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Stephen Dank did some things, not others, says AFL Tribunal

In this most partisan of cases, sometimes it is all in the headline. And so it proved late on Friday, 17 April 2015, after the AFL Tribunal released its reasons for decision, finding a ‘former support person at the Essendon and Gold Coast Football Clubs’ violated the AFL Anti-Doping Code.

For the benefit of the one person in Australia who does not know the “former support person” is Stephen Dank, he has reportedly conceded the decision was about him, saying his legal team was reviewing the decision. ASADA has also named Mr Dank in its own media release.

True it is, the headline to this post could be a little jazzier. It could suggest: Stephen Dank guilty of drug charges (Sky News Australia). Except this is not an episode of Border Control and would be wrong. Mr Dank was not found guilty of drug charges. This was not a criminal trial. This was a disciplinary hearing arising from the issuing of infraction notices.

The headline could suggest AFL Tribunal clears Stephen Dank of key charges (The Guardian). Except that this is also untrue. The AFL Tribunal was comfortably satisfied Mr Dank committed 10 infractions of the AFL Anti-Doping Code. That the media organization appreciated its mistake might explain a later report calling the outcome a “bittersweet verdict”.

For those wanting a bet each way, never fear. The headline could pronounce Sports scientist Stephen Dank cleared by anti-doping tribunal (Herald Sun) and then follow with the byline: “the AFL anti-doping tribunal has reportedly have (sic.) found sports scientist Stephen Dank guilty of charges relating to the Essendon supplements scandal”.

The Australian Sports Anti-Doping Authority is also not blameless in the battle of the erroneous media release, stating: “ASADA is disappointed in the tribunal’s decision to clear Mr Dank of a number of serious alleged violations”. Mr Dank was not “cleared” of anything. Rather, the Tribunal was not comfortably satisfied Mr Dank had committed a number of the serious infractions alleged. ASADA’s disappointment is linked to the fact that the Tribunal’s findings do not help ASADA’s case that 34 current and former Essendon Football Club players were administered a prohibited substance during Mr Dank’s tenure at the Club.

A single infraction is significant; 10 is a lot

Let us take off our various hats for one moment and focus on Mr Dank. For that individual, the AFL Tribunal only needed to be comfortably satisfied of a single anti-doping rule violation (ADVR) for the consequences to be severe.

Clause 14.2(b) of the Code: For violations of Clause 11.7 (Trafficking or Attempted Trafficking) or Clause 11.8 (Administration or Attempted Administration of Prohibited Substance or Prohibited Method), the period of Ineligibility imposed shall be a minimum of four (4) years and a maximum lifetime Ineligibility, unless the conditions provided in Clause 14.4 are met (which are essentially the no fault provisions).

In fact, the AFL Tribunal was comfortably satisfied that Mr Dank committed ADVR’s in 10 instances.

See my previous post about the threshold required for the Tribunal to be comfortably satisfied of an ADVR. The standard, in layperson’s terms, demands a level of certainty with a little wriggle room. It is not easy to satisfy.

That the Tribunal has approached the task with care is apparent from the number of instances where it was not comfortably satisfied of an infraction by Mr Dank, even though Mr Dank chose not to appear before the Tribunal or present a defence.

Litigation is not a numbers game. The outcome is not assessed like a scorecard. You will not see terms used like ‘nil-all draw’, a ‘10 goal shellacking’ or a ‘comfortable win’.

Multiple legal claims will be brought in the full knowledge that only one claim need get across the line for victory. Many lawyers have read judgments with their heart in their mouth, seeing nothing in it for them, until the last few paragraphs produce victory from the jaws of defeat. One claim is all that is needed for sanctions to follow.

So it is the case for Mr Dank.

The landscape to the AFL Tribunal findings

The reasons remain private. The Full Statement from the AFL Ant-Doping Tribunal Chairman provides a snapshot of the outcome.

Of the 10 ADRVs found by the AFL Tribunal, four concern Essendon Football Club, one concerns Carlton Football Club, two concern Gold Coast Suns Football Club, two concern baseball and one concerns a rejuvenation clinic.

The Infraction Notices applied a cascading approach. I use the language of ‘tiers’ below to help explain this:

Tier 1

Trafficking of a particular prohibited substance or its administration to players.

This would help complete the links of the chain needed to establish a circumstantial case of player use.

