Insights into litigation, sports law, media and legal culture

Essendon Saga: 13 legal things from CAS Judgment Day

Mainstream media outlets have been jammed with statements, comment and reaction following news that the Court of Arbitration for Sport (CAS) ruled on 11 January 2016 to sanction 34 past and present Essendon Players for anti-doping rule violations (ADRVs). CAS upheld an appeal by the World Anti-Doping Agency (WADA) from a decision of the AFL Anti-Doping Tribunal (AFL Tribunal). It has now set that decision aside.

The case is important for Australian Rules supporters because it concerns the fate of an Australian domestic team sport within an amphitheatre of parochial, strongly held views for and against the protagonists involved.

The case is important for the global sporting world because it concerns adverse ADRV findings made in relation to a team sport without the presence of positive doping results for a prohibited substance. The relevant substance was Thymosin Beta 4, or TB-4.

For more reaction, look elsewhere. This post will examine what we learn from the CAS decision itself.

1. The decision was not unanimous

We do not know which of the three arbitrators (Michael Beloff (President), Romano Subiotto or James Spigelman) dissented.

It appears the disagreement concerned whether WADA had proved ADRVs in relation to all 34 players, or almost everyone.

One member of the Panel agreed that almost all players committed ADRVs and were significantly at fault in so doing, but was not comfortably satisfied in relation to “several players” whether “use is made out”.

See para 151(i) and (ii): Note that the explanation supplied is not without ambiguity. Also, treat the summary in the CAS media statement with caution because it does not use language consistent with that in para 151.

2. The ‘2 year, partly back-dated’ ineligibility period is pretty standard

For evidence of this, refer to the preceding CAS decision listed immediately after the Essendon decision on the CAS website. It is called Australian Sports Anti-Doping Authority, on behalf of Australian Canoeing and the Australian Sports Commission v. Tate Smith dated 2 October 2015.

Indeed, it is also an Australian case. Of course, it concerns a canoeist, and not most of a team of Australian Rules footballers. There are also different facts, in that Mr Smith tested positive for a metabolite of Stanozolol and was unable to prove that he innocently ingested it in the water where he trained. However, the language of the ruling about the ineligibility period is very similar.

This illustrates how CAS and its arbitrators have oversight for many sports, and the rulings are more likely to reflect a consistent, dispassionate position on sanctions having regard to this broader perspective.

The ineligibility period for each affected Player varies somewhat, and is specified in a Schedule at the back of the Essendon decision. The end point for almost all Players (except three) is at some point in November 2016.

Of the three Players outside this period, the ineligibility period for one ends in December 2016, and for two Players it ends in February 2017.

There is no confidentiality about names and relevant periods because WADA did not agree to keep the details confidential, which is why the CAS Court Office is able to publish players’ details in full: see para 181.

The ban was back-dated to 31 March 2015, when the AFL Tribunal decision was handed down. CAS did not need to back-date, and exercised its discretion to do so based on the delay in bringing the matters on for hearing: para 171.

The Panel recognised there were some factors in favour of back-dating (e.g. intense, “if sporadic” media spotlight for more than three years), and others against (e.g. some of the delay was caused by the Players’ unsuccessful attempt in the Federal Court of Australia to quash the infraction notices), but decided to back-date on balance.

The Panel did not, however, consider that the no-fault provisions should apply, and based on some of its conclusions about the players’ credit (discussed below), the decision does not reveal any particular sympathy for their plight.

3. The players cannot train with their Clubs for the time being

The Panel has left it up to the AFL to work out the ins and outs of when the Players can return to training, but the maths must be done in accordance with rule 10.12.2.

According to this rule, a player may return to training during the shorter of (1) the last two months of the Athlete’s period of Ineligibility, or (2) the last one-quarter of the period of Ineligibility. In other words, this is unlikely to be before July 2016, with presumed start dates for most players in September 2016.

The prohibition is against training with a team or using the facilities of a club or other member organization (ie. another AFL Club).

Does this mean that the sanctioned players can train together, albeit at some unassuming local oval? Presumably, the prohibition against training with “a team” refers to “the official playing team”, and so this would not be problematic. However, this is an issue remaining to be resolved.

