In September 2011 Essendon FC favourite son, James Hird, had just completed his first season as head coach. Essendon had performed better than average, making the finals but falling out in the first week. He was immediately looking for an edge that would enable the team to win a Premiership and the club appointed Dean Robinson (aka "The Weapon") as high performance coach. Robinson had previously worked with the Manly Sea Eagles, the Geelong FC and the Gold Coast FC. Robinson immediately introduced Stephen Dank to James Hird and Bruce Reid (Essendon long time club doctor) describing Mr Dank as "biochemist, a pharmacist, a nutritional expert ... the best in Australia." Dank had also worked with the Manly Sea Eagles. Dank was appointed "Sports Scientist" for Essendon on 1/11/2011. His responsibilities included: "the design of supplementation protocols and recovery procedures and their implementation."
In January 2012 it was apparent that Essendon players were being given substances without the approval of Dr Reid who approached Hird on the matter. A meeting was held and it was agreed that no substances would be administered without the approval of Dr Reid, that there must be player consent, it must be legal and players must not be harmed. Later that month Dr Reid wrote to Hird about players being given injections including AOD-9604. James Hird was not impressed with Bruce Reid's caution, seeing it as backward and slowing team progress while other teams embraced these new methods.
February 2012: All players attended a meeting addressed by Mr Hird, Mr Robinson and Mr Dank on the subject of supplements. Dr Reid was not there. Either at the meeting or shortly after, the vast majority of them signed informed consent forms in which they consented to the administration of 4 substances including AOD-9604 and "Thymosin" by way of injections. It was asserted at the meeting that these were all WADA compliant.
In September 2012 Essendon self-reported its concerns with the program to the AFL and ASADA.
In February 2013 Essendon announced a joint investigation with ASADA to look into its 2012 supplements program.
In August 2013 after negotiations between Essendon and the AFL, the Bombers were banned from the 2013 finals. The club was fined $2 million and lost picks in 2013 and 2014 drafts. Coach James Hird was suspended for one year. Assistant coach Mark Thompson was fined $30,000 and football manager Danny Corcoran was banned from AFL teams for six months.
This was not enough for ASADA who waited until June 2014 before issuing show-cause notices to 34 current and former Essendon players regarding the possible use of prohibited substances. Essendon launched a Federal Court challenge to this which was denied.
In November 2014 ASADA issued infraction notices for the 34 players for the use of banned peptide thymosin beta-4. Also in the same month James Hird launched a High Court appeal which was dismissed in January 2015.
On the 31 March 2015: the AFL anti-doping tribunal found the 34 players not guilty of using the banned supplement thymosin beta-4 during the 2012 football season. ASADA said they would not appeal. The Tribunal handed Stephen Dank a lifetime ban after he was found guilty of 10 charges in April.
In May 2015 WADA appealed the AFL Anti-Doping Tribunal's decision to the Court of Administration of Sport. The appeal to CAS was heard November 16-20, 2015, in Sydney.
CAS handed down its judgement in 11 January 2016, THREE AND A HALF YEARS AFTER ESSENDON SELF REPORTED! During those years Essendon had been a continual source of speculation and ridicule in the media and from opposing fans. The players had been under continual pressure with a great cloud hanging over their heads and were unable to concentrate fully on their football. A talented and promising team that might otherwise have been challenging for the flag were reduced to the middle of the pack. All this after the AFL had already exacted substantial punishment from the club.
CAS banned all 34 players for 2 years, back dated to the date of the original AFL Tribunal Hearing verdict meaning that the players would not be eligible to play again until 31 March, 2017. They would be allowed to train with their clubs again 2 months before this date. You can read their judgement in full here if you wish, as I have done, or you can just keep reading as I bring up all the critical issues for you.
Essendon fans were outraged! The club would be in the doldrums for a further year at least! Seasons 2013, 2014, 2015, 2016 would all be ruined for the club as punishment for the alleged taking of what was, after all, a rather minor substance that was barely illegal, alleged to heal soft tissue injuries. No one alleged that any of the more serious sports drugs had been taken, such as anabolic steroids, amphetamines, cocaine, human growth hormone or EPO and yet the club had been fined 2 million dollars, lost draft picks, lost its coach, been thrown out of the finals and had at least 4 years wrecked by incompetent administrative egotists waffling and prevaricating and wandering from one court to next.
