Dr John Dee

Thanks for the heads-up on this one Jack. Smith has been a small voice of sanity throughout the whole saga and this piece continues in that tradition. I don’t have too many problems with the Cronulla players’ reductions (I would if this happens with the Essendon players given their club’s obstructive behaviour) because, as McDevitt is quoted as saying, they were probably duped. Yes, athletes have full responsibility etc but for an individual athlete the expected improvement of whatever drug s/he takes is to her/his individual performance and whatever prizes, awards, medals are available. The improvement to one or two or even a dozen team players won’t necessarily have the same direct relationship to premierships etc (a Brownlow or other personal award/benefit is a different issue, though, isn’t it Jobe?) So maybe the same suspension/expulsion rules don’t have to apply when a team is involved. But it's what needs to be done about the other side of McDevitt’s conclusion that the players were duped that really matters: what should happen to those who did the duping? Dank is one problem dealt with, but Cronulla itself? Like Essendon, they copped a whack earlier (more significant than Essendon’s, if I remember). But now that we (or at least ASADA) have something like proof of systematic doping by a football club, everything seems to have gone nice and quiet about the provisions for banning/suspending etc such organisations. This is where politics, money etc are starting to talk too loudly. I’m assuming that Little and his lot are arrogant enough to assume nothing else is going to be done about them and any action will be against the players only so that they (the dupers) can look like saviours to the duped the longer they hold off the imposition of any penalty with court cases, appeals and so on. That might explain the strange silence/unwillingness to act on the part of any Essendon players or former players. This one I just don’t understand. It’s as if they actually still believe in the people who (surely they know this) comprehensively betrayed their trust in the first place.

Copy the article title, paste into Google search and you should get a link that will provide the whole article. I did.

+1

And the Essendon players can only look on from the sidelines now and dream of what might have been. Maybe there'll be a few phone calls trying to contact the ASADA helpline this afternoon.

Not if it inserts a wedge between the players and Essendon. Skeletons might really start kicking at closet doors then. Edit: As Sir Paul has just said.

Exactly, Ron. While the AFL persists with its 'some clubs are more equal than others' version of equalisation we don't really have any choice. The disturbing thing is that we should somehow be expected to feel embarrassed about it.

Long story, Moonie, and nothing to do with those little wind-up things.

I bet you wouldn't be so begrudging if it was about the Green Bay Alpacas.

And thoroughly appreciated out here in the provinces. Disturbing information about Chip and Tottenham though.

I presume that the best interests of the community and sport generally in this country are served by being signed up to (and pursuing) the most rigorous anti-doping regime possible. Even Abbott (with his Oxford Blue) will probably be able to grasp this eventually if Little is able to apply some pressure to a sports minister who can't. Reading between the lines I'd think that the penny has finally dropped with someone in the Essendon legal team (don't think Little would have worked it out himself) that Reg 4.21, which they wanted to rely on, is a regulation, something issued by a minister of the crown to guide interpretation of legislation and something that can therefore be changed by a minister of the crown (aka a political mate). Is this an announcement that Essendon won't stop until they've corrupted Australian sport in its entirety?

I've got no doubt that players understand or are taught how the rumours/speculation/friend of the family stuff works. I've got no doubt either that a player is capable of saying to his sister: 'if anyone asks, tell them that ...' He's not lying to her, he's just giving her a script, and she's not lying to anyone else since she's just passing on the script. It's not a lie but it may not be the truth either. Of course if it was pillow talk maybe that might change the credibility ratio a bit ...

Is there another question that follows on from this, Redleg, namely: how does he know what is/will be in the players' minds at some future time? In other words, can he say anything about what the players will do without already having an expectation that they will all collude not to give legitimately requested evidence? How does that expectation arise?

Perhaps. But his insistence on reading court proceedings through a cricketing analogy (poorly handled in itself) tends to suggest he doesn't know much about the law. And if he's in court every day and if he totally ignores a judge's comment about the direction in which the evidence is tending on an issue he's not just ignorant of the law he's got a problem with apprehending reality. 'All lies and jests. Still, a man hears what he wants to hear and disregards the rest' (Paul Simon. It's not Shaksper, but ...)

A good question. I suspect that they might have been tempted to do exactly this but the 'it's a business' line is ultimately more compelling than defeating the AFL's slap over the wrists on governance. They've had to attack the whole investigation in the hope of 'saving' the players (not that they give a stuff about the players per se, so let's just call them EFC's investment) because the 'business' will be down the tubes, at least for several years, if players are rubbed out for significant periods of time (the idiocy of not negotiating on the 6 months deal will be their Banquo's ghost to keep up the literary references). What's bizarre is that they're now using the hearing about ASADA to find whatever mud they can to throw at the AFL ... or perhaps not so bizarre given the absence of anything of substance on the real issue. This Warner person, btw, sounds like the father of a kid who captained a team we used to have to play. The old man umpired every game. His son could only ever get out if bowled or caught with the other umpire at the stumps and invariably ended up with bowling figures of 8 or 9, sometimes 10 for 12. It worked well until about the under 14s, when things got serious. With Middleton in the white coat this particular game might just be a bit more serious than Warner is likely to comprehend.