If anything, and given the culture within an AFL Club, it is this sanction players are likely to feel the most, and something which distinguishes them from, say, an injured player running laps whilst the rest of the team performs different drills.

4. The Players have to pick up a large part of the cheque

The costs of the arbitration must be borne 75% by the Players and 25% by the AFL. Presumably the Players’ Association will pick up the Players’ tab.

Given the expense of the exercise, the Panel also ruled that the Players and AFL shall jointly contribute CHF 30,000 (thirty thousand Swiss Francs) to WADA for its legal fees and other expenses in connection with the arbitration. For anyone who has visited Switzerland recently, the exchange rate means this is a lot more money than it sounds.

5. Of the fresh evidence, some mattered a lot, other evidence less so

The most important incriminating evidence appeared to come from some of the players themselves. This is discussed further below. The Panel noted with apparent surprise that neither party had sought to call the players as witnesses, and so they had to do it: “It was an odd feature of the case that – it may be for perceptible tactical reasons – no party actually sought to call any of the Players to give oral testimony, and those who in the event did appear did so on the initiative of the Panel”: para 119

The hearing also appeared replete with experts from all parties, some who appeared at the AFL Tribunal and others who were new. ‘Dr Cox’ apparently impressed the Panel most, receiving the accolade:

The Panel was wholly convinced by the impressive evidence of Dr Cox (which was not available to the AFL Tribunal) to that effect, including his illuminating observation that the other compounds tested at Bio21 corresponded in their molecular structure to what they purported to be. Dr Cox had relevant and specific expertise. Dr Vine in the end agreed with Dr Cox for all practical purposes, since the difference between them was of a miniscule degree, ie. 99% as distinct from 97% to 98% certainty that the substance compounded at Bio21 was TB-4”: para 132.

WADA called Dr James Cox. The Players called Dr John Vine. The Panel added for good measure the Latin phrase ‘de minimis non curat lex’ after this comment, not only to show their knowledge of a dead language, but also to highlight to the Latin linguists reading the decision that the law does not concern itself with trifles. In other words, any minor difference about whether the substance was TB-4 is hardly material given the high degree of certainty put forward by both experts.

Fresh evidence not carrying apparent weight concerned scientific testing of a sample from Player A taken in the wake of a match on 14 July 2012. The Panel accepted the sample tested positive for TB-4. However, it was not prepared to accept that the positive test was caused by the injection of a TB-4 supplement, as distinct from it naturally occurring due to things like strenuous exercise.

This positive TB-4 test had been the subject of considerable pre-hearing controversy between the parties. However, CAS took an appropriately cautious approach to an evaluation of the evidence, possibly in contemplation of the strict protocols which typically apply when testing for the presence of a prohibited substance as distinct from its use.

So too, WADA apparently backed away from the evidence towards the end of the five day hearing: para 150.

6. How did the Panel deal with the evidence of people who did not testify?

The Panel recognised that the Players had powerfully argued that the written statements of people such as Mr Xu (the biochemist who allegedly sold the TB-4 to Mr Charter), Mr Charter (who allegedly purchased the TB-4), Mr Alavi (who was alleged to have compounded it) and Mr Dank (who was alleged to have administered it to the Players) should be given little weight. This is because they were not available for cross examination and so the Panel could not observe their demeanour.

The Panel decided to approach their evidence with caution, except where they made admissions against interest. However, the Panel was not prepared to rule out any consideration of this evidence: para 118.

7. When does it become clear that the writing is on the wall for the players?

Key to the AFL Tribunal decision clearing the Players was that ASADA could not prove, to its satisfaction, that TB-4 was the precise substance actually injected into them, even though the protagonists might have intended to do so.

The Panel rejected this approach referring to the case of USADA v Tim Montgomery (CAS 2004/O/645) in which an admission by Mr Montgomery that he had taken a prohibited substance was enough to establish his guilt, even though he could not identify, in the absence of any analysis, exactly what he had taken or whether it was indeed prohibited.

According to the Panel, the Montgomery case, plus the nature of the alleged ADRV (a use case not a presence case), “undermines the thrust of the Players’ submissions in opening that the inability to establish the content of the injection by scientific means was fatal to WADA’s case”: para 103.