Tier 2

Attempted trafficking or attempted administration.

Serious in its own right, this would be insufficient to complete the links of the chain to player use.

Tier 3

Complicity in attempted trafficking or attempted administration.

Serious in its own right, this would be insufficient to complete the links of the chain to player use.

Importantly, whilst the term ‘trafficking’ brings to mind drug busts, covert police operations and substances mixed up in a back yard laboratory, the AFL Anti-Doping Code definition is more benign. For example, if you give a prohibited substance to an in-competition player, then this will be enough to constitute trafficking. The supply of over the counter products will fit this description.

Under the AFL Anti-Doping Code, ‘Trafficking’ means selling, giving, transporting, sending, delivering or distributing a Prohibited Substance or Prohibited Method (either physically or by any electronic or other means) by a Player, Official or other Person subject to the jurisdiction of an Anti-Doping Organisation to any third party; provided, however, this definition shall not include the actions of ‘bona fide’ medical personnel involving a Prohibited Substance used for genuine and legal therapeutic purposes or other acceptable justification, and shall not include actions involving Prohibited Substance which are not prohibited in Out-of-Competition Testing unless the circumstances as a whole demonstrate such Prohibited Substance are not intended for genuine and legal therapeutic purposes. [emphasis added]

The Tribunal rejected most Tier 1 allegations and eliminated some substances entirely from its findings (such as Thymosin Beta-4, except for an incidental reference not relevant to the Essendon player allegations), but found sufficient proof of contravention in relation to some prohibited substances with respect to Tier 2 or Tier 3 allegations.

The relevant clauses of the 2013 AFL Anti-Doping Code were clause 11.6 (no allegations upheld), clause 11.7 (some allegations upheld) and clause 11.8 (some allegations upheld).

Clause 11 of the Code lists ADVRs. Clause 11.6 of the Code concerns possession by a player or official of a prohibited substance or prohibited method. Clause 11.7 concerns trafficking or attempted trafficking in a prohibited substance (see definition of ‘Trafficking’ where the supply can be to any third party). Clause 11.8 is essentially a ‘catch-all’ referring to the administration or attempted administration to any player of any prohibited method or prohibited substance, and includes assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an ADRV or attempted ADRV. [emphasis added]

Whilst the position is arguable, the language of clause 11.8 suggests some form of intention to circumvent an ADRV or attempted ADRV. If that is not the correct construction, it means anyone who mistakenly encourages someone to take a product (such as a protein supplement) containing a prohibited substance could be theoretically found to have violated clause 11.8.

In this regard, pursuant to clause 3.1(d) of the AFL Anti Doping Code, the Code applies to “all persons involved in any capacity or manner in Anti Doping Rule Violations” (whether or not they are players or officials).

Essendon Football Club

The Tribunal found Tier 2 and Tier 3 ADRVs concerning Hexarelin and Humanofort.

Specifically, the Tribunal was comfortably satisfied that Mr Dank:

  • attempted to traffick in Hexarelin (a prohibited substance) to support persons of the club between about January 2012 and September 2012: Infraction Notice 7(B) per clause 11.7 of the AFL Code
  • was complicit in trafficking or attempting to traffick Hexarelin to Essendon Football Club between about January 2012 and September 2012: Infraction Notice 7(C) per clause 11.8 of the AFL Code
  • attempted to traffick a product called Humanofort (containing the prohibited substances Insulin Growth Factor 1 (IGF-1), Insulin Growth Factor 2 (IGF-2), Mechano Growth Factor (MGF), Fibroblast Growth Factor (FGF), Follistatin and Thymosin Beta 4) to Essendon Football Club and athletes of the club between about January 2012 and September 2012: Infraction Notice 8(B) per clause 11.7 of the AFL Code
  • was complicit in attempted trafficking of Humanoblast to Essendon Football Club and athletes of the club between about January 2012 and September 2012: Infraction Notice 8(C) per clause 11.7 of the AFL Code [query whether intended to be a reference to clause 11.8]

The Tribunal declared itself unsatisfied in relation to all allegations concerning Thymosin Beta-4 (whether or not in injectable form), all allegations concerning a Selective Androgen Receptor Modulator (SARM), and allegations concerning the actual administration of Hexarelin to Essendon Football Club players.

