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The fallout for Essendon
Rohan Connolly delves into the ramifications of the Essendon player suspensions.
It is arresting what thumps through the synapses in the course of reading a court's judgment.
Yet the Court of Arbitration for Sport's decision concerning 34 members of Essendon's "Class of 2012" is anything but temperate. The stench will linger for years.
In March 2015 the AFL's doping tribunal determined it was not "comfortably satisfied" any of those same players committed the uniform anti-doping rule violation: the "use" of the prohibited substance - Thymosin Beta-4 - by receiving injections between January and September 2012. The tribunal did not declare the 34 players innocent. There is a chasm between innocent and not guilty.
ASADA was distinctly unsuccessful in prosecuting its case. By no means is this a statement intended to besmirch Australia's anti-doping regulator - its case was simply devoid of the force necessary to prove the charges.
ASADA did not rely on direct evidence of doped athletes (unlike Lance Armstrong's prosecution), or other witnesses who saw needles pierce skin. ASADA's case was circumstantial: emails, interviews, text messages, questionable invoices. ASADA propounded that the cumulative weight of the circumstantial evidence should "comfortably satisfy" the tribunal that doping occurred. The tribunal disagreed.
ASADA and the players agreed three "indispensable" links in a chain must be proved by ASADA. That TB4 powder was procured from Chinese sources; that South Yarra pharmacist Nima Alavi-Moghadam compounded that TB4, and provided it to the sports science mastermind Stephen Dank in his capacity as an Essendon athlete support person; and that Dank or someone else injected TB4 in each player.
ASADA asserted two shipments: one-quarter gram, delivered to Alavi in December 2011; and another gram, two months later. ASADA could not prove the second shipment happened.
The tribunal was comfortably satisfied the first shipment, procured from the Shanghai firm GL Biochem, was "purported to be" TB4. But the lack of laboratory certification meant the tribunal was not comfortably satisfied this minuscule volume of powder actually was TB4. The first link of the chain was not a link at all.
For the sake of the exercise, the tribunal considered the second link: that Alavi compounded what was delivered to him, and then gave it to Dank. The tribunal "assumed and accepted" that substance was TB4. ASADA adduced no evidence of Essendon's receipt of, or payment for, the TB4.
Alavi produced no compounding or dispensing records - his entire contribution was two tax invoices, the provenance of which was questionable. Alavi - running a business; not a benevolent society - received no payment. The tribunal determined the myriad inconsistencies and uncertainties in ASADA's evidence made it impossible to conclude Alavi compounded TB4. No first link; no second link.
The tribunal's judgment did not contemplate anything which happened inside the Essendon organisation - the exercise would have been purely academic. No third link.
The tribunal was damning about the truthfulness and purposeful dishonesty of witnesses relied on by ASADA, and the selectivity with which some disclosed documents. Importantly, the tribunal found Dank a man possessed of a "low ebb" of credibility; a person with a chameleon-like "innate ability to concoct answers to questions put to him at will".
Regardless, the CAS was not prepared to rule out relying on the evidence of such witnesses. The tribunal's judgment was lengthy (180 pages), thought-out, and reasoned. Doping tribunal cases are difficult, and successfully made out when probative evidence is adduced, to prove facts, which in turn support the elements of a charge.
It is against this backdrop the CAS appeal decision, reversing the judgment of the AFL's tribunal and banning each of the 34 players from sport for two years, is mystifying, unanticipated. The AFL tribunal's judgment is logical; the CAS decision less so - on a plain reading, where the AFL tribunal had great difficulty in finding guilt, the CAS was manifestly untroubled. As to the threshold question of what was in the needles? The CAS decision lurches about, seeking to explain how the CAS was "comfortably satisfied" it was TB4; yet one is left with a lingering confusion as to precisely how the CAS could be so resolute.
WADA benefited from "new" evidence, notably testimony from qualified medical and scientific experts. WADA convinced the CAS the players had been secretive and economical with the truth when dealing with doctors, doping control officers and ASADA investigators. But otherwise WADA relied on the same "pillar" of circumstantial evidence that ASADA did, with one crucial difference. WADA convinced the CAS to consider the circumstantial evidence as "strands" of a steel cable, instead of a chain only as strong as its weakest link.
The CAS was especially interested in Dank's history - chronicled in other judgments involving former NRL player Sandor Earl - of using TB4 on elite athletes. The CAS considered TB4 the "jewel in the crown" of the Dank modus operandi; the variant of thymosin used at Essendon among the 27 types. This was because TB4 would achieve the physiological outcomes Dank trumpeted to others at Essendon as being the competitive advantage. Dank's "own reputation and future" was at stake, the CAS opined, thus he would not use lolly water.
The CAS was not concerned as to the actual source of the TB4. And the CAS did not make any finding that any player was administered TB4 at any specific time on any particular day.
Indeed the CAS panel was divided as to whether the "use" case was actually made out against all 34 players. But these issues notwithstanding, the CAS decided each player doped.
As perplexing as it is that two tribunals, each comprised of qualified individuals, could reach radically different decisions, the CAS decision should be respected. CAS appeal decisions are invincible except for the limited rights of appeal to the Swiss Federal Tribunal. Such appeal rights exist only in exceptional cases. Appeals to superior Australian courts against CAS decisions have failed.
If the CAS is comfortably satisfied 34 athletes "used" TB4, riddle me this: How has Dank not been prosecuted for administering injections without licence to do so?
How can James Hird, Dean Robinson and their cohort not now face their own doping Waterloo? This is important, because there is something galling about the fact this rigmarole has obliterated the reputations, careers and livelihoods of 34 footballers, who on any view did not seek to cheat doping rules. Footballers who were manifestly, ridiculously misled; deceived and actively bullshitted to by a clutch of reprobates, miscreants and morons.
If the "Class of '12" were sitting in my boardroom, I would demand they give earnest consideration to opening their collective shoulders, to pursue the Essendon Football Club with extreme prejudice. Any employer has an immutable responsibility to take reasonable care for the health, safety and welfare of its employees. The duty is non-delegable: employers cannot insulate themselves from liability by palming the duty off.
Essendon's responsibility included a responsibility to employ competent co-workers. Forget about the prohibited substance, what we are talking about is a Dr Moreau-esque, experimental regime, where unqualified people plunged countless needles filled with all kinds of jungle juice into players in an unsafe non-clinical environment. With complete disregard for the consequences. Essendon CANNOT allow the situation to now become a lawyers' feeding frenzy, comprising class actions and myriad lawsuits. New chairman Lindsay Tanner seems a sensible man.
The prudent approach would be for the Bombers and its insurers to establish an independent truth and justice commission, for the purposes of assessing players' predicaments and making equitable reparation for the damage the club and its non-playing personnel have caused. Tipping $50 million in a bucket might be a good starting point.
Three dozen footballers will now be forever labelled "drug cheats", rightly or not. In those circumstances, not fighting anymore is the least that Essendon should do.
Darren Kane is a Sydney sports lawyer