Even ASADA admitted that "justice delayed is justice denied" but that didn't stop a 3 man panel of overpaid, vainglorious QCs who must have fancied themselves Knights Templar on a Holy Crusade to eliminate drugs in sport by any means possible, from adding to the injustice in order to satisfy their excessive egos and justify their political positions and absurd remuneration.
Who were these people, answerable to no one, that saw themselves as anointed gods, handing out arbitrary, distorted justice from on high, relaxing in luxury in their ivory towers? And how did they reach the conclusions that they did, when the AFL Tribunal had found the evidence insufficient?
Stay alert dear reader for these and other questions will shortly be answered.
There are a number of things you should know before we dive into the detail of the CAS judgement proper.
The Court of Arbitration for Sport is an international quasi-judicial body established to settle disputes related to sport through arbitration. Its headquarters are in Lausanne, Switzerland and its courts are located in New York, Sydney and Lausanne. The body was originally conceived by International Olympic Committee President Juan Antonio Samaranch to deal with disputes arising during the Olympics. It was established as part of the IOC in 1984.
As a Swiss arbitration organization, decisions of the CAS can be appealed to the Federal Supreme Court of Switzerland. Appeals of arbitration decisions are generally not successful however, with no evaluation of the merits taking place and the evaluation mainly based on whether procedural requirements have been met.
The CAS Panel for this hearing was: Michael Beloff QC (President) from London, Romano Subiotto QC from Brussels & London and James Spigelman AC QC from Sydney. It was a real international media circus and feast for expensive lawyers from all over the world including: Richard Young and Brent Rychener from Colorado Springs, Tony Hargreaves, Ben Ihle, Neil Clelland QC, Patrick Gordon, David Hallowes, Sam Norton, Jeffrey Gleeson QC and Renee Enbom from Melbourne and Alistair Oakes and Patrick Knowles from Sydney. "Snouts in the trough!" one might say and a classic example of how the legal fraternity of leeches suck the blood from society.
In criminal trials the prosecution is required to prove their case "beyond reasonable doubt" and this is what we see in all those famous staged trials in TV shows and in movies. We are comfortable with this high standard of proof and expect it to yield justice. Quantitative proof in this regime is frowned upon but I think we can infer that it certainly requires a probability greater than 95%, perhaps greater than 99%.
In certain civil trials the standard of proof may be much lower. In some matters it may hinge on "the balance of probabilities". This standard is appropriate in matters where both sides are effectively on trial at the same time and what one loses the other gains and vice versa, such as aspects of divorce settlements. Quantitatively, proof in this regime requires a probability greater than 50%.
You may be familiar with these two contrasting standards but unless you are a legal geek I bet you've never heard of the standard of "comfortable satisfaction"... You guessed it! This is the farcical standard of proof that the CAS Panel used to arrive at their judgement, and it is CRITICAL to understanding how they reached a guilty verdict without direct evidence.
In their judgement the Panel say: "This standard of proof ... is greater than mere balance of probability but less than proof beyond a reasonable doubt". Ok, so that could be anywhere from 51% probable to 98% probable... Perhaps it is 75%?... But to make this work we actually need to know. So where is it? Well they don't say! So essentially they are free to call 34 men guilty if they consider it more likely than not. Let's be generous and say that it means "probably". In this case they have then found 34 men guilty because they feel that they "probably" had been injected with Thymosin Beta 4.
Do you think that it is justice to besmirch the good name of and ancient and glorious club and wreck the careers of 34 men who had done nothing wrong because you feel that they "probably" had been injected with a banned substance to help with soft tissue injury? I don't!
