by the Suns. The Suns agreed with the request and the AFL registered him in breach of the WADA Code. (See Richard Ings comments in item 2 paragraph 5.). Hamilton, Hird, Corcoran, Robinson and Thompson interviewed Dank and presumably all agreed to employ him.
[Rush comment] “Who knew about the regime of IV injections given by Dank?” On 4 April 2013, ASADA chief investigator John Nolan told AFL, Essendon and ASADA senior officials that Robinson and Dank had administered 71 substances. Eight were given by injection. I’m not sure that I would describe eight out of 71 as a regime, particularly as there were no WADA rules restricting injections. I should have thought the key issues were whether the substances were WADA permitted; had Dr Reid approved them; were the players informed of what they were given and why; and whether records were kept of every substance given to the players.
[Rush comment] “Who and why there was no monitoring?” The Essendon board had never conducted a risk assessment of the organisation. Consequently, it had never identified risks and had never put in place procedures to eliminate risks, or where that was impossible, minimise risks.
Essendon boards over many years had failed to ensure that the club conducted OH&S training; they failed to ensure the club had an OH&S officer; they failed to ensure it had an OH&S manual which included procedures and protocols for recording what supplements were administered; Paul Hamilton failed to monitor compliance in his department; successive CEO’s failed to deliver OH&S reports at the monthly board meetings; the boards failed to appoint a board member responsible for auditing OH&S compliance; the AFL failed to fulfil its obligations as an employer of the players; the AFL failed to monitor compliance with clause 7.4 of the AFL’s Anti-Doping Code; the AFL failed to do anything in 2011 when it believed that the players were being administered banned, life threatening substances. The law compels drivers to stop and render assistance at an accident. It is beyond my comprehension that the AFL believed for about 15 months that the players were taking life threatening supplements but did not tell the players of its concerns. Nor did it bother to even visit Essendon to confirm its suspicions.
[Rush comment] “How is it the players cannot be informed what they were injected with?” This is an incorrect statement by Mr Rush. The players were interviewed at least 12 months after they were administered various substances. A number of players gave very precise details of what Dank told them. Those players said Dank told them what he was administering and why he was administering it. Other players remembered very little. The evidence doesn’t support Mr Rush’s conclusion that the players were not told what they were given and why.
I interviewed the AFL Burleigh Heads AFL doctor for an hour and asked her what chance the players had of remembering what Dank told them when administering the supplements. She said “Very little.”
At the Middleton federal court hearing in August 2014, ASADA deputy CEO Trevor Burgess was asked about a diary entry in which he recorded “All ducks lined up.” The information was passed to him by Richard Eccles after a conversation with a senior AFL official who Burgess recorded as ‘G’. When asked by Justice Middleton who ‘G’ was Burgess couldn’t recall. Amazingly Justice Middleton accepted Burgess’ answer. As Burgess only spoke to three or four AFL senior people everyone but Middleton and Burgess knew it was ‘G’ for Gillon McLachlan. If a smart man such as Burgess could be forgiven for not remembering who ‘G’ was, surely it is understandable that some players couldn’t remember their conversations with Dank.
[Rush comment] “Who was happy to turn a blind eye to it all?” The AFL is the only organisation that turned a blind eye. Andrew Demetriou is on the record stating that the AFL believed that the players were taking banned, life-threatening substances. On 27 September 2013, Demetriou was interviewed by Mike Sheahan, and, inter alia, said: “There are always things you think you could do better. The most recent one that comes to mind, which you and I have spoken about before. I wish we had been more vigilant last year when we were just starting to think, hearing things about sports science and the influence of sports scientists and we sort of had an inkling. I was privy to some information and worse hearing things and certain things were happening Mike. And 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.”

In his Zürich speech, Dr Harcourt, inter alia, said: “Coincidentally, we did have some wind of this [taking of banned substances] during the course of the year. It was 2012.” On the first occasion (19 October 2011) Dr Reid believed that he had been marginalised and thought that the players may have been given a banned substance without his knowledge, he reported the matter to the AFL. On the second occasion he was concerned (about 12 January 2012) he expressed his concerns to James Hird. Hird told him to report the matter to his (Reid’s) department head Paul Hamilton. Hamilton immediately reported the matter to CEO Ian Robson and chastised Dean Robinson the next day. Although Hird and Thompson were on a different branch of the organisation structure from the football department, and had no power to instruct Dank or Robinson to do anything, on both occasions where Hird and Thompson believed that Dank and Robinson had transgressed, they both immediately raised the issue directly with Dank. Thompson, in an extremely angry outburst, demanded that Robinson and Dank stop all injecting. I am unaware of any one at Essendon turning a blind eye. I should be delighted if Mr Rush shares his superior knowledge with me.

