The three AFL players who have already tested positive - TWICE - to taking recreational drug are having their fates determined in Victoria's Supreme Court right now. At issue is whether or not they can be named in the media. The AFL and AFL players' union are arguing against it, while the media (led by The Age) are arguing for disclosure.
The gist of the case made by The Age is that the names of the three are already available on discussion forums on the internet. I've seen these names, but on legal advice, I can't provide a link. In fact, I'd be a real yahoo if I even alluded to which Australian sports discussion group people should narrow their search. No one wants a contempt of court charge.
White Line Fever
(Digital image: Michael Whitehead)
More discussion online at The Age
It's worth asking what the fuss is about. Why not name the players? Brendan Gale, head honcho at the AFL players guild, let slip the real reasons:
"Association president Brendan Gale has said in an affidavit that identifying the players could prejudice their abilities to renew or renegotiate playing contracts." (The Age, 23/5/06)
Got that? The players' marketability would go down if clubs properly factored in the risks of injury, poor performance, illegal activities, loss of sponsorship or match suspensions associated with drug-use. So, the answer is to hide that information from clubs! Outrageous, hypocritical and dangerous.
Contrast that with the position on Rugby Union's breaking Wendell Sailor scandal. Wendell tested positive to cocaine last month, the public knew about it and Wendell was suspended pending further testing. If he's found positive, he gets banned from elite sport for two years. End of story.
What do we get? Massive leniency (no naming/shaming until the third offence) for the players plus they get to limit our free speech in order to artificially inflate their market prices! Trampling on basic human rights in order to make an ill-gotten buck ... we'd only tolerate that for our beloved football stars.
Rest assured, if the injunction on my free speech is lifted, I will immediately name and shame the players. If you want to be first in the know, I suggest you register your email address over their on the right and get the scoop. Of course, the courts in Victoria have a history of siding with AFL players, so it's entirely possible that the injunction will stand. In which case, the three in question - and hundreds like them - will be snorting their way to the bank.
For those of you playing at home, it's not looking good. Here's a quick summary: The names of the players were somehow obtained by the Sydney Morning Herald and placed on its website. Within hours, legal action saw that removed. But not before thousands of people saw it. The AFL and AFLPA have dropped legal action against the ASADA (Australian Sports Anti-Doping Agency) but are pursuing the injunction stopping the media from further naming the players. But it was too late; the cat's out of the bag and the names were duly listed and discussed on online discussion boards up and down the country.
The Age (among others) has argued that the names are already public so there's no point stopping the newspapers printing it. However, the barrister for the AFL, Will Houghton, QC, is now arguing that the "cat's out the bag" argument doesn't wash, on the grounds that:
... the dissemination of the names had been "quite limited", existing only of their narrow release by a media monitoring organisation, a brief mention of one of them by a caller to a pay TV show and their appearance on the internet.
Mr Houghton said the internet argument relied on by the newspaper could not be sustained.
He said chat rooms such as those which speculated on the identity of the players contained no more than "informal ramblings".
"It is a far cry from dissemination in a serious form of media," Mr Houghton said.
"These chat rooms do not purport to report the facts." (The Age, 24/5/2006)
Yeah, the internet isn't a serious form of media, more of a fad. It's not "really" public unless it's been tapped out in Morse code by ham radio operators, or pressed onto 78s.
Unfortunately, given the average age of judges in the Supreme Court, this style of argumentum ad antiquitatem might just get up.
The Victorian County Court's Justice Murray Kellam has reserved his decision on whether to keep the ban on free speech in place permanently. This means he will be mulling it over (pardon the expression) during the coming weeks. He will have to way up such meaty issues as whether putting the players' names on the Sydney Morning Herald website, mentioning them on pay TV and having them bandied about various online discussion forums counts as "escaping into the public domain". While this might seem like a no-brainer to anyone but the AFL, its players' union and those in its employ ... no, wait, it really is a no-brainer. Sheesh!
Other tough issues include: Should hapless clubs be denied the right to factor in the financial risks of drug abuse when spending millions of dollars on star players? Is it right that footballers are entitled to two consequence-free drug binges ("free kicks" as it were)? Can it be justified to gag free speech in this state to ensure that these professional athletes can engage in criminal acts? What about sponsors and club members being embarrassed by disgraceful the players' drug-induced behaviour - but not being able to anything about it until they've tested positive three times? And lastly, is it in the public interest for anti-footballer bloggers to be denied such a rich vein of ridicule and derision?
