The Essendon Football Club supplements controversy (commonly known as the Essendon supplements saga) is a sports controversy which began in late 2011. The Essendon Football Club, a professional Australian rules football club playing in the Australian Football League (AFL), was investigated starting in February 2013 by the Australian Sports Anti-Doping Authority (ASADA) and the World Anti-Doping Agency (WADA) over the legality of its supplements program during the 2012 AFL season and the preceding preseason. The investigation concluded with the club being found guilty of having injected players with the banned peptide Thymosin beta-4, resulting in the suspensions of thirty-four players who were part of the program.

The initial stages of the investigation in 2013 made no findings regarding the legality of the supplements program, but highlighted a wide range of governance and duty-of-care failures relating to the program. In August 2013, the AFL fined Essendon $2,000,000, revoked its opportunity to play in the 2013 finals series, and suspended senior coach James Hird and general manager Danny Corcoran as a result of these findings.

The second phase of the investigation resulted in thirty-four players being issued show cause notices by ASADA and infraction notices by the AFL in 2014, alleging the use of Thymosin beta-4 during the 2012 season. After facing an AFL Tribunal hearing in the 2014/15 offseason, the players were initially found not guilty of these offences. That decision was appealed by the World Anti-Doping Agency to the Court of Arbitration for Sport, which returned a guilty verdict on 12 January 2016. The thirty-four players were suspended for two years, affecting seventeen still-active AFL players who will miss the 2016 season.

The controversy has had serious ramifications and adverse effects on the football club as a whole. A number of senior staff have either been dismissed or have resigned. Senior staff no longer at the club due to the controversy include David Evans (former chairman), Ian Robson (former CEO), Danny Corcoran (former head of football), Dean Robinson (former head of high performance), Stephen Dank (former contracted biochemist and sports scientist) and James Hird (former senior coach). Dank was found guilty by the AFL tribunal of a number of breaches related to the program.

Background

Essendon players prepare to take the field before a match against Greater Western Sydney in 2013.

On 28 September 2010, former captain James Hird was named as Essendon's new coach from 2011 on a four-year deal. Former Geelong dual premiership winning coach and Essendon triple-premiership winning player Mark Thompson later joined Hird on the coaching panel. Thompson introduced Essendon to performance coach Dean Robinson and, at Robinson's suggestion, sports scientist Stephen Dank.

Hird wanted a supplements program as long as the supplements were AFL- and ASADA-approved, that players would not be harmed and gave informed consent and that club doctor Bruce Reid gave final approval.

"The supplements program then, from my perspective, had sound logic, important goals, the people the club had engaged presented as credible and successful, the structure for the program was right and the protocol for decision-making and player welfare had integrity," he wrote. "It seems that what transpired was that the protocol we put in place was not always followed."[1]


In 2013 the Essendon Football Club was implicated in the Australian Crime Commission (ACC)'s report "Organised Crime and Drugs in Sport". The club conducted its own investigation into allegations of peptide use but also awaited findings from Australian Sports Anti-Doping Authority (ASADA)'s investigation.[2]

Following the release of the ACC report on 3 February 2013 the club's then chairman, David Evans, commissioned Ziggy Switkowski to conduct an independent report that he described as a "full external and independent review of governance and processes of the club".[3] On 23 May 2013, the club's CEO, Ian Robson, resigned and agreed with the Switkowski report's assessment that "lack of proper process" occurred in 2012.[4] In late July, club chairman Evans and fitness coach Dean Robinson both resigned, with the former stating, "I strongly believe that the best thing for the club at this stage is for a new chairperson in order to see through the next phase of this challenging and difficult time for our club."[5]