Item (Rush) 9: “I have been involved in football administration for a long time. Let me tell you there is not much difference between the role of a coach at amateur and AFL level- they are the fulcrum Of the Club- central- important to all things football.”

My Comment:

I suspect the major difference between the amateur coach and AFL level is that the AFL coach is given a legally binding contract that sets out his legal responsibilities, while the amateur coach is wished good luck and told to pray that an accident doesn’t happen on his watch. The amateur coach has unpaid support staff and he is responsible for all of them. On the other hand, the AFL coach is only responsible for the assistant coaches. Support staff such as the doctors, physiotherapists, conditioners, strength coaches, nutritionists, psychologists etcetera report to someone else. At Essendon, the foregoing reported to the high- performance coach Dean Robinson. They did not report to James Hird and he had no legal power to tell them what to do.
I am not sure of the relevance of Mr Rush’s comment. I thought we were discussing James Hird’s responsibilities, not the responsibilities of a coach of an amateur team. Hird’s responsibilities were set out in his job description and the reporting protocols can be gleaned from that document and from the organisation chart. I reiterate that I am very surprised that Mr Rush seems to be suggesting that because James Hird was the coach, he had the power and the authority to instruct the general manager – football operations in what to do; that he had the power and authority to interfere with the doctors; conditioners, psychologists, weight trainers, physios, nutritionists etcetera.

Item (Rush) 10: “Is Francis seriously suggesting that Hird was so removed from all of this to have no responsibility?”

My Comment:

All I am saying is that Hird’s job description, the Essendon organisation structure and the Victorian Occupational Health and Safety Act (2004) determine Hird’s responsibilities, not Mr Rush, who appears wedded to Dick Reynold’s responsibilities. As stated previously, I am surprised that Mr Rush is so dogmatic in ridiculing me on this issue when he clearly has never seen Hird’s job description, nor has he seen the Essendon organisation chart. It appears that Mr Rush is emulating journalists Caroline Wilson and Patrick Smith. They both decided in their own minds what they thought should be Hird’s job description and then attacked him for not meeting their unpublished job descriptions for Hird.
At the risk of big noting, and at the risk of using a possible irrelevant analogy, I should like you to retell a story to Mr Rush. Many years ago, I was chatting to Marius Barnard in South Africa about his brother Christiaan’s wife Barbara. A friend, who was part of the heart transplant team, said Chris was the show pony and Marius was the real star of the first heart transplant. Marius said: “I notice that my sister-in-law Barbara is pregnant in the Sunday Times again. Well Bruce, in the medical profession, we say the only place to be pregnant is in the womb.”

Using Barnard’s criterion, I believe that if you want to know whether Hird was responsible for what happened at Essendon you must check his actions against his job description and the Victorian Occupational, Health and Safety Act (2004). There is no point reading the Age, the Australian, a law magazine or the AFL web site.
Many people have commented favourably after reading my articles and are aware of Hird’s responsibilities. If Mr Rush had read some of those previous articles, he would know that I had explained Hird’s OH&S responsibilities and in fact named the specific clauses in the Victorian OH&S Act (2004) which were applicable to Hird. For a start, he had the same responsibility as every employee and that was to do all in his power to ensure the organisation maintained a safe work environment. His power didn’t involve interfering with staff who didn’t report to him. I am surprised that Mr Rush ridiculed me from a position of ignorance.
My understanding of the Victorian Occupational, Health and Safety Act (2004) indicates that as the players’ employers, the ten AFL commissioners and the nine Essendon board members had more health and safety responsibilities than Hird. I should think the following also had more OH&S responsibilities than Hird – deputy AFL CEO Gillon McLachlan; general manager – football operations Adrian Anderson; the integrity manager Brett Clothier; the AFL human resource director; the OH&S manager; Essendon’s general manager – football operations Paul Hamilton; high-performance coach Dean Robinson; the two doctors; the human resource manager; and the OH&S manager, which inexplicably Essendon didn’t have such a person. By my count, according to the law, about 31 people had more legal responsibility than Hird. Amazingly, not one of the 31 has been named in the media.

