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A question of proof: might an ASADA appeal have legs?

On 31 March 2015 the AFL Anti-Doping Tribunal unanimously decided it was not comfortably satisfied that 34 Essendon Football Club players had committed an Anti-Doping Rule Violation by the use or attempted use of a prohibited substance or prohibited method.

The Tribunal was comfortably satisfied that the substance Thymosin Beta-4 was at the relevant time a prohibited substance under the Code.

However, the Tribunal was not comfortably satisfied that any player was administered Thymosin Beta-4.

This last point was the apparent crux of the Tribunal’s decision.

Over the last few days, the media has been replete with exhortations that ASADA should not appeal and that the saga must come to an end. Journalists have become mathematicians. We know how many days it has been since the “Blackest Day in Sport” press conference in February 2013. We are told it is time to move on.

My recommendation is to toughen up. Hard fought disputes often take years to resolve. In some cases, they take many years. There are appeal mechanisms for a reason. Appellate scrutiny of lower decisions is a party’s right, and also helps provide public confidence in the ultimate result.

Synopsis of decision

Gerard Whateley has read the decision.

He has provided a helpful synopsis of key elements.

What vexed the Tribunal apparently came down to this: Those involved thought they were buying, distributing, compounding and dispensing Thymosin Beta-4 (or ‘TB4’). However, the Tribunal could not be satisfied the substance was, in fact, TB4.

Specifically, it is reported that the Tribunal comfortably accepted:

  • Shane Charter bought what he believed to be TB4 and arranged to have it sent to chemist Nima Alavi;
  • Mr Alavi believed he then compounded TB4;
  • Mr Alavi dispensed 26 vials of a substance he believed to be TB4 to Stephen Dank;
  • Correspondence between Mr Alavi and Mr Dank regarding “thymosin” refers to TB4;
  • Mr Alavi’s lab technician compounded 15 vials of a substance she believed to be TB4 for Mr Dank;

Further, experts agreed the substance in Mr Alavi’s possession then delivered to Mr Dank was not Thymousin A1 (as subsequently claimed).

Required to prove this circumstantial case were the following matters:

  1. TB4 was procured from sources in China; and
  2. TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
  3. TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
  4. Mr Dank administered TB4 to each Player.

The Tribunal reportedly did not consider 3.. This is because it was not comfortably satisfied by 1. and 2.  For the Tribunal, belief did not translate into fact.

What then was the substance administered to each player?

Circumstantial cases rely on inference. Here, the Tribunal faced a fork in the road.

The Tribunal could have inferred that because:

  • the substance was not Thymousin A1; and
  • it was satisfied the key protagonists involved in administering the product to players all thought they were using the prohibited substance TB4,

then the substance was – to their comfortable satisfaction – TB4.

Instead, rather than turning left, the Tribunal turned right, onto the road where belief does not offer sufficient proof.

Presumably, the only sufficient proof would have been scientific proof.

Lance Armstrong case relied on teammate testimony, not science

USADA’s reasoned decision in 2012 confidently concluded Lance Armstrong had engaged in banned doping practices. Even though USADA was also subject to the ‘comfortable satisfaction’ test, it found the evidence against Mr Armstrong “overwhelming”. In USADA’s view, “it establishes his doping beyond a reasonable doubt”.

As the decision noted, the World Anti-Doping Code specifies that doping can be proved by “any reliable means”. The case was initiated by USADA based on evidence other than a positive drug test. It stated that it is not necessary for there to have been a positive drug test to establish a rule violation, and that many cases reflect this principle:

“It could not be otherwise because at any given time there are many drugs and methods of doping on the prohibited list that are not detectable through laboratory testing.” [see Part IV Discussion]

The source of USADA’s confidence lay in witness testimony and other document evidence. It did, though, have scientific evidence if required.

USADA’s reasoned decision did not go to hearing because Lance Armstrong, in the face of the decision, confessed.

The witness testimony came from 11 teammates: Frankie Andreu, Michael Barry, Tom Danielson, Tyler Hamilton, George Hincapie, Floyd Landis, Levi Leipheimer, Stephen Swart, Christian Vande Velde, Jonathan Vaughters and David Zabriskie.

Consider this: Those teammates who testified to taking a banned substance (c.f. participating in a banned practice such as blood doping) could not know that the substance they took was EPO. Instead, they thought it was.

Now consider this: Evidence which to USADA was so compelling it was “overwhelming”, might fail to satisfy the AFL Tribunal, according to its reasons published to date.

So too, whilst this evidence met the standard of “beyond reasonable doubt” (the highest criminal standard) for USADA, for the AFL Tribunal, such evidence might not even reach the lesser “comfortable satisfaction test”.

Of course, the facts of each case are different. Of course, the quality of the evidence between these cases might differ. However, if looking for a possible appeal point when weighing up whether or not to do so, this might be one avenue to explore.

In other words, in terms of what ASADA needed to do to prove its case, the AFL Tribunal may have set the bar too high.

Standard of proof – How the tests work

The standard of proof applied by a Tribunal or Court essentially refers to the level of certainty required before making a finding:

  • Beyond reasonable doubt: This is the criminal test. There is not much room for any doubt. The criminal consequences justify the high bar.
  • Comfortable satisfaction: This is the interesting intermediate test applied by the AFL Tribunal.
  • Balance of probabilities: This is the civil test. There is room for doubt, in the sense of ‘more likely than not’.

Rule 16.1 of the AFL National Anti-Doping Code provides:

“The standard of proof shall be whether the Anti-Doping Organisation or AFL has established an Anti-Doping Rule Violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.” [emphasis added]

The roots of the comfortable satisfaction test in Australian law come from a 1938 High Court of Australia case called Briginshaw v Briginshaw [1938] 60 CLR 336.

Briginshaw was a divorce case. The husband had to prove adultery to dissolve the marriage. He wanted to divorce his wife because even though they had led separate lives for some time (she had moved to Tasmania), she could claim maintenance from him. Employed as a hairdresser, and living at a hotel in Devonport, the husband claimed his wife had sexual intercourse with a man she met at a local dance. But had she? The trial judge applied the criminal test of “beyond reasonable doubt” because the charge of adultery is a “grave and wounding imputation”. The question for the Court was: Was the criminal standard of proof appropriate, or should the civil test have applied?

With Briginshaw, the ‘comfortable satisfaction’ or ‘reasonable satisfaction’ test was born. Justice Rich had a lovely way of explaining it:

“In a serious matter…the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis for inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.” [emphasis added]

The Briginshaw principle applies to:

  • Allegations of serious misconduct: E.g. sexual abuse of children, contested wills, gross medical negligence, fraud and serious misconduct warranting dismissal from employment; and
  • Where a decision’s outcome may be irreversible: E.g. decisions by medical health tribunals which could result in loss of personal liberty, or where doctors or lawyers might be struck off from their professional rolls: see Wise Workplace for a helpful summary.

Importantly, the third test stipulated in the AFL National Anti-Doping Code is not what Australian Courts must currently apply. About 20 years ago, it was concluded in a High Court case Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, that Briginshaw remains firmly chained to the civil test of balance of probabilities. In Neat it was held that Briginshaw simply means that where the allegation is serious the evidence must be clear and cogent.

Query, however, whether Neat Holdings is relevant to the AFL Tribunal or any appeal. Remember: The test of ‘comfortable satisfaction’ has been codified in the AFL National Anti-Doping Code to mean: “greater than a mere balance of probability, but less than proof beyond a reasonable doubt”.

