This is a guest post by Bruce Francis, Australian test cricketer and business consultant. This piece is in the form of an open letter in response to an article by sports lawyer Paul Czarnota in the Herald Sun yesterday.

Bob Gosford is a  one-eyed Collingwood supporter.

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Dear Mr Czarnota,

RE: Your article on how the AFL can prove charges against Essendon (Herald Sun 20 August 2013)

Your case is predicated on a reasonable person finding that James Hird, Mark Thompson, Danny Corcoran and Dr Bruce Reid engaged in conduct which was unbecoming or likely to prejudice the interest or reputation of the AFL or bring the game of football into disrepute.”
Disappointingly, you didn’t put the case for the defendant and obviously are also relying upon the four Essendon officials having poor legal representation.
As a reasonable person, with no legal qualifications, I have dissected your case by introducing arguments for the defence as follows:

Item 1:Overall, the rules fail to conclusively define what conduct (aside from criminal conduct) will violate the disrepute clause.

My Comment:

Agreed, which is why the charges should be thrown out. The charges do not define what conduct will violate the disrepute clause let alone attempt to quantify the damage or likely damage to the AFL. Consequently, it is impossible for the four officials to defend themselves against such charges. Accordingly, the charges should be thrown out.

Item 2:Ordinary principles of contract interpretation apply in determining whether the “charges” are proven. This involves ascertaining the meaning of the contractual words (”bringing the game of football into disrepute”) as understood by a reasonable person, having regard to relevant background information, including the commercial context and the sporting market. The AFL is increasingly a big commercial machine and any unsavoury behaviour which could jeopardise its profitability or success is frowned upon.”

My Comment:

1. As explained above, the meaning of “bringing the game into disrepute” should have been spelt out in the charge sheet. As it was not, there is no case to answer.

2. There are no suggestions of “unsavoury behaviour”. My understanding is at this point in time ASADA didn’t find any reason to issue infraction notices. The charges against the four officials are based on governance issues not “unsavoury behaviour”.

3. Surely, the AFL has to quantify its financial losses and prove long term damage to the standing of football in the community as a result of the flaws in governance at Essendon.

4. Before addressing flaws in Essendon’s procedures and governance, the AFL must ascertain whether flaws in its operating procedures and governance contributed to the governance problems at Essendon. Sadly, for the AFL, its flaws did contribute to Essendon’s governance problems. The AFL became aware in 2011 that Essendon was looking at a supplements program. If the AFL had acted responsibly then, and had good operating procedures, this saga would never have arisen. As I have said previously, Demetriou is an arsonist in a fireman’s uniform.

5. In April 2013, Demetriou said we have made “sweeping changes” to our anti-doping procedures. This means there were major flaws in the AFL’s governance. As Essendon’s anti-doping procedures are directly linked to the AFL’s procedures, the AFL’s governance flaws undoubtedly contributed to Essendon’s governance flaws.

6. I can’t believe that when Demetriou proudly announced to the Commission that we have made “sweeping changes” to our anti-doping regulations that not one of the Commissioners had the decency to say “could the flaws in our governance have contributed to Essendon’s governance problems”?

7. It would not surprise me if the AFL has already prepared its media release for the end of the season stating that crowds are up; more kids are playing the game; television ratings are up; and the gap in support for AFL and the other football codes has widened.

8. The AFL must not only treat every club equally but be seen to do so. It also can’t have one rule for the clubs and one rule for itself. Arguably, during the course of the season, many issues arise that trigger some people to question whether various individuals or clubs, or even the AFL itself, have damaged the image of the game. The AFL brought the game into disrepute by not informing the public that AOD-9604 was not a banned substance. I should also argue that the AFL doing a deal with Melbourne Football Club to avoid a finding of “tanking” brought the game into disrepute. Eddie McGuire’s comment about King Kong certainly generated a lot of negative publicity. Laying charges against Thompson, Corcoran and Reid after they were told they wouldn’t be charged if Hird accepted punishment, is also arguably bringing the game into disrepute.

Item 3: “Precisely what conduct will violate the disrepute clause has yet to be determined by a Victorian court.”

My Comment:

The reputations of the four Essendon officials are priceless. Essendon has an irrefutable obligation to take the matter to court to protect the reputations of these four officials. Additionally, such action would do a great service to players in every sport who are under constant threat from bully-boy officials, who deny them natural justice.

Item 4: “However, such charges will likely be determined according to whether the Commission is “comfortably satisfied” (a standard “below beyond reasonable doubt”) that the sport has been, or is likely to be, significantly lowered in the eyes of the general public (ie, they think “less or poorly” of the game).”

