SAY GOODNIGHT MR DEMETRIOU

Although I have tried to use simple English in my articles / dissections about the Essendon saga, it appears I have been talking to a brick wall. I have therefore written this piece in point form so members of the media can assess it point-bypoint and decide whether they have missed the important issues after eight months of one-sided reporting. From day one, the media focussed entirely on the salacious, head-line grabbing aspect the possibility that Essendon players were administered WADA prohibited or harmful substances. Such reporting after the first week was illogical and unprofessional, and in breach of the press council code because, barring illegal leaks by either the AFL or ASADA, no one would have known the result until ASADA released its report. There are five issues which should have been considered by the AFL and the media.

1.

The possible administering of WADA prohibited or harmful substances:

As the jury (ASADA) didnt issue a report until 2 August 2013, there was no reason why people should have assumed James Hird was guilty before then, nor speculated on his penalty. Much to their shame, most members of the media and the AFL believed Hird was guilty just because he asked about cutting-edge supplements. It was incomprehensible that AFL chief executive, Andrew Demetriou, thought that Hird should consider standing aside as senior coach before all the evidence was taken, let alone prior to a judgment being handed down. It was bewildering that Age journalist, Caroline Wilson, not only implied that Hird was guilty months before the report was tabled, but thought he was reprehensible for wanting to defend himself. She even had the prescience to guess the penalties, well before judgment was made. It was staggering that before all the evidence was collected by ASADA, Demetriou claimed that Essendon would not get a soft landing [because it was guilty]. It seems Demetriou, Wilson, Patrick Smith and the rest of the hit squad were all wrongly hung-up on Hirds interest in cutting-edge
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supplements. As the Australian Institute of Sport (AIS) has been boasting since 2000 about its cutting-edge supplements program, which enhances performance, and as every university with a sports science course brags about it being a cutting-edge program, it was unfair and hypocritical to attack Hird for showing interest in legal cutting-edge supplements. It is unfathomable that AFL General Counsel, Andrew Dillon, referred to cutting-edge supplements in his first charge sheet. A judge in normal proceedings would have laughed him out of court. vi. ASADA first contacted the Australian Crime Commission (ACC) on or about 21 November 2011, with the information which led to the Project Aperio investigation. It is reasonable to assume a meeting to discuss peptides held on 5 August 2011 between AFL integrity manager, Brett Clothier, ASADA and Essendons football operations manager, Paul Hamilton, senior coach, James Hird, and manager player development, Danny Corcoran, was the catalyst for ASADA contacting the ACC. Twenty-one months later, ASADA tabled its Interim Report, and as it stated that it could find no reason to issue infraction notices against Essendon, it seems most likely that Essendon will be cleared of administering WADA prohibited or harmful substances. Although ASADA couldnt find reason to issue infraction notices against Essendon players, Dillon, in the first of his four charge sheets, unbelievably charged Essendon [clause 1(o) (i)] with its players being administered prohibited substances. This unsupportable charge alone would have influenced many people to think very negatively about Hird, Mark Thompson and Danny Corcoran. ACC chief executive, John Lawler, said The Australian Crime Commission sought expert advice from the Australian Sports AntiDoping Authority (ASADA) at the time of developing the Organised Crime and Drugs in Sport report and was advised (correctly) [Lawlers emphasis] that AOD-9604 is not prohibited under schedule S2 of the WADA prohibited list. The Switkowski Report stated that the [Essendon] Football Department set a course of pushing to the legal limits, but clear (my emphasis) instructions were given to not cross the line and to stay within the WADA and ASADA codes. Following concerns about the program in January 2012, the Senior Coach reasserted the principles
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about the supplement program that any supplement must be WADA and ASADA compliant; it must not be harmful to players health; players must be properly informed about anything entering their bodies, and every product was to be cleared by the doctor.

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In his first charge sheet, Dillon lifted verbatim meaningless sentences from Switkowskis report.

