Double jeopardy for Bombers

ASADA has tabled with AFL chief executive, Gillon McLachlan, a six-month sanction for Essendon players, on the condition they accept they took performance-enhancing substances in 2011-12.

If Essendon wait until the Federal Court's Justice John Middleton brings down his decision in the club's case that a joint AFL/ASADA investigation was unlawful, the offer will be withdrawn.

ASADA is willing to accept Essendon players were doped and duped and therefore qualify for a WADA "no significant fault" discount, taking the standard two-year ban for use of prohibited substances down to 12 months.

ASADA chief executive Ben McDevitt is also willing to apply the 75 per cent discount which applies to all athletes who concede guilt and whose evidence leads to a doping infraction being issued against another person. Essendon players co-operated with ASADA from the first days of the investigation, when the anti-doping body joined the AFL in order to take advantage of its coercive powers. However, the 75 per cent discount applies to the full sentence, meaning it is an 18-month concession on two years, not one year. That is, six months.

NRL players were effectively offered a three-month ban, with their year-long sanction backdated to November, 2013. Ironically, the AFL and its supporters in Canberra precipitated this. The ASADA Act allows for administrative delays in bringing a case to a conclusion to mitigate a sentence. The joint AFL/ASADA investigation, promoted by senior public servants in the government of Julia Gillard, shifted ASADA's already stretched resources away from Sydney to Melbourne, meaning the Cronulla investigation was effectively placed on hold.

The AFL, by bullying ASADA into producing evidence for an interim report to punish the club, coach James Hird and other Essendon staff, drew resources away from the NRL. The co-operation of WADA is mandatory for all discounted bans and McDevitt may have a difficult task convincing the Montreal-based world body to accept the proposed Essendon ban of six months

A level of co-operation with a national anti-doping body is necessary to sustain discounted sanctions. Essendon, by taking ASADA to the Federal Court, could be perceived to being unco-operative, while Cronulla's board ruled out legal action, irrespective of ASADA penalties. While Essendon players were not a party to the action taken by their club and Hird, they were represented by a leading Melbourne barrister, David Grace QC.

Furthermore, club president Paul Little, has persistently claimed Essendon players are not guilty of taking performance-enhancing substances and has aggravated ASADA by saying publicly it will not communicate with him. It is understood ASADA's initial reticence to meet Little was only prior to the issue of show cause notices to 34 past and present Essendon players, where he deemed it would be a conflict of interest.

All that is required under the ASADA Act, for the anti-doping body to issue an infraction notice, is to establish to its satisfaction that evidence of a doping breach took place. It is presumed in the case of Essendon it is the use of the banned thymosin drug.

ASADA has also requested McLachlan issue a life ban against sports scientist Stephen Dank, the architect of the supplements program at Essendon and Cronulla, although the anti-doping body accepts this is the only common link between the two football clubs.

The Essendon campaign extended over a full year, with multiple injections where, despite the magisterial authority of Hird, players could have been expected to ask after say the fifth needle what were the substances and why  was the operation conducted off site and requiring signed informed consent forms.

By contrast, the Cronulla drugs regime was brief and ad hoc, administered after the captain's run final training session, from a corporate box at the club's home ground, with supplements stored amateurishly in an esky. The Cronulla club doctor quickly banned all injections and the program quickly reverted to use of creams and lozenges.

It is anticipated a three-month ban of past and present Cronulla players, where only five (one who has already announced his retirement) remain at the club, will be more palatable to NRL clubs than if the same punishment was applied to Essendon, where more than 20 players remain. Rival AFL clubs will contend the damage done to the AFL brand is greater in Melbourne where the code takes on the status of a civic religion. Essendon, in line for a position in the 2014 semi finals, have major issues to confront in terms of the date a six-month ban begins.

This story Double jeopardy for Bombers first appeared on WA Today.