Essendon, AFL, ASADA and WADA – what is it all about?

Yesterday the Court of Arbitration for Sport handed down its Panel decision in World Anti-Doping Agency v. Thomas Bellchambers etc al., Australian Football League, Australian Sports Anti-Doping Authority (CAS 2015/A/4059). This post is a brief explanation of what has gone on in this disappointing saga of Australian sport involving one of the oldest and most successful clubs in AFL.

The release of the Court of Arbitration for Sport decision was the consequence of the World Anti-Doping Agency (WADA) decision to appeal the decision of the AFL Anti-Doping Tribunal decision in March last year which dismissed charges of breaches of the 2010 AFL Anti-Doping Code (Code) brought by the Australian Sports Anti-Doping Authority (ASADA). The charges were against 32 players (Players) from the Essendon team who participated in the 2012 AFL competition and alleged use of Thymosin Beta-4 (TB-4).

TB-4

TB-4 is a peptide, or compound that helps the body repair and prevent injury. TB-4 is a prohibited substance, use of which was prohibited under the Code.

The supplements program

The decision traces the background to the introduction of Steven Dank, described as a biochemist and pharmacist, to the Essendon Club and to his eventual appointment by the Club commencing 1 November 2011. Dank was engaged by the Club to design and implement a supplements program, which some thought may give the Club a competitive edge over its competition.

Concerns within the Club arose early. In January 2012 it become apparent that Players were being given substances without the approval of the Club Doctor with both senior Players and the Club Doctor expressing their concerns. The Club Doctor in writing to the Club expressed that “this will read extremely badly in the press for our club”. Less than one month later, and without the presence of the Club Doctor, Players were advised of the new supplement protocols purported to be WADA compliant.

There was evidence suggesting in April 2012 Dank was advised that peptides were banned. Notwithstanding, injections continued including after a direction in May by the Club to cease injections. There was no evidence that Players were advised they could refuse injections.

In September 2012 Essendon self-reported concerns about the supplements program to both the AFL and ASADA. Some 5 months later ASADA commenced an investigation into the program, with infraction notices issued to Players in November 2014. The AFL Tribunal proceedings commenced in December 2014 with the Tribunal finding on 31 March 2015 that “it is not comfortably satisfied that any Player violated clause 11.2 of the AFL Anti-Doping Code.”

Yesterday’s decision was an appeal by WADA of that decision.

WADA submissions

WADA submitted to the Panel that each of the Players used TB-4, being a prohibited substance which was a violation of clause 11.2 of the Code. WADA contended that the Players signed consent forms consenting to the administration of four substances, including a specific regimen of ‘Thymosin’ injections, which matched a prescribed regimen for TB-4. WADA argued that this, Dank’s TB-4 history, evidence of his supplements program, the receipt of peptides from China and evidence from Players meant that the Panel could be comfortably satisfied that there had in fact been a breach.

Player submissions

The Players argued that there were gaps in WADA’s case including numerous evidentiary gaps and a lack of evidence that TB-4 was actually administered to players and the allegation that a number of documents relied upon by WADA were incomplete or possibly falsified.

AFL submissions

The AFL also made a number of submissions most significantly that no Player intended to use a prohibited substance and that if the Panel found Players did use a prohibited substance it was because of the gross negligence of others and on this basis Players should receive a one year discount. The AFL further argued that because of the delay in the process and time served, no period of ineligibility should be served.

The Code and the law

In essence clause 11.2 of the Code requires that each Player had a personal duty to ensure that no Prohibited Substance entered his body. The clause is clear that intent, fault, negligence or knowing use is not necessary in order to establish an anti-doping rule violation.

In accordance with the principle of tempus regit actum, the law of the place and time where the facts occurred, Australian law was applied to any substantive issue with Swiss law applying to any procedure matter. The 2010 Code and the World Anti-Doping Code effective 1 January 2009 were applied.

Panel decision

After considering a number of legal and evidentiary issues the Panel, save as to one member, concluded that is was comfortably satisfied that all players violated clause 11.2 of the 2010 Code.

The Panel then considered whether there was a display of due care sufficient to warrant a reduction in any sanction – or more specifically a reduction in a period of ineligibility. Noting that no player made enquiries into the nature of substances and no player tested during 2012 revealed, as required, that he was in receipt of the thymosin injections, the Panel took the view that there was a decision as a group to keep the injection regime a secret.

Although it rejected these grounds for a reduction in sanction, the Panel did accept substantial delay in this handling the matter and was prepared to exercise its discretion to backdate the sanctions to 31 March 2015, being the date of the Tribunal decision. The Panel’s decision was for the Players to be sanctioned with a period of ineligibility of two years commencing 31 March 2015, with any period of prior imposed or voluntary ineligibility by the Players being credited against the total period of ineligibility served.

A decision on costs was also made with players bearing 75% of the Court of Arbitration for Sport’s costs and the AFL the remaining 25%. The Panel also awarded costs in favour of WADA in the amount of CHF 30,000 (Swiss francs) to be shared by the players and the AFL.

Moving forward

While the press is focused on the more dramatic and immediate consequences of the decision, we expect a number of impacts, not limited to the coming season or AFL, but for sport more generally. These impacts will likely include:

  • greater education for athletes, not just on substance use but on the already available avenues to seek help and raise concerns;
  • a simplification of the process both in terms of procedure and length to avoid what has been a drawn out process;
  • a discussion around politics in sport and what could have been done better from the outset;
  • whether it is appropriate for the sport itself to deal with violations of the Code.

As to whether Players will take legal action against the Club or the AFL, time will tell. Any such action could see a clearer picture painted of the facts of this saga – and which may be incentive enough for such action to be avoided.

The full text of the decision can be found here: http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ESSENDON.pdf

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