Item (Rush) 11: “Give me a break. He and other coaches were actually injected with substances.”

Please ask Mr Rush if he is seriously suggesting that the fact that the coaches had an injection from Dank to aid sleeping or to prevent them from being sun burnt, trumps the Victorian Occupation Health and Safety Act, which states that the employers had the most responsibility?
The coaches and the current CEO Xavier Campbell did not breach the WADA Code when they were injected by Dank, so, I fail to see the relevance of raising this issue. Hird had an injection to help him sleep. My doctor suggested that I take the same medication when I was fighting severe depression.
In all the law shows I watch on TV, this would be described as a Hail Mary pass by a defeated lawyer in a last-ditch attempt to distract the jury.

Item (Rush) 12: “Too often in a club a coach has too much power rather than too little and this very often to the detriment of the Club. I want to suggest the power the influence indeed the charisma of Hird at the Club was unchecked and this was a part of a lack of governance right across the football department.”

My Comment:

I am staggered that Mr Rush thinks that Hird was a member of the football department. It’s hard to find a more fundamental mistake. That mistake throws serious doubt on many of Mr Rush’s opinions. Clearly, Mr Rush was speaking from ignorance. As Essendon’s lawyer, I’d have thought that one of the first things Mr Rush would have done was to check the Essendon organisation chart and Hird’s job description.
As the media refused to discuss or publish the Essendon organisation structure and Hird’s job description, Mr Rush, like the rest of Australia, was ignorant in believing that Hird was in the football department. Hird was not a member of the football department and it is unfair and incorrect for Mr Rush to say that Hird was partly responsible for the lack of governance right across the football department.
I have had enough of the Essendon board being treated like a Koala. It is not a protected species. The Essendon board, not Hird, was responsible for ensuring that the correct policies and procedures were in place to ensure that the club complied with the Victorian Occupational, Health and Safety Act (2004). Inter alia, those policies should have included procedures for recording every substance that was administered to the players. Ian Robson and Paul Hamilton were legally responsible for ensuring compliance with the football department policies and procedures, not Hird.
Supplement invoices and statements xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx were not included in the monthly financial P&L and BS reports to the board for probably eight months. I hope that Mr Rush doesn’t think Hird was responsible for that! As it transpires, Essendon CEO Ian Robson tabled the outstanding invoices at the 7 February 2013 board meeting.
Hird’s job description indicates that legally, he only had power over the four assistant coaches and only had the authority to call the shots in the box on match day.
Neither the media, nor the AFL, nor ASADA, nor Ziggy Switkowski, nor Mr Rush has identified one thing Hird did that was inappropriate. Nor did the foregoing identify how he used his charisma to do anything.
In July 2012, at a meeting at Hird’s home, Dr Reid asked Evans and Robson to sack Robinson. Hird and Corcoran supported the request. Evans and Robson refused to comply with the request on the grounds that the club could not afford the payout. Evans and Robson’s refusal was endorsed by the board at its August meeting.
REDACTED xxxxxxxxxxxxxxxxxxxxxx Board members were not given the proper reason behind Dr Reid’s request to terminate Robinson. Ironically, at the behest of the AFL, on 5 February 2013, Robinson was stood aside. Robinson subsequently sued the club for wrongful dismissal. At the behest of the AFL, the club agreed to an estimated $1 million settlement because xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The AFL capitulated as soon as Dr Reid indicated he would subpoena the commissioners. The AFL pressured, some say blackmailed, the club as soon as Hird initiated Supreme Court action. The AFL xxxxxxxxx the club as soon as Robinson indicated he would subpoena the commissioners.
Hird agreed in May 2011 with Evans, Robson, Corcoran and Thompson’s view that the club had to adopt a more scientific approach to training. He stipulated certain criteria that had to be met when supplements were introduced to the club. That was the beginning and end of Hird’s involvement. He has an engineering degree. He, like most coaches, would not know the difference between substance ‘A’, substance ‘B’, substance ‘C’ … substance ‘Z’. His only interest in the supplements programme was the hope that the players were given the best available WADA permitted substances. He was aware that substances were being given to the players. He was told by Dank when the IV vitamin ‘B’ and vitamin ‘C’ injections were given to the players, and he was aware that players agreed between the eighth and 12th of February 2012 to be given four substances – all of which he believed to be WADA permitted.

