Any hope that Essendon players would receive the same deal, or even better, than the month sanctions given to past and present Cronulla players evaporated on Friday when Justice John Middleton handed down his judgment in the Federal Court.
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Justice Middleton comprehensively dismissed an application by Essendon and coach James Hird that the joint AFL-ASADA investigation was unlawful, thereby endorsing the punitive action the AFL took against the club and Hird for governance breaches and approving ASADA's issuing of show cause notices to 34 past and present players.
The possibility of a six-month sanction, tendered by ASADA chief executive Ben McDevitt to the AFL, and withdrawn when Essendon and Hird took their Federal Court action – as exclusively reported by Fairfax Media on August 22 – is also likely to evaporate.
It is possible ASADA's proposed sanction could increase to 12 months. Had Essendon accepted the half-yearly bans in June, with backdating to reduce the amount of playing time lost, they would not be in the horrendous position the club and its officials and players now find themselves.
There are two reasons why Essendon players are likely to be treated more harshly than the 12 Sharks who accepted bans within 48 hours.
Firstly, Essendon has shown a gross lack of co-operation with ASADA by initiating court action. The anti-doping agency is not being vengeful in seeking heavier punishment. It recognises that WADA must approve all discounted sanctions that fall below the mandatory two years for use of prohibited substances. WADA views the level of co-operation in an investigation very seriously when approving lesser sentences.
Secondly, the Essendon program of peptide use was almost industrial in its scale, lasting for a year, with multiple injections off site and endorsed by the football department.
Cronulla's was ad hoc, experimental and involved two to three weeks of injections before it was stopped by the club doctor.
Hird's position is now untenable, particularly if his presence inspires Essendon players to take a class action against the club for the loss of contract earnings and damage to their careers. Hird's 12-month, AFL-imposed ban has expired, while Cronulla coach Shane Flanagan has still to convince the NRL he has completed his re-education process.
The Essendon players' show-cause notices will ultimately turn into infraction notices and they will be required to front an AFL tribunal. The AFL will be anxious that the 20 current Essendon players do not suffer season-long sentences, depriving the club of its top talent and rendering the club an easy beat. This could have consequences for its rich TV contract. However, the AFL tribunal has, historically, demonstrated its independence from code headquarters on doping matters.
The only mitigating factor for Essendon is that the possibility of 12-month bans for their players diminishes their attraction to other AFL clubs. It has been mooted that Essendon players could be free to leave the club under a new AFL rule that permits this if a club has demonstrated a lack of duty of care. But paying a suspended player for 12 months is not an enticement to any club.
Justice Middleton's definitive judgment sent a clear message that it would be futile for Essendon and Hird to appeal the matter to the full Federal Court.
This will have been a double blow to Essendon's lawyers who, the Herald has been told, were very confident of victory.
Friday's judgment will have pleased the Olympic movement.
The possibility of a year-long punishment for the 34 past and present Essendon players would placate Olympic athletes who have pointed to the two-year bans historically given to summer and winter Olympians, such as the sanction handed to a teenage female gymnast for ingesting a prohibited substance given to her by the team doctor.
It also sends a message to the Australian Olympic Committee that it is lawful for it to join with ASADA in any anti-doping investigation. The AOC has recently enhanced its coercive powers, forcing athletes to agree to divulge information in an anti-doping investigation, even if they self-incriminate. The AOC, therefore, will feel entitled to hand over any information, gained under these extreme powers, to ASADA.
Unresolved is the matter of five former Sharks players who were not given three-month backdated bans, including three to four matches, accepted by the other 12 on August 22.
All bar Paul Aiton, now playing with Leeds in the English Super League, have responded to their show-cause notices and await a response from the Anti-Doping Rule Violation Panel. The other players are Ben Pomeroy (Catalans), John Williams (Roosters assistant coach), Stuart Flanagan (Appin Dogs hooker in Group 6) and Colin Best (retired).