ASADA felt they lost their case before the AFL Tribunal because they presented it as a chain of corruption from the TB-4 being sourced from China, every step of the way right through to it being injected into the bodies of the 34 Essendon players in 2012. To make their case they needed to prove each link in the chain otherwise the chain would break... and this is what happened. Although the AFL were comfortably satisfied with some of the links, other links lacked enough good evidence to be supported.
In order to get a better result this time, WADA changed its tack, presenting the evidence as many strands in a cable rather than links in a chain. Some of the strands might fail but the cable would still be strong enough to compel the Panel to agree with their case.
It was forbidden for a party to change its argument on appeal and the respondents objected to the new approach on these grounds. The Panel however, zealots that they were, decided that the appellants hadn't changed their argument, just altered the way in which it was put, and in any event "no analytical method can constrain the panel's ability to review a case de novo, based on all the evidence before it." they said.
Changing the way in which the evidence was put, was for this matter, CRITICAL.
Normally a trial involves the bringing forward of all the key people in the matter where they examined and cross-examined under oath to attempt to pry out the truth first hand. THIS WAS NOT DONE IN THIS CASE! There were various people who certainly knew the truth since they were the people alleged to have been directly and knowingly involved in the doping process. They were:
These people were considered untrustworthy by all parties to the case and their evidence, if it could be obtained at all, unreliable, yet the appellants relied on a mere smattering of text messages and emails between these people for their case and the Panel accepted it.
Normally for a prosecution to succeed there must be a stunning piece of incontrovertible evidence that compels the judge or jury to a particular view. No such story here though where NEARLY EVERY PIECE OF EVIDENCE ADMITTED DOUBT! Yet the Panel took the view that many strands of rotten fibre makes a strong rope. In my opinion many strands of rotten fibre makes a rotten rope!
Yes, all these things could have been hidden, avoided and hushed up by the unscrupulous, but that is not proof that they actually happened! Nevertheless guilt was apportioned...
The evidence, or "The Cable", as the Panel put it, consisted of a small number of points, which I shall deal with one at a time. In the end though, it was only necessary to prove two of them to satisfy the Panel: 1) That the players were injected with a form of Thymosin. 2) That that form was Beta 4.
Numbers and roman numerals refer to the paragraph and sub-paragraph in the CAS judgement. You can refer to the original document if you want more detail.
There is good evidence to support this assertion, indeed so good that it is approaching beyond reasonable doubt. But for me there is still a smidgin of doubt, as there is only one person that can TRULY say what the players were injected with and that is Stephen Dank and he has said that the players were NOT injected with Thymosin.
This appears pretty conclusive BUT on 25/06/2014 on the ABC's 7:30 report Louise Mulligan mentioned that Stephen Dank said he gave the players Thymomodulin, a natural product that's not banned by the World Anti-Doping Authority. It's true that Stephen Dank is regarded as untrustworthy and his word unreliable but his explanation must at least be considered remotely possible...
So yes, the players were probably injected with a form of Thymosin. But there are at least 27 forms of these proteins, of which only a few are prohibited. So IF it was Thymosin, which form was administered?
This is the crucial question on which the entire case turns. In satisfying the Panel on this matter the appellants won their case and 34 innocent men had their careers damaged and their good names besmirched. But was this matter truly proven? In my opinion NOT beyond reasonable doubt.
Sure, the club was covering up the entire injection regime! Even if it is legal it is not a good look to see an entire football team being given regular subcutaneous injections, no matter how innocuous the fluid. The players didn't need unwanted media scrutiny and they didn't want to give away to other teams anything that might give them a competitive advantage.
There is no doubt that Mr Hird and Mr Dank and his circle were secretive and persuaded the players to be so as well, but that is not proof of wrong doing, no matter how suspicious it looks.
In my opinion the Panel made a grave error of judgement when they cast aspersions on the players for toeing the line and doing as they were told in keeping the injection regime a secret. They were also highly critical of the players for not researching Thymosin and not calling the ASADA helpline to find out whether it was legal. The Panel assumed that this meant the players were untrustworthy and probably knew they were doing something illegal. In my opinion it didn't mean anything of the sort.
