PROCESSED

Federal Court of Australia District Registry: Victoria DivisIon: General

1:':C::r' t': l":!d! r.(:il'ti '-1=' A\lstR"Al:.IA . {/ iC:r~?:!.; r:l~T '. T RE~IS=t ,.V i W, GEiVE.[) I FiLED I 30 JUN 201 1 ,

: .. ... . ~' ~ltI ................................... _ ....

: ,' . ,.;.;:': ,~ ;.':,:, .... ... ... .. ~ .................... -.. . l-.~.::, __ ..... ..

Essendon Footbali Club (ACN 004 286 373)

Applicant

No. VID 327 of 2014

The Chief Executive OIIlcer of the Australian Sports Anti-Doping Authority

Respond~nts

STATEMENT OF CLAIM

1. The Applicant is and was at all material times:

(a) a company capable of suing in its own name; (b) club licensed to field a team in the competition conducted by the by Ihe Australian

Football League (the AFL); (c) subject to the AFL Regulations, the AFL Player Rules and the AFL Anti-Doping

Code;

Particulars

Copies of the AFL Regulations, the AFL Player 'Rules and the AFL Anti-Doping Code may be inspected upon requesL

(d) the employer of players who participated In the Australian Rules Football competition in the 2012 season (EFC players), many of whom remain as players for the Applicant in the 2014 season; and

(e) the employer of other persons engaged in connection with the Applicanfs participation in the AFL (EFC personnel).

Particulars

The Applicant employed the EFC players pursuant to written contracts, a sample copy of which may be inspected upon request The EFC players included 34 individuals served on or about 12 June 2014 by the First

IN THE FEDERAL COURT OF AUSTRALIA (FCA) VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA GENERALDMSION No: VID32712014

NOTICE OF FILING

This document was filed electronically in the FEDERAL COURT OF AUSTRAUA (FCA)on 3010612014.

Document ~ed: Flle Number:

File Title:

District Registry:

DErAILS OF flUNG

Statement of C1aim- Fonn 17 - Rule 8.06(IXa) VlD327/2014 E;sendon Football Oub v The a.ief~culive Officer of the Australian Sports Anti-Doping Authority VICTORIA REGISTRY - FEDERAL COURT OF AUSTRAUA

Note

This Notice forms part of the document and contains information that might otherwise appear elsewhere in the document. The Notice must be included in the document served on each party to the proceeding.

Applicant with show cause" notices under Clause 4.07A(2) of Sch 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (the HAD Scheme). Of the 34 players to whom such notices have been issued, 20 remain players employed by the Applicant.

The EFC personnel include coaches, managers, administrators and medical staff.

2. The Responden!:

(a) was appointed under s 20D of the Australian Sp'orts Anti-Doping Authority Act 2006 (Cth) (the Act) as the Chief Executive OffIcer of the Australian Sports Anti-Doping Authority (ASADA~

(b) has the functions set out in s 21 of the Act, which functions include such functions as are conferred by the NAO Scheme;

(c) has the power, conferred by s 22 of the Act, to do all things "necessary or convenient to be done for or in connection with the perfonnance af his or her functions-;

(d) at all times was authorised under s 13(1) of the Act and clause 3.27(1) of the NAD Scheme to conduct investigations of possible anti-

Particulars

The AFL is and was a sporting administration body- for the purposes of s 4 of the Act.

(I) at all relevant times had, and has, the power under clause 4.07A(2) to (4) to issue a notice (knONn as a ~show cause~ notice) to the EFC players which notice must, inter alia, advise that the reciptent may make a submission within the response period-. which period may be detenmined by the Respondent; and

(g) issued show cause" notices on or about 12 June 2014 to 34 Individuals who were EFC playe", (the Notices).

3. ASADA:

(a) was established under s 20 of the Act; (b) consists of the Respondent and ASADA staff (s 20A of the Act); and (c) has the function of assisting the Respondent with the perfonmanca of his functions (s

20B of the Act).

Agreement to, and conduct of. a Joint Investigation

4. In about February 2013, but upon a date unknown to the Applicant, ASADA and the AFL entered into an agreement whereby ASADA and the AFL would conduct. each with the aid of the other, what both ASADA and the AFL thereafter described as a "joint investigation" (the Agreement).