In layperson’s terms, there must therefore be confidence that the outcome is right, with a little wriggle room.

Was the AFL Tribunal’s approach to the evidence too conservative?

It is impossible and unfair even to attempt answering this without access to the detailed reasons.

The better question is whether the AFL Appeals Board would bring fresh eyes, and different life experiences, to the evidence, with the prospect of a different point of view.

Logic dicates: Yes. The comfortable satisfaction test goes to the degree of persuasion of the mind. And we all have different comfort levels.

Simply to illustrate, David Jones AM, the Chairman of the AFL Tribunal has a strong legal background in crime. A retired County Court judge, Mr Jones was a Special Investigations Monitor into serious crime, with oversight over the Office of Police Integrity between 2004 and 2009. An interesting 2010 Sydney Morning Herald article by Nick McKenzie provides some background.

Peter O’Callaghan QC is the Chairman of the AFL Appeal Board, and likely to preside over any appeal. He has a strong legal background in civil matters. Mr O’Callaghan’s extensive practice is ‘across the board’ encompassing commercial matters of all kind, many Royal Commissions, Boards of Inquiry, mediations and arbitrations.

These are generalised descriptions, because both gentlemen have seen both sides of the law and, likely, extensively so. However, the litigator’s task is to compare whether one decision maker is more used to the criminal test than the civil test, and vice versa, when evaluating whether or not to appeal a case of this kind.

UPDATED: What happens if there is an appeal?

The AFL released an amended Anti-Doping Code on 1 January 2015. A big thanks to Chris Kaias for bringing this to my attention.  This replaces the previous version updated in 2010.

A note to the AFL Players Association: Please update your website to include the new version of the Code.

Appeal procedures governing the players

The new Code may apply to an ASADA appeal.  However, the AFL Tribunal hearing concerning the 34 Essendon players commenced  before the amendments came into force.  The AFL’s decision was handed down afterwards.  The Essendon players were charged under clause 11.2 of the Old Code.  That is now clause 10.2 under the New Code.  Sometimes, technical differences like this matter.  Again, please comment on this forum if you can find where this issue has been clarified.

Relevantly, the new Code changes the approach the Appeal Board will take to an appeal, depending on the nature of the charges laid.

According to the AFL Tribunal’s media release, the players were charged with breaches of clause 11.2 of the (old) Code.  The NEW clause 20 appeal provisions, if applicable, would likely apply to these charges.

Those new provisions enable the Appeal Board essentially to consider matters afresh, in what is called a ‘de novo’ hearing.  Contrast this to the typical, narrower scope of an appeal which requires the appellant prior to any review to establish an error of law.  The Appeal Board could only hear this narrower type of appeal before the changes came in.

To illustrate what ‘error of law’ means, in the comments below, Fred refers to the typical need to apply the legal standard to the whole of the evidence, not on a piecemeal basis. A Tribunal might say: “Having considered the evidence as a whole, we are not comfortably satisfied that…”  No error there.  However, if the AFL Tribunal has applied the comfortable satisfaction test to each link in the chain, on a piecemeal basis, such an approach may not be legally correct. It might fail to consider the cumulative impact of the evidence.  If the Old Code applies, expect lawyers for ASADA to evaluate the reasons for such a potential ground.  If the New Code applies, such an issue is irrelevant. The Appeal Board essentially starts afresh.

Specifically, the scope of the review is not limited.  The Appeal Board need not defer to the discretion of the AFL Tribunal.  The prior proceedings also do not limit the evidence or carry weight in the hearing before the Appeal Board.

The standard of proof the Appeal Board must apply is also ‘comfortable satisfaction’.  Former clause 15.1 has been amended (it is now clause 16.1) so that it no longer refers to “comfortable satisfaction of CAS or the Tribunal” but now extends to “the hearing panel“.

There is a significant body of law around de novo hearings, with mixed views about the extent to which they do or do not start afresh.  That the Code expressly states that the evidence is not limited by the prior proceedings suggests that the Appeal Board approach is closer to ‘start again’.

Practically, this means that the task for ASADA on appeal would be easier.  It would not face a two stage process of: Stage 1 – prove error of law (the previous regime); and Stage 2 – if upheld, Appeal Board examines question again.

Instead, ASADA would only need to deal with Stage 2: the Appeal Board would examine the question again. The members would bring different minds to whether a comfortable satisfaction had been reached.

AFL Treatment Rules

The new appeal procedures do not apply to the AFL Treatment Rules.  These rules are separate to Anti-Doping Rule Violations as mentioned above.

A  2013 AFL Media Statement (concerning the 2014 season) helpfully describes how the Treatment Rules are intended to work.

In short, they are intended to cover those who administer treatments. The Treatment Rules ban injection regimes like those previously used by Essendon Football Club.

Clause 31.11 identifies the appeal procedure:

“A Player, Club or other person to whom the AFL Treatment Rules apply may appeal a decision of the AFL General Counsel in respect of a breach of the AFL Treatment Rules to the Appeals Board on a question of law only. For the avoidance of doubt, neither WADA nor ASADA shall have any right of appeal with respect to any matters involving the AFL Treatment Rules unless the conduct also falls under the Anti-Doping Violation section. For the avoidance of doubt, clause 20 of this Code will not apply to breaches of this clause 31.”

The procedures governing ‘typical’ appeals to the AFL Appeal Board are very hard to find.  They are apparently located in a 2013 document called: AFL National Disciplinary Tribunal Guidelines.  I say “apparently” because it was a deductive process to find them and understand how they work.  Please comment on this forum if you have further insights about this.

The National Disciplinary Tribunal Guidelines appear to govern all disciplinary tribunals (and appeals) including those for Anti-Doping Rule Violations.  See rule 2.9 which says that, in the event of inconsistency, the AFL National Anti-Doping Code will prevail. [This implies that the Guidelines are intended to govern all AFL disciplinary hearings, including those concerning ADRV’s.]

What, you might ask, is the standard of proof on appeal for an AFL Treatment Rule violation? According to rule 3.18 of the National Tribunal Disciplinary Guidelines:

“On the hearing of an appeal the appellant shall bear the onus of establishing on the balance of probabilities, one or more of the grounds.”

How would CAS approach the issue?

If the AFL Appeal Board hears an appeal in this matter, there is a further right of appeal to the Court of Arbitration for Sport. WADA also has a direct appeal right to CAS. Here is a link to the relevant CAS procedures.

In short, the Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance. Yes, you read correctly.

The Panel has the discretion simply to review the written submissions required of the parties, or to require a hearing (normally in camera).

If there is a hearing, the President of the Panel shall issue directions in connection with the hearing for the examination of the parties, the witnesses and the experts, as well as for the oral arguments.

The flavour has a ‘start again’ approach, unlike the old procedures applied by the AFL Appeal Board.  One can see, therefore, why the AFL Appeal Board procedures were changed for Anti Doping Rule Violation cases.  They align the processes more closely to CAS.

With a CAS appeal, the Panel has discretion to exclude evidence if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered. Otherwise, there is no impediment.

If any of the parties, or any of its witnesses, having been duly summoned, fails to appear, the Panel may nevertheless proceed with the hearing and render an award.

As for the applicable law, the Panel shall decide the dispute according to the rules of law chosen by the parties. In other words, the AFL National Anti-Doping Code would apply.