Item (Rush) 13: “I do not say Hird was party to the administration of banned substances but he knew of the regime, he was foolish and neglectful and as coach he had responsibilities for his players. I know he loved his players but in this responsibility he failed.”

My Comment:

This is a mind-blowing incorrect statement. There was an allegation that only one substance was banned, not plural substances, as stated by Mr Rush.
Mr Rush was disingenuous to use “banned substances” and “but he knew of the regime” in the one sentence. Joining the two, creates the impression that Hird knew the players were being administered banned substances. Hird emphatically denies such a suggestion and the AFL never even alluded to Hird knowing that the players had been administered a banned substance. To my knowledge only four people in the world – the CAS panellists and Ben McDevitt are comfortably satisfied that the players were administered a banned substance. And I have proved that the CAS panel, which included the former chief justice of the Supreme Court of NSW, ran an arguably corrupted hearing and were arguably inept and biased. See my dissection of the CAS Arbitral Award Executive Summary paragraphs 22 to 32. I should appreciate it very much if you could ask Mr Rush whether he agrees with the content of paragraph 2 and paragraphs 25 to 29 of my response to the CAS Arbitral Award.
The AFL Anti-Doping Tribunal found Dank not guilty of administering a banned substance to the Essendon players. To my knowledge, Dank has not been charged since the not guilty verdict with administering a banned substance to the Essendon players.
I appreciate the time Mr Rush has given us, but it would have been far more helpful if he had revealed in what ways Hird was foolish and neglectful.

Item (Rush) 14: “However I consider this sorry situation may have been avoided with a proper recognition of responsibility and apology at a very early stage.”

My Comment:

xxxxxxxxxxx, I am not sure how to respond to this. I think Mr Rush has slipped in a joke to lighten proceedings. Under extreme bullying from xxxxxxxxxx, on 5 February 2013, James stupidly announced that he “accepted full responsibility”. Cccccccc commenced employment at Essendon on 5 February 2013 on the demand of the AFL. She resigned when Evans resigned and is now the AFL media director. She hounded James to resign very early in the saga. I had an interesting conversation with xxxxxxxxxx QC about her and her insistence that James resign. hhhhhh believed that she had convinced James to resign and Caroline Wilson wrote that he had. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx intervention stopped any thoughts of his resignation.
James subsequently received legal advice not to apologise again until the joint AFL/ASADA investigation was completed. I should be surprised if the board’s lawyers didn’t advise the board not to admit responsibility and not to apologise individually. I think it is ironic that it appears that Mr Rush has never called on the individual Essendon board members nor Paul Hamilton to apologise.
Hird made an apology to the commission on 27 August 2013. He apologised again on two separate occasions on 28 August 2013. He made a fourth apology on 31 March 2015. He made a fifth apology on 16 January 2016. He apologised during his television interview with Tracey Holmes. He apologised in his lengthy interview with Mark Robinson in the Herald Sun. He apologised on the Hanger.
The above notwithstanding, I think that I could sell Mr Rush the MCG and Sydney Harbour Bridge at a discounted price if he sincerely believes “this sorry situation may have been avoided with a proper recognition of responsibility and apology at a very early stage” from Hird.
After the ‘blackest day in Australian sporting history’ media conference on 7 February 2013, the Gillard government, the Australian Crime Commission and the AFL needed to land a big fish to justify the damage Senator Lundy, Jason Clare and Andrew Demetriou caused Australian sport.
On 9 February 2013, McLachlan and Evans agreed that Hird would be the scapegoat. That decision conveniently got the AFL commissioners and the Essendon board off-the-hook and mitigated the damages caused by Lundy and Clare’s opportunism and stupidity. The Essendon board endorsed the decision to sacrifice Hird. AFL general counsel Andrew Dillon subsequently said the ‘scandal needs a face’. McLachlan said “It is about the optics.” I don’t know about you xxxxxxxxx, but to me those two comments imply the AFL didn’t have any evidence of wrong-doing by James.