2012 playing list

Essendon Football Club
Senior list Rookie List Coaching staff

Head coach

Assistant coaches

Legend:
  • (c) Captain(s)
  • (vc) Vice-captain(s)
  • (vet) Veterans list

Updated: 20 October 2012
Source(s): Playing list, Coaching staff



Timeline of events

Interim report and governance charges

On 2 August 2013, ASADA released an interim report to the AFL and Essendon Football Club; the interim report made no findings regarding the legality of the supplements program, but highlighted a wide range of governance and duty-of-care failures relating to the program. On the evening of 13 August 2013, on the basis of the interim report, AFL general counsel Andrew Dillon charged Essendon with: "conduct that is unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute" under AFL Rule 1.6". The charges against Essendon included:[52]

The interim report found that Essendon had commenced its supplements program in August 2011, had intended for it to be an innovative program of unprecedented scale to deliver a competitive edge to the club, but that it had not done adequate research nor established clear lines of accountability for the people implementing the program.[52] The AFL Tribunal later commented that there was a "deplorable absence of records in the program relating to its administration."[54]

The AFL laid charges against the Essendon Football Club, head coach James Hird, assistant coach Mark Thompson, club doctor Bruce Reid and sports administrator Danny Corcoran. On 27 August 2013, five days before Round 23 and after two days of discussions between the club and the league, the following penalties were imposed relating to these charges:

The fourth senior staff member charged at this time was club doctor Bruce Reid. Reid contested the charges against him and on 29 August 2013, counsel for Reid applied for a "prompt release of the transcript of argument and the commissioners' ruling, to enable the early issue of Supreme Court proceedings". He said Reid would apply for a judicial review of the decision and had identified a recently retired Supreme Court judge as an appropriate officer to preside over a decision in relation to the charges.[58] On 18 September 2013, the AFL dropped all charges against Reid, thus allowing him to continue in his role as senior medical officer at the club. The league's official statement concluded: "Reid strongly supports the AFL in its fundamental priority of looking after the health and welfare of players. He shares its concern over the serious circumstances which gave rise to the supplements saga at the Essendon Football Club ... The AFL accepts Dr Reid’s position and withdraws all charges against him, without penalty."[59]

At the time of the announcement of penalties for governance failures, no charges were laid against any players, and whether or not banned substances had been used was unproven. At the time, the ASADA and AFL investigation remained open, with further charges against officials individual players remaining a possibility if the use of illegal substances could be proven.[60] The AFL's then-deputy chief executive, Gillon McLachlan, stated:

We can't control where ASADA goes. I think there would have to be definitive new evidence for them to issue infraction notices, but I don't want to speak on their behalf. Ultimately, ASADA have a power, I just think what's important for everyone to understand here is that there is not one scintilla of evidence that said the players had any knowledge of what was going on here, and that's incredibly important to remember.[61]

Charges against players

Initial show-cause notices

After several months of investigations, ASADA issued show cause notices to 34 players on Essendon's 2012 player list on 12 June 2014, alleging that they had been administered the banned peptide Thymosin beta-4. ASADA did not allege that the players had used the substances intentionally; rather, it alleged that the club had knowingly injected the players with the banned substance, but that the players were unaware that what they were being administered was illegal.[54] The notices gave the players ten days to respond, which would be followed by a tribunal hearing in which the burden of proof fell on ASADA to prove that the banned substance was administered to the players.[27] Under the anti-doping codes, players found guilty of using banned substances receive, as a starting point, a two-year suspension; however, if the players were able to demonstrate they were unwittingly given a prohibited substance, they may receive a 50 per cent reduction on their penalty.[26]

Federal court application

Shortly after the show-cause notices were issued, the Essendon Football Club and James Hird challenged the legal validity of ASADA's joint investigation with the AFL and the admissibility of evidence against the players from the investigation. The case came before the Melbourne division of the Federal Court on 27 June 2014.[28][62] The names of the 34 Essendon players issued with show cause notices were initially suppressed under court order, but were ultimately released following the eventual guilty verdict in 2016. The players were not required to respond to ASADA's show cause notices until the case is resolved.

On 19 September 2014, Justice John Middleton of the Federal Court found that the ASADA investigation was lawful under the ASADA Act and that Essendon's application for the show cause notices to be scrapped was rejected.[63] Essendon had until 10 October to lodge an appeal against Justice Middleton's judgement.