The parties might then argue about whether the National Tribunal Disciplinary Guidelines would also apply.

And then the parties might then argue about which standard of proof should apply.

And so it goes on.

ADDENDUM

Ivan, in the comments below, has helpfully referred me to the 2005 CAS decision concerning the cyclist, Mark French.  ASADA publishes public CAS decisions on its website and they are well worth a look.

For those looking for a ‘deeper dive’ I commend reading it. The decision takes the reader through the dynamics of the process, which were certainly contentious in that case.  That was also an example where considerable fresh evidence was adduced, and witnesses cross-examined.

A nice analysis of the standard of proof, referring to Briginshaw (discussed above) can be found at [42].

Ultimately, the Appeal Tribunal wanted better scientific proof of “use”.  The evidence, it decided, was not there. Please exercise some caution if seeking to rely on their detailed analysis.  The relevant provisions appeared closer to  Clause 11.1 of the (old)  AFL Rules, whereas the AFL Tribunal in the case of the 34 Essendon Players was focussed on Clause 11.2 (refer Media Statement).  A footnote to Clause 11.2 in the AFL Anti-Doping Code says:

“It has always been the case that Use or Attempted use of a Prohibited Substance or Prohibited Method may be established by any reliable means. Unlike the proof required to establish an Anti Doping Rule Violation under Clause 11.1, Use or Attempted use may also be established by other reliable means such as admissions by the Player, witness statements, documentary evidence, conclusions drawn from longitudinal profiling, or other analytical information which does not otherwise satisfy all the requirements to establish “Presence” of a Prohibited Substance under Clause 11.1. For example, Use may be established based upon reliable analytical data from the analysis of an A Sample (without confirmation from an analysis of a B Sample) or from the analysis of a B Sample alone where the Anti-Doping Organisation provides a satisfactory explanation for the lack of confirmation in the other Sample.” [emphasis added]

84 Responses to “A question of proof: might an ASADA appeal have legs?”

  1. thedeedsofcounsel

    Wasn’t the TB4 procured from a known source in China – GL Biochem? If so, GL Biochem claims to be internationally recognized. Pharmaceutical production in China is strictly regulated and TB4 sourced from a Chinese drug maker of good standing is likely to have been manufactured in accordance with Chinese GMP (see below). If so, the manufacturer is likely to have kept traceable records of the batch sold to Charter and to have retained a testable reference sample. So what’s all this about ‘believed to be’? Go and inspect the sample.

    The Good Manufacturing Practice for Drugs (2010) Ministry of Health, PRC:

    Section 2, Quality Assurance:

    Article 9. The system of Quality Assurance should ensure that:

    (7) Records of manufacture and distribution, which enable the complete history of a batch to be traced, are retained in a comprehensible and accessible form.

    Section 3, Quality Control:

    Article 12: The basic requirements of Quality Control are that:

    (7) Sufficient reference samples of starting materials and finished products are retained to permit future inspection and testing of the product when necessary, and that the finished product is retained in its final package unless exceptionally large packages are produced.

    Source: http://eng.sfda.gov.cn/WS03/CL0768/65113.html

    Reply
    • Natalie Hickey

      I’m getting some interesting Twitter mail about what might have happened in hearing. I say: Might have, because I just don’t know. However, there might have (that term again) been some questions over the strength of the scientific testing.

      Reply
  2. Broken_chairs

    in terms of arguing that the tribunal may have set the bar too high, i found this pretty interesting

    “Rule 15.1 of the AFL National Anti-Doping Code provides:

    “The standard of proof shall be whether AFL has established an Anti Doping Rule Violation to the comfortable satisfaction of CAS or the Tribunal bearing in mind the seriousness of the allegation which is made. ”

    that suggests to me that the AFL tribunal may set a standard of proof greater than CAS depending on how the tribunal deem the the seriousness of the allegations made. am i reading that right?

    a guilty verdict would be catastrophic not only to the careers of the 32 players, but also for essendon and the AFL in terms of legal action, PR costs etc.

    Reply
    • Natalie Hickey

      I don’t read this as allowing AFL Tribunal to set a higher bar. Comfortable satisfaction test is consistent with WADA Code, noting that CAS appeal defers to the law of the jurisdiction in which the original decision was made.

      Reply
  3. fred

    Without having seen the judgement it seems that the AFL tribunal has ignored the straightforward rule of inference that evidence can be cumulative. It appears each individual piece of evidence has had the comfortable satisfaction level of proof applied to it instead viewing the evidence as a whole when appropriate.

    For example consider 2 pieces of evidence:
    1) A substance thought to be TB4 was ordered and delivered.
    2) The substance was tested and the results were consistent, but not 100% proven, with being TB4.

    That each individual piece of evidence might not give comfortable satisfaction that the substance is indeed TB4 it does not follow that viewing the evidence together should lead to the same conclusion. In fact viewing such “weak” individual pieces of evidence cumulatively could (and I suggest should) lead to a conclusion beyond reasonable doubt that the substance was TB4.

    To put it in probabilistic terms (which IMO the legal profession are terrible at doing) each piece of evidence gives a 66% chance of the substance being TB4 but together the evidence puts it at a 89% chance. Adding an independent third piece of such “weak” evidence would put it a 97% chance of the substance being TB4. Note these figures are not meant to be taken as being precise but as an illustration of how “weak” individual pieces of evidence can be significantly strengthened by viewing the evidence as a whole – and much more than people’s (or tribunal members) intuition would suggest.

    Reply
    • Natalie Hickey

      Very insightful. The legally correct approach is usually to consider totality of circumstances. Yes, a circumstantial case requires all the links of a chain. But I would agree there could be error if the standard is not applied to all the evidence, considered as a whole.

      Reply
  4. Peter

    I have been waiting intently for your posting Natalie.
    I agree with your line of thinking that the Tribunal was at a fork in the road, and went down one way of seeing the evidence.
    The Tribunal seemed to veer in a direction that benefits the AFL. Not that i could suggest that the findings seem to benefit the AFL.. that would be way to cynical.
    Could this not be a conflict that we have an AFL Tribunal hearing a case, that by my reckoning , would have an extremely detrimental outcome for the business if a guilty verdict was found?
    On the face of it, if you were to apply the chain of evidence, that the general public has at its disposal, it would seem that we have a direct chain of events almost up to the administering of the product.
    The judges seem to have applied their own level of doubt to the evidence.
    i.e ” what proof do we have that the drug was TB4 “etc.
    This all seems at odds with a Drug Testing regime that finds an athlete ” Guilty ” if they were to miss a drug test.
    Would the panel not find suspicious the so called ” no records kept “, they seemed to be so highly critical of. How convenient I say.
    What would WADA make of this? Because , ” the dog ate my homework “, excuse surely can’t cut it.
    I say bring on WADA, because they will not be intimated by the AFL.
    and they, are looking at this on a global level.

    Reply
  5. David

    Given that 1) there was no sworn testimony from Dank, Alavi or Charters and 2) the tribunal considered all of them to be unreliable it stands to reason that what those 3 may have believed would not meet the tribunals requirement to be comfortably satisfied.

    Reply
  6. Peter Johnson

    Natalie

    Can CAS compel witnesses to attend via a supeona?

    Essentially, can CAS force Alavi and Charters to attend where ASADA were successful wit the AFL tribunal?

