The former chief legal adviser to the AFL Players Association has criticised anti-doping authorities but says Essendon's players now have an improved chance of avoiding suspension.
Andrew Scott, who spent a decade with the AFLPA through the 1990s, said a decision by the World Anti-Doping Agency last week to ban the anti-obesity drug AOD9604 because it had yet to be approved for human use had put it at odds with the Australian Crime Commission's own report into drugs in sport.
AOD9604 is at the centre of investigations involving sports scientist Stephen Dank and the Essendon and Melbourne football clubs.
Dank has admitted to administering it to Essendon players, with the Bombers confirming several of their players had taken it.
''On the face of it, these two developments should all add up to the clearest proof that those players had committed anti-doping rule violations and the only question would be what level of sanctions would be imposed,'' Scott, of Moores Legal, said.
''As things now stand, because of the shortcomings inherent in Australia's peak doping and enforcement regime, it is hard to imagine how the club, let alone its employees, the players who believed they were following well-informed advice, could be banned from competition.
''The WADA announcement is at odds with the Australian Crime Commission's own report into drugs in sport. It is even at odds with the Australia Sports Anti-Doping Authority's own online substance checking device, or at best does nothing to assist those who don't know the first thing about AOD9604,'' Scott said.
''Whilst WADA asserted that the number of recent inquires motivated it to publicly confirm that the catch-all clause, known as section zero, clearly brought AOD9604 within the broad definition of prohibited substances, the fact that, between them, ASADA and the ACC had got it wrong in the first place might have had more to do with it.
''I think unless something else comes out that hasn't been flagged yet, it's going to be quite open for them [Essendon] to say: 'Look, we might be technically guilty of the anti-doping rule violation but we can get in under the no-fault sanction' and get as little as a reprimand.''
The AFL Players Association has suggested WADA's move did not alter the legal and moral defence the players could mount, with players able to argue they were following instructions. ASADA is set to begin interviewing Essendon players within a fortnight.
Players signed consent forms last year that stated the substances were WADA compliant. If the players do face doping sanctions, any prosecution by doping authorities is likely to face legal challenges.
It has since emerged the Bombers have discovered an invoice for the banned performance-enhancing supplement Hexarelin, although this is not proof anyone at the club took the drug. Dank has denied using Hexarelin on the players, although he did admit to using it on up to six officials.
Scott, an Essendon supporter and a former in-house lawyer for North Melbourne, said the ACC report, released in February, had stated four times AOD9604 was not prohibited.
''Worse still, the ACC made it clear in the report that the close collaboration between it and ASADA throughout the compilation of the report was the key driver of its outcomes,'' he said.
''One can only wonder whether, in such circumstances, the reason why the ACC report got the status of AOD9604 100 per cent wrong was because their close collaborator ASADA did, too.''
WADA's statement on AOD9604 said it was a ''substance still under pre-clinical and clinical development and has not been approved for therapeutic use by any government health authority in the world''.
However, Scott said the ASADA website still gave the drug a ''clean bill of health''.
''True, it is that ASADA suggests that supplements ought not be checked in this way, but how are athletes supposed to know whether what they are checking on is a supplement or a substance,'' he said.
Essendon's players are being represented by the AFLPA's in-house lawyers, Bernie Shinners and Brett Murphy. David Grace, QC, has also been engaged.
AFL chief executive Andrew Demetriou expects the Bombers to begin briefing the league this week on their internal Zwitkowski report, which will detail the breakdown in governance measures at the club. The report will be made public.
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