Senate Estimates CEO opening statement

2 March 2017

ASADA Chief Executive Officer, Ben McDevitt's AM APM opening statement to Community Affairs Legislation Committee at the Additional Budget Estimates hearing on Wednesday 1 March 2017:

Thank you Mr Chair for allowing me to make a short statement.

I expect this may be my last appearance before this Committee as CEO of ASADA. As you may be aware my contract expires in early May and I have declined the opportunity to extend it. That said, given the calls for a Senate Inquiry in recent days, let me make it crystal clear right now that should one be held I will make myself readily available.

Over the past couple of decades I have had many opportunities to appear before various Committees within this building. On all occasions, I have done my utmost to furnish these important Committees with the most accurate and fulsome responses. I take the evidence I give at these committees very seriously.

Since my last appearance before this Committee I have received the correspondence from you Mr Chair, in which you advise me that the Committee has carefully considered allegations you received from Mr Bruce Francis and Mr Alan Hird to the effect that I may have provided this Committee with false and misleading evidence.

I note you state in your letter to me that this Committee is satisfied after considering the allegations that I have not provided the Committee with false or misleading evidence. I thank the Committee for its deliberation and decision on these allegations.

My job as the anti-doping regulator for the past three years has been, amongst other things, to pursue allegations of possible breaches of Australia’s anti-doping rules.  There are many unique features of our anti-doping framework, primarily designed to ensure that as matters progress, there are opportunities for athletes to be legally represented, to detail their case, to outline any defences to allegations, and to appeal decisions made at various levels of arbitration.

Mr Chair the critical word here is arbitration. At the risk over over-simplification, sports law is essentially based on a process of arbitration and contracts. It is also important to emphasis that Australia’s response to doping in sport is not governed by the criminal law.  

Instead it is largely enabled through contractual agreements between the parties, and at its heart is the globally accepted premise of an athlete’s personal responsibility for what goes into their bodies. It includes a strictly defined process for the adjudication of alleged breaches which is entered into by athletes when they agree to sign a contract to play their chosen sport.

So for example, when Essendon players signed their contracts, they agreed to a framework of arbitration which allowed for anti-doping allegations to be heard in the first instance by the AFL Anti-Doping Tribunal and then for there to be avenues for various parties to appeal findings to higher bodies including the AFL Anti-Doping Appeals Tribunal and/or to the Court of Arbitration for Sport.

So claims that players in this instance were tried twice for the same offence are patently false. What happened here is that the parties involved followed to the letter the agreed contractual appeal mechanisms. The arbitration procedure that all players had agreed to contained avenues for appeals by WADA to the CAS against decisions of the AFL’s own internal tribunals.

This appeal opportunity is common to almost every contract signed by an Australian sports person, and most appeals to CAS are actually initiated by the athletes themselves.

The fact an appeal to CAS was lodged in the Essendon matter was certainly not a unique event in Australian sports administration and certainly not a denial of the players’ rights.

This is just one example of the chasm which seems to exist between those infinitely versed in the administration of sports law, such as the numerous highly experienced teams of lawyers and barristers who represented Essendon and the players throughout these matters, and the understanding of occasionally confused onlookers who are generally more familiar with criminal law processes.

One stark similarity between the criminal and anti-doping regimes is that under both there are multiple opportunities for both the merits of a particular case, and the processes applied in advancing the case, to be subjected to extensive scrutiny by relevant authorities.

We are all acutely aware that in the Essendon case, both the merits of the evidence itself against the players, and the manner by which some of that evidence was obtained (ie via a joint investigation by ASADA and the AFL) have been canvassed thoroughly and exhaustively.

Aspects of this case have been forensically examined by bodies including, but not limited to, the independent Anti-Doping Rule Violation Panel, the AFL Anti-Doping Tribunal, the Victorian Supreme Court, the Federal Court of Australia by both single Judge and then via Full Bench, the Court of Arbitration for Sport and even the Swiss Federal Court.

I make this point given the recent call to arms by some for a Senate Inquiry into some, as yet undefined, aspect of the Essendon case.

One plain fact I would make is the obvious point that a Senate Inquiry cannot have the effect of setting aside the rulings of either the finding of lawfulness of ASADA’s actions by the full bench of the Federal Court, nor of the findings of doping violations against Essendon players by the Court of Arbitration for Sport.

A second plain fact I make is that so far as antidoping matters can be litigated, either on merit or process, the Essendon matters have been finalized.

Should members of this committee and others in this place determine that some sort of additional inquiry is necessary for some reason, I restate my willingness to participate as required. I also make the point here that I stand by the decisions I have made as CEO of ASADA since my appointment in May 2014.

In closing, I remain firmly of the view that those in our community who accept that doping is a real threat to sport in our country, also can see that ASADA is not the enemy and that the fight against doping is not a fight against sport.

Thank you Mr Chair and I am happy to take any questions.