Particulars

The Agreement is partly express and partly to be implied, To the best of the Applicant's knowledge, the Agreement was in writing and was amended in late February 2013. The original Agreement and documents recording revisions to It are in the possession of the Respondent.

The existence of, and aspects of. the Agreement \N'8re referred to by the CEO of the AFL. Gill McLachlan in an email In late March 2013, the content of which is reported in an article (a copy of which can be provided on request) by Mlchaei Warner in the Herald Sun on 18 June 2014, -lawyers for Essendon players ask ASAOA to provide evidence allowing them to response to show-cause notices; want extension to respond-.

The existence of the Agreement is also to be inferred from the subsequent actions of the Resporident, ASADA and the AFl.in proceeding la conduct the

3

Joint Investigation, as to which the Applicant refers to and repeats paragraphs 5 and 6 below and the particulars thereto,

5, Under and pursuant to the Agreement:

(a) ASNJA and the AFL agreed to: (i) use powers of compulsion available to the AFL under the AFL Player Rules

and AFL Anti-Doping Code in order to oompel.EFC players and EFC personnel to attend interviews and answer questions; and

(11) share Infonnation collected In the course of the investigation; and (b) ASADA and the AFL agreed to, and from February 2013 purported to, oonduct a

joint Investigation into the EFC, EFC players and EFC personnel in respect of allegations of anti-doping n,lIe violations under the Act (the Joint Investigation),

Particulars

(1) The existence and characteristics of the Joint Investigation were referred to in the "Interim Report" of ASADA dated on or about 2 August 2013 (and which may have been updated on 13 August 2013).

(2) Emalls were sent by ASNJA to those required to aHend for interview, which attached a document headed -Appendix S- In which sanctions available only to the AFL were set out AA example of such an emait was sent by John .Nolan of ASADA to the solicitor for James Hird (Senior Coach of the EssenOOn Football Club (the EFC on 1 0 April 2013 and may be inspected upon request.

(3) Statements to the effect that ASADA and the AFL were conducting a joint investigation were made on multiple occasions, including by Abraham Hadded (an employee of the AFL) to James Hird on 16 April 2013, in the presence of John Nolan and Aaron Walker, ASADA investigators.

(4) As to the steps taken constituting the Joint Investigation, the Applicant refers to and repeats paragraph 6 below, and the particulars thereto.

6. In the course of the Joint Investigation:

(a) AS~A provided the AFL with Immediate access 10 conftdential infonnalion provided by EFC players and EFC personnel at interviews by permitting AFL staff to attend. jointly conduct, and tape record those interviews; and

4

(b) ASADA provided the AFL with access to documents and records obtained by ASADA in the course of its investigation and permitted the AFL to use this information for purposes extraneous to ASAOA's investigation.

Interim Reoort

Particulars

(1) The means by which the AFL obtained information and documents (namely by the Joint Investigation) are detailed in the article published by Brell Clothier of the AFL In March 2014, In BJM Onlin. titled "A forensic perspective of the AFL investigation into peptides: an antldoping investigation case study", a copy of which may be inspected upon request.

(2) The AFL used the infonnatlon to bring disciplinarY proceedings against the Applicant and EFC persomel under ~s own rules that did not depend on the proof of any NAO Scheme violations.

7. In late July to August 2013, ASI>DA prepared a document ~called an "interim report" (the Interim Report), based on Infonnation obtained during the Joint Investigation. The Interim Report was provided to:

(a) the Applicant; (b) membe", of the AFL executive; (c) each and every member of the AFL Commission; and (d) other persons and entities, unknown to the Applicant, who were neither athletes nor

pe",ons otherwise pennltted by the Act and the Regulations to receive the infonnation contained in the Interim Report.

Particulars

(1) As to (a), the Interim Report was provided to the Applicant by ASADA in August 20t3.

(2) As to (b) and (c), the Interim Report (Including ve",lons pra-dating 2 August 2013) were provided to the AFL executive and members of the AFL Commission on dates known to the Respondent and ASADA.

(3) As to (d): The Interim Report was provided on dates unknown to the Applicant to, inter alia, persons (including James Hlrd) charged by the AFL with disciplinary infractions. Until discovery is provided, the

5

Applicant is unable to identify all of the persons to whom ASADA disclosed information gathered in the course of the investigation.