    Reply
    • Broken_chairs

      CAS don’t have the power to compel witnesses to appear, but they can be compelled via the supreme court.

      this is similar to what tried to do with alavi and charter for the AFL doping tribunal. of course know that failed because alavi and charter had no involvement in the AFL so why should they have to appear before an AFL tribunal? CAS is different, and I believe WADA would have a better chance at subpoenaing them there.

      Reply
  7. Arch

    Hi Natalie,

    Your reporting on this matter has been excellent, mainly due to your balanced approached, which has been a rarity especially in Fairfax outlets.

    With that said, and with the above in mind, will you be writing something against an ASADA appeal?

    I would suspect there would be as many compelling arguments NOT to appeal as there are to appeal.

    Interviews, unsigned witness statements, forensic examination of e-evidence, telephone records, i suspect telephone intercepts early in the piece. ASADA exhausted every invesitigative technique at their disposal, yet still could not show to a “comfortable satisfaction” that illegal drugs were administered.

    Again, thanks for your balance, but hearing the “other side” would be greatly appreciated.

    Reply
    • Natalie Hickey

      Hi Arch,
      Thanks for your comment because it gives me a chance to clarify my perspective. One of the things prompting this post was the paucity written about ASADA appeal considerations since the Tribunal decision. Instead, the thrust of the comment seemed to be: what a hopeless case, let’s bring it to an end, let’s investigate ASADA and so on. That struck me as one sided. I am firmly of the view that all litigants are entitled to pursue appeal rights. That’s why the process is there. James Hird had every right to appeal. So too does ASADA.

      By exploring possible appeal points for ASADA though, does not suggest, and is not intended to suggest, that ASADA would win an appeal.

      I would be delighted to write a ‘counter-factual’ looking at it from the other side. However, that would likely be a fact specific piece (c.f. Conclusions published to date relevant to legal questions like standard of proof). Without the full reasons for decision, I simply cannot be confident about what the Tribunal considered. I think there is a public interest in the reasons being available.

      Best, Natalie

      Reply
  8. James

    Hi Natalie

    3 points:

    I hope you read Chip le Grand’s article yesterday that basically said that ASADA couldn’t prove to a comfortable satisfaction that TB4 got into the country, let alone the club

    In reference to Lance Armstrong and the witness testimony. A large portion of those witnesses had already tested positive/been found guilty of doping. Therefore their testimony that they saw Lance using drugs that they had previously been banned for would carry more weight for a tribunal as it could far more easily conclude that the substances were banned than not. Compare this with unsworn evidence put to the AFL Tribunal.

    ASADA tendered no evidence that any player was injected with TB4. Even if you can put the first shipment of TB4 at the club, the information that Gerard Whately outlines suggest that there was an insufficient quantity of the substance to administer to 34 players. How does ASADA prove at review that any of the 34 players was injected with TB4 to a comfortable satisfaction?

    Reply
  9. Mike Anger

    So … the tribunal thought that the players were injected with *something* … and everyone involved believed it was TB4 … so why weren’t the players done for *attempting* to dope. Under the drug code doping and attempting to dope are pretty much the same thing.

    Tribunal soft as butter.

    Reply
      • Mike Anger

        Didn’t they sign “consent” forms naming the drugs?

      • Natalie Hickey

        Hi Mike – Yes they did. And the Tribunal found the forms were woefully inadequate. This gives the players the benefit of the doubt on the basis it wasn’t informed consent.

      • Mark

        There was that VFL player who brought a protein supplement online that just happened to contain a banned substance. He didnt know it was in the supplement, but when it got pulled at Customs, he got done for attempting to dope… even though he didnt know about the banned substance in the supplement. He ended up getting 2 years for it. If the same inference is made towards the Essendon players, with their demanding letters of consent… they were intent on going along with what has turned into a systematic doping regime. If the same sort of logic is applied, the Essendon players should have been done for attempting to dope.

      • Natalie Hickey

        Hi Mark, you may be interested in this 2013 presentation on AFL State Academy letterhead by Glenys Zucco: http://www.sportingpulse.com/get_file.cgi?id=2338156 It’s an excellent powerpoint which I think refers to your anecdote as a ‘life lesson’ for young players. Moving on from the vexed topic of supplements, I loved the FYI that KFC and McDonalds may not necessarily be the best food choices!

  10. Peter

    Thanks again Natalie
    I have always found your insights to be unbiased and if anything , you have always looked at any case from each side of the legal spectrum.
    It has been great to get your explanations for us mere mortals of the intricacies
    of the legal system.
    If what we have been informed of late is true, to quote Chip Le Grand, that ASADA’s case was, ” always dead in the water “, surely the legal minds behind ASADA’s case thought they had a good case ?
    The surely don’t waste their time on a ” Flimsy ” case , to quote Le Grand again.
    your thoughts ?

    Reply
    • Natalie Hickey

      Speaking generally, the decision to take action can involve two considerations: 1. Prospects of success; and 2. Principle. Regulators also have policy goals specific to the function. I can’t comment on what Chip says, I simply don’t know. But let’s assume for a second that the regulator knows prospects are finely balanced. Then, the question becomes: what if we do nothing? That judgment call requires just as much thought as doing something.

      Reply
  11. Mike

    For me, the lack of evidence supporting a alternate legal drug is very significant. Given the ‘deplorable’ lack of records kept by the EFC I would have thought that this would have given significant weight to the ‘comfortable satisfaction’ standard of proof.
    If there had been compelling evidence supporting a legal alternative drug, then I think the Tribunal’s findings would have been the right decision. But (from what we know) TB4 is the only drug that the circumstantial evidence supports.
    If the lack of records kept by the EFC was a significant and legitimate factor in the decision, then perhaps the code needs to be amended to reflect this. Otherwise there is a strong incentive for any club considering implementing a ‘cutting edge” supplement programmes to also invest in a really good shredding machine.

    Reply
    • fred

      Given the tribunals logic that it wasn’t 100% proven that TB4 was imported and compounded why would records matter. The records could state “1/1/2012 J Watson: injected Tb4” and according to the logic that the tribunal reportedly used it wouldn’t make a difference as there is no 100% proof that Tb4 was in the needle.

      If this debacle happened in China or Eastern Europe the media and public would have a far different reaction, but as everyone knows “Aussies don’t dope, especially certain cyclists who we don’t question how they beat everyone else who are doping.”

      Reply
      • Mike

        My point is that given that the club didn’t have adequate records of what the players were injected with and ASADA found considerable circumstantial evidence that points towards TB4, then there should be far greater onus on the players to provide a plausible explanation as to why ASADA have got it wrong. The defence “We have no idea what was injected but ASADA can’t prove it is TB4” seems woefully inadequate whatever way you look at it.

  12. Ivan

    Natalie, thank you for the addendum. I am however confused by your remark that the charges in the French Case are closer to 11.1 of the old AFL code which, IIRC, has always been the ‘presence’ charge. I stand to be corrected on that.

    The French case is relevant because it relates to ‘use’ charges quite similar to the 11.2 violation alleged in the Essendon case. I draw your attention paras 51, 52, 70 and 82 of the French case and recommend your readers absorb the entire decision.

    I also note that in the present case none of the evidentiary means of supporting the charge as footnoted in the afl code would appear to be available to asada. They have no first hand witnesses, no test results, no admissions, little or no documentary evidence, no longitudinal profiling, and the only analytical information available (atomic weight) was rightly disregarded.