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The AFL acknowledged in the Deed of Settlement that Hird did not set out to implement a supplements program that would result in players being administered WADA prohibited substances. In the light of this statement Id
love to know if David Koch, Jeff Kennett, Brian Cook, Peter Gordon, Trevor Nisbett et al have contacted James Hird and begged for forgiveness.

2.

Occupational, Health and Safety (OH&S):

Although a Melbourne lawyer friend of mine believes that Hird fulfilled his OH&S responsibilities under clause Section 25(1) (b) of the Victorian OH&S Act, I dont believe he did. Irrespective of whether I am right or wrong, there were about a dozen people at Essendon who were more responsible than Hird the eight board members; the chief executive; the human resources manager; the football manager; the financial controller; and the doctor. Essendon breached Sections 21(1) and 21(2) (e) and the AFL was equally as responsible as Essendon for OH&S breaches through two agreements. The first is the bi-lateral agreement between the AFL and Essendon, which allows Essendon to compete in the competition. The second agreement is the tripartite agreement between each player, the AFL and the Essendon club. If that were not enough, the AFL breached clause 2.3 of the Australian Sports Commission NSO Governance mandatory requirements, which states: An effective organisation must have a thorough system of audit and risk management, including internal and external processes. This
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committee must ensure there are adequate controls and systems in place to alert management and the Board to potential risks associated with the operation of the sport. The AFL made no attempt to either ascertain whether Essendon had adequate OH&S systems in place or whether it was complying with the law. iii. The AFL had the same legal responsibility as Essendon to ensure Essendon provided a safe work place. Essendon and the AFL failed to ensure Essendon provided a safe work place. The AFLs culpability was exacerbated by its failure to take the necessary action in August 2011 when it first heard Essendon was interested in supplements, and when it learnt it had employed sports scientist Stephan Dank. Amazingly, neither Demetriou nor deputy chief executive, Gillon McLachlan, contacted the Essendon CEO or chairman, let alone conducted a risk assessment to ascertain whether Essendon was complying with its OH&S responsibilities. And to highlight its negligence or apathy, the AFL didnt do anything in 2012 when it heard the Essendon doctor had been marginalised. Subsequently, McLachlan virtually accepted responsibility on behalf of the AFL for the whole saga when he stated on SEN Radio on 28 August 2013 that Im happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldnt be in this situation. The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011. The fact potentially though that we werent out there regularly monitoring is potentially a failing of the AFL. Demetriou also made similar admissions. Interestingly, ASADA informed the ACC on or about 21 November 2011, that there may be a breach of the anti-doping code. Its a shame the AFL wasnt as vigilant. On 7 February 2013, Demetriou said: Protecting the integrity of our competition has been a key priority for the AFL for several years. It is hard to reconcile this boastful claim with the AFL failing to investigate Essendon in August 2011, when it learnt about Essendons interest in supplements. Not to mention that Demetriou did nothing
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when Stephan Dank and Dean Robinson were employed by Essendon shortly afterwards in late 2011. And lets not forget that he did nothing when he became aware doctors were being marginalised. vii. viii. Hird was only a small cog in a big wheel. Hird wasnt given any OH&S training. He wasnt given an OH&S manual. He wasnt told what records he had to keep and no one at either Essendon or the AFL checked to see whether he was fulfilling his responsibilities and keeping the required records. In April 2013, Demetriou said We brought in some sweeping changes which have immediately been put in practice. We met with every club chairman, CEO, football operations manager and coach since then. Interestingly, Demetrious claim is not correct with respect to Essendon. No one informed Hird or his coaching team of those changes, let alone trained them. If Demetriou didnt visit Essendon, there is a good chance he didnt visit other clubs. It would be staggering if a number of clubs werent using supplements. It would be unbelievable if all those clubs had perfect OH&S procedures and compliance. Sweeping changes suggest that prior to April 2013, the AFLs antidoping code and OH&S protocols and procedures were inadequate, as were Essendons. The AFL must have conducted a review of its anti-doping code and operating procedures in order to have made sweeping changes to them. Unlike Essendon, who shared the Switkowski Report with the AFL and the public, the AFL did not share its findings with the public. OH&S laws are very complex and there is no way Hird would have known his obligations. I suspect none of the other coaches would know them either, and Id be amazed if there were even a readily accessible record of every pain killing injection given to every player. OH&S is so complex it appears even Ziggy Switkowski didnt know enough about it to even mention the OH&S Act in his report to Essendon. Then again, Switkowski unbelievably didnt even canvass the Essendon Boards OH&S responsibilities or the AFLs OH&S

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responsibilities, which I believe should have ensured his report was thrown in the bin.

