tip off
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Forget Hird and the Dons, is the AFL on the nose?

Is it the AFL rather than Essendon and coach James Hird that should be facing charges of bringing the game into disrepute?

Photo: The Daily Maggot

Right now there are no shortage of opinions about what should happen to AFL club Essendon and coach James Hird.

Some would have Hird swinging from the nearest light standard at the end of a rope Mussolini-style.

Others maintain Hird and his club have been grievously wronged and that all charges against them should be dismissed immediately and no further action taken.

The true situation – and end result – will inevitably lie somewhere between those two extremes.

What is without doubt is that the Australian Football League – and its CEO Andrew Demetriou – have handled the affair badly. One indication is the news overnight that there is the sniff of a compromise offer in the air.

In one of those silly video reports that seem to be the current and hopefully short-lived trend for serious media, the AFR’s hipster-in-residence Joe Aston reported that:

Melbourne’s top brass [read The Melbourne Club?] are tearing their hair out.

They want the boil lanced now, not damaging and protracted court hearings that will inevitably spill into next season.

I’m told that the favoured option being pushed by business leaders close to the sport is a no-fault plea bargain, modelled on the US Securities and Exchange Commission system dealing with insider trading.

This would see Hird admit only to hierarchical responsibility while being cleared of any direct wrongdoing. He’d cop a six-month ban, Essendon would be stripped of their premiership points and the club, their coach and the fans would start next season afresh.

Its been called the ‘elegant solution.’ If only they could get Hird’s buy-in. The signs of Hird’s cooperation so far are not good.

For mine I can’t see Hird and Essendon touching such an offer, however ‘elegant’, with a bargepole. Hird and Essendon stand a much better chance of being completely vindicated by pursuing the AFL through the Courts.

What has emerged in recent weeks is a closer focus on the conduct of the AFL throughout this matter – from the ‘blackest day’ farce in February through to recent statements and actions.

There is a widely held view that the AFL’s conduct of the Essendon/Hird affair has been confused and confusing, characterised by media leaks, apprehensions of bias and conflicts of interest. For comparison, look to the conduct of the National Rugby League’s conduct of the similar investigation into allegations against the Cronulla Sharks NRL team. No media call-outs, no running commentary, no “I-can’t-comment-on-that-but I will say … ”

In late July ‘Reidy’ over at the trickle ran the following under the header “Is the AFL bringing its own game into disrepute?” and, somewhat inelegantly, noted that:

The AFL doesn’t appear to respect its own investigation nor be concerned about the damage to the game by publishing unproven allegations that it must know further damage the image of the game.

The AFL CEO Andrew Demetriou says it will not give a running commentary on the ASADA investigation yet its own website does just that reporting on what Robinson said and Hird in reply.

There is no escaping media scrutiny however when the AFL itself actively participates it plays a dangerous hypocritical game. I wonder now with Paul Little at the helm if EFC will allow the AFL to cripple with the club with severe punishments given these circumstances. A prime example of the AFL’s own malfeasance.

When Andrew Demetriou said on 3AW back in April 2013 that James Hird would have to be considering standing down in response to a question Demetriou knew was coming, this was rightly understood to mean this is what Demetriou thinks should happen.

Demetriou could have batted it away with a no comment, but instead actually added that he has inside information about James Hird.

Demetriou knew the question on should Hird stand down was coming. As the AFL CEO he chose to answer it thus intensifying the pressure on Hird when the investigation was nowhere near complete.

Not long after Demetriou publically went quiet on his thoughts about James Hird. The timing was around James Hird’s ASADA interview that we now know included Hird’s statement that the AFL CEO Demetriou tipped off Essendon about the ACC report.

The AFL will not sanction itself for bringing the game into disrepute.

Over the weekend Bruce Francis – who played three cricket tests for  Australia in the 1970′s before taking up a a long career as a corporate advisor – took up the “AFL has bought footy into disrepute” theme in a thoughtful opinion piece.

Francis asks:

Is the AFL guilty of engaging in conduct unbecoming or likely to prejudice the interests of, or reputation of, the Australian Football League, or to have brought football into disrepute by agreeing to instigate a joint investigation with ASADA into the Essendon saga?

A very strong case can be made that there was a huge conflict of interest for the AFL when it agreed to the joint investigation with ASADA into Essendon Football Club, and as such, the AFL should never have agreed to it. As the investigation unfolded more and more conflicts arose and the AFL should have withdrawn from the investigation.

For Francis the AFL’s conflict of interest crystallised back in February this year.

As soon as AFL chief executive, Andrew Demetriou, spoke by phone to Essendon chairman, David Evans, at his home on 4 February 2013, there was a potential conflict of interest. The moment that Demetriou stated the Australian Crime Commission cleared him of any wrong doing with respect to the Evans phone call on 4 February 2013, there was a definite conflict of interest, and the AFL should have withdrawn from the joint investigation.

To compound the above conflict of interest, the leaking of information by AFL or ASADA officials further exacerbated the situation. First, it enabled the AFL cheer squad to write negative articles about Hird and Essendon before the investigation was completed. Such publicity wasn’t good for Hird or the AFL brand. Second, in failing to investigate the leaks, the AFL may have engaged in conduct unbecoming or likely to prejudice the interests of, or reputation of, the Australian Football League, or to bring the game of football into disrepute.

In my view, Demetriou has brought the game into disrepute by not fulfilling his responsibilities as chief executive of the AFL. At the very least, natural justice won’t be done to Hird et al if Demetriou sits on the Commission judging Essendon and Hird.