Item (Rush) 15: “The drivel, and that’s what it is, of Francis blaming everyone but those responsible, setting up conspiracies where none exist do nothing to assist him and in my opinion have prolonged unnecessarily the whole saga.”

My Comment:

1. In my articles, I have blamed:

i. The AFL Players Association for not educating their Essendon members well enough for them to have complied with their obligations

ii. The Players for not having complied with their obligations set out in Clause 5.3 (c) (i to vi) and clause 7.4 of the AFL’s Anti-Doping Code.

iii. The AFL for never having checked compliance at any club with clause 7.4 of the AFL’s Anti-Doping Code

iv. AFL integrity manager Brett Clothier for never having checked whether Essendon had complied with its OH&S responsibilities

v. The AFL for failing to warn the Essendon officials that it believed that its players were being administered dangerous, life threatening WADA banned substances.

vi. The Essendon board for failing its OH&S obligations

vii. The AFL for failing to fulfil its statutory obligations and its contractual obligations.

viii. McLachlan for conspiring on 9 February 2013 with the Gillard government, ASADA, Evans and Robson (representing the Essendon board) to:

a. Find the Essendon players innocent

b. Breach the WADA Code by exonerating the players on the spurious grounds of no fault by the players

c. Exonerate the Essendon board

d. Exonerate the AFL

e. Hold individuals responsible for the players taking banned substances. That was code for holding James Hird responsible.

2. Evidence supporting the above claim is contained in notes taken by ASADA CEO Aurora Andruska viz Prime Minister Gillard’s representative Richard Eccles, who breached the ASADA Act by attending the meeting, asked “What are you after?” Andruska’s note book records McLachlan’s response: “Come to arrangement. Players found to be innocent. This is the outcome. Sanctions against Essendon [club but not against the board]. [The Essendon club] held responsible. Hold individuals accountable.” Andruska also recorded that Eccles said “the prime minister wanted it to end.” xxxxxxxx, I repeat, the investigation didn’t commence until four days later.

3. Commissioners for allowing Demetriou to regularly claim in the media that the players were guilty of taking banned substances.

4. The AFL commissioners, who knew they were to be the jury, for allowing themselves to be briefed on the evidence prior to the general counsel deciding that charges would be laid.

5. The AFL commissioners for not only condoning McLachlan and Demetriou finding the players guilty but for condoning McLachlan deciding the penalties in June 2013 – which was six weeks before the investigation was completed.

6. Demetriou and McLachlan being brain-washed by the Australian Crime Commission on 31 January 2013 into believing the Essendon players were guilty of taking banned substances.

7. Demetriou and McLachlan for convincing Evans and Robson on 1 February 2013 that the Essendon players were guilty of taking banned substances.

8. The list is endless

9. Some of Mr Rush’s comments have rocked me. None more than his comment that “in my opinion [Francis’s comments] have prolonged unnecessarily the whole saga.” “PROLONGED THE WHOLE SAGA” (my emphasis). Please advise Mr Rush that I think that he needs a Bex and a good lie down. I spoke to Hird for the first time in January 2015. I have been quoted in the media twice, once on 4 October 2013 and once last week. Neither Lindsay Tanner, nor Gill McLachlan nor the AFLPA has ever responded to me. No one has initiated court action at my behest. When you are talking to Mr Rush, please ask him how my actions have prolonged the whole saga.

10. The whole saga was prolonged through the following:

i. Essendon capitulating to the AFL’s bullying before Andrew Dillon had even decided whether to lay charges

ii. ASADA changing evidence, fabricating evidence, omitting evidence and allowing the Gillard government to interfere in the process.

iii. James Hird capitulating to AFL and Essendon intimidation to abandon his Supreme Court action. If Hird had pursued his case the AFL and ASADA would have been exposed for running a corrupt investigation and for denying Essendon, Hird, Mark Thompson and Danny Corcoran procedural fairness. The AFL and ASADA would have been smashed and the saga would never have reached the ADRVP, the Federal Court, the AFL Anti-Doping tribunal or the Court of Arbitration for Sport.

iv. The ADRVP meeting on 3 November 2014 was a farce. The panel did not receive any evidence that ASADA was wrong on 3 July 2012 when it stated unequivocally that Thymosin was also known [as the permitted] Thymomodulin. Furthermore, the panel had no evidence for it to believe it was possible that at least 26 of the 34 players were administered Thymosin.