3.

The Process
Hird was denied natural justice. The AFL participated as a joint partner collecting the evidence; the AFL issued the charges; the AFL insisted on conducting the trial after laying the charges; the AFL insisted on deciding guilt or innocence; and determining the penalties. It is beyond my comprehension that not one of commissioners Mike Fitzpatrick, Chris Langford, Sam Mostyn, Justice Linda Dessau AO, Christopher Lynch, Richard Goyder or Paul Bassat thought that justice would not be seen to be done if they sat in judgment of Essendon and the four other defendants, let alone allowed Demetriou to participate. However, it is reasonable to assume that deep down some of them actually thought it was wrong because the AFL threw in the towel and capitulated when Dr Reid insisted on the Supreme Court deciding whether it was right for the Commission to sit in judgment on him. Demetriou (alias Sergeant Schultz, I see nothing; I know nothing) is excused in this instance because he told Mike Sheahan in his interview on 27 September he didnt know why Dr Reids charges were dropped. In his interview with Mike Sheahan, Demetriou implied Essendon was guilty the moment he read [many months ago] the Bruce Reid letter complaining about being marginalised. Despite that, Demetriou claimed on a number of occasions he was entitled to sit on the Commission (jury) because he hadnt made up his mind about whether anyone was guilty. He cant be serious. It would be inconceivable that AFL chairman, Mike Fitzpatrick (and probably the rest of the commissioners) wasnt also aware of the contents of the letter so how he could he could think it was fair for him to sit on the jury is also bewildering It should never have been a joint investigation. The AFL had a conflict of interest because Demetriou and McLachlan implied that if AFL integrity officer, Brett Clothier, had done his job properly the whole saga would not have occurred. Yet, unbelievably, instead of Clothier being in the dock, he was appointed an investigator. What a joke. What a denial of justice to Essendon. In simple terms, Clothier trusted Essendon to comply with the Victorian OH&S laws and trusted Essendon football operations manager, Paul Hamilton et al, to comply
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with his unreasonable request on 5 August 2011 not to use supplements. Even McLachlan thought the AFL should have checked on Essendon monthly as a result of Hirds inquiry about supplements. If Hirds inquiry about supplements was not enough to spark Clothier out of his complacency, surely Essendon employing Dean Robinson a few days later as a high performance coach, and Stephan Dank a few weeks later as a sports scientist, should have rung the alarm bells. If Clothier had fulfilled his job of doing everything possible to protect the integrity of the competition, there would not have been a problem. As it transpires, Clothier gets off scot-free for trusting Essendon, and Hird has his reputation destroyed, and was prosecuted because he trusted Dank and Robinson to do their jobs properly, and follow his instructions. It doesnt seem right to me. iv. Participating in the joint investigation with ASADA also put the AFL in a position to leak if it so desired. Participating in the joint investigation also put the AFL in a position where it could steer the investigation away from itself. Demetriou, McLachlan and Clothier should have been in the dock to answer questions on their failure to do everything possible to protect the integrity of the competition. Furthermore, they should have been asked if they did everything possible to ensure Essendon fulfilled its OH&S responsibilities and was providing a safe work place. Unfathomably, there is no reference in the ASADA interim report to Bruce Reid being asked about his meeting with David Evans on Sunday 3 February nor what Evans said to him about Demetrious call to Evans on Monday 4 February 2013. If he werent asked he should have been. Additionally, Clothiers recollection of what was said at his meeting on 5 August 2011 was used to lay the first set of charges against Hird. Inexplicably, Clothiers recollection was never tested, presumably because he was an investigator. Once, Demetriou learnt that Hirds and Danny Corcorans understanding about his phone call to David Evans was different from his, he should have withdrawn the AFL from the joint investigation because of the conflict of interest. My reading of the ASADA Act suggests that the joint investigation was outside ASADAs charter and therefore may have been illegal. The AFLs participation was a weasels way of enabling ASADA to acquire information the law says it wasnt entitled to. This was a reprehensible action by the AFL. Sadly, the AFLs involvement also