The Panel assumed that the players were much like them: independent minded, assertive, confident, intelligent, curious men who are sticklers for the law. Certainly I agree that such men would question orders, refuse to go with the flock, investigate online and ring the hotline. Sure, such men would... but AFL footballers aren't like that! What does a privileged London QC know about the AFL player's mindset? I'll tell you: Doodly squat!
Australian footy players are generally of below average intelligence and educational background to start with and when they join a club it gets worse. There is ENORMOUS pressure in an Australian footy club to conform and not to put yourself above anyone. Everyone at these clubs is trying to be as dumb as possible because being clever and knowledgeable means you're "up yourself" and not one of them.
These clubs are like an army where the player is expected to die for the team and never flinch. You are expected to give up your self determination when you join and become part of the machine. Your ego is sacrificed on the team altar and you become an unthinking, loyal, courageous, obedient tool. When the club says "Jump!" you jump. When the club says "Keep this a secret!" you don't tell anyone. You don't ask external agencies to clarify whether the club is doing the right thing because that would be BETRAYING YOUR TEAM!!!
An Australian football player is dumb, loyal and obedient, an unquestioning automaton. This is regrettable perhaps, but it isn't yet a crime and it doesn't make the player untrustworthy. The Panel made an error of justice, in my opinion, when they did not take this into account and the respondents' lawyers erred in not explaining it to the nobs. Yet another example of the mediocre competence of high priced barristers.
This could have been the smoking gun: A positive urine sample! However it was only from one player at one time and even it was not conclusive! Sadly for the appellants their smoking gun was a damp squib.
A great deal of evidence was tendered in this case but NONE of it was conclusive! The critical pieces of evidence that would have provided certainty were missing: None of the principles would give evidence. There were no samples of the vials. There were no written records. There were no conclusive urine samples. No doubt the principles removed all the evidence, which is reprehensible but it doesn't make the players guilty!
One can sum up the Panel's judgement as follows:
So on the basis of two probablys and a trait of excessive obedience, 34 players have their careers ruined and their name besmirched for all time? Let me tell you folks: THAT IS NOT JUSTICE!!!
In my opinion the players did NOTHING wrong! They were told everything was within WADA rules, not to argue and not to tell anyone. They did not know what they were injected with, much less whether it was illegal. They were lied to and manipulated and now they have been destroyed. Once again the innocent at the bottom are held as scapegoats while the criminals at the top get away scot-free! Personally it is not surprising to see a kangaroo-court of fat cats uphold the status quo in this way, as lawyers are normally bullies and leeches and they are well paid to tread on the little guy.
Technically I guess what the Panel have done is within their law. The standard of proof was "comfortably satisfied" which equates to probably. Ie "We think they probably had TB-4 in them so they are GUILTY!"
The Panel may be "comfortably satisfied" with their judgement but I am NOT! In my mind and in the minds of most Westerners "proof" means "beyond reasonable doubt". Anything less is wishy-washy drivel! You can't send a man to jail for murder because in your opinion he probably did it! So how is it that you can ruin 34 people's lives with the same gimmick? There is NO place for wishy-washy standards of proof in any serious case. "comfortably satisfied" makes a travesty of the legal process and must be thrown out!
The AFL is not involved in the Olympics and therefore have no need to submit to CAS' authority. They are only a quasi-judicial body after all. They don't represent Australian Law. Under Australian Law the 34 players would still be training with their clubs and Essendon supporters would be getting ready for a big season. It is not only Essendon supporters that can see that a great injustice has been done here. Even the AFL can see it! So the AFL should simply reject the toothless verdict of this kangaroo court and be happy with the sanctions they visited on the EFC back in August 2013. Now that would be a victory for common sense and the little guy!
And what of the REAL criminals in this case? Those that destroyed evidence, lied, forged signatures and probably imported, compounded and administered prohibited substances and made money from it? Why aren't they in jail? I'll tell you why: Because the Legal System is a farce, designed to keep the Rich on top and the Poor on the bottom and real criminals are clever enough to avoid getting caught.
Warren Mars - February 11, 2016