    What asada does have is a theory which is supported by some of the facts but, apparently, little of the evidence.

    Reply
  13. Natalie Hickey

    I received an interesting email from “Gary” I thought I would share. Please comment or contact me if you have an answer to this question:

    “I’ve read your series of blogs on ASADA and the “Essendon 34” with great interest. It’s great to have an informed person making things easier to understand for us mere mortals.

    In your latest article “A question of proof: might an ASADA appeal have legs?” you indicated that the AFL tribunal wasn’t comfortably satisfied that the substance administered to the players was TB4. In effect, they seem to have ruled that the provenance of the substance had not been established despite most of the parties in the “supply chain” having a common belief as to what it was.

    There is an aspect of this case that I don’t think has been explored properly. It also relates to provenance but, more specifically, it brings up questions about how provenance relates to the S0 category of the Prohibited List. It also brings into question the so called “dog ate my homework” defence that has been discussed in the press.

    As you are no doubt aware, the S0 category of the WADA Prohibited List includes all substances which do not have approval for therapeutic use. The notion of identity, or provenance, of a substance is inextricably bound to its approval for therapeutic use. Put simply, no drug approval agency would approve any unidentified, or inadequately identified, substance for therapeutic use.

    Further, the identity, or provenance, of a substance (including all its constituents) must be known and/or traceable throughout the supply chain. No reasonable person would assert that a substance is approved for therapeutic use if its identity is lost, the make-up of its components becomes uncertain, or its provenance can no longer be determined.

    I believe this would mean that any inadequately identified substance automatically becomes an S0 substance and is therefore prohibited for use by athletes.

    If my interpretation is correct then any substance for which the supply chain is “broken” must be classified as S0. This would mean that any athlete who admits to injecting a substance but cannot establish its provenance would have committed an offence under the WADA code.

    Ironically, the “dog ate my homework” defence becomes an admission of guilt.

    There are a number of consequences to this that I would like to see discussed in more detail. For example, if an athlete allows themselves to be injected with a substance whose identity is unknown, or that is untraceable, inadequately described, or inadequately recorded, have they fulfilled their personal duty under clause 2.2.1 of the WADA code to ensure that no Prohibited Substance has entered their body? If not, are they guilty of an anti-doping rule violation?

    Also, if my interpretation us correct, can ASADA revert to it in an appeal? If so, could the athletes successfully argue that they were entitled to believe the substances were WADA compliant if their support people told them so? Etc., etc., etc..”

    Reply
    • Mike

      I think Gary interpretation makes a lot of sense and is in line with my earlier comments that the players defense of :” We have no idea what we were injected with but ASADA can’t prove it was TB4″ seems woefully inadequate.

      But I think a weakness in the ASADA case (based on what I understood) is that they didn’t provide any circumstantial evidence that the drug in question was actually injected into any players. So even if it was established to comfortable satisfaction – or even beyond reasonable doubt – that this drug was TB4, ASADA would have still needed some evidence that showed which players were injected with the drug. This is one of the added difficulties of pursuing a case against a team.

      On the other hand I don’t think there should be any excuse for the lack of records (which is highly suspicious in itself) and if there is any suspicion of illegal drug use, then it seems reasonable that the onus should be on the players to prove this didn’t happen – which Gary’s interpretation seems to indicate is a requirement under the WADA code. Makes one wonder if this interpretation was put to the Tribunal by ASADA and if so how did the Tribunal respond?

      Reply
      • ivan

        Mike, I suspect you assaulted someone last night and as you can not account for you whereabouts the burden of proof now falls to you to disprove this allegation. Seriously, people need to get a grip and respect how the rule of law has evolved. It has evolved this way for a damn good reason and i see absolutely no reason why anti-doping enforcement should be exempt from such basic principles. While these are not criminal matters the consequences for the athletes and the families they support are significant and as such it is appropriate that such time honored principles are observed.

      • Mike

        Ivan, if there was supporting circumstantial evidence that i had assaulted someone then I would have thought I might be in a bit of trouble if I couldn’t account for my whereabouts.
        But admittedly a defence of “I have no idea where i was last night, but you can’t prove I committed the assault” might work.

    • ivan

      That is an interesting line of argument t. So far as i know it would be unprecedented for a NADO to advance such an argument.

      My clear understanding of the S0 category is that it requires a NADO to establish to the comfortable satisfaction of a tribunal that any given substance fits that definition. If the substance can not be identified how is it then possible to be comfortably satisfied that it it does or does not fall with the s0 category.

      As to the second part of the argument. Clause 2.2.1 of the code operates to make the use or attempted use of a prohibited substance in effect a strict liability offence subject only to the express exceptions set out later in the code. While this puts the burden on the athlete to make out the necessary elements of the exceptions a failure to comply with the ‘obligation’ is not in and of itself an ADRV.

      In order to establish an ADRV it is incumbent on the NADO to prove the offense. They bear the burden of proof not the athlete. While a level of frustration at the ‘dog at my homework’ defense is understandable the system as it stands recognizes well established principles of natural justice. In my view a new ADRV would need to be codified in order to penalise and athlete for relying on such defenses or for failing to keep proper records (it would be akin to the offenses for failing to make yourself available for testing).

      Regardless, even if one does not accept my line of reasoning on this and believes ‘the dog at my homework’ defence could itself be an advr this could not be an issue for appeal. It would constitute a new and separate charge and would thus require asada to issue fresh show cause notices and comply with the process set out in their act.

      Reply
      • Gary

        Hi Ivan,

        I’m not sure how to quote things in this format, but you asked the following question…”My clear understanding of the S0 category is that it requires a NADO to establish to the comfortable satisfaction of a tribunal that any given substance fits that definition. If the substance can not be identified how is it then possible to be comfortably satisfied that it it does or does not fall with the s0 category. ”

        My response to that is that an S0 substance is defined as not having approval for therapeutic use. Given that no drug approval body anywhere in the world could reasonably approve a non-identified, or non-identifiable, substance, it goes without saying that a substance whose identity cannot be established must be prohibited.

        You also say… “In order to establish an ADRV it is incumbent on the NADO to prove the offense. They bear the burden of proof not the athlete.”

        I agree with this 100%. However, what I am proposing does not invert the burden of proof. ASADA, or any other NADO, would still need to prove that a prohibited substance (in this case an inadequately identified substance) was administered to an athlete.

        This is no different to what happened in the case of the Essendon 34, for example, where ASADA tried to establish that TB4 was administered to the players. If my interpretation is correct then, instead of proving that TB4 was administered, ASADA has the burden of proving that a substance was administered whose identity is not known, or cannot be known.

        This might be difficult to do if there was no evidence that substances were administered to any player, but I suggest that in the case of the Essendon 34 the admission of the players (that they did not, and still do not, know what substances they were injected with) is sufficient to establish to comfortable satisfaction that an S0 substance was administered.

  14. James

    It’s a very interesting (and plausible interpretation) but under that scenario ASADA (or any anti-doping agency) could say to any athlete “Prove to me what you took, and if you can’t you are immediately a drug cheat”

    This reverses the onus of proof, requiring an athlete to prove that he is clean which appears to be against the intentions of the WADA code.

    Reply
  15. Gary

    I agree that the onus of proof would be reversed if ASADA said (without an admission from the athlete): “We believe you took an unidentified substance, prove you didn’t.”