8. By providing the Interim Report, including any versions or drafts thereof, to the AFL, the Respondent and ASADA:

(a) a&led in breach of the Confidentiality Obl igations Imposed on them by the Act (s 13(1 )(1) and (g) and s 71) and the NAD Scheme (clause 4.21); and

(b) acted for purposes extraneous to those of the Respondent and ASADA in furthering their own investigation into possible violations of the anti.

the disclosure by ASADA to the AFL of confidential information and documents obtained by ASADA in the course of its investigation, including the immediate disclosure of information obtained through interviews by the AFL attendance at interviews: and

the provision of the Interim Report, including all versions thereof, by ASMJA to the AFL.

10. In the absence of such evidence or information, the Respondent has no power, under clause 4.07A(1) and (2) of the NAD Scheme. to: (a) determine that there is a possible non-presence anti..ooping rule violation that

warrants action by the Respondent: or

(b) give a notice to any EFC player or EFC personnel of that possible non-presence anti-doplng rule violation.

11. In the premises, the Notices issued to the EFC players by the Respondent on or about 12 June 2014 were ultra vires, alternatively liable to set aside as invalid or Improperly Issued.

12. In the absence of a valid notice having been I~ed by the Respondent under clause 4.07A(2) of the NAD Scheme. the Respondent has no power to refer the Notices to the ADRVP for consideration by the Panel under etauses 4.09(2) and 4.10 of the NAD Scheme.

13. The issuing by the Respondent of any show cause- notices to any EFC player or EFC personnel arising from or relying on information obtained In the Joint Investigation is likely to cause the Applicant damage to its reputation and business interests.

Particulars

The prejudice to the Applicant arises from the adverse publicity. 14. The making of entries on the Register of Findings concerning any EFC player or EFC

personnel Consequent upon the issue of an invalid notice by the Respondent under clause 4.07A(2) of the NAD Scheme is likely to cause the Applicant damage to its reputation and business interests.

Particulars

The making of entries on the Register of Findings is likely to cause the Applk:ant damage because, following the making of such entries:

7

The AFL General Manager - Foolball Operalions is obliged, or likely, 10 Issue Infraction Notices under clause 13 of the AFL's Anti-Doping Code tO, lnter alis, EFC players;

Recipients of Infraction Notices will face the AFL Tribunal which could lead to adverse findings or to the imposition of sanctions under clause 14 of the AFL Anti-Doping Code;

The AFL may seek to impose sanctions in its discretion on the Applicant under clause 22 of the AFL Anti-Doping Code; and

The prospects and business of the Applicant would be adversely affected if a substantial number of the EFC players who received "show cause notices-. and who are still employed by the Applicant, were ineligible to train or compete in the 2014 and/or 2015 seasons.

AND THE APPLICANT CLAIMS:

1. A declaration that the Investigation conducted by ASADA into the EFC players who were on the Essendon Football Club playing list during the 2012 football season and EFC personnel employed by the Essendon Football Club during that season was ultra vires the Austral/an Sports and Anti-Doping Authorfty Act 2006 (the Act), the Australian Sports and Anti-Doping Authorfty Regulations 2006 (the Regulations) and the NAD Scheme in Schedule 1 to the Regulations (the HAD scheme).

2. An injunction restraining the Respondent from further issuing to any EFC player or EFC personnel a notice under clause 4.07 A(2) of Schedule 1 to the Regulations arising from or relying on information obtained in the Investigation.

3. A pennanent injunction restraining the Respondent from using any infonnation obtained in the investigation for any purpose under the Act, .the Regulations and the NAD Scheme.

4. An order setting aside all notices Issued by ASADA to the EFC players purportedly pursuant to clause 4.07A(2) of the NAD Scheme.

5. Further or alternatively:

(a) an order permanently staying the operation of the Notices; and/or (b) an injunction restraining the Respondent from requiring a response to, or otherwise

taking any action in reliance upon, the Notices.

6. Costs.

8

7, Such further or other relief as the Court considers just.

NEIL J YOUNG

CATHERINE BUTTON

Dated: 27 June 2014

9

Certificate of lawyer

I Josh Bornsteln certify to the Court that, in relation to the statement of claim filed on behaff of the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.

Date: 27 June 2014

Signed by Josh Bornstein

Lawyer for the Applicant

10

., .

,

"