That the Tribunal said ‘No’ to trafficking but ‘Yes’ to attempted trafficking begs the question: Is this a hair-splitting exercise? Without access to the detailed reasons, one simply has no idea. However, on its face, the distinction seems very fine between trafficking, attempted trafficking and complicity.

Whatever the case, the findings do not go far enough to suggest Essendon Football Club players actually used Hexarelin or Humanofort. No Essendon player has faced an infraction notice (to public knowledge anyway) for use of Hexarelin or Humanofort.

For a helpful description of Hexarelin and Humanofort, see Jon Pierik’s article in The Age:

Humanofort appears to be a popular fitness supplement, as illustrated here:

In the face of apparent confusion about whether Humanofort contains prohibited substances, it is unlikely the AFL Tribunal would have ‘taken ASADA’s word for it’. Typically, the trier of fact will want proof of all underlying elements of a case before making any adverse findings.

Carlton Football Club

This is an example where the Tribunal was prepared to uphold a Tier 1 allegation. The Tribunal was comfortably satisfied Mr Dank trafficked in MGF to a Carlton Football Club support person between March 2012 and October 2012: Infraction Notice 9(A) per clause 11.7

MGF or Mechano Growth Factor is an injectable peptide said to promote muscle mass. One forum described it as EXTREMELY anabolic. According to a research article by Hongwu Du et al, it has been on WADA’s prohibited list since 2005, but otherwise difficult to detect. The packaging features ‘vials’, with less of the protein-powder-vibe of, say, Humanofort.

The Tribunal’s finding does not suggest that by supplying MGF to a Carlton Football Club support person, it ever made its way to a player.

Gold Coast Suns Football Club

The Tribunal determined Mr Dank committed a Tier 2 and Tier 3 ADVR in relation to CJC-1295.

Specifically, the Tribunal was comfortably satisfied that Mr Dank:

  • attempted to traffick in CJC-1295 to Gold Coast Suns Football Club and support persons of the club in December 2010: Infraction Notice 10(B) per clause 11.7 of the Code
  • was complicit in connection with trafficking in or attempted trafficking in CJC-1295 to Gold Coast Suns Football Club and support persons of the club in December 2010: Infraction Notice 10(C) per clause 11.8 of the Code

Canberra Raiders NRL player Sandor Earl is reportedly serving a suspension for use of CJC-1295. A now retired Gold Coast Suns Player was also reportedly investigated by ASADA for a CJC-1295 injection during December 2010 to help recover from a broken leg. The Tribunal’s conclusions, on their face, do not support a finding linking Mr Dank’s conduct to this alleged injection (‘attempted trafficking’, ‘complicit’).

In a 2013 news.com.au article, Dr Peter Larkins described CJC-1295 as a peptide with the potential to cause high blood pressure, extreme stress on the liver and kidney, loss of fertility and yes, potentially even cancer.

However, its cancer causing properties were questioned by Professor Michael Waters in a 2013 interview on ABC Radio’s PM program, although Professor Waters noted that some cancers produced the peptide CJC-1295.

Baseball

The Tribunal determined Mr Dank committed a Tier 1 ADVR with respect to GHRP6 and a Tier 3 ADRV with respect to GHRP6 and other prohibited substances.

Specifically, the Tribunal was comfortably satisfied that Mr Dank:

  • trafficked in GHRP6 to a third party or parties in the sport of baseball between February 2012 and March 2012: Infraction Notice 12(A) per clause 11.7 of the AFL Code
  • was complicit in connection with trafficking in or attempted trafficking in Hexarelin, SARMS, CJC-1295 and GHRP6 between February 2012 and March 2012: Infraction Notice 12(C) per clause 11.8 of the AFL Code

How does the AFL Tribunal have jurisdiction over baseball?

Logically, you might suggest the Australian Baseball Federation should deal with any such inquiry.

This is certainly a curious aspect of the Tribunal’s findings. The introductory language to the Code explains that it shall apply to all Australian Football Matches. This appears intended to clarify that the Code is not just AFL related; it extends to Australian Rules matches at State, Territory and Community level. No mention of baseball here…

Presumably, the AFL Tribunal decided it had jurisdiction based on clause 3 ‘Application of the Code’. In short, the Code’s jurisdiction is sourced from the people it governs rather than the nature of the sport. It applies to players, Clubs and their Officers, Officials, and all persons involved in any capacity or manner in Anti-Doping Rule Violations.