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allowed it to obtain information it wasnt entitled to. That is, until there was an actual doping assertion by ASADA and then it used this information for an improper purpose bringing the game into disrepute charge. viii. ASADAs Interim Report, which was produced in haste under extreme pressure from the AFL, was a joke and undoubtedly in breach of its charter. ASADAs role is to determine whether it has sufficient evidence to issue infraction notices for the taking of illegal substances. ASADA found no such evidence existed. That information could have been communicated to the AFL in one page. Instead, the ASADA Interim Report was over 400 pages and covered issues outside its charter. The AFL used this material to lay many of its vexatious charges against Essendon and the other four defendants. Demetriou wont speak to Herald Sun journalist Mark Robinson because Robinson quoted Hirds and Danny Corcorans testimony about the Demetriou / Evans phone call. It is therefore reasonable to assume Demetriou thinks less of Hird than Robinson. In insisting he sat on the jury, Demetriou was polluting the process and denying Hird natural justice. No one disputes that Caroline Wilson, Patrick Smith and Roy Masters were wearing gum boots and rain coats because there were more leaks than you would get at the G during the Boxing Day Test. These leaks could only have come from ASADA or the AFL. There is no doubt the leaks tainted the process. The AFL laid at least four different sets of charges. The first set, which covered over 30 pages was made public and created an incredibly bad image of the defendants. Subsequently, three further sets of charges were laid each following set of charges being reduced in number from the previous set. The AFL did not release any of the amended charges to the public, which meant the public didnt know which charges had been dropped. This was reprehensible behaviour by Demetriou and Dillon. The AFLs decision to summon the presidents / chairman of the 18 clubs to a meeting a few days before the defendants were scheduled to meet the AFL was inappropriate and was obviously designed for PR and propaganda purposes. First, the presidents didnt need to know the AFLs position at that stage. Second, insufficient time was devoted to the meeting for the AFL to go through the case let alone provide
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sufficient time for them to grasp the details. The fact that the presidents, through Bulldogs president, Peter Gordon, released a statement supporting the AFL is a sad indictment on their sense of fair play. xiii. The process was poisoned by ASADA not including all the evidence in its interim report. One of the key issues was whether the players took a banned substance called Thymosin Beta 4 or a legal substance called Thymodulin. A spreadsheet and a photo of Dank injecting from a bottle clearly labelled Thymodulin was not included in the interim report. Similarly, Danny Corcorans evidence of what David Evans told him after the phone call from Andrew Demetriou on 5 February was also omitted from the report. Omitting the evidence about the spreadsheet and photo caused irreparable damage to Hirds, Thompsons and Corcorans reputations. Leaked information enabled the media to incorrectly suggest Essendon players took Thymosin Beta 4. This prompted Dr Stephan Brown to warn that Thymosin Beta 4 had been connected to cancer. This created much anguish at Essendon and could have been responsible for the hysterical phone call from an Essendon mother to Eddie McGuire. Demetrious comments over the seven month period contaminated the process. Ironically, in an interview he said: Again Im not going to answer that. ASADA have an investigation underway and it would be inappropriate. Inappropriate for me to say anything about anything. Unfortunately, Demetriou commented very regularly and polluted the process: I am shocked by the complexity of the substances, the potential injurious nature of these substances. This implies that Demetriou had decided that the substances were illegal and potentially injurious. ASADAs findings do not support Demetrious comment. Youd appreciate Ive got briefings that are more advanced than whats in the public domain. This gave credence to his implication that Hird and Essendon were guilty. You cant help but be disappointed, particularly as you find out more and understand more about what was going on. This implies Hird was guilty of wrong doing.
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Its not leaked. There is a witness statement. I think you could probably form a good guess who that is. I wont tell you who that is. You are smart enough. Demetriou should never have been told about a witness statement, particularly as it involved him. It was totally unacceptable that he talked publicly about the witness statement

4. i.