(Only read this if you've got nothing better to do) That’s because Mr Leg and the whispering fellow are both lawyers with some grasp of how the law works and an understanding of how hearings like this function. Most of the media commentary you’re referring to is being uttered by Essendonians of one stripe or another who mistake the law (whatever it says, which they don’t know) and the Federal Court proceedings (whatever they mean, which they don’t know either) for their own wishful thinking. Have a look at the Social Litigator day 2 summary linked in an earlier post. Written by a lawyer who does understand what’s going on and does refer to and evaluate what actually took place, its scorecard tends towards the one Jack is compiling. Andruska seems to have played a few uncertain strokes yesterday, but the replay will no doubt show Middleton J that the ball didn’t take the edge, indeed probably didn’t even get near it. Certainly the sort of nonsense being put about that any problems in her evidence translate into an outright victory about to happen for the EFC/Jacques Le Tergivisant is just that: nonsense. The to-do that Essendon’s counsel attempted to invent about delegation shows just how little they understand about public administration, how it functions and its legal bases. The lawyers are largely just fishing around for something that looks like the sort of evidentiary slip that they can load up with the usual civil or criminal court case rhetoric that they know how to exploit. So far there’s only two things that might offer minor fissures for that kind of exploitation. One is the matter that Andruska didn’t seem to handle all that well about providing the information to the AFL that allowed the interim report and the sanctions against Essendon/Hird (definitely separate bodies now). The interim report doesn’t seem to be a ‘purpose’ that ASADA was contemplating within the terms of the regulation but also seemed to know about. Because of Andruska’s answers this is all a bit muddy, but assuming reg. 4.21 was violated Middleton J will still have to work out what the implications are for the processes of the investigation, which were presumably considerably wider, more detailed and involved than anything that took place around the AFL’s interim report. If EFC think that an appropriate remedy for this is the invalidation of ASADA’s investigation in toto (including everything gathered in the last year or so when Essendon has been clamouring for a hasty conclusion), tell ’em they’re dreaming. The other, more interesting and probably more important issue that Andruska’s evidence doesn’t seem to have swatted to the boundary is in the proposition that ASADA wanted a joint investigation with the AFL to take advantage of the AFL’s power to compel evidence from players who could otherwise have hidden behind the self-incrimination provisions of the ASADA Act. Given that the players, Hird, the EFC and everyone else with a vested interest in doing so has proclaimed that everything injected was ‘safe and legal’ or ‘we don’t actually know what it was but it was safe anyway’, it’s hard to see how any answers players might have given to ASADA could have been anticipated to be incriminating (Hird has advanced something like this in his line about accepting an ASADA investigation because he knew they wouldn't find anything). Presumably then they would have answered everything fully and frankly and without fear. One problem for Essendon’s/Hird’s lawyers is that they seem to think that their waving regulation 4.21 around the courtroom is somehow enough to smuggle this question about compulsion into the proceedings. But that regulation only covers information that ASADA provides to others, not information that others provide to ASADA. How could it do otherwise? Only ASADA is bound by the ASADA Act (unsurprisingly) but the efforts to get at the AFL through these proceedings might suggest that Little and his lot don’t quite understand this. And given all the fulminating about the AFL from Hird on the stand, I wonder whether the Appellants have made a serious error of judgement about what court they should really have been applying to. But compulsion is actually an important question and it seems to me to be the only one that has any potential legs, although it’s going to be up to Middleton J to work out how it’s covered by the ASADA Act and where a judgement on it should go since he’s received precious little guidance from the Appellants’ counsel about the legal questions involved. That’s assuming he gives their interpretation any credence anyway. I presume ASADA will have its own turn on both events and interpretations of the law to offer later on. Whether they raise it or not something that interests me is that the ASADA Act entitles a sportsperson to waive the right not to answer where self-incrimination might be involved. I don’t know what players’ contracts with the AFL look like, but if they contain some sort of clause compelling the player to provide evidence and answers in relation to any issue involving doping, that might have consequences for dealings that the player has with ASADA. This is probably one of those slippery slopes that lawyers don’t like, but it points to a really important question about what the AFL can and can’t do with the evidence it gathers. Anyone who thinks that, if there’d been no joint investigation, the AFL wouldn’t have conducted its own concurrent inquiry into doping has forgotten all too quickly about Vlad and his paranoias, especially the one about the game’s repute. As a participant in the NAD Scheme, the AFL would presumably have then felt obligated to pass on to ASADA any information the redoubtable Clothier gained about doping at Essendon, whether provided to him under compulsion or not. Of course, according to the sort of argument that Essendon’s/Hird’s learned counsel want the court to swallow, ASADA would presumably have had to look at various bits of incriminating evidence and say no more than ‘isn’t that interesting?’ before putting it in the bottom drawer. But there are other ways to read ASADA’s obligations that make much more sense. I toss in the name Clothier because he’s the one figure in all this who worries me. According to reports about the tanking-that-wasn’t investigation he spent his time throwing around some pretty heavy-handed threats about life bans, loss of employment and so on … and there was also the issue of strategic leaks that some thought could be traced to the investigators’ office. If Clothier has been behaving like the same sort of cowboy (although he does seem to have been a bit more circumspect according to Andruska’s notes) it doesn’t surprise me that Essendon/Hird/the players have an axe to grind about the investigation. But it’s the wrong axe. Besides, proceedings in the Supreme Court of Victoria would have been much more entertaining, especially if they’d forced Vlad into the witness box. They’d also have been much less damaging to the standing of Australian sport, Australian Football in particular (that’s the game we invented and that pretenders like Essendon can only ever borrow). Essendon want to think their business is under threat. Apart from the fact that this is a problem of their own making, it’s nothing beside what might happen to the game itself if they get their way. Oh, and a bit more Shaksper: ‘Who steals my purse steals trash … but he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed.’ (Othello)

