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:
- TB4 was procured from sources in China; and
- TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and
- 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  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  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?
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.
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 .
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]