The Penalties
I have never known such harsh penalties imposed for breaches of OH&S laws. The penalties are grossly disproportionate to the offence. Since 2002, 269 people have died in work place accidents in Victoria. The average penalty was $170,000. No one died at Essendon. No one was injured at Essendon. The AFL thought so little of the threat to the safety of the players, it chose not to investigate Essendon in 2011 and 2012 despite the fact it was aware of doctors being marginalised and despite the fact that Dank and Robinson were employed by Essendon shortly after Hird asked about peptides. Yet Hird, a small cog in a big wheel, has been suspended for 12 months. If he earns the average coaches salary, that equates to at least a $500,000 fine. Add to that the cost of the irreparable damage to his reputation and health. And lets not forget that in the Essendon pecking order of responsibility, Hird comes in about thirteenth. If we throw in (although I think they should be thrown out) Demetriou and McLachlan, who in their own words said they probably could have prevented the whole saga, and lets not forget Brett Clothier and the Commissioners, all of whom were more liable than Hird, Hird wouldnt get in the top twenty if fault were apportioned properly. This whole sorry saga received unprecedented media coverage yet WorkSafe Victoria obviously thought so little of Essendons breaches of its responsibilities, it chose not to investigate Essendon. According to its written response to me, it was prepared to leave it to ASADA. But ASADA was only empowered to ascertain whether infraction notices should be issued, and not whether Essendon (and the AFL) provided a safe work place for the Essendon players. Basically, WorkSafe Victoria was saying there was no reason to investigate Essendon. I disagree with WorkSafe Victorias judgment but it does highlight how harsh the penalties were.
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iii. Its inexplicable to me that the AFL can impose such harsh penalties on Essendon when the AFL was equally responsible. Perhaps the AFL is concerned it failed to comply with the Australian Sports Commission NSO Governance mandatory requirements, and fears its government funding may be cut off if it fessed up to being as responsible for the OH&S breaches as Essendon. Its wrong, and its unfair that Essendon was penalised and Demetriou, McLachlan, Clothier and the Commissioners werent. The law is the law. There is no point anyone saying Hird should have known better about OH&S. But I will say, the Essendon Board and the AFL should have known better. The Australian Crime Commission made it very clear on 7 February 2013 that it expected strong penalties to be imposed and that was before the ASADA investigation had started. Its impossible not to conclude that the AFL had this statement in mind when it imposed such harsh penalties. In July 2013, WADA president, John Fahey, had the audacity to threaten to appeal any judgment his organisation believed was too light. Talk about finding someone guilty before ASADA had even collected the evidence. And his comment was obviously made to pressure the AFL to impose harsh penalties. According to Age journalist, Roy Masters, Australian Sports Commission (ASC) chairman, John Wylie was brought in by his business associate of twenty years, AFL chairman, Mike Fitzpatrick, to help negotiate the penalties with Essendon. Masters claimed that when it appeared that Hird would only be suspended for four months, Wylie was brought back in and Hird ended up with a 12 month suspension. As the ASC and ASADA all but sleep in the same bed, and as ASADA is not empowered to hand out penalties, it stinks that Wylie was involved. As reprehensible as this is, what is worse is Fitzpatrick doesnt give a rats about leaking. And that the presidents of the clubs dont appeared to be concerned that they are involved with a hill-billy organisation Masters wrote that Wylie insisted on the strong penalties because of the implications for Australias sporting reputation. What breaching the Victorian OH&S Act has got to do with Australias international sporting reputation is beyond me. This is further proof of the injustice done to Essendon, Hird, Thompson and Corcoran.
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5.