This assessment undermined not just the Players’ submissions, but ripped the heart out of the AFL Tribunal decision the Players had sought to rely upon.

8. Which person most influenced the Panel to find against the Players?

This is speculative, but an educated guess suggests “Dr Bruce Reid”. Dr Reid, the club doctor for Essendon, was one of WADA’s witnesses and gave evidence by video. His presence looms large throughout the decision.

It was Dr Reid who on 17 January 2012 wrote to Mr Hird and Mr Hamilton pointing out his concerns his club doctor, that “we are playing at the edge”, that “side effects …are not known” and that he had “trouble with all these drugs”.

Whilst not expressly stated by the Panel, a theme of indignation emerges that the club doctor, the apparent lone voice preaching conservatism and caution in relation to the supplements scheme, had been consigned to the side lines as the product of bygone era, to be ignored if not treated with derision.

The Panel referred to Mr Hird’s text messages with Mr Corcoran on 30 January 2012, with Mr Hird stating:

Understand about the injecting and don’t want to push the boundaries. Just need to make sure we are doing everything we can within the rules as the other clubs are a long way ahead of Reidy and us at the moment” and that “Reidy …stopping everything”.

That the prevailing culture of Essendon sought to exclude Dr Reid’s circumspect approach at the time is confirmed, at least to the Panel, by the Players’ failure to inform him of what they were taking. For example, it was suggested that all Players reasonably assumed that Dr Reid had approved the program, hence they relied on his approval.

The Panel considered this assumption to be “ill-founded” because the Player did not seek to test its validity by informing the club doctor, let alone seeking his advice: “None sought the advice of the club doctor about Thymosin, although he was to many a friend as well as a physician”: para 160.

This was contrasted to reliance upon senior persons within the club who were not even medically qualified. As the Panel stated: “this was even less impressive than reliance on the club doctor. The explanation falls short of an excuse”: para 158.

9. Credibility of Players impugned by Panel

Within the AFL community, support for the Players has been close to absolute. The Panel members, however, were entirely unsentimental. The rule they follow is one of personal responsibility. They regarded AFL players as no different from any other athlete, warned about the importance of individual responsibility, noted the Players had been educated about anti-doping, and referred to their access to the WADA hotline (but apparent failure to pick up the phone) if in doubt.

The short point is that the Panel found that the Players’ “lack of curiosity is fatal to the success of [a no fault plea]” (emphasis added).

Consider these dates from the decision:

  • 15 January 2012: Protocol agreed by which informed consent of players to be obtained to supplements
  • 16 January 2012: Concerns about supplements being offered were raised by players at a leadership meeting.
  • 12 February 2012: Vast majority of players sign “patient information/informed consent” forms consenting to the administration of four substances including “Thymosin”.
  • January to September 2012: Supplements regime proceeds.

Notably, one player recalled being told at the February 2012 meeting that it was like” being on a cliff and going right to the end but not going over it”. Clearly unimpressed, the Panel said that in its view, the Players must have appreciated that the regime to which they were being asked to submit was, if not over the edge, at any rate near to it and having been invited to go near the edge, in the event, went over it.

Further, the secrecy maintained by the Players was considered material: “their behaviour, keeping the club doctor out of the loop, and failing to record the injections on the doping control forms, clearly justifies such inference being drawn. This was, at its lowest, consistent with an appreciation of its controversial nature”: para 120(xv). This “veil of secrecy”, the Panel observed, would not be required in relation to something known positively to be lawful and innocent: para 164.

The consistency of their evidence was also relevant: “Several players insisted that Mr Dank was not present at away matches until confronted with a text message exchange that proved he was. This also undermines their credibility”: para 120(xvi).

The example was supplied of a player who suffered from cardiac arrhythmia who was only prepared to inform his doctor he was receiving “vitamin supplements” for the purpose of assessing how they might react to his medication: para 121.

The Panel was prepared to accept that the Players were “economical with the truth” in their interviews with ASADA: para 129(vi).

The Panel obviously found the “complete failure” of the vast majority of Players who had to fill in a doping control form during the season to reveal the receipt of injections to be compelling. The Panel stated that this “does not encourage confidence in their statements as to the limited or sporadic nature of what they were injected with”: para 129(vii).