Francis leaves no doubt about his view of the appropriate course of action for the AFL and Demetriou. According to Francis, any charges against Hird, Esendon or the players should be heard by an independent tribunal consisting of three retired senior judges. Francis is scathing about the AFl’s conduct of these matters and leaves no doubt about what he believes Demetriou should do next:

As the AFL is the custodian of the game it has a far greater responsibility to have fool-proof procedures and impeccable governance than Essendon.

Demetriou should accept responsibility for the failure of his anti-doping code and follow the action of former Essendon chief executive, Ian Robson, and resign.

On Saturday Chip Le Grand in The Australian presented what is perhaps the best main-stream-media analysis of the whole AFL/ASADA brouhaha to date. In that piece he talked to Deakin University law lecturer and anti-doping law expert Martin Hardie who pointed out that the stakes are much higher than competition points, sporting careers and draft picks.

Where ASADA is meant to conduct its affairs with strict confidentiality, its investigation of Essendon has leaked like a faulty burette. As Hardie said: “Information is not being kept confidential. Whoever is leaking this, whether it is the AFL or the cops or ASADA, is subject to two years’ jail.”

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  • 1
    kim sawyer
    Posted August 19, 2013 at 12:50 pm | Permalink

    It is obvious to an independent observer that the AFL itself has brought the game into disrepute. Regrettably, however, no observer is independent. It appears everyone, from the football supporter to the administrator, has a conflict of interest. The charging of the four individuals is a classic abuse of power under the Kafkaesque rule 1.6. “Bringing the Game into Disrepute”. If it goes to a real court with real evidence, real process and real law, the AFL is likely to be held in great contempt. Unfortunately, that process is likely to be very costly. That is the dilemma for the Essendon Football Club.

  • 2
    the duke
    Posted August 19, 2013 at 1:03 pm | Permalink

    the AFL does most things right but I can’t help but think they have made a dogs breakfast out of this saga..

  • 3
    Davis Bernie
    Posted August 19, 2013 at 4:50 pm | Permalink

    The AFL has been here before. The long drawn out 800 page Melbourne FC tanking investigation was a sham. Seven months of leaks to selected media of hearsay evidence and bullying of witnesses, no hard evidence but the MFC was found to have not tanked but somehow to have brought the game into disrepute. Any damage done to the AFL brand from so called “tanking” was all self induced!!

  • 4
    Posted August 19, 2013 at 6:50 pm | Permalink

    Clearly a case for some independent judiciary. I’d suggest Geoff Eames, John Coldrey and Tony Howard.

  • 5
    Bob Gosford
    Posted August 19, 2013 at 7:03 pm | Permalink

    Rod, i forgot to ask wich team you supported – i figure you for a Pies man … but … .

    I like your suggestions for independent judiciary, though Geoff Eames may be tied up on Nauru for a while yet. I note that Bruce Francis has suggested Sir Laurence Street, Ian Callinan and Michael Kirby.

    Davis – there are several Court cases on “disrepute” and if I get the chance I’ll have a closer look at them soon. Thanks for your thoughts.

    The Duke’s ‘dogs breakfast’ analogy is a good one – I cannot help but conclude that a judicious sock in a certain mouth would’ve helped early on in this matter.

    And for Kim, I agree that a “a real court with real evidence, real process and real law” will present some real challenges for the AFL’s processes. We will wait & see i suppose. Monday too far away?

  • 6
    Posted August 19, 2013 at 7:47 pm | Permalink

    Moi? Pies? Nah! My daughters brought me up right! After I moved from Alice Springs its been Stendahl and Genovese all the way for me! Member for over a decade. http://ebooks.adelaide.edu.au/s/stendhal/red/

  • 7
    Posted August 19, 2013 at 8:00 pm | Permalink

    Anyone who can handle Nauru should be able to sort out the AFL in their sleep!

  • 8
    Posted August 19, 2013 at 8:22 pm | Permalink

    Mmm. Street was in the same Sydney retirement village as my father. I suspect they both blackballed Bronny B. . Swannies to the core. Callinan failed the test dismally on Yorta Yorta. Kirby, for all his virtues, is probably a member of the anti-football league! No justice for the #mightydons there!”

  • 9
    Bob Gosford
    Posted August 19, 2013 at 8:25 pm | Permalink

    I think Paul’s criteria were that they not be members of The Melbourne Club … see here: http://www.scribd.com/doc/161197527/Bruce-Francis-Bringing-the-Game-Into-Disrepute

  • 10
    mook schanker
    Posted August 19, 2013 at 9:21 pm | Permalink

    Sorry, comes across as a pretty biased read to me. I agree on the AFL handling it poorly but the pro EFC commentary is laid on a bit thick.

    AFL/ASADA leaking information? You may be right (though just mere speculation), but really, anyone else close to the investigation could be leaking, even including EFC.

    And I hope it doesn’t get an ‘elegant’ solution as the regular punters will see that as another nail in the ethics coffin. Probably also signal to the market to do whatever the hell they want with supplements in future…

  • 11
    mook schanker
    Posted August 19, 2013 at 9:45 pm | Permalink

    And mind you the article didn’t mention that Martin Hardie is advising both Cronulla and the Essendon Football Club.

  • 12
    Bob Gosford
    Posted August 19, 2013 at 9:46 pm | Permalink

    Your point being Mook?

  • 13
    Bob Gosford
    Posted August 19, 2013 at 9:48 pm | Permalink

    All – you may also be interested in having a read (it is long) of today’s judgement in the Anti-Doping Rule Violation Panel v XZTT matter in the Full Federal Court. The cyclist lost but there are some important lessons in this matter for ASADA and the government. http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0095

  • 14
    mook schanker
    Posted August 20, 2013 at 6:08 pm | Permalink

    My point is, as a journalistic piece using direct quotes it should also mention that the source has direct vested interest in the issue and thus readers can judge their claims accordingly and make their own minds up. Not that hard really…

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