My Comment:

1. I don’t believe that the image of the sport has been, or likely to be, significantly lowered in the eyes of the general public (ie, they think “less or poorly” of the game) because of governance issues at Essendon.

2. I believe that in the short term people are more likely to think “less poorly” of the game because of the in-action of the AFL Commission, and because of the actions of the chief executive, Andrew Demetriou. Demetriou with-held information from the public about the status of AOD 9604 and in so doing has brought the game into disrepute and should be sacked. Jobe Watson was subjected to dreadful heckling from opposition supporters because of their belief he had taken a banned substance. Demetriou’s silence was the catalyst for this attack on Watson.

3. It was obvious from the start that the AFL had a conflict of interest and therefore should never have agreed to a joint investigation with ASADA.

4. Demetriou’s numerous inappropriate comments (eg “Essendon will not get a soft landing”) have damaged Hird’s reputation in the eyes of many, and have made it impossible for Essendon and the four officials to receive a fair hearing.

5. The AFL switched horses at the clock tower when it realised it couldn’t ‘win’ a ‘taking illegal drugs’ case. The ASADA-AFL investigation was set up to ascertain whether Essendon had breached any of ASADA’s anti-doping rules. When no such finding could be made the AFL decided to use the information gathered at its investigation for a different purpose. It decided to nail Essendon for flaws in its governance. Unfortunately for the AFL, the new horse had an overweight jockey, Andrew Demetriou, steering the way, with a huge amount of lead in his saddle bags. ASADA made recommendations outside its charter and deliberately withheld from the public information about the status of AOD-9604. Furthermore, Ziggy Switkowski’s report was used inappropriately. To compound his problem, Demetriou looked for a quick fix by taking a rails run only to find he was blocked by more thoughtful jockeys.

Item 5: “AFL general counsel Andrew Dillon has indicated no infraction notices for Anti-Doping Rule violations were being issued against Essendon players at this time.”

My Comment:

If the Australian Crime Commission couldn’t find sufficient evidence of anti- doping violations after 12 months, and if ASADA has come up empty handed after six months, it’s probably appropriate to drop the “at this time” tag.

Item 6: “Essendon has released its own statement confirming the charges laid, and stating all charges would be “vigorously defended”.”

My Comment:

Let’s hope Paul Little sticks to his word. Any deal that sacrifices Hird will not be acceptable.

Item 7: “Proving a breach of the disrepute clause can be problematic.”

My Comment:

That is one of many reasons why the AFL can’t win the case.

Item 8: “In swimmer Nick D’Arcy’s case, the Court of Arbitration for Sport paid due regard to the “voluminous number of media reports that have accompanied his misconduct” which it stated “could not help but be likely to bring him into disrepute”.”

My Comment:

1. You can’t be serious. The voluminous number of media reports has nothing to do with Hird or Essendon. To my knowledge, Jobe Watson is the only person from Essendon to discuss the case. And all he did was admit to taking a drug that wasn’t on the ASADA banned list. On the other-hand, Demetriou’s inappropriate comments have generated substantial media reports. And let’s not forget the leaking of information to the AFL cheer squad in the media has caused huge negative coverage.

2. The garbage spoken by former Sports Minister Kate Lundy and Justice Minister Jason Clare at the media conference on 7 February was responsible for much of the media reports that followed.

Item 9: “Similar evidence [to the Nick D’Arcy] case could be tendered by the AFL, as could the Switkowski report. Ziggy Switkowski considered there were various failings in Essendon’s governance systems, noting (among other things) the: “rapid diversification into exotic supplements, sharp increase in frequency of injections, the shift to treatment offsite in alternative medicine clinics, emergence of unfamiliar suppliers, marginalisation of traditional medical staff (which) combine to create a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented”.”

My Comment:

1. This is nonsense. The Nick D’Darcy case involved misconduct. As ASADA hasn’t issued any infraction notices against Essendon, the charges only concern governance issues not misconduct.

2. Switkowski was hired by Essendon in good faith to review and recommend changes to its operational procedures. Whether he was qualified to do so is a moot point. The fact that he found governance problems, which have been addressed by Essendon, should be in Essendon’s favour, and definitely should not be used against it or its four officials. The fact that Switkowski used buzz words as difficult to pronounce as his name holds no weight. The bottom line is he discovered Essendon had governance issues.