    But that is not the case here. The admission has been made. In the scenario I presented the athlete has already admitted to being injected with an unidentified substance. An unidentifiable substance cannot be reasonably said to be approved for therapeutic use, so must be classified as S0.

    Reply
    • Gary

      Additional comment.

      To clarify, I am suggesting that no unidentified (or inadequately identified) substance would ever be approved for therapeutic use. Therefore, if an athlete admits to being injected with such a substance he is guilty of an ADRV.

      Reply
      • Mike

        The EFC/Players maintained throughout this saga that nothing illegal was administered. That implies that they had verifiable records of what was administered, which we now know beyond any doubt that they didn’t.

        However I do wonder Gary why ASADA didn’t pursue this angle, because if your interpretation is correct then ASADA didn’t really need to try and build a case for TB4. All they would have needed to do was demonstrate that the players did not know what every substance injected was – and therefore guilty of an ADRV. The TB4 evidence could have then been used to support, rather than being pivotal, to their case.

    • Mike

      One further comment Gary – there was a lot of speculation leading up to the start of proceedings that there was a verifiable alternative legal drug to counter the TB4 evidence. So I was quite shocked to hear that the defence did not try to make a serious case for a legal alternative – which would have given some credibility to their claim that they know nothing illegal was administered. I thought the “We don’t know what it was or what happened to it” defence seemed woefully inadequate, but your interpretation suggests it is totally unacceptable .
      The fact that Dank did not participate or even provide the players with any records that may have helped their case adds further fuel to the fire.

      Reply
      • Gary

        Hi Mike,

        According to the Anti-Doping Code, WADA has the final say on what substances are prohibited.

        Perhaps ASADA should request a determination of the status of unidentified substances from WADA.

        Clause 6.3 of the AFL Anti-Doping Code says in part…

        “WADA’s determination of the Prohibited Substances and Prohibited Methods that will be included on the WADA Prohibited List and the classification of substances into categories on the WADA Prohibited List is final…”

      • Mike

        Hi Gary,
        I think the question would have to be – If the players cannot provide verifiable proof of everything they were injected with, are they potentially in breach of the WADA code?
        If the answer is NO – then forget that angle for an appeal.
        if the answer is YES or POSSIBLY then the chances of a successful appeal may be good.

  16. James

    Gary

    you speak of a breach of s.0 of the code if you cannot verify the provenance of substances that were injected. I was wondering if you could flesh this out for me. Is it only substance that are injected that you are required to provide provenance for? or is it all substances that enter the human body?

    Let’s take the example of recreational drugs. Whilst things like cocaine are not banned/prohibited unless used match day, players are given the opportunity to self-report (admit use) under the AFL illicit drugs code. If they admit use (an admission akin to your reasoning with injections at Essendon) then are they automatically in breach of s.0 given that they cannot verify the provenance of the drug? This is particularly relevant given that one theory about the presence of Clembuterol in the Collingwood players’ system is because it is used to cut cocaine, and perhaps the players used cocaine. Given that this is a known component of cocaine, does any athlete who admits cocaine use admit to a breach of s.0?

    If I admit to eating (and I will admit to eating more than my share of Easter Eggs) if I am subject to the WADA code, am I automatically in breach of s.0 if I can’t provide the provenance for the food that I ate?

    The case of Michael Rodgers who was cleared of an adverse analytical finding for Clembuterol after eating contaminated meat in China suggests that an athlete is specifically not required to provide the provenance for what enters their body from eating. Are you saying that because the method of entry into the body is via injection, rather than ingestion or inhaling , the ‘reasonableness test’ that you outlined holds the athlete to a higher standard? Where in the anti-doping code does it differentiate between methods of entry into the human body?

    I suspect that this can be reduced down to one simple sentence

    “injections are bad…”

    As an aside, the ASADA website, and athletes everywhere (Dave Culbert anyone) bang on about the fact that athletes are responsible for whatever enters their body. Doesn’t the Michael Rogers finding show that to be untrue?

    Reply
    • Gary

      Hi James,

      Great question. S0 substances are defined in the Prohibited list as any pharmacological substance not addressed by other categories that are not approved for therapeutic use. It does not specify what “pharmacological substance” means, so I guess there could be some legal argument about it.

      The generally accepted meaning is a substance that causes physiological and/or biochemical changes in the body. I suggest that almost any substance injected directly into the body would be classified as a pharmacological substance as it is likely to cause some physiological or biochemical change – as opposed to something that was eaten, for example. And let’s be honest; no one would inject a substance if they did not think it would cause some sort of change.

      However, I think you’re right suggesting it would be a hurdle the NADO would need to jump.

      I like your comment about recreational drugs. I don’t think it would be a bad idea if these were caught under the S0 category. Bear in mind, though, that many of them are actually approved for therapeutic use. In Australia cocaine is a Schedule 8 controlled drug, so it would not be banned under S0.

      Reply
      • Gary

        Hi James,

        An additional thought on the difference between injecting and, say eating or drinking a substance:

        Injecting leaves no uncertainty that a substance has entered the body. However, many substances taken orally pass directly through the digestive system. It would be much harder to establish to the comfortable satisfaction of a tribunal that an unknown substance taken orally actually entered the athlete’s body.

      • James

        Hi Gary

        Thanks for your response

        It is my understanding that vitamins are injected subcutaneously as this is the most efficient method of delivery. You can take them orally, but they aren’t as effective. So I think it is a bit of a sweeping statement to suggest that you only inject things to get a change. it may merely be more efficient.

        Also on your next comment, I suggest you read this article:

        http://cyclingtips.com.au/2014/04/rogers-has-been-cleared-but-questions-about-clenbuterol-remain/

        with regard to this drug (at least) there seems to be a very high probability that it ends up in an athlete’s body regardless of method of entry. Therefore comfortable satisfaction must be the same regardless of the method of entry, in which case the athlete should have the provenance obligation.

        my point is, unless specifically discriminated against as a method of entry into the body, injections must be treated the same as any other method. As they are not currently discriminated against then Rogers defence is available to any athlete found to have drugs in their system (hello Collingwood players) which would run counter to the notion that it is an automatic breach of s.0 to be unaware of what you have taken

        To me (an interested amateur) the anti-doping area of law is rubbery and inconsistent. I pity a young, poor athlete because a well funded one may be able to attack the apparent inconsistencies in anti-doping regulation.

  17. Mike

    James, I haven’t read the WADA code – but I would be very surprised if it doesn’t differentiate between eating and injecting. To start with eating is natural, injecting and popping pills is not – that’s why both are heavily regulated in all areas of society, not just sport.

    Otherwise you could argue that there was no need to punish EFC for governance issues . It would be ok to inject athletes with whatever you like – and not keep records – as long as no illegal substances are ever found in their bodies.

    Reply
    • James

      Mike

      The ‘need’ to punish Essendon has nothing to do with any anti-doping code. You are mixing up duty of care to players to ensure no harm comes to them (an Anti Doping violation could be a sub-set of harm in that reputational damage and financial loss would constitute harm) with an anti-doping violation. Just because there were no positive tests doesn’t mean they weren’t exposed to harm. That is what Essendon was punished for

      Reply
      • Mike

        James I don’t agree that the penalties handed out to the EFC had nothing to do with the anti-doping code. The AFL actually used the ASADA interim report as the basis for determining the penalties. One could argue they are inextricably linked.
        But I was responding to your poser that – based on Gary’s interpretation -potentially every time an athlete eats something they could be in breach of the WADA code.
        I was putting a view as to why they are looked at differently, although athletes still need to be vigilant about what they do eat – particularly in regards to processed foods.
        However it is usually a lot easier to identify what food you are eating, what is in it and where it came from. if you eat and apple, you definitely know it is an apple, and you should be able to establish its provenance without too much trouble. That is obviously much harder with injections, hence one of the reasons for greater regulation and accountability.

