Sport AFL How the CAS verdict could cripple the Bombers for years
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How the CAS verdict could cripple the Bombers for years

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After three years, the much-vaunted ‘darkest day in Australia sport’ has finally arrived with the Bombers being given a knockout injection by the Swiss-based Court of Arbitration for Sport (CAS).

AFL CEO Gillon McLachlan stated that though this is a “sorry stain on our game, it will not define the Essendon Football Club”. McLachlan is wrong. This will absolutely define the club. The CAS ruling has the potential to decimate both the club and many good Bombers people.

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Last March, the AFL anti-doping tribunal cleared 34 past and present Bombers players of doping charges. The evidence against the players was not strong enough to ‘comfortably satisfy’ the tribunal that they had been administered the banned thymosin beta 4 (TB-4).

ASADA’s terrier-like boss, Ben McDevitt, thought ‘the tribunal got it wrong’ and persuaded WADA to appeal the decision.

Ben McDevitt
ASADA chief Ben McDevitt said players made a choice to participate in the injection program, didn’t ask questions and then hid it. Photo: AAP

The CAS verdict has personally vindicated McDevitt and strengthened ASADA’s hand. As McDevitt said on Tuesday, ASADA was obliged to pursue the case. He felt the AFL tribunal had set the bar too low on what constitutes ‘comfortable satisfaction’.

In a swipe at the AFL’s process, McDevitt declared that CAS’s decision was based on the same evidence presented to the AFL tribunal in early 2015.

His statement baffled Essendon chairman Lindsay Tanner, who justifiably questioned how two hearings could arrive at such different decisions based on the same evidence. But the answer is simple. The CAS raised the bar on ‘comfortable satisfaction’ and the Bombers failed to clear it.

Given backdated penalties, the players will miss the 2016 season. Their suspensions will have an immediate impact on the club’s playing stocks. The Bombers weren’t much chop last year. They’ll be even worse this season.

The club has lost a dozen players, including captain Jobe Watson, vice-captain Dyson Heppell, stalwart Brett Stanton and the consistent Cale Hooker, Michael Hurley and Michael Hibberd. The club will get 10 ‘top-up’ players – AFL spin for discards.

John Worsfold
New coach John Worsfold faces a tricky 2016 without some of his best players. Photo: Getty

Coach John Worsfold’s side seems destined for a prolonged spell in the AFL cellar. With the likelihood that some players may take the Paddy Ryder option and walk away from the club, the Bombers may well face a decade-long rebuild of their playing stock.

The fallout goes well beyond the Tullamarine Hangar. The Saints lose Jake Carlisle and the Bulldogs Stewart Crameri. Melbourne will be without new pick-up Jake Melksham, but it’s Port Adelaide that will wear the biggest hit with Ryder and Angus Monfries sitting out the season. The AFL has ruled that these clubs can get replacements from their rookie lists. Given the quality of the suspended players, this is hardly adequate compensation.

But this is just the tip of the iceberg. The AFL Commission will decide whether to strip Jobe Watson of the 2012 Brownlow Medal at its February meeting. Watson will be invited to present his case.

This will be the real tragedy of this whole sorry saga. Watson is one of the most impressive people in football. He should just hand back the medal with dignity, and who could blame him if he turns his back on the game. In the last few years it has done him few favours.

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Possible legal action … Bombers captain Jobe Watson (C) flanked by his team-mates. Photo: Getty

Who could forget his press conference in March last year when the AFL tribunal cleared the players of any wrongdoing? He pointed the finger squarely at the club.

“We should not have been put in such a position,” Watson declared. When pushed for details on the supplements regime he added: “When you go to an employer and they can’t tell you exactly what went on that’s concerning.”

These words may come back to haunt Essendon. The ‘34’ have a legal case against the club if they choose. As former skipper Mathew Lloyd stated: “Players have lost their careers, lost their livelihoods, the stress on the families [and] themselves.”

Lloyd neglected to mention the club had breached its duty of care to the players.

Concerned about the health effects, former Bombers rookie Hal Hunter has already lodged a statement of claim against the club and the AFL in the Victorian Supreme Court. Hunter was not one of the ‘Essendon 34’, but he was injected by sports scientist Stephen Dank. Among the documents requested by his legal team were those relating to the administration of TB-4 to the Essendon staff.

As Hunter’s lawyer Jim Constantinou noted in his affidavit: “This program exposed players … to significant risks to their health, safety and general wellbeing, as well as the risk of using prohibited substances.”

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Chairman Lindsay Tanner (R) and CEO Xavier Campbell said they were shocked and mystified by the decision. Photo: Getty

The CAS decision supports Hunter’s case. As the CAS found, in all probability the players were administered TB-4.

If the players take the matter to court, it will further stretch Essendon’s finances. Over the past decade the club has invested heavily in the new Tullamarine training facility. The club has also been hit with a $2 million fine from the AFL over governance related to the supplements saga. It now faces a hefty fine under the Occupational Health and Safety Act for failing to provide a safe workplace for the players. Worksafe Victoria has requested the Bombers be hit with a maximum $610,000 penalty.

The club has retained its sponsors and has 60,000 members on the books, but it’s becoming damaged goods in the sports marketplace. Last year it posted a $1.3 million loss due to “a combination of abnormal costs associated with the ASADA/WADA issue and the impact of a disappointing season on the field”.

With the possibility of legal action from disgruntled players, and its poor playing list, these ‘abnormal costs’ could become the norm over the next few years.

At his press conference, Players Association president Paul Marsh signalled the need for the club to compensate the 34 players. Already the players have been billed 75 per cent of the CAS arbitration’s costs. With the AFL, they also have to contribute 30,000 Swiss francs to cover WADA’s costs.

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AFL Players’ Association CEO Paul Marsh. Photo: Getty

As Marsh warned: “You can take this down a long-winded legal path or you can look to settle this with the club.” If the former eventuates, the Bombers may have to re-mortgage their Tullamarine Hangar. Although Tanner claimed yesterday that the losses could be mitigated by insurance.

One thing is certain: The AFL, clubs and the Players Association will reconsider their relationship with ASADA and WADA.

McLachlan, Marsh and Tanner all expressed their displeasure at the unsuitability of the current structure for dealing with doping issues in team sports.

At some future point the AFL will remove itself from WADA’s code and adopt a less arbitrary and more conciliatory approach to doping offences. As player labour rights supremo Brendan Schwab noted on Radio National, the CAS and WADA are controlled by international sporting organisations with little grasp of nationally-based team sports.

WADA and CAS’s rulings fail to recognise that the Essendon players are employees “and [therefore] under substantial control from their employer”, according to Schwab. He suggests doping offences be dealt with through a ‘collective bargaining’ approach, where players work with their employers and the ruling body to address problems.

Tuesday’s verdict may be the first step towards implementing this approach. If so, it will be achieved over the corpses of a once great club and 34 unfairly maligned players.

Tom Heenan teaches sport studies at Monash University and does not support Essendon.

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