Full coverage of Justice John Middleton's decision on theage.com.au today, from 1PM
The AFL finds itself in an invidious position heading into Justice John Middleton's judgment day.
On one hand, the AFL will want the Australian Sports Anti-Doping Authority's investigation into Essendon's supplements program to be cleared or, at the very least, not overly hindered, so ASADA has the option of re-issuing show-cause notices.
Evidence given during the three-day trial last month, including that from former ASADA chief Aurora Andruska, highlighted the pressure the AFL put on the anti-doping body to have an interim report delivered in time for governance penalties to be issued against the Bombers before last year's finals.
At the time, close observers of the case felt the AFL was moving too quickly to rush to judgment. Events since show it was a silly move, for ASADA should have been allowed to have completed its business to its own time-frame.
This should also have been a time for expediency, not a time to try to control a major probe. If illegal drugs had been administered, the body set up to delve into this should have been allowed to do its job. Had that been allowed to occur, we would not be in the position we are now in.
However, if Hird and the Bombers get what they want from Middleton, the AFL may not be as disappointed as many would think.
For if Middleton rules the show-cause notices issued to 34 current and former players are invalid, ASADA may opt to close the case.
The anti-doping body has suggested it could re-issue these notices within 24 hours, but that time-frame would seem unlikely. If it wants more time to do so, the public and political fall-out from weeks or months of Essendon having to again play the waiting game could be too great.
The federal government could also be dragged in, for Essendon chairman Paul Little has said he would look for a "circuit-breaker" should Middleton deliver in the club's favour and issue a permanent injunction.
If ASADA is determined to proceed with re-issuing these notices, perhaps a deal of some kind is struck with the Bombers and the AFL for possible suspensions to be served over summer, although Essendon still maintains its players were not given the banned peptide, Thymosin beta 4.
If, for whatever reason, the show-cause notices are dropped, thus avoiding the spectre of subsequent infraction notices and suspensions, the AFL will have dodged a major bullet, for it is the league that will ultimately have to issue these notices.
Infractions would force the AFL to invoke what could be dubbed the "doomsday scenario". The AFL has not disclosed what it would do if the Bombers did not have enough players to field a side, even temporarily, next season. But whatever the plan, it wouldn't be a great look for the competition.
As one close observer lamented on Thursday, this court case was not set up to address what remains the key and, generally forgotten, issue - just what were the players administered under the peptides program run by former sports scientist Stephen Dank.
There is talk Dank could attend Friday's hearing. Many would wish he just took to the witness stand.
Decision time: Essendon and James Hird v the Australian Sports Anti-Doping Authority
Justice John Middleton to deliver his final orders
Federal Court
Friday, 1.30pm
Key questions for Justice John Middleton:
* Was the investigation ASADA and the AFL completed last year into Essendon's supplements program a joint operation, and therefore unlawful?
* Was the investigation conducted for an improper purpose, that being to charge the Bombers with governance failures, as opposed to an anti-doping probe? Where does this leave the interim report used to suspend James Hird and penalise fine the club?
* What, if any, of the evidence gathered - namely the player interviews conducted by ASADA - was collected unlawfully? For instance, should AFL investigators have sat in on the interviews with players and not given a right to silence under anti-doping legislation?
* If certain evidence is considered unlawful, does this mean the show-cause notices issued to 20 current Essendon players and 14 past players are voided, therefore leading to a permanent injunction?
** All parties have 21 days to appeal Justice Middleton's decision. This appeal would begin through the full Federal Court. Appeals could extend well into next season.
What it means if ASADA wins
A full win would mean it can proceed with its case against the 34 players, alleging each was administered the banned peptide, Thymosin beta-4. Players would have 14 days to respond to the show-cause notices, showing why they should not be placed on the Register of Findings over a possible violation. The Anti-Doping Rule Violation Panel, a body independent of ASADA, will view the brief of evidence and the players' responses. A player has 28 days to appeal to the Administrative Appeals Tribunal against the Register of Findings decision. However, if Justice Middleton rules some evidence is tainted, ASADA will have to decide whether to reissue show-cause notices and deal with the political fallout. It may also have to deal with an Essendon appeal.
What it means if Essendon wins
This will also depend on the relief granted by Justice Middleton. A full injunction could mean the case - and show-cause notices - go away, leaving the players to focus solely on the 2015 campaign. If part of the evidence is thrown out, the players will, at least, have temporary relief from the show-cause notices as ASADA will have to reissue these. ASADA, of course, could appeal the decision. The Bombers could also take the AFL to court over last year's sanctions - the $2 million fine, Hird's suspension and the loss of draft picks.