On 1 October 2014, Essendon chairman Paul Little announced that the club would not appeal the Federal Court's ruling, stating that to do so would act against the interests of the players. Hird, however, acting in an individual capacity and "on a matter of principle", appealed the ruling to a full bench of the Federal Court. Media commentators speculated that Hird's action would result in his termination as Essendon coach,[64] but this did not occur.[65] Hird returned to court in early November 2014,[34] and his appeal was dismissed on 29 January 2015.[38] Hird considered a High Court appeal, but on 27 February 2015 announced that he had decided against proceeding.[66]

Hearing against players

After Essendon's Federal Court challenge was dismissed in October 2014, ASADA issued fresh show-cause notices to the thirty-four players on 17 October 2014.[31] As was the case for the first issuing of show-cause notices, the players had two weeks to respond to the notices, and exercised their right not to respond. On 13 November 2014, the Anti-Doping Rule Violation Panel concluding that sufficient evidence existed against the players, and it was announced that the thirty-four players were placed on the register of findings.[36] The following day, the AFL issued infraction notices to the thirty-four players, specifically alleging that they used prohibited peptide Thymosin beta-4.[32] The players faced a closed hearing of the AFL Tribunal over several sessions between December 2014 and February 2015.[37]

Upon issuing of the infractions notices on November 14, the thirty-four players were able to accept provisional suspensions, meaning they would be ineligible to play AFL matches until the Tribunal hearing was finalised, but that any time served during the provisional suspension would be counted as part of the final suspension if found guilty. The players accepted the provisional suspensions immediately with two exceptions, Dustin Fletcher and Jobe Watson, who both participated in the 2014 international rules test on 22 November before beginning their suspensions.[67]

After the tribunal hearings were completed, it was announced that a final decision was expected in late March. This meant that the thirty-four players, including seventeen who were still at Essendon, would still be under provisional suspension during the NAB Challenge pre-season competition. It was determined that all twenty-five Essendon players who were at the club during the supplements program would receive permission to miss the series, including eight players who were not facing doping charges but were given permission to stand aside to protect their teammates' anonymity;[68] of those eight players, four elected to play.[69] In order to have sufficient players to field a full team, Essendon was given permission to sign players from state leagues to temporary contracts to serve as top-up players: under the rules, the players must have been on an AFL list in either 2013 or 2014, and the club could recruit no more than two players from any state league club. The same concessions would have be carried forward into the premiership season had a guilty verdict been returned and suspensions applied.[70] The club's seven NAB Challenge top-up players who met these criteria were: Mitch Brown, Mitch Clisby, Clint Jones, James Magner, Sam Michael, Jared Petrenko and James Polkinghorne.[71] The club was also permitted to field VFL-listed players from its own reserves team in the NAB Challenge, fielding Josh Freezer, Aaron Heppell, Anthony McDonald-Tipungwati, Marcus Marigliani, Jordan Schroder and Sam Tagliabue.[72]

On 31 March, the week before the opening of the 2015 AFL season, the tribunal announced that it had found the 34 players not guilty. The tribunal confirmed that Thymosin beta-4 was a banned substance during the time of the program—there had been questions raised during the hearings about whether or not some of the substances alleged to have been used were illegal at the time[16]—but it determined that it was not comfortably satisfied that the players had been administered Thymosin beta-4. The three-member tribunal was unanimous in its decision.[73] The tribunal's verdict contained strong criticism of the governance of the Essendon's supplements program.[54]

As a result of the not guilty verdict, the provisional suspensions on the players were lifted, and all affected players became eligible to play in Round 1. ASADA and the AFL were given a window of 21 days in which they could lodge an appeal against the decision. The tribunal verdict was handed down in private, and few other details about the reasons for the decision have been released. They can only be released at the discretion of the parties involved, and it is considered unlikely that they will be released until all avenues for appeal are closed.[73]