This means the AFL has an incredibly broad jurisdiction. After all, an Official is defined under the Code to mean a coach, trainer, manager, agent, team staff, official, medical or para- medical personnel, parent or any other Person working with, treating or assisting a Player participating in or preparing for the AFL Competition. That person need not be an employee.

If Mr Dank’s role was at all similar to his role with the Cronulla NRL Club, his role was well-described by Justice Ward in the New South Wales Court of Appeal: “Stephen Dank is a “sports scientist” who was retained by the first respondent (the Club). His role with the Club was described by his Counsel on the present application, Mr Evatt, as being the administration or supervision of the giving of stimulants to rugby league players at the Club”: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288

In other words, presumably because the time period of the ‘baseball conduct’ coincided with Mr Dank’s tenure working with Essendon Football Club players, the AFL Anti-Doping Code could apply.

If the language of this wide definition is replicated across Codes, it would enable ASADA to ‘forum shop’ (if a person treated players across Codes during the same period) to find the easiest jurisdiction to satisfy its case.

What is GHRP-6?

Wikipedia does not help here. The content of the explanation is disputed. An editorial comment suggests that some medical expertise would be helpful. So too, a search for GHRP-6 tends to reveal blogs, anecdotal evidence but nothing of particular credibility.

The search results can be summarized as:

  • GHRP-6 is a peptide
  • It is probably a bit like Hexaralin
  • It has some lovely sounding side effects such as: flu-like symptoms, joint pain, and carpal tunnel syndrome, headaches, and bloating and water retention
  • It is used in the fitness industry (surprise!)

Medical rejuvenation clinic

The Tribunal determined a Tier 1 ADVR with respect to GHRP6 and MGR.

Specifically, the Tribunal was comfortably satisfied that Mr Dank trafficked in GHRP6 and MGR to customers of the Medical Rejuvenation Clinic between November 2011 and September 2012: Infraction Notice 13(A) per clause 11.7

Broadly speaking, this seems to reveal similar jurisdictional queries as the ‘Baseball’ discussion.

However, the important question here is: Who are the customers? After all, this is a Tier 1 finding, which means the AFL Tribunal was comfortably satisfied Mr Dank ‘trafficked’ (namely, supplied) these prohibited substances directly to ‘customers’.

If the customers were in-competition AFL players, then there is a close nexus between the finding and the use of these prohibited substances.

Yet, if the customers were, say, 40-something folks interested in a little anti-ageing help (say, just like me…), it is breathtaking to suggest the AFL Tribunal could conceivably have jurisdiction over such a matter.

Yet, speaking technically (and in the absence of the Tribunal’s reasons), the Code seems to suggest just this. In this regard,

  • Note that a clause 11.7 ADRV is very generalized, linked to the definition of ‘Trafficking’
  • See the broad definition of ‘Trafficking’ – giving a Prohibited Substance or Prohibited Method (namely, on WADA list) by an Official to anyone
  • Query whether Mr Dank’s qualifications as a biochemist enable him to satisfy the available exclusion for “bona fide medical personnel”
  • Note that Mr Dank chose not to appear before the Tribunal and so was unavailable to offer any “other acceptable justification”.

Prospect of appeal

For the appeals procedure, see my previous post concerning ASADA’s options. The same will apply to Mr Dank.

In reports from the ABC, Mr Dank has announced he intends to appeal the Tribunal’s findings. He has reportedly said:

We will now advise the Australian Football League of our intention to appeal the decision. We find the outcome quite inconsistent with facts and very angry at the amount of lies and misinformation used as evidence in the case.

Barrister Clive Evatt is also currently looking at the legal options for those people who have provided such misinformation.”

Mr Evatt has represented Mr Dank from time to time in various defamation proceedings Mr Dank has brought in New South Wales.

If a person is not prepared to turn up to a Tribunal to defend one’s position, it is a little unfair to criticize it later for getting the facts wrong. Further, missing the dynamics of the hearing might matter for an appeal. The AFL Appeal Board will have the benefit of written reasons, but Mr Dank will be unable to present his side of the story about ‘what happened’ during the hearing itself.

Finally, a word about ASADA’s gripe that the AFL Tribunal decision about Mr Dank took too long:

ASADA notes that all 35 matters were heard concurrently by the tribunal. We also note the tribunal stated its preference was to release their decisions on all 35 matters at the same time. The reality however is that we have only just received the findings on Mr Dank. ASADA is disappointed that this comes as the window of appeal on the first 34 matters rapidly closes.”