The Players’ evidence as to why Thymosin injections were not disclosed in doping control forms was described by the Panel as a “calculated (but vain) attempt to justify the non-disclosures”: para 161. The suggestion that “you list the things that you feel you need to list”, made by one player, was clearly not regarded as an impressive piece of evidence.

In conclusion, the Panel stated that the Players’ failure to disclose supplements they would take before a game on their doping control forms was “indicative of the casual approach (at its best) to the secretive (at its worst) approach” adopted.

These breaches, in the Panel’s view, sprang from a single source, namely a group decision by the Players, albeit at the direction of others, to keep secret the nature of the new regime: para 163.

10. Were on-field results considered relevant?

Not really. Whilst Essendon’s “conspicuous success” at the start of the 2012 season was recognised, this was considered by the Panel to be a “barely visible thread rather than a strand” of material evidence.

The factor was little more than “not inconsistent” with WADA’s overall conclusion.

11. Proving WADA’s case: ‘links in a chain’ versus ‘strands in a cable’

Proving a circumstantial case can bring out the frustrated wordsmith in any lawyer. According to the Panel, there were analogies to many things including jigsaws and even Danish arthouse films.

But the most significant wordplay concerned whether WADA should pursue ASADA’s previous (failed) game plan before the AFL Tribunal of proving use of TB-4 by reference to links in a chain, or do something else. WADA chose to do something else.

The problem with the links in the chain analogy, is that you only need to miss one, and there is no chain, and therefore no case. ASADA experienced this issue first hand before the AFL Tribunal.

By contrast, visualise strands in a cable. One strand may only result in a slender proof, but it does not disqualify the entire concept. Lots of strands equates to a pretty decent rope. WADA went for the rope idea.

It appears that the 34 Essendon Players did not initially oppose this change of approach, perhaps only appreciating towards the end of the hearing its implications. The Panel rejected any attempt to disqualify this changed approach on the basis that WADA was simply reformulating an existing argument: “On analysis, WADA’s argument remained the same from start to finish: it did not more than present the same arguments in a different way”: para 111

Another approach is simply to refer to all the evidence and, having regard to its totality, suggest that the Panel should be comfortably satisfied that an ADRV has taken place.

The Panel referred with approval to an English Privy Council case of Attorney General for Jersey v Edmond O’Brien (20016) 1 WLR 1485 when considering how best to assess proof:

Although they said they had reviewed the evidence “separately and together”, there is little indication that they had regard to the cumulative weight of the various items of evidence, to each of which they had, sometimes not altogether plausibly, assigned a possible innocent explanation. It is in the nature of circumstantial evidence that single items of evidence may each be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt”.

This analytical approach was at odds with that taken by the AFL Tribunal. By contrast, the AFL Tribunal had analysed the evidence on a piecemeal basis. Rather than looking at the totality of evidence and expressing itself comfortably satisfied, or not, the AFL Tribunal had evaluated the strength of single items of evidence, without taking them together.

The strength of the analogy ultimately adopted by WADA is apparent from the Panel’s conclusion, when it referred to the Players’ natural desire to treat the links in a chain analysis as indispensible, because by breaking one of the links, WADA’s case would fail. However, as the Panel stated, “If the strands in the cable analysis is (as the Panel considers) to be preferred, the force of the Players’ argument evaporates”: para 141.

12. Was Thymosin the prohibited TB-4?

This is one area where the Panel’s reasons tend to let the reader down.

Why is it that Thymosin must necessarily be TB-4, if there are “apparently more than 27 varieties” (refer para 131).

Presumably, there was significant evidence led that the supplements regime was wholly consistent with the application and benefits of TB-4. However, this is not expressed in any detail, if at all.

The highpoint in the reasons is that “the efficacy [of the program] depended…on the properties of TB-4. Therefore, the Players consensual use of ‘Thymosin’ in the context of [the] program could have only been TB-4, as no other available form of Thymosin would have provided [the] desired results”: para 132.

To be frank, this analysis appears thin, and without sufficient explanation for why the other 26 varieties of Thymosin are excluded as potential candidates.