Item (Rush) 16: “One thing I am sure of on the basis of what I DO know – a Royal Commission will do James Hird no favours.”

My Comment:

The foregoing proves Mr Rush knows very little. I am staggered that he was prepared to share his ignorance with you.
If the Royal Commissioner bases his/her findings on facts, and doesn’t rely upon the tarot cards the CAS panel appeared to use, nor the prejudice and hatred of Hird shown by the media towards him, which Mr Rush appears to have embraced, Hird will be vindicated and exonerated.
However, a Royal Commission will affect:

i. The AFL; the AFL commissioners, including the current governor of Victoria; Andrew Demetriou; Gillon McLachlan; Brett Clothier; Dr Harcourt

ii. ASADA

iii. WADA

iv. The Court of Arbitration for Sport and its three panellists

v. The Ombudsman’s Office

vi. Richard Eccles; Kate Lundy, Ms Gillard; Jason Clare

vii. The 2012 & 2013 Essendon boards

viii. A number of lawyers
As Mr Rush has not seen either Hird’s job description or the Essendon organisation chart, I am staggered that he would make such a statement. I should think scores of people have more reason to be frightened of a Royal Commission than Hird. For example:

i. An ASADA staff member changed Ian Robson’s evidence about who reported to whom in the football department. The corrupt changing of the evidence implicated James Hird and undoubtedly gave the AFL an excuse to charge Hird.

ii. The AFL had access to the Essendon organisation chart and Hird’s job description but chose to ignore them so it could nail its pre-determined big fish. The fact that the AFL capitulated and threw in the towel in the Dr Reid, James Hird and Dean Robinson cases when they thought that they would be cross-examined indicates to me that they have more to worry about than Hird.

iii. The AFL continued to sell a level of membership that entitled EFC supporters to access finals in which Essendon participated, yet the AFL administrators had informed the commissioners on 12 June 2013 that Essendon would be banned from playing in the 2013 finals. In my limited knowledge, I believe the five elements of fraud could be present, and if so, the AFL should be charged with fraud.

iv. The AFL bullied Essendon into accepting sanctions, including a $2 million fine, prior to Andrew Dillon deciding whether charges would be laid. I have been advised that a case could be made that the AFL defrauded Essendon of $2 million.
I should be delighted to learn from Mr Rush as to how the Royal Commission would be able to ignore the law and condemn Hird.
I suspect that Mr Rush’s claim against Hird may be derived from the fact that he was unaware that Essendon had a matrix organisation structure and/or didn’t know what a matrix organisation was. If a person doesn’t know what a matrix organisation structure is, he is not in a position to comment.
Matrix organisation structures have been embraced by organisations since the late twentieth century to leverage and recognise the professional credentials and expertise of an increasingly specialised workforce. This ensures that elite subject matter experts have the authority and responsibility commensurate with their professional credentials and are not politically buried deep within archaic ‘command and control’ structures.

In addition, professional experts are held to account to the standards and ethics of their own profession that can NOT be eroded or ignored by the commercial or other organisational hierarchy. Doctors, lawyers, accountants and human resource specialists, etcetera are all sworn to codes of conduct that is core and conditional to their accreditation. Thus, no one could legally override Dr Reid on medical matters at Essendon, and no one could override Andrew Dillon on legal matters at the AFL.
The Essendon board and executive were at least implicitly aware of this when they created an organisation that accorded solid line reporting by specialists to their accountable manager whilst with persons and departments which they ‘served and advised’ having dotted line reporting relationships.
Solid line accountability and reporting represents authority and responsibility with rights to:

i. Set policies and procedures to ensure proper compliance with standards their professions demand

ii. Provide the formal Quality Assurance for the provision of their professional expertise