First, ASADA saw fit to complain after it had in its hands the decision about Mr Dank. Secondly, ASADA saw fit to complain when it still had a few days to decide what it wanted to do. Its complaint about the Tribunal is unfair.

Given the complexity of the proceedings, the Tribunal’s process has been extremely swift. It did not need to be so quick. It was not obliged to synchronize its decisions. Perhaps people do not appreciate that courts often take more than a year to hand down judgments, without such consideration to the parties.

Still, if the AFL Tribunal is pleasing neither party, it is likely doing something right.

7 Responses to “Stephen Dank did some things, not others, says AFL Tribunal”

  1. Don Williams

    As a non-lawyer, I am curious about the implications of the Medical Rejuvenation Clinic ADRVs. At face value, these would seem to adversely affect a person engaged in perfectly lawful commercial transactions, which presumably comply with the legal requirements for a business of this type.

    As I understand, the AFL Anti Doping Code is an ‘in-house’ set of rules established by a sporting organisation ie the AFL. Is there a potential conflict between the operation of the AFL Code and a legitimate business operation? If so, could a person operating such a business seek a legal remedy if they were subject to an ADRV?

    Thank you

    Don Williams

    Reply
    • Natalie Hickey

      Hi Don,

      The definition of trafficking in the AFL Code is initially wide, but has carve outs for people with legitimate excuse. E.g. ‘I supplied the prohibited substance to a non-player at a clinic. It coincided with my tenure as an Official but has nothing to do with my role as an Official.’ However, if you don’t turn up to the Tribunal to explain yourself, it can’t take on board any legitimate excuse you might have. That’s why Mr Dank’s decision to stay away from the Tribunal has not helped him.

      Kind regards,
      Natalie

      Reply
      • Don Williams

        Hi Natalie:

        Thank you for your reply and for a most informative article. I did have a look at the AFL Code and noted the carve outs/exemptions that you refer to. A further question if I may: where would the burden of proof rest with a claimed carve out ie if an Official claimed that a carve out applied to them, would the burden of proof lie with them to substantiate this claim, or would ASADA/the AFL have to disprove the claim?

        Also, it seems to me that substantiating a carve out might depend on medical records, with all the associated privacy issues…interesting stuff!

        Don Williams

      • Natalie Hickey

        Hi Don,
        The short answer on the question of burden of proof is: it is by no means clear. Practically though, ASADA / the AFL need to substantiate an ADRV. The definition of trafficking allows for alternatives which would sit outside its scope. Therefore, ASADA/ the AFL would need to address those possibilities to show there are no obvious exclusions. However, they could not address matters outside their knowledge or what is reasonably foreseeable.

  2. Don Williams

    Hi Natalie:

    Thank you again. No doubt Mr Dank’s lawyers are considering these issues, assuming he does actually proceed with an appeal.

    Don

    Reply
  3. Mike

    Hi Natalie,
    Thanks again for a great article.
    While appreciating that the Tribunal had a very difficult task, I do find it a little intriguing that they appear to have delivered findings on Mr Dank that seems to provide a near perfect outcome for the AFL. They were not comfortably satisfied in regards to any infractions that related directly to the players, but were comfortably satisfied on 10 other infractions. So despite no comfortable satisfaction findings in relation to the players, Mr Dank can still be severely penalised – possibly facing a life ban from working in the AFL. In effect, it appears that Mr Dank will still be penalised for what happened at the EFC, just in a roundabout way. (Wasn’t determining what happened at the EFC the primary purpose of this Tribunal hearing?)

    The tribunals justification for these findings may be sound, but from an AFL perspective, it does look a little neat and I can understand the rationale for ASADA to not appeal to the AFL appeals board and hand-balling to WADA to consider an appeal directly to the international Court of Arbitration for Sport.

    Reply
  4. Steve Dank

    Hi Natalie,

    Unfortunately there a few mistakes in your article. Also your understanding of some parts of the law are incorrect. Another important point is that you are not in any position to make any scientific assumptions on behalf of Professor Waters particularly if it provides some defamatory framework. Your article is now in the hands of my barristers.

    Regards

    Steve Dank.

    Reply

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