The Media:
Its hard to imagine that the media has ever caused more damage to its reputation than it did during this whole sorry saga. The Australian Crime Commission and ministers Kate Lundy and Jason Clare lit the fire with outrageous claims about Australian sport; Sergeant Schultz (Demetriou) poured on some petrol; and the media fanned the flames on an issue that judgment was never likely to be handed down for six months. The media was totally irresponsible for only focussing on whether banned drugs were taken, and continued to do so for six months. And after all that, no adverse findings have been made at this point. Recent polls suggest the media came in third last in the job respect totem pole just below the ladies of the night and just above politicians and used car salesmen. The next poll should see it drop a little further. Most people accept that 2013 was the worst year in AFL / VFL history. One assumes that this assessment was based on the quantity of negative media coverage and the severity of the penalties. The AFL kicked Essendon out of the finals and imposed the other harsh penalties. Hird had nothing to do with that. All he did was to fail to look at the writing on a bottle and failed to ensure someone did their job and recorded when and to whom an injection was given. The media only wrote about the drugs and as it transpires, at this point in time, no infraction notices have been issued. As a matter of interest, Id like to know to know if anyone has looked at the bottle used by their doctor to give them an injection. I havent. To my knowledge no one except the Australians Adam Shand and the Ages Samantha Lane has used the term OH&S in any article. No one has bothered to investigate where Hird fell in the OH&S responsibility order, let alone wrote about Essendon and the AFLs OH&S responsibilities. Last Friday (4 October) Adam Shand wrote a piece in the Australian newspaper claiming that Demetriou breached his legal obligations with respect to OH&S. No other paper ran with the same story after reading it in the Australian. No one ran with the story over the weekend. No one has run with the story since. Its incomprehensible that the Australian newspaper can run a page 3 story suggesting that the chief executive of the AFL may
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have failed to comply with his OH&S responsibilities, and no one followed up the story. If the Australian is correct, Demetriou should be sacked immediately and the Essendon penalties should be retracted. vii. No one even questioned whether Demetriou was entitled to sit on the jury to judge Hird. No one from the media questioned Fitzpatrick about his dismissive comments about leaks.

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I dont know James Hird. But I always thought he came across as one of the most impressive Australian sportsman, as a person, ever. It is a sad indictment on us as a country that someone who has given as much as Hird can be seen to be responsible for the worst season in AFL history, despite there being no evidence to support such a judgment. As we speak, Hirds only fault was he didnt fulfil his OH&S responsibilities responsibilities he wasnt told about, responsibilities for which he was given no training, and responsibilities which pale into insignificance in contrast to the AFLs and the Essendon Boards. Ironically, the AFLs despicable behaviour and smugness in releasing its outrageous first charge sheet of 34 pages to the public may be its undoing. That charge sheet contained many vexatious charges. Metaphorically speaking the charge sheet implied that no Essendon employee could break wind if he/she didnt have the permission of the AFL. By definition, that means the AFL has total control over Essendon, which means the AFL must accept responsibility for any OH&S failures. Nothing can be done about Essendon missing out on the finals but if the other penalties are not lifted it will be because the media is gutless and beholden to the AFL and the Essendon Board is incompetent or frightened of the other clubs. Time has proved successive governments and the media were wrong to sacrifice the rights of sexual assault victims to protect the churches. Time has proved it was wrong to sacrifice the safety and rights of women and children in aboriginal communities just to stop rednecks being given ammunition to support their shabby prejudices. Unless we are at war, individual rights must be protected at all costs. James Hird should not have been sacrificed to cover up AFL negligence or apathy, or to ingratiate itself to the government. Demetriou has made an extraordinary number of mistakes and should resign or be sacked. Standing by and doing nothing is the same as pulling the trigger. The
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AFL should acknowledge that its complacency was the catalyst for the whole saga. It should lift all penalties immediately. Bruce Francis 5 October 2013

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