iii. Hire and fire, performance manage and therefore promote and remunerate staff within their department
This meant that Hird only had authority over, and responsibility for, Mark Thompson, Brendan McCartney, Simon Goodwin and Sean Wellman.
Dotted line accountability denotes consultation, advice and provision of expert services. This meant that Hird could consult with, and seek advice from Dean Robinson and Danny Corcoran. He had no power to admonish, let alone discipline Robinson or Corcoran or anyone in any department other than his own coaching department.
Every organisation is subject to legal and regulatory framework that is general to all organisations. In addition, there are legal and regulatory requirements and enforcement agencies particular to specific industries such as professional sport. The board is obliged to ensure the chief executive establishes an organisation, policies and procedures that comply with all legal and regulatory requirements. The appropriate professional is delegated responsibility and authority for designing and enforcing rules and processes to ensure compliance. At Essendon, the line of authority for the supplementation program was Robson, Hamilton and Robinson, with the proviso that Dr Reid could not be overruled.
No executive in a line role, as is the football and coaching departments, is expected, or indeed allowed, to establish policies, introduce procedures or intervene or ignore the application of any such rules and regulations.
In large corporations there are Board Risk Sub-Committees that are established to ensure a direct line to the board if any staff considers there are breaches of proper practices. For example, this occurred in the David Jones-Mark McInnes matter. In any public company, the chief executive himself could not act in direct contradiction to a formal opinion by a lawyer or accountant that spoke of non-compliance.
To illustrate the increasing obligations of major organisations, in the last few years, significantly upgraded OH&S compliance obligations have been imposed on company directors which include criminal and civil penalties for offences.
The board and chief executive are obliged to ensure all laws and regulations are enforced and the onus is on them to prove that they were in place and that ALL relevant and affected staff, those impacted as well as those with authority and responsibility is apprised of their respective rights, duties and obligations.
James Hird was appointed senior coach of Essendon Football Club in September 2010. Hird was on his own branch of the Essendon organisation structure and reported directly to Chief Executive Officer, Ian Robson. Hird had four assistant coaches reporting to him – Mark Thompson, Brendan McCartney, Simon Goodwin and Sean Wellman. The Football Department was on a different branch of the organisation structure from Hird’s coaching branch, and the football department was run by Paul Hamilton, whose title was General Manager – Football Operations. Hird’s Coaching Department, and Hamilton’s Football Department, only had a broken line link. Hird had no link to Hamilton. Hamilton, like Hird, reported directly to CEO, Ian Robson. The Executive Team at Essendon comprised; EFC Board; (Level1); Managing Director & CEO, Ian Robson; (Level 2) Chief Financial Officer; Chief Commercial Officer; General Manager – Football Operations, Paul Hamilton; Chief Operating Officer; and Communications Manager. (Level 3).
Although Hird reported directly to the chief executive, Ian Robson, he, unlike those named above, was not a member of the executive. The High-Performance Unit was run by Stuart Cormack until June 2011, and then by his replacement, Dean Robinson, from August 2011 until February 2013. The High-Performance Unit formed part of the football department and Cormack, and then Robinson, reportedly directly to Hamilton.
The following comments indicate that Hird wasn’t the driving force:

i. Ian Robson (page 59 of the Interim Report): “It was clear we all felt – all of us felt, coming out of 2011, that the – the players were undersized in terms of their strength.”

ii. Paul Hamilton (page 59): “The coaches had identified – I don’t think they were happy with the weights program that had been previously done by the previous regime. Certainly – and Mark Thompson was a big one on this – he wanted – he wanted the players to lift heavier weights… In combination with this focus, Essendon, decided to invest more in the high-performance sports science team’.”

iii. In his interview with ASADA on 15 February 2013, chief executive, Ian Robson, stated (page 99) that “Mr Robinson had supervisory responsibility of the Sports Science Team, which included Mr Dank and the club doctors. In turn, Mr Robinson reported to Mr Hamilton who was accountable to both Mr Robson and the club’s executive. Mr Dank was part of the Sports Science Team and therefore reported to Mr Robinson.”

iv. Essendon (pages 21-22) attended a pre-season camp at the Sheraton Mirage on the Gold Coast between 11 – 16 December 2011. Biochemist, Shane Charter and his family attended the same venue at the invitation of Dank (although Dank does not appear to have advised EFC officials that Shane Carter would be in attendance).

v. According to Charter, Hird told Dank that anything used on the Essendon players had to be WADA compliant and are approved by Dr Reid. · On 22 August 2012, Dr De Morton (page 97) sent an email to Hamilton, Robson, Jones and Cc’d Dr Reid in which he stated: ‘The other issue that arises is does all the extra therapies/tests etc distract the players …, apart from breeding dependence on a “drug” supplement culture? Dr Reid and I need to take control back of these areas [from Robinson and Dank].