  18. ivan

    Gary, I understand your argument however i think it is flawed because in order to prove a substance has no approval for therapeutic use you have to know what it is. To argue that it is unidentified and therefor lacking in approval relies on an assumption because the unidentified substance may or may not be approved. To establish an ADRV for an s0 substance you have to prove it has no therapeutic approval and you can’t prove that if you don’t know what it is. That Essendon players were not charged with taking an unknown s0 substance makes me reasonably comfortable in my position. Your line of argument could potentially lead to players being banned for taking paracetamol.

    If you want to argue that players should keep proper and detailed records of everything they take fine but the failure to do so is not presently and ADRV (it is however a breach of the AFL anti doping code for the club medical officer to fail to keep such records and is punishable by a fine).

    Reply
    • Mike

      Ivan,
      “…the unidentified substance may or may not be approved”
      I thought that was Gary’s point “may or may not” is not an option. It HAS to be approved.
      “…you have to prove it has no therapeutic approval…”
      I thought it was incumbent on the players to prove it has therapeutic approval. Aren’t they held responsible for everything that enters their body?
      .

      Reply
      • ivan

        No, it is up to the NADO to prove it has no therapeutic approval. If they don’t know what the substance is that can’t prove whether it is approved or it isn’t and there is no ‘unidentified’ catch all in the code.

        Find me a single case in the world where a player has been rubbed out for taking an unidentified substance and i’ll be all ears.

      • Gary

        Ivan,

        As far as I know, no athlete has been prosecuted under SO.

      • ivan

        Gary, i think that’s right and that is probably one of the reasons the AOD prosecution didn’t move forward. With that in mind and NADOs being hesitant to enforce s0 with a narrow construction i’m hard pressed to see them pressing forward with the broader construction that you are proposing.

    • Gary

      Hi Ivan,

      Government drug agencies keep lists of substances that are approved for therapeutic use. The default condition is that a substance is not approved unless it appears on the list. If the identity of a substance is unknown or ambiguous then it obviously cannot be found on the list and therefore cannot be approved.

      Reply
      • ivan

        I understand what you are saying i just disagree that the code could be applied that way. A tribunal would have to be comfortably satisfied that substance isn’t approved. That it hasn’t been identified doesn’t mean it is isn’t approved it just means it isn’t identified. The substance, although unidentified, is something which may or may not be approved so you would be banning athletes based on a guess. You could apply your logic to any section in the code – we don’t know what the substance is but it could be banned so unless you can tell us what it was it is banned by default. The code could evolve to take such a position but as it stands i don’t think it accommodates your argument.

        Remember too that in order to be registered as a banned substance or considered to fall within one of the catch all clauses a substance must satisfy 2 of the following 3 criteria:

        4.3.1.1
        Medical or other scientific evidence, pharmacological effect or experience that the substance or method, alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance;
        4.3.1.2
        Medical or other scientific evidence, pharmacological effect or experience that the Use of the substance or method represents an actual or potential health risk to the Athlete;
        4.3.1.3
        WADA’s determination that the Use of the substance or method violates the spirit of sport described in the Introduction to the Code.

        If you don’t know what a substance is how can you possibly establish two of those 3 factors. I suspect your logic would allow it to satisfy the last 2 criteria but i am hard pressed to see a tribunal being so satisfied. How could you produce medical or scientific evidence of the potential health risk of an unknown substance. I agree that it is an inherently risky practice but anecdotal evidence wouldn’t satisfy 4.3.1.2 IMO.

        There may well be good public health reasons to discourage athletes from injecting unknown substances into themselves but the code as it stands does not seek to ban them or label them cheats for doing so.

      • Gary

        Hi Ivan,

        I completely understand you and you may very well be correct, but my argument is based on the fact that the identity of a substance is intrinsic to its approval status. Approval of therapeutic substances around the world is based on a risk benefit approach. It is impossible to do this for unidentified substances. What do you think the response would be if you went to the TGA and said “Look, I have a thousand vials of something. I don’t know what it is, but will you approve it please”?

      • ivan

        Of course they wouldn’t approve it, they would test it, identify it, work out whether it was already approved not and if not it would be sent back for a proper trial procedure (actually they would probably just tell you sod off and to stop wasting their time).

        Regardless it is up to the NADO to prove it isn’t listed and if they don’t know what it is they can’t prove that notwithstanding that the athlete can’t prove it is either. We are clearly going round in circles though. I think to accommodate your argument the provision would need to be re-written with a broader construction than it has at present.

  19. Gary

    Hi James,

    You said above…”my point is, unless specifically discriminated against as a method of entry into the body, injections must be treated the same as any other method. As they are not currently discriminated against then Rogers defence is available to any athlete found to have drugs in their system (hello Collingwood players) which would run counter to the notion that it is an automatic breach of s.0 to be unaware of what you have taken”

    I am not saying that injecting should be treated any differently to other methods of entry into the body. However, there is one significant factor that singles this method from the others. Injecting leaves no uncertainty that a substance has entered the body, whereas many substances taken orally pass directly through the digestive system. This means that a tribunal is more likely to be comfortably satisfied that the substance has entered the athletes body if an injection is used.

    You mentioned the Rogers cycling case.

    This is fundamentally different to the scenario I have put forward. Rogers was charged because of a positive drug test. This established that a prohibited substance had entered his body. He was found guilty, but the panel was satisfied that he was not at fault and did not sanction him because the substance had inadvertently entered his body via contaminated meat.

    Contrary to the Rogers case, there have been no positive tests for the “Essendon 34”. Instead there have been admissions by the players that unidentified substances entered their bodies by injections. My argument is that these unidentified substances must be classed as S0 and therefore the players have committed an ADRV.

    Reply
  20. James

    Hi Gary

    the studies by the german universities cited in the article above suggest there is little difference between ingestion and injection (of clembuterol). They are just as likely to end up in your system. Therefore, with regard to that particular drug I think it is spurious that the standard of comfortable satisfaction would be any different. However, I am not an expert on drugs so I can’t comment as to other drugs entering and passing through the body.

    Where I don’t think we are ever going to agree is that you are saying not being able to identify a substance automatically makes it s0. In my opinion, the substance may well have approval for therapeutic use, the fact that the substance is unknown does not, on the face of it make it un-approved.

    Reply
    • Gary

      Hi James,

      I have emailed ASADA ans asked the following question…

      “As an athlete subject to the WADA code would I commit an offense if I allow myself to be injected with a substance whose provenance cannot be demonstrated (and hence cannot reasonably be said to be approved for therapeutic use) or fail to maintain a traceable record of it?”

      I don’t know if it’s wishful thinking to hope for an answer.

      Reply
      • ivan

        that’s just it though it can’t reasonably be said that it isn’t approved, that’s a guess. The only thing you know for sure is that you don’t know what it is

  21. James

    hi Gary

    Isn’t the bit about provenance a leading question, you are basically putting your opinion to them

    If you had said:

    “Player A has been injected with an unknown substance, does the fact that it is unknown affect its classification under s.0 given that there is no method of determining whether it is approved for therapeutic use or not?”

    you are far more likely to get an un-affected opinion from ASADA

    Reply
    • Gary

      True.

