LEADING sports lawyer Paul Horvath says Essendon players may still be able to frame a solid defence if the ASADA investigation finds they took banned substances during 2012.
Horvath said although Essendon skipper Jobe Watson's revelation on Fox Footy's On the Couch that he believed he had taken AOD-9604 in 2012 was stark, the Bombers may raise plausible arguments to mitigate the players' culpability.
He said one possible defence was that an Essendon representative or the distributor of the product may have a letter from the Therapeutic Goods Administration [or other government agency] stating that the drug was not banned or unfit for human use and therefore did not sit within WADA's catch-all S.0 category.
A second defence that might be raised according to Horvath was that the ACC report released in February stated on four occasions that AOD-9604 was not banned at the time. He said the developers of that report would have been getting their advice from ASADA.
"Even at the highest level of government, people that had six or nine months to put their very important, very careful report together got it wrong, so how can other people not be forgiven for getting it wrong if the substance was banned when used?" Horvath said.
Making the point that he was speculating based on publicly available information, Horvath said that although Watson's public statement was a surprise, he was presumably just telling the interviewer what he had told investigators.
Despite WADA releasing a statement in April confirming that AOD-9604 was banned because it fell into the S.0 category as it was still under pre-clinical and clinical development and had not been approved for therapeutic use by any government health authority in the world, many industry insiders have admitted since the Essendon revelations there was confusion as to its status.
However, athletes understand that the WADA code carries a strong strict liability principle that makes players liable for any substance that enters their body.
Watson's admission came on the same evening as the Australian Sports Anti-Doping Authority Amendment Bill 2013 passed through the Senate to move a step closer to giving ASADA the power to compel individuals to produce documents and materials relating to an anti-doping investigation.
The bill needs to pass through the House of Representatives to become law, with hopes it will proceed on Wednesday.
