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.

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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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Peter Fray
Peter Fray
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