What's on the line for ...
James Hird
Plenty. During his evidence in court, the Essendon coach made it clear he was unhappy with how the investigation began - and was completed - from day one. If the ruling goes against him and Essendon, and players are eventually given infraction notices, it would be highly unlikely that he could remain in charge - particularly as he is the last remaining survivor of the "old guard". If he wins, he would hope the show-cause notices disappear.
The players
They would hope ASADA opts to abandon its case should the Bombers win, bringing closure and allowing them to concentrate on football. If the Bombers lose, the journey towards infraction notices will continue and they face a worrying festive season.
The AFL
Interesting one. There are conspiracy theories that head office would rather Essendon wins, opening the door to the show-cause notices being to be scrapped. This would mean it would avoid having to issue infraction notices to players, and season 2015 could go ahead without any fear of the "doomsday scenario". However, it if Hird and Essendon win, it could then face legal recriminations over last year's penalties. If ASADA wins, the AFL may have to ramp up alternate plans if the Bombers were to lose 20 current players and jeopardise season 2015. Regardless of the result, the AFL will never conduct a similar investigation with ASADA again.
What about ...
Stephen Dank
Could yet appear in court to hear Middleton's decision. If ASADA wins, the slow march to knowing what the Essendon players were administered under his sports science program continues. If Essendon and Hird win, and show-causes are eventually dropped, we may never know the truth in terms of what the players were given.
Dean Robinson
The Bombers' former fitness chief continues to pursue a $2 million case against the club for unfair dismissal. If ASADA wins, it may be harder for him to prove why he should not have been stood down on February 5 last year when the Bombers self-reported to the AFL and ASADA. If Essendon wins, his hopes of winning his case are likely strengthened, for he may argue he was needlessly stood down.
Key dates through the saga
2013
January 31: AFL chief Andrew Demetriou and deputy Gillon McLachlan are briefed by the Australian Crime Commission. McLachlan asks: "Is it Essendon?" The ACC's Paul Jevtovic replies: "Say no more." Demetriou is reported to have said of the briefing: "A lot not a surprise."
February 5: Essendon self-reports to ASADA and the AFL. James Hird does not agree with the decision. AFL integrity officer Brett Clothier✓ informs the Bombers it will be a joint investigation.
February 7: The ACC and the federal government hold their "blackest day" press conference.
February 9: ASADA chief Aurora Andruska informs Essendon chairman David Evans the anti-doping body would use the AFL's coercive powers. Of the drugs scandal, it was also noted that Prime Minister Julia Gillard "wants it to end".
May 6: The Switkowski report concludes the Bombers had run "a pharmacologically experimental environment".
May and June: Players interviewed by the AFL and ASADA, and reportedly not given the right to silence under anti-doping laws.
June 4: Glenys Beauchamp✓, deputy secretary, Department of Sport, informs ASADA lawyer Elen Perdikogiannis✓ that sports minister Kate Lundy✓ wanted an "outcome".
June 4: In another meeting on that day, involving McLachlan, Evans, deputy secretary of the department of prime minister and cabinet Richard Eccles✓, Andruska and ASADA officials, it is noted that McLachlan's preference is "to do it all at once. If it is going to push up in August, then maybe in October (b/c has to sell $1 million in tickets in finals).
June 5: ASADA investigator John Nolan is concerned that Andruska was working to the "political agendas of others".
June 24: Essendon captain Jobe Watson reveals on Fox Footy's On the Couch that he was given AOD-9604.
June 28: Evans quits amid speculation about his phone call with Demetriou on February 4.
July 31: Essendon lawyers express their displeasure about the release of the interim report.
August 2: The ASADA interim report is handed to Essendon.
August 13: Hird, football operations boss Danny Corcoran, club doctor Bruce Reid and assistant coach Mark Thompson are charged with conduct likely to bring the game into disrepute.
August 21: Hird launches Supreme Court action.
August 27: Hird is suspended for 12 months, the Bombers are banned from the finals, fined $2 million and stripped of draft picks.
September 18: Charges against Reid are dropped.
2014:
June 12: 34 current and former Essendon players are issued with show-cause notices, alleging they were administered the banned peptide, Thymosin beta-4.
June 13: Hird and Essendon launch Federal Court action against ASADA, claiming the investigation was unlawful.
August 11-13: The trial before Justice John Middleton is heard.
September 19: Justice Middleton delivers his final orders.
