Justice for the 34 group asked to meet the EFC Board to discuss a proposal that they believe is in the club's interest and in the interest of all the members, particularly those members who feel very aggrieved. J34 also believe the proposal is in the long-term interests of the club.
The J34 proposal is published below. The EFC response will be published shortly:
"February 19 2020
Mr. Lindsay Tanner, President Essendon Football Club
Mr. Xavier Campbell, CEO Essendon Football Club
Dear Mr Tanner and Mr. Campbell
As we foreshadowed last year, we write to present a proposal to the club which we believe is in the club’s interest and interest of all members. Justice for the 34 is a passionate group of Essendon members who have been seeking an inquiry into the ethics and legality of the decision of the Court of Arbitration of Sport to suspend the players for the 2016 season. We will continue to pursue a Parliamentary inquiry into this matter. We will continue to advocate for justice. We understand the position of the club as we trust that the club will understand our position. We have always emphasised that we act independently of the club.
There are three proposals. The first two relate to athletes’ rights. During the Essendon saga, it was clear that the players were not afforded the rights of common law, in particular
(i) Their right not to self-incriminate.
(ii) Their right to confidentiality.
(iii) Their right to due process.
(iv) Their right of appeal to an Australian court.
(v) Their right not to be penalised more than once for the same infraction.
The right of appeal is enshrined in all jurisdictions. The basis for judicial review is an error in law. A higher court must determine whether a judgment in a lower court is consistent with common law. In Australia, the statutory basis for judicial review is that a verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or there is a wrong decision on any question of law; or on any ground there is a miscarriage of justice.
In the Essendon matter, there were two violations of appeal rights. First, by initiating a de novo action before the Court of Arbitration of Sport, the World Anti-Doping Authority (WADA) ignored a determination of the AFL Tribunal chaired by former County Court judge David Jones. They did not appeal the AFL Tribunal judgment as an error in law. Rather, they initiated a new trial of the same matter despite the WADA rules of 2012 stating that “an error in law or gross unreasonableness” were the only grounds for an appeal. That the WADA rules were changed in January 2015 allowed the de novo action. Secondly, the decision of the CAS meant the only right of appeal was to the Swiss Federal Court which became a non- appeal. It was at variance with all other jurisdictions in Australia where judicial review is assured.
Jack Rush said at the time “The ASADA/WADA involvement has been an unnecessary, uninvited, wasteful and inherently unfair process. It has taken the disciplinary process from the hands of the league and its independent tribunals to ultimately a foreign court imposing a different law and legal standards on the players. If the matter had been decided according to Australian law in an Australian court the decision would have been different.”
Justices Hayne (High Court), Finkelstein and Young (Federal Court) agreed.
Australia is bound by the International Covenant on Civil and Political Rights 1966 (ICCPR). Australia is required to take all necessary legislative and other measures to give effect to the rights in the Convention. All legal proceedings, however, whether criminal, civil or otherwise categorised, are subject to Article 14.1 of the Convention which states:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The rights of all persons also include the rights of athletes. Of particular concern is the proposed Australian Sports Anti-Doping Authority Amendment Bill 2019 accessed at https://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/7051418/upload_binary/70 51418.pdf . We are concerned with three provisions of the Bill. First the abolition of the Anti Doping Rule Violation Panel (ADRVP) and right to appeal to the Administrative Appeals Tribunal (AAT). Second, removal of the privilege against self-incrimination in disclosure notices. Third, the lowering of the burden of proof threshold for the chief executive officer of the Australian Sports Anti-Doping Authority (ASADA CEO) to issue a disclosure notice.
The CAS ruling showed how low the burden of proof could be in an anti-doping case. There were no positive samples, no witness testimony, no electronic evidence at the time of the infraction and no other analytical evidence. The judgement was based on evidence that was totally circumstantial. Most independent observers have concurred that the standard of proof was well below the balance of probability. In the Appendix to this letter, we remind you of five anomalies omitted from the CAS judgement. They have never been answered.
Our first proposal is that the club become active in supporting athletes’ rights. It is an opportunity to turn the negative into a positive. Our suggestion is for the club to coordinate a conference on athletes’ rights which involves all relevant parties; athletes, anti-doping agencies, legislators, academics, advocates and lawyers. Justice for the 34 has been able to organise two symposiums which involved athletes and athletes advocates across the world. We suggest the club with its resources should be able to organise a more comprehensive conference to represent the interests of all athletes. The club is in a unique position to do so.
The second proposal is for the club to appoint an ex officio member of the Board who is responsible for the rights of athletes within the club. We see this as necessary because of the evolving complexity of sports science, the rights and obligations of athletes and the regulatory framework. There needs to be a representative on the Board specifically to advise on all issues related to the rights of the players.
The third proposal relates to a pardon. In Australian law there is the Royal Prerogative of Mercy. It is the executive power to redress a miscarriage of justice, exercisable by the Governor-General. The power to grant pardons extends to offences under Commonwealth Law including the Australian Sports Anti-Doping Authority Act of 2006. Pardons are exercised in response to a petition, usually from a convicted person or someone acting on their behalf, and, by constitutional convention, on advice from a government minister. Under the Prerogative of Mercy, the Governor-General may grant a free and absolute pardon, a conditional pardon, a remission of penalty, or order a (non-judicial) inquiry into a conviction.
The proposal is for the club not to rule out the possibility of asking for a pardon for the players. Given the right of appeal to the High Court was closed, we ask the club leave open the option for a pardon. If at some point in the future the evidence of injustice is beyond reasonable doubt, we ask that the club commits to pursuing such a pardon. In so doing the club demonstrates they are committed to redressing the injustice we all know occurred.
In our email letter to you last year, we indicated that many supporters suffered greatly because of the Essendon saga. From the schoolyard to the workplace, they had to endure being labelled as cheats by friends, colleagues, and other supporters. That labelling will never end. On-field success will help but it would also help if the club take the opportunity to become an advocate for the rights of athletes in general. That would mean a lot to the supporters who feel aggrieved. That would mean that the pain was not in vain.
We look forward to your response.
Yours sincerely
Justice for the 34"
Justice for the 34 renews its call for an Independent inquiry into anti-doping with wide ranging terms of reference which allow all sporting bodies, all athletes, and all interested parties to make representations.
This is in the national interest, and it will help all athletes, not just the Essendon 34.
Please support our petition and an independent inquiry to sort this mess out.
More info at: https://www.facebook.com/justiceforthe34/