3. The AFL did exactly the same thing by stealth within its organisation. Someone conducted an investigation into the AFL’s operation procedures and anti-doping rules and found governance problems to the point, to quote Demetriou, we made “sweeping changes”. The only differences between Essendon and the AFL were: Essendon told the world Switkowski was conducting a review and the AFL kept its review a secret. Essendon released its findings and the AFL didn’t. Essendon acknowledged it had governance issues and the AFL swept its governance issues under the carpet. And because Demetriou and the Commission are answerable to no one, and has the media to scared to attack it, the AFL put Hird in the ‘dock’ to save face.

Item 10: “In response to Switkowski’s report, the AFLPA released a statement labelling the report “incredibly disturbing to read” and emphasising that: “No AFL Player should ever go to work in an environment which can be described as ‘pharmacologically experimental’ with potential exposure to ‘exotic compounds.”’

My Comment:

1. As ASADA hasn’t issued any infractions against the Essendon players the implication in these colourful words appears to be wrong.

2. The AFLPA has the same problems as the Australian Cricketers’ Association. While it relies on funds from the governing body it will always be seen as a branch office of the AFL.

3. I have no idea how AFLPA operates but in the first instance I should think it is supposed to represent the players involved in the dispute. In this instance, the Essendon players. When the AFLPA released its statement was it acting on instruction from the Essendon players?

4. Given the failure of ASADA to issue infraction notices it would appear that the only damage suffered by the Essendon players is the psychological and emotional hurt endured by inappropriate comments by Demetriou and the media, and perhaps by the AFLPA.

Item 11: “While welcoming news there were no infraction notices issued on any players, Essendon conceded that “the club and individuals have made mistakes and that our governance and people management had significant gaps”.”

My Comment:

1. I could find breaches of the Press Council’s code in just about every article written on this saga.

2. I can find significant breaches of operating procedures by Demetriou.

3. If the Commission hears this case it will be denying the Essendon officials natural justice.

4. Unless my sister has written the operational procedures, I suspect there would be gaps in every operating procedures in the country.

5. The AFL had individuals who made mistakes and its governance and people management had significant gaps.

6. You have only looked at the short-comings from an Essendon perspective. I am sure if you had looked at Law 101 you would have learnt that in your article you should have ascertained whether weaknesses and mistakes by the AFL would have weakened its chances of gaining a ‘conviction’.

Item 12: “Based on the above, it appears more likely than not the AFL Commission would find that (at the very least) Essendon has violated the disrepute clause.”

My Comment:

1. Thank heavens you are not advising Essendon.

2. You didn’t quantify how Essendon brought the game into disrepute.

3. You made a poor attempt to prosecute the case for the AFL but didn’t attempt to put the case for Essendon. It’s like giving a verdict straight after the prosecutor has delivered his/her opening address.

4. You didn’t even address the fairness of the AFL acting as prosecutor, jury and judge.

Item 13: “Assuming the Commission finds any charges proved, courts have been reluctant to interfere with decisions of sporting associations, particularly where the league’s rules provide a grievance procedure which affords natural justice (ie, a right to legal representation and a fair and unbiased adjudicator), and such rules have been exercised for a proper and “bona fide” purpose. Any litigation following the Commission’s decision will examine whether these legal rights have been afforded to Essendon & Co.”

My Comment:

1. I don’t understand how you can assume that the Commission, including Demetriou, can deliver a fair and unbiased adjudication. Demetriou deliberately withheld information which was the catalyst for attacks on Jobe Watson and Essendon Football Club.

2. The AFL will be acting as prosecutor, jury and judge.

3. As Hird’s testimony to ASADA resulted in Demetriou being reported by ASADA to the Australian Crime Commission, there is no way he can be objective when adjudicating on Hird. To ensure justice was seen to be done, the ACC should have tabled a report into its investigation into Demetriou.

4. The AFL has many conflicts of interest.

5. The Commission’s failure to discipline, censure or sack Demetriou because of his inappropriate comments over the last six months means it shouldn’t be hearing the charges against Hird.

6. The fact that the AFL Commission didn’t investigate AFL staff member, James Tonkin, defending Demetriou, and making public some of Hird’s testimony to ASADA, is further proof it shouldn’t hear the charges against Hird.

7. As the AFL’s governance flaws were partly responsible for Essendon’s governance flaws, the AFL Commission shouldn’t be hearing the charges against Hird.

8. The Commission’s failure to investigate the leaks from the AFL-ASADA is further reason why it should drop the charges or least set up a separate independent tribunal.

Bruce Francis

20 August 2013

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