REPORT TO AFL CLUB PRESIDENTS, CHAIRS AFL CLUB CHIEF EXECUTIVE OFFICERS

March, 2017

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Message from AFL Commission Chairman, Mike Fitzpatrick:

On behalf of the AFL Commission, I would like to provide you with a final summary of the actions and learnings from the issues arising from the supplements program in 2012.

The Essendon case was unprecedented in its nature and scope.

Our investigation, rules and procedures were tested and challenged by courts, and withstood those challenges.

However, given the unique nature and scope of the case, the AFL Commission has reviewed our rules and procedures, and the following pages outline the principles that underpin our investigations and procedures. There have been some rule changes and clarifications of roles, but just as important, this document reinforces a of the processes followed by the Commission, the General Counsel, the CEO and the Integrity Unit during 2013.

At all stages during this long process, all affected parties had access to external and independent legal advice. At all stages, the AFL acted within its rules and with respect to our commitments to the WADA and ASADA framework.

This has been a very testing and costly issue for our game, but I am confident that when the history of doping in is written, our competition can say that the Essendon Football Club stood up and reported voluntarily, and the AFL acted swiftly to protect the integrity of the game and the health and welfare of the players.

Mike Fitzpatrick Chairman AFL Commission

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Review and Response to the AFL/ASADA investigation of the Essendon Football Club.

1. Introduction

This paper outlines:

The outcomes of the review of the AFL Executive and Commission management of the hearing and sanctions of Club officials, including a number of rule changes. An outline of general principles, policies and operations, rules changes and governance pertaining to major investigations and hearings.

2. General Principles

The powers of the AFL rules were put to the test by numerous external court cases, and intense public scrutiny. This occurred in the context of there having been disclosure of all emails, documents and decisions relating to the investigation.

The fact that the AFL Rules and associated processes have withstood those challenges reinforces the importance of key values that underpin our governance:

Commitment to integrity and a doping free sport The right of the Commission to establish the rules for our competition, by which all players, staff and officials must be held accountable The right of the Commission to make and enforce sanctions for breaches of the rules of our competition The rights of all players, staff and officials to appeal to external legal jurisdictions.

Relationship with ASADA and WADA:

The AFL is committed to compliance with the ASADA and WADA codes, and is proud to be a national elite team-based sport that is WADA compliant.

We look forward to ongoing discussions with ASADA and WADA regarding:

The challenges for the prosecution of investigation based doping offences, and The application of the ASADA processes to a team-based sport with a regular season.

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3. Policy and Operations:

Since the events of 2012, the AFL has implemented the following policy and operational changes to the AFL Anti-Doping Code and the Integrity Department operations.

In July 2013, the AFL Commission approved a major change to the AFL Anti-Doping Code, (Part 2) covering AFL Treatment Rules.

These changes:

Strengthened the AFL’s rules governing supplementation and medical treatments Increased the accountability of Club officials and introduced ability to sanction officials for breaches of the Treatment rules Broadened the list of treatments and supplementation that are prohibited by the AFL, beyond the WADA prohibited list

In Part 2 of the Anti-Doping Code, the AFL has:

Established a Controlled Treatments and Prohibited Treatments list Banned the administration of injections other than by an appropriately qualified medical practitioner and then only to the extent it is necessary to treat a legitimate medical condition (except with the approval of the AFL General Counsel) Banned the possession of needles or injectables other than by the Club Medical Officer (except with the approval of the AFL General Counsel) Ensured Clubs have obligations with respect to the proper storage and inventory of treatments on their premises Outlined the ability to sanction Club staff or any person under the AFL Rules regarding conduct that is unbecoming or likely to prejudice the interests of the AFL in relation to AFL Prohibited Treatments, Prohibited Substances or Prohibited Methods

Club/Personnel Accountability

The AFL Commission has strengthened the accountabilities of Clubs and officials:

Formalised in the Anti-Doping Code the responsibility of Club officials and personnel to report approaches or invitations to breach the Code or any knowledge of the potential breaches to the AFL Broadened an existing AFL Rule to cover the registration of Club Officials to include all employees, directors and agents of a club Upgraded the registration requirements and improved the technology to allow oversight of competition registrations Limited access on match days to club dressing rooms and coaches boxes to AFL accredited staff or guests Banned the use of mobile phones in restricted areas on match days, except for specified officials

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Increased power of AFL to investigate and sanction

The AFL Commission approved changes that have:

Strengthened the role and capacity of the AFL General Counsel to have sole discretion to refer breaches of the AFL Treatment Rules to the Commission or Tribunal. Added the capacity for the AFL to conduct its own sample collections for screening/analysis for intelligence purposes.