      I wrote the email about a week ago. With the benefit of this discussion I would have worded it differently.

      Reply
    • Gary

      Hi James,

      We are obviously going around in circles, but perhaps our different views might be resolved by asking whether a medical professional could be prosecuted for supplying an unidentified substance to a patient for therapeutic use.

      The wording of the Australian Register of Therapeutic Goods (ARTG) gives a clue as to how the legislation works.

      “If a therapeutic good is not entered on the ARTG, it cannot be supplied in Australia.”
      https://www.tga.gov.au/searching-australian-register-therapeutic-goods-artg

      In other words, the default position is that a substance is not approved until specifically identified in this list. I presume this applies in other countries.

      My guess is that if you cannot name a substance it cannot be legally supplied for therapeutic use, and is therefore not approved per the WADA code.

      My aim here is not to argue with you for the sake of it, but to explore the possible arguments for and against. Either way, neither of us has the final say. But thanks for taking me on. I do respect your view.

      Reply
  22. Mike

    I would just like to say well done to Gary, Ivan & James for the lively debate today! You all have clearly done your homework and argued your point of views very well! Not sure if any of you have a legal background but it seemed a bit like lawyers arguing their case in a kind of online Virtual Tribunal ! its been a really engrossing debate!

    I think just about everything has been said that can be said, but there is still one aspect of the Tribunals findings that troubles me. According to Gerard Whateley’s review of the Tribunal’s report the Tribunal found: “The consent form signed by the players was a fatally flawed document that ensured the players had no actual knowledge of the substance with which they were injected;”

    Ivan, in an earlier response to me you correctly stated that the players were not responsible for the missing records. But the players were responsible for signing the consent forms. While they may not have been able to control the record keeping, they did have control over what they would consent to being injected with and had the choice not to sign the form if they found the document lacking in detail. But they did sign.

    And while I can see the logic of the view that the onus is on ASADA to prove that the substances were not therapeutic approval (innocent until proven guilty) , my view is that the signed consent form adds weight to Gary’s interpretation of the players responsibilities.

    I will now try to give my simplified summary of what I think I have learned from this debate. (For the sakes of brevity it is very simplified!)

    Gary’s interpretation :
    – The players are held accountable for everything they choose to consume.
    – The players are responsible for ensuring that everything that they consume has therapeutic approval. No exceptions to this such as “To the best of their knowledge” or “We don’t know what was injected” If they can’t provide the proof that what was injected had therapeutic approval, they are guilty of an ADRV.

    What we now know is this:
    – The players have admitted they don’t know what every substance they were injected with was.
    – The players signed consent forms that (according to GW’s review of findings) that ensured the players had no actual knowledge of the substance with which they were injected .

    Ivan & James interpretation (perhaps more Ivan than James):
    – Because the players don’t know exactly what substances were injected, the players are not responsible for proving the substance had therapeutic approval.
    – Under those circumstances they are therefore no longer held accountable for everything they consume.
    – The players lack of knowledge about what they have consumed shifts the responsibility to the NADO to prove the substance did not have therapeutic approval. This is despite the players willingly (apparently) signing consent forms that ensured they did not have critical details of what would be injected.

    I hope that simplified summary is close but please correct me if I am way of the mark!
    It does seem to me quite extraordinary that the “Dog ate my homework” is a legitimate excuse, in an era where medical staff, officials, coaches and players have had the message driven home about the use of performance enhancing drugs in sport and the need to be vigilant and keep detailed verifiable records of what substances are used. And where the code has been applied ruthlessly to other athletes who have been penalised severely for what appear to be minor or accidental breaches of the. code.
    But perhaps that’s the way it is – I guess we will find out soon! _

    Reply
  23. garyamacleod

    Does anyone have an idea of what the timing would be if WADA appeals the tribunal decisions? When would a hearing take place and how long after that would a verdict and, if applicable, a penalty be handed down.

    Reply
  24. Andrew

    Have you seen this case of IRB V Luke Troy?

    Do you think it has relevence to the current WADA appeal? If it does, how so?

    Given the outcome of the IRB v Troy case, do the AFL players have much of a chance?

    Reply
    • Natalie Hickey

      This is an important and interesting case. Thanks for sharing it. Here is my take:
      1. Much likely turned on the demeanour of the witness who the Panel found unimpressive.
      2. Ignore the discussion about possession because that is not relevant here.
      3. The discussion about “attempted use” is on point. In short, like with clause 11.2 of the AFL Anti-Doping Code and the definition of “attempted use”, one must demonstrate intent plus conduct planned to culminate in an ADRV. However, according to this decision, this seems to require little more than knowledge of the substance, and an intention to use it, even if the plan is ultimately foiled. In short, in this decision ‘intent’ is intended to refer to, say, knowledge of TB4 (rather than knowledge of TB4 + it’s prohibited). And ‘planning’ alleviates the need to show the substance was actually ingested or injected.
      4. A nice discussion of the comfortable satisfaction test too!
      5. It is unlikely that CAS is obliged to follow precedent, but good precedent can be persuasive.

      Reply
  25. Andrew

    Thanks for your thoughts Natalie.

    What do you think of the following parallels from IRB v Troy and WADA v Essendon players?
    1. As you point out, the IRB v Troy case may have turned on the demeanor of the respondent. Similarly, in WADA v Essendon players and Dank, there appear to be several witnesses who may be deemed less than impressive as witnesses, if they even become witnesses at all!
    2. The original ASADA case appears to have fallen short because the tribunal was not comfortably satisfied that thymosin beta-4 was supplied to the Essendon support person even though it appears clear that his intent was to procure and compound it. Conversely in IRB v Troy, the CAS differed from the judicial committee of the ARU – they did “not see it as essential” that the substances had to be proven to be Prohibited substances in proving “attempted use” (Para 84)

    Obviously the current Essendon case is more complex than IRB v Troy as it involves multiple parties – both the athlete and the support person – whose intents may have differed.

    It will be interesting to see what the CAS rules and whether the key witnesses even testify.

    Thanks again. Your blog has been enlightening to my non-legal mind!

    Reply
    • Natalie Hickey

      Hi Andrew,

      On point 1, I’d be careful not to draw conclusions about the demeanour of witnesses based on the limited information we have. If people do not appear as witnesses, often the Tribunal will bend over backwards to give them the benefit of the doubt on the basis that their evidence has not been tested in cross-examination.

      Otherwise, are you sure you’re in the right occupation? Maybe law is an option for you! Thanks for that case today.

      Reply
  26. Andrew

    p.s. Do we even know what the exact charges/allegations against the players and support person are?

    Reply
  27. Peter Buckley

    Hi Nat
    The basic issue is whether WADA consider the evidence before them acceptable on the balance of probilities that is a “comfortable standard” that Essendon playerrs took the banned drug thymosin beta 4 . IRB v Troy s not really relevant. What I am not sure about is a standard that is new to law “comfortable standard’never heard of that!. The “ordinary man” test for provocation defence/standard to murder sets the bar to a certain acceptable standard that is at least understandable (Masciantonia v Queen although criticised in Moffa v Queen) but the “comfortable standard” test what is that?

    Reply

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