Perhaps it is the case that the Panel was persuaded that the evidence otherwise demonstrated an intention to use TB-4, such that any use of another variety of Thymosin was highly unlikely. This is to be combined with the impressive evidence of Dr Cox, who confirmed that at least one source of Thymosin likely used by Essendon had the same molecular structure as TB-4.  However, even if their writing hands hurt, it would have been preferable for the Panel to flesh this out in more detail.

13. Is this the end?

If this saga suggests anything, it is simply that any predictions are capable of being rash and unfounded. Time will tell.

6 Responses to “Essendon Saga: 13 legal things from CAS Judgment Day”

  1. Julian

    Good analysis as always, but still struggling to see how three well qualified arbitrators in Australia so comprehensively dismissed the case, yet we have three new and apparently well qualified arbitrators now, based on the same evidence, so comprehensively having an opposite view. The links in the chain versus strands in a cable just reads like an excuse by the CAS panel to make the finding it wants. The reality is that both approaches should still have the same result. And I agree on the oddity of not addressing the main issue in the whole saga – did they take TB4 or a legal form of thymosin and if TB4, where is the proof? The Panel just seems to conclude that everything suggests it must have been TB4 – seems a bit loose to end careers.

    Question now will be around appeals. Seems limited. But if there’s an avenue, and insurers are picking up the tab, expect something will be attempted, either in Aus courts or in Switzerland. Any thoughts on appeal options?

    Reply
  2. Jenny

    I think it is disgusting what cas has done for sport. If the AFL really cared why don’t they withdraw from WADA. This decision was all to save face for ASADA.

    Reply
  3. Don Williams

    Natalie: Thank you for such an informed, and informative, analysis. I believe you are very kind to the CAS Panel when you describe their reasoning that the Thymosin was TB 4 and not one of the myriad other forms as ‘thin’. The Panel itself stated (para 131) “there is no evidence that what Mr Dank injected into the Players was Thymosin Alpha or, indeed, any other form”. Having honestly put the complete lack of evidence on the record, they then assume that TB 4 was used, based on the benefits of different forms of Thymosin.

    That conclusion appears to be no more than an assumption, which the Panel concedes is not supported by other evidence.

    If I can make an assumption, it is that the CAS Panel had a broader agenda in mind and wasn’t going to let an absence of real evidence get in the way of reaching their preferred conclusion.

    Reply
  4. Yann

    Sound analysis. – CAS is a private court, which is important in the Essendon case because its arbitration rulings are subject to Swiss public policy. Under Swiss public policy, a private court cannot lawfully give a verdict on a penal case under any circumstance. In its case law, doping cases, being aimed at punishing dopers, have consistently been considered by the Swiss Federal Supreme Court as ruled by contract law, not penal law, since all parties have been private persons: In particular, the accusing party has been a sports federation, a private, non-governmental entity which lacks coercive powers a government would have. This condition (that all parties are private) does not hold here, however, since the prosecutor of the accused football players is the Australian Anti-Doping Agency, a branch of the Australian Government which indeed has coercive powers based on the ASADA act of 2014.

    This means that the Swiss Federal Supreme Court will not view doping cases as private law cases between equal parties if one of the parties is a government with coercive powers above the other party.

    In other words, and minted on this case, a state (Australia) cannot lawfully prosecute (through ASADA) people (football players) using coercive powers (the ASADA Act of 2014), and then hand them over to a private court (CAS) for serving the punishment – that must always be done by a state court.

    Or, in legal terms, the condition of article 190.1.2.e of the Swiss PILA act, forbidding breaches of Swiss public policy, ist fulfilled, which is a sufficient ground to have the CAS award set aside.

    Reply
  5. Vince Mahon

    The ongoing analysis appreciated. Clear from the decision is an athlete’s obligations under the anti-doping code. A failure of leadership from the AFL, AFLPA & Essendon Football Club to acknowledge & emphasise such player obligations are paramount & mandatory not discretionary. Club culture is not a defence for an athlete abrogating their responsibilities under the anti-doping code. Should be part & parcel of the education program bestowed on these well paid professional & elite athletes.

    Reply

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