Operational Capacity

Since 2013, the AFL Commission has approved:

Increased resources to oversee competition integrity Significant human and technology resources that have increased investigative capacity.

4. Rule Changes:

As a result of the supplement program at Essendon in 2012, the AFL Commission has approved the following new rules and rule changes:

Powers Conduct and Sanction – Rule 2 (to be promulgated at the time of the release of this report)

Amended Rule – The Commission or General Counsel can refer a matter “in whole or in part” for determination by the Tribunal or another body, which may include a sub- committee of the Commission. The rule change has been made for two reasons - to either expedite matters, or to seek specific legal expertise.

New Rule – Clarifies what the term “obtain production” means in the context of the requirement of participants to provide access to documents, files or records in the course of investigations.

New Rule – clarifies that an investigation under the Rules may continue to be conducted or a new inquiry or investigation may be commenced notwithstanding that a Charge may have already been laid.

Clarified General Offences under Rule 2.5 - three further General Offences have been included, strengthening interpretations of existing offences.

Registration of Club Officials – Rule 30

Broadened Rule 30 to strengthen the responsibilities and registrations of all Club officials, and the creation of stronger regulation on access to venues on match day.

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Protected Witnesses and protected Disclosures – Rule 36

A new rule has been created enshrining protection for persons who provide information to the AFL as disclosers or witnesses with respect to possible breaches of the AFL Rules.

5. Governance - Investigations and Sanctions

In 2013, the AFL:

Conducted a joint and legal investigation with ASADA, confirmed by the Federal Court as entirely within the powers of the AFL and ASADA Delivered an Interim Report for consideration to the AFL Commission to hear disciplinary charges against the Club and a number of Club officials. Negotiated sanctions with the Club and with the officials

The AFL Commission reaffirms its commitment to:

The ASADA and WADA Anti-Doping Code Joint investigations with ASADA when appropriate as determined by the AFL General Counsel The power of the AFL General Counsel to have sole discretion to refer breaches of the AFL Treatment Rules to the Commission or Tribunal The power of the AFL General Counsel to negotiate sanctions in matters of breaches of AFL Rules

The AFL Commission sought a review of a number of elements of the role of the Commission, CEO, and Legal and Integrity Department during investigations and disciplinary actions arising from the events of 2012.

The review clarified roles, and outlined future processes.

Investigation Stage

Under the Rules, the Commission shares the investigative powers with the General Counsel of the AFL.

However, it is important that the hearing of charges and deciding on sanctions is a process that must not be compromised by the investigation process.

As was the case in 2013, the Commission can request general updates on serious investigations, but the General Counsel should keep the Commission informed only in general terms to maintain the integrity of any future hearing process.

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Charges

As was the case in 2013, the Commission must not be involved in the decision to lay charges. This is the role of the AFL General Counsel, and must be a separate role from that of the body that will ultimately hear the case.

Role of the CEO and Commission

The CEO of the AFL is also a member of the Commission. The CEO’s role has been clarified in serious investigations and hearings. In future, the CEO should oversee the processes of the investigation, the decision to charge, negotiations with affected parties on sanction and the presentation of the AFL case to the Commission.

The CEO will neither participate in the decisions of the Commission on rule breaches and on sanctions, nor communicate with the Commission in relation to the details of the investigation or any negotiations of the AFL case to the Commission.

Rule Changes

AFL Rules generally covered most possibilities and outcomes for the nature of the investigation and hearings associated with the Essendon case.

The subsequent changes to the Rules and Anti-Doping Code strengthened the AFL’s ability to investigate, lay and hear charges and regulate the industry. (see Point 4)

Legal Rights of Parties, and access to the Supreme Court

The Commission operates within a broader legal framework. As such it is bound by the principles of natural justice and the conduct of fair hearings.

The right to understand the charges laid, seek legal counsel, to present a case against the charge and to exercise rights through the Courts are fundamental rights.

Negotiated Outcomes

The process of negotiating charges and sanctions is a basic tenet of the Australia legal and regulatory system, and the Commission reaffirms that negotiating outcomes in disciplinary processes is a principled and efficient process.

Neither the Commission nor any Commission member (save for the CEO) is to be involved in the negotiation of any sanction on charges that would be heard by the Commission.

However, if there is a proposed settlement in such a matter, it must proceed on the basis that it is subject to the Commission accepting the outcome.

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As was the case in 2013, the General Counsel may brief the Commission as to the negotiated outcome that the General Counsel is seeking to achieve, but care must be taken to avoid compromising the ability of the Commission to fairly determine the matter in the event that negotiations do not result in an agreed outcome.

The negotiated outcome must always be referable to a specific offence under the AFL Rules.