I think he has asked it, Dazzle, and inevitably he's found Demonland to be wanting so it's up to him to reform us all. And, as BBO says, tiresome.

The thing is, BM, that the Federal Court is basically a court of review. They tend to listen to anything the parties claim to be relevant, so rulings on admissibility, approipriateness and so on don’t crop up all that often. It’s only when the judgement is issued that you find out the relevance that the court attributes to hearsay evidence (nil, no doubt) or paranoid fantasies (nil, with even less doubt). I’m on restricted download speed atm because I’ve used up my monthly allowance (already pathetic, thanks Bigpond) updating various bits of software. So I can’t really keep up with how things are unfolding and I’m more or less relying on this thread for scraps of information. Essendon and Hird seem more obsessed with throwing mud at the AFL, when the case is supposedly about ASADA. No doubt this is because they haven’t got anything much in the way of a good legal argument and mud, especially about the AFL, serves their ‘court of public opinion’ appeal better than facts or evidence anyway. So far, all I’ve gathered about actual legal argument is a claim by EFC’s counsel that a joint AFL/ASADA investigation is ‘illegal’. This is a wonderful joke if it’s based on nothing more than Essendon’s earlier claims that a joint investigation isn’t permitted by the NAD Scheme regulation 4.21. That regulation is about ensuring ASADA guarantees the privacy of information it makes available to a body like the AFL (and the references to ASADA’s threat to the AFL to ensure this is a pretty good example of how they understand their obligations). A joint investigation isn’t ruled in by that regulation … but it isn’t ruled out either. As the ASADA submission, at least what I’ve read of it, indicates there are plenty of other provisions that can be appealed to for the authority to conduct any investigations in any manner that ASADA wants (the CEO has the power, according to the ASADA Act, to do whatever s/he regards as necessary … or to put it into the EFC’s stolen words ‘whatever it takes’). But the real measure of the joke is that they seem to be claiming that something that doesn’t follow a regulation isn’t ‘legal’. I can’t believe that Essendon’s conga-line of QCs and their advisors know collectively this little (so to speak) about administrative law. Perhaps it’s the price of hiring a bunch of lawyers with lots of experience and big reputations in all sorts of other jurisdictions. But a regulation isn’t the law, it’s something issued by a minister as a guideline for how the law is to be administered. It might be binding on the administrator, but it ain’t the law (which is spelled out, in this case, in the ASADA Act). If the Federal Court was in the habit of ruling on the admissibility of evidence/argument before or as a case proceeds I suspect that, if regulation 4.21 is all that Essendon has to go on (apart from a lot of quibbling about what is and isn’t shared, joint, co-operative or whatever else), then they’d be out the door already. Sorry for the long comment but this might be my only window for a while. ​PS I don't know who Warner is but since his cricket analogy as it's been summarised earlier seems to rely on both teams batting at once, apparently on different wickets, I hope his understanding of administrative law is a bit more coherent.

Both nasty and sticky?

I don't disagree too much, Old Dee, there's too many self-inflicted wounds to argue otherwise. But I think there's more factors than just administrative/management ones. Luck on the paddock and luck off it might just be worth thinking about. And when all the problems are added together like they are in the OP, they tell a sorry tale that also suggests that maybe, just maybe, administration hasn't been the only author of our misfortunes.

Sounds good, but it's also probably wrong. Ron's point (which I also agree with) was about the contribution of the way the club's been run. I'm not sure there's a corollary that says a properly run club confers on the team any particular relationship to "luck" or how it might be made. But you might also like to Google "The Numbers Game: Why Everything You Know About Football Is Wrong." It's about "football" rather than football, but if luck is statistically as important as skill in the round-ball game how much more important is it with a football that bounces every which way (leaving aside other sources of misfortune like umpires)?

Four more years he roamed the land till his legs was worn away. Then he bummed around from town to town: "Has a stranger passed this way? Vivian Stanshall (Bonzo Dog Doo Dah Band): "Bad Blood" Not sure that Essendumb have too many legs left to stand on either.

Actually, Maple, that's a dunnie. Dunny sounds entirely different.

You can say that again.

I'm more intrigued by Hardie's "ambition of becoming the archetype of life within communism." Can you register a Trabant in Victoria?

It used to be, until about 400 years ago. Nobody much has used it since then. And Chaucer didn't.