The 4 Chapters of the Hird, Essendon, ASADA & WADA Proceedings
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The 4 Chapters of the Hird, Essendon and ASADA Proceedings Cassandra Heilbronn Senior Associate 10 September 2016 FILE NUMBER
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Transcript of The 4 Chapters of the Hird, Essendon, ASADA & WADA Proceedings
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The 4 Chapters of the Hird, Essendon and ASADA Proceedings
Cassandra HeilbronnSenior Associate
10 September 2016
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Overview
Background to the Hird decision
Establishing a joint investigation
Powers of the CEO of ASADA and AFL
Outcome on appeal
CAS decision (WADA appeal)
Costs Application – D&O Policy
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Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019
Statutory interpretation
Powers
Administrative Law
Whether power used for improper purpose
Judicial Review
Whether relief is discretionary
Privilege
Nature of privilege against self-incrimination
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The key players
Essendon Football Club – 34 players
James Hird – Senior Coach and ex player
AFL (not a party to the proceedings)
Chief Executive of ASADA
Minister for Sport
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Key legislation and documents
ASADA Act
NAD Scheme
The Player Rules
The AFL Code
Contracts of employment
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Background to the joint investigation
ACC – Project Aperio
“Organised Crime and Drugs in Sport”
ASADA and AFL met to discuss the report
AFL expressed desire to “share” and “cooperate” with ASADA
ASADA determined it would investigate – Operation Cobia
Discussions regarding a joint investigation
“we can use the AFL’s powers until we get our own powers”
ASADA commenced drafting a plan for the joint investigation
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Powers of the CEO of ASADA
No express power to conduct a joint investigation
Section 22 of ASADA Act
The CEO has the power to do all things convenient to be done in connection with his or her functions
Includes anything incidental to, or conducive to, the performance of the elaborated functions in s21 of the ASADA Act
Express power is required to compel the provision of information or the answering of questions
No express power
Ancillary power through s22 of ASADA Act
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Powers of AFL
Compel attendance at a recorded interview
Direct, under threat of AFL censure and sanction, that Essendon players and personnel answer every question asked of them
Abrogate or prevent the exercise of the common law right against self-incrimination by Essendon players and personnel
Provide information to the AFL in accordance with NAD Scheme
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Purpose of the joint investigation
Hird/Essendon said:
Take advantage of compulsory powers and obtain a benefit not available to ASADA
Findings:
ASADA – investigate possible anti-doping violations
AFL – to obtain information for the purpose of enforcing its own Player Rules
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Issues
No power to conduct a joint investigation, ie ASADA Act did not authorise such an investigation
Investigation was conducted for an improper purpose
Release of confidential information to the AFL
Facilitating the abrogation of common law right against self-incrimination
Notices issued to the 34 players were invalid as the evidence was unlawfully obtained
Relief – public policy
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Lawfulness of the joint investigation
Lawfulness of an investigation will depend on the characterisation of its purpose and the conduct and nature of that investigation
The desire to use or harness the AFL compulsory powers was a consideration relevant – was not purpose for conducting the investigation
Statutory function confers an implied power to do what is necessary for the performance of that function
Common law – it is not sufficient for the power to be desirable or convenient – the power must be necessary
No incidental power could be given if that power would violate common law rights, where that right is not already abrogated or curtailed
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Privilege – Hird & Essendon Players
Jus Commune – predates 1641
“an English invention intended to protect the indigenous adversarial criminal procedure against incursions of European inquisitorial procedure”
Abrogated through AFL employment contracts
No restrictions on claiming privilege for ASADA investigation
Legally represented
No reservation of rights
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Appeal (by Hird only)
Findings untouched
ASADA complied with the rule of law in establishing and conducting, in the manner and for the purposes it did, the investigation
Hird failed to show that the ASADA investigation in cooperation with the AFL was not authorised by the ASADA Act
The CEO did not unlawfully facilitate the abrogation of common law rights or exposure to penalty
No practical unfairness
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WADA Appeal – CAS decision
WADA appealed AFL’s Anti-Doping Tribunal decision
34 Essendon players found guilty of committing doping offences
Change by WADA to “strands in a cable” analysis, rather than ASADA’s “links in a chain”
“It could be argued that the proof of the substance was in the taking”
Appeal – October 2016
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Costs Application
Contract Interpretation
Essendon’s D&O Policy with Chubb
$691,989.97 (paid during trial of costs issue by an unknown third party)
Costs were reasonably incurred:
Reasonably based fear that reputation and income earning capacity would be affected
Positive legal advice as to prospects of success
Reasonable basis to believe that ASADA would not re-conduct the joint investigation if it was found to have obtained the information for the Show Cause Notices improperly
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Insuring Clause A
Cover for:
Loss which is not indemnified by Essendon, for
Executive Claim, for
Wrongful Act, including
A claim constituted by a written demand, or
Formal administrative, or
Formal regulatory proceeding
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Insuring Clause A Findings
The Interview Notice was not an Executive Claim
Wrongful Act definition requires that there by a written demand or formal proceeding
Not merely an inquiry which may lead to a demand or proceeding
The Interview Notice was not a demand or formal proceeding
ASADA never moved from investigating conduct to alleging Wrongful Act
The Interview Notice was not a formal administrative or regulatory proceeding
It was given as part of Formal Investigation
Not a formal proceeding of the kind required for an Executive Claim
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Insuring Clause C
Defence Costs
Account of attendance and/or provision of documents or information, by
Insured Person, at or to
any Formal Investigation
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Insuring Clause C Findings
Hird made 6 key submissions
Hird adopted a too wide interpretation of “on account of”
Ignores the importance of “attendance and provision requirements”
Court – “...there must be a causal link between the matter and the action...”
Attendance at the interview and/or production of phone; and
Decision to commence and maintain proceedings and appeal
Chubb made two key contentions – both rejected
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Insuring Clause C Findings
Hird – reputation and employment
Motive – fear of damage
Motive does not establish causal link
Hird did not adduce evidence to support that information he gave to ASADA contributed to any decision, or may have contributed to any decision regarding the Show Cause Notices
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Organisational Review
Statutory authorities can seek to collaborate with private organisations
Circumvent common law privilege of self-incrimination
Compel attendance, response and production
Before agreeing to a “joint investigation”:
Purpose of the authority
What power does the head of the authority (eg CEO, Ombudsman) have
Establish a purpose – separate to authority
Manner of co-operation – is it lawful
Could there be an allegation of improper purpose
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Director Perspective
Reservation of rights in any inquiry or with production of information
Reviewing D&O Policy
Endorsements and Exclusions
Notifying insurer
Advice on prospects before proceeding
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Player perspective
Consent forms
Knowledge of substance
Blanket denial won’t be accepted eg Sharapova
Involvement of ASADA and WADA
Sponsorship and industry impact