vi. The CEO, Ian Robson (pages 102-103) had also expressed concern regarding Dank’s financial practices advising in an email to Hamilton and Corcoran dated 21 August 2012 that: ‘I am aware of three outstanding accounts incurred by Steve Dank and/or Dean Robinson. One account involved HyperMED which was owed $61,000 for hyperbaric treatment and injections. The second involved a bill from Skinovate for $10,000 for vitamin injections. The third was from Away Australia for $18,961 for two supplements.

vii. Hamilton (page 24) recalled a conversation with Robinson the day after his meeting with Dr Reid in which he (Hamilton) forcefully reminded Robinson that ‘you’re in charge. It’s your staff. You need to make sure that all the guidelines are being kept’.

viii. On 16 January 2012, Dank sent a submission via email to Dr Reid and Robinson seeking approval to use AOD-9604 on players. Dank asserted that the ‘current WADA status’ of AOD-9604 is ‘allowed’.

ix. In March 2012, Dank sent Hird a number of SMSs informing him that he had commenced intravenous treatments. Unfortunately, ASADA, surprisingly, didn’t reproduce the SMSs in the report. Given Dank reported to Robinson, who reported to Hamilton, and given Dank had to keep Dr Reid informed, it is illogical Hird was the only one who received the SMSs.

x. Despite having put in place, supposedly foolproof protocols, within two days of the first complaint, the system broke down within days, if not hours because of Dank’s conduct.

xi. The bottom line was the coaches and senior executives, including the president and chief executive, had identified a problem. It was the football department’s, led by Paul Hamilton, responsibility, to fix the problem. Identifying the problem was the beginning and end of Hird and Thompson’s official input – although Hamilton invited Hird and Thompson to Robinson’s and Dank’s interview meetings. Hird and Thompson had no responsibilities whatsoever for the high-performance unit or the supplementation program, and had no authority to intervene.

xii. The Victorian Occupational, Health & Safety Act, the Commonwealth Corporations Act, various agreements signed by the AFL and Essendon, the Essendon matrix organisation structure, and job responsibilities, determined responsibility for providing a safe workplace. ASADA, and the media had no say, although the media’s vicious, unrelenting attacks claiming Hird was responsible, created an opportunity for AFL general counsel, Andrew Dillon, to lodge a series of vexatious allegations against Hird and Thompson.
Who was responsible for ensuring Essendon players were not administered WADA prohibited substances?

i. The players, whose contracts stipulated that they had the ultimate responsibility for what they were administered

ii. The AFL Players Association, which was supposed to educate the players, and obviously failed to do so.

iii. Dr Reid and Dr De Morton, who had to approve every substance given to the players

iv. Dean Robinson, to whom Dank reported.

v. Paul Hamilton, to whom Robinson reported.

vi. Ian Robson, to whom Hamilton reported

vii. The Board, to whom the Victorian Occupational, Health and Safety Act, assigned ultimate responsibility.

viii. The AFL, which failed to fulfil its contractual obligations to do everything in in its power to ensure Essendon provided a safe work place.

ix. The AFL’s medical Director, Dr Peter Harcourt, who failed to report that Dr Reid had been marginalised on 19 October 2011.

x. Andrew Demetriou, who chose to ignore the fact that he knew doctors were being marginalised. Demetriou breached rule 4.6 of the AFL Anti-Doping Code by not reporting his concerns to ASADA in early 2012.

xi. Brett Clothier, who was responsible for maintaining the integrity of the competition. All he did was have a general chat with Hamilton, Corcoran and Hird on 5 August 2011.
Could anyone have prevented Dank from not following the protocols? It appears not.

The fact that the AFL completely exonerated Dr Reid, clearly demonstrates that the AFL believed no one could have prevented Dank from doing what he did.

xxxxxxxxxxxx, when I first read Mr Rush’s email I was prepared to disappear forever. On re-reading it, and on dissecting it, I am prepared to debate Mr Rush on the condition no notes are to be used. As you know, I have been home-bound for about 12 years. I suspect that I am on more medication than James. But I am prepared to defy doctor’s orders and fly for the first time this century.

I have tried to be as succinct as possible but it was impossible after Mr Rush trashed four years’ work. I should be very interested to hear the outcome of your discussion with Mr Rush.

Bruce