The AFL Tribunal also heard a case against sports scientist Stephen Dank during the summer of 2014/15, and he was found guilty of ten charges. The charges which were upheld against Dank covered a wide range of illegal supplements that he trafficked in, attempted to traffick in or was complicit in attempted trafficking in during the time he was registered by the AFL. The upheld charges were:

The AFL suspended Dank from involvement in the sport for life as a result of the guilty verdicts.[74] Dank was found not guilty of twenty-one other charges, including trafficking charges and as all charges related to administering the supplements.[75] Dank has appealed the ten guilty verdicts against him.[76]

ASADA response/WADA appeal

On 20 April, ASADA announced that it would not appeal the ruling of the AFL Anti-Doping Tribunal finding the 34 Essendon players not guilty. ASADA's decision then allowed the World Anti-Doping Agency (WADA) to initiate its own review. WADA was given three weeks from 20 April to decide whether or not to appeal the AFL Tribunal's decision,[41] and announced its intention to proceed with an appeal on 11 May, the final day of the window. The appeal will be a de novo hearing of the charges in the Court of Arbitration for Sport (CAS). The Essendon players are permitted to continue playing throughout the appeal process.[77] On June 2, WADA announced it was also appealing against the tribunal's not guilty decisions for each of the twenty-one charges on which Stephen Dank was cleared.[78]

CAS began to hear WADA's appeal of the AFL anti-doping tribunal's decision on 16 November 2015 in Sydney.[47] CAS's panel of arbitrators - English barrister Michael Beloff QC, Belgian-based barrister Romano Subiotto QC and Australian barrister James Spigelman QC.[49]

On 12 January 2016, CAS handed down a guilty verdict on the thirty-four Essendon players, overturning the not-guilty verdict, after finding it was comfortably satisfied that the players were injected with Thymosin beta-4.[50] It also determined that the players were "significantly at fault", not qualifying the players for any reduction in their penalty. The players handed two-year suspensions backdated to 31 March 2015 (the date of the original AFL Tribunal not guilty verdict), which, with credit taken for the periods of provisional suspension already served during the 2014/15 offseason, results in most of the suspensions running until November 2016;[51] as a result, all affected players were suspended from football for the entire 2016 season. The only two exceptions were Alwyn Davey and Leroy Jetta: they had served shorter provisional suspensions than the other players due to their participation in the Northern Territory Football League (which runs over the Australian summer), and were suspended until February 2017, which will see them miss the 2016 winter season and most of the 2016/17 NTFL season.[79] Under the terms of the ban, players are not permitted to play at any level, enter the club premises, or train under the direction of a club-devised program.[80] The CAS decision is final and there is no avenue of appeal for either party.[50] The thirty-four players suspended are listed in the below table, grouped by their current status.[81]

Status Number Players
Still at Essendon 12 Tom Bellchambers, Travis Colyer, Dyson Heppell, Michael Hibberd, Heath Hocking, Cale Hooker, Ben Howlett, Michael Hurley, David Myers, Brent Stanton, Tayte Pears, Jobe Watson
At other AFL clubs 5 Jake Carlisle (St Kilda), Stewart Crameri (Western Bulldogs), Jake Melksham (Melbourne), Angus Monfries (Port Adelaide), Paddy Ryder (Port Adelaide)
Still active at lower levels 12 Alex Browne, Luke Davis, Cory Dell'Olio, Ricky Dyson, Scott Gumbleton, Kyle Hardingham, Leroy Jetta, Brendan Lee, Brent Prismall, Ariel Steinberg, Henry Slattery
Retired from playing 5 Dustin Fletcher, David Hille, Sam Lonergan, Nathan Lovett-Murray, Mark McVeigh

Other consequences

Following adverse findings of the program, WorkSafe Victoria performed an investigation, and in November 2015 charged Essendon with two breaches of the state's Occupational Health and Safety Act for failing to provide the players with a workplace free of health risks. The club was fined $305,000 for the breaches.[48]

See also

Notes

References

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