Doping in court – a thriller.

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We try to make sense of a shambolic process that has played out in the media for all to see, but few to understand. With an appeal pending, we ask – who’s interested?

Part XXXVII of this thriller.

Coach of the Essendon Football club, James Hird, has lodged an appeal of the decisionof the Federal Court. The appeal to the Full Court of the Federal Court will take place on 10 November 2014 after an expedited hearing was granted.

Hird and his lawyers will argue that the joint investigation undertaken by the AFL and ASADA was ultra vires (unlawful). Given the landslide victory to ASADA in the first instance, it is wise that Hird has decided to limit his appeal to the legality of the joint investigation. 

Show cause.

In the initial hearing, the 34 Essendon players who received show cause notices were not parties to the hearing. The third party implications from a decision by Justice Middleton could have been profound on the players so it was important to keep their interests in mind. As a result, Justice Middleton addressed the players’ rights throughout the process through their legal representation, even though they were not parties to the litigation.

Club and coach part (legal) ways.

From the very beginning of this process, Hird and Essendon have clearly expressed that protecting the club and its players is of paramount importance. Given that Essendon has decided against appealing the Federal Court’s decision, that leaves only Hird. This new dynamic raises certain issues for the Court. Read on as this thriller continues to unfold.

In whose name?

The new thrilling dynamic that we see is that Essendon are no longer a party in the appeal. Both James Hird’s and Essendon’s role in this thriller have always been to fight to vindicate the players from anti doping violations. Now that Hird is pursuing an appeal on his own, the Court will need to consider what Hird is seeking and why. Is he still representing the players and their interests? How thrilling. How gripping.

(Dis)interested.

The Court may allow the players to be ‘heard’ in the appeal process as part of the cast and crew – just as they were in the recent Federal Court hearing. But, here’s the punch line, the cast and crew no longer speak with one voice. Given the recent developments from individual players seeking their own legal representation and reports that the players may not be supportive of Hird’s appeal2, the Court may view this as ‘James Hird’s’ appeal, rather than also taking into account the broader interests of the players. Now that’s thrilling.

1Essendon Football Club v Chief Executive Officer of the Australian Sports Anti- Doping Authority [2014] FCA 1019
2http://www.theage.com.au/afl/afl-news/essendon-crisis-leadership-group-tried-to-stop-james-hird-appealing-verdict-20141001-10ovw8.html#ixzz3EtFNOdc9