In any case, I'll be sure to follow this story closely so the wave of mockery and self-righteous indignation can begin as soon possible. Either way.
Further breaking news ... it seems the injunction may be lifted so that the Federal Police can get to the bottom of how the names were leaked in the first place.
THE Australian Federal Police says it cannot properly investigate how the names of three alleged drug-taking AFL players reached the media because of a court order suppressing the players' identities.
The force wants the order changed, saying potential witnesses have expressed fear that the injunction might prevent them from co-operating with police.
"This fear is currently impeding the orderly progress of the investigation," says an affidavit sworn by Richard Boughton, a senior lawyer with the Australian Government Solicitor. (The Age, 8/6/2006)
I'm sure that Franz Kafka is holed up in an ethereal bureaucratic insectorium, smiling down on this farce.
In a triumph for drug-taking Aussie Rules players, a Victorian court has permanently gagged the media from revealing the names of the three who twice tested positive:
Justice Murray Kellam today said he would uphold an application for a permanent injunction suppressing the players' names.
In a published summary of his decision, Justice Kellam said AFL footballers had agreed to be tested out of competition in the interests of the code's illicit drugs policy, but on the proviso that the first two positive tests were confidential.
"The public interest does not require, nor is it served by, the breach of such confidentiality," he said.
Justice Kellam said media interests argued that information about the players' identities was already public, and it revealed criminal conduct on their behalf.
He said there was no evidence the material had been disseminated to the public at large.
Outside the Supreme Court, AFL football operations manager Adrian Anderson said: "This decision enables the AFL to continue its fight against illicit drugs."
Anderson said keeping the players' names suppressed had nothing to do with protecting the AFL's brand. (The Age, 30/8/2006)
So, who wins from this? For starters, the players can now take drugs without fear of public sanction. Secondly, the various hangers-on (officials, managers, agents, advisers etc) can all continue to suckle freely on their million dollar teats. Thirdly, the players' drug dealers. These guys are trying to make a living and, in many cases, support crippling habits of their own. Flogging cocaine, marijuana, ecstasy and crystal meth to dumb, massively-overpaid and desperate users is a very lucrative earner. During the trial, the court paid scant attention to this issue and, in my view, we haven't heard enough about the drug dealers and what would be best for them.
Fourthly, the individual clubs - and the AFL as a whole - will also benefit from this decision. Consider the one drug that the courts permit the public to hear about - alcohol. Remember what happened to Chad Morrison and Jay Shulz? Reports of their alcohol abuse cost their clubs cold, hard cash from their sponsors. Imagine the AFL's panic at the thought of other drugs frightening the sponsors and damaging the bottom line. While I'm sure the AFL would love to "bury" reports of alcohol abuse too, those matters must still be dealt with publicly (for the moment).
Who loses? First and foremost, the free press. We have a situation whereby the Supreme Court is forbidding the media from reporting on true, provable facts of interest to the public. Specifically, the court is telling the media what is (or in this case, isn't) in "the public interest". You may agree (or not) with the judge on this point, but it is still highly-undesirable to have this kind of censorship. While it's not the first time censorship has been used to prop up commercial interests, every time it does a little piece of our liberty is eroded away.
Secondly, the upshot of this will - in my opinion - result in an increase in drug abuse by AFL players. The public naming and shaming is a strong deterrent - that's why it's "Step 3" on the AFL's program. The AFL could have introduced this as "Step 1", but instead opted for appeasement and second and third chances. This will likely result in more off-field misbehaviour and drug-fuelled aggro. In short, the general public is going to face an increase risk of personal injury (bashings and rapes) due to the effective carte blanche the players have got.
Like many people, I am dismayed at this decision, in particular the signal it sends to the players about their tolerated behaviours and to the AFL about how their right to run a successful game is balanced against the public's right to free speech and personal safety. Sadly, this perversion of liberty is what we can expect when the warped values of tribalism and commercialism get in to bed together. It's disappointing that the court chose not to protect the public's liberty in this regard.
There's still strong interest in the identity of those three players; AFL football operations manager Adrian Anderson gave up a big clue last month in a clumsy slip. The BigFooty community picked up on it (kudos bionicsasquach).
My non-legal opinion is that Mr Anderson has (perhaps inadvertently) breached Justice Kellam's ban on "disseminating any material tending to identify any AFL player who has tested positive on one or two occasions". But hey - what would I know?
I left this one alone since I didn't want to fall foul of the same injunction, but after a month it's still up on the BigFooty forum so I guess it's okay.
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