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Having read a number of articles of late on Essendon’s alleged use of proscribed substances – specifically Thymosin Beta 4 – I thought it worth discussing some important aspects of the case and how it relates to anti-doping regulations.
Firstly, the bad news for supporters of the players who have now received show cause notices from ASADA. The WADA anti-doping code – as adopted by the AFL and ASADA – is based on a principle known as strict liability.
Strict liability places greatest emphasis on the existence of a banned substance in an athlete’s system, and much less emphasis on how it got there.
Much of the commentary around the Essendon saga focuses on sympathising with the players as ‘guinea pigs’ and otherwise innocent victims of a questionable nutrition program. Unfortunately, this defence is of limited benefit to the players.
To understand why, it is important to consider the history of doping in sports. Essentially, there is a raft of team officials, doctors and trainers prepared to play the ‘fall guy’ for doping their gullible-but-otherwise honest athletes. Trainers are easily replaceable – elite athletes, not so much.
WADA has long caught on to this ruse and determined that the most practicable solution is simply to reduce (though not eliminate) the effectiveness of the “But I’m a victim!” excuse.
There are exceptions to this rule. A year or so ago, Australian professional road cyclist Michael Rogers tested positive to the steroid clenbuterol. He was charged, but later cleared after the Union Cycliste Internationale accepted his argument that the clenbuterol most likely originated from meat he ate while racing in China – a known hot spot for contaminated meat.
Interestingly, a couple of years earlier multiple Tour de France champion Alberto Contador was suspended for testing positive to the same substance. He also argued meat contamination as the cause – but as he was racing in Europe at the time (where meat contamination is far less of a problem), he was convicted and suspended.
So what does that all mean for the Essendon players? Unfortunately, as the allegations of Thymosin Beta 4 injections are clearly associated with performance enhancement and were allegedly administered by club officials (which the WADA code explicitly associates with a higher degree of athlete responsibility) – they are more Alberto Contador than Mick Rogers. In other words, the WADA code – in this circumstance – would appear to hold the players to a high level of accountability.
However, there is some good news for the players. Much of the recent discussion on this case has been on the question of whether the players were administered with Thymosin Beta 4 at all. The WADA code is clear that once the presence of a banned substance is detected in an athlete’s body (such as by a urine or blood test) – strict liability applies. But increasingly, evidence of doping is being collected from sources other than test samples.
This is the case for Essendon, where ASADA has no test samples, but claims to have other evidence. The key point here is that in the absence of physical test samples, the burden of proof falls on ASADA to demonstrate that the Thymosin Beta 4 actually found its way into the players’ bodies.
ASADA have not released all of their evidence, but it appears to include some from an Australian Crime Commission investigation into drug importation, which may include record of correspondence between Essendon officials, Stephen Dank and Shane Charter.
Recent media coverage has centred on claims by Stephen Dank casting doubt on the ASADA case. He has claimed that the substance in question was not the banned Thymosin Beta 4 at all, but actually the more benign and permitted drug Thymomodulin.
Unfortunately, Dank appears to have contradicted himself in an earlier interview with The Age, in which he refers specifically to Thymosin Beta 4, but later clarifies that reference by saying he meant to refer to Thymomodulin. This clarification appears to come after Dank is made aware of Thymosin Beta 4’s proscribed status under the WADA code.
I think it’s fair to say that the various statements and denials of various interested parties in this case will be subjected to a lot of scrutiny before being accepted or disbelieved by the tribunal.
So, where to from here? The case appears to rest on ASADA’s ability to prove that Essendon players were in fact injected with Thymosin Beta 4. Should their defence succeed in casting sufficient doubt on that, it would seem that they would be cleared. But should ASADA prove that they did, it seems likely that penalties – in some form – would follow. The rest of the bleating about ASADA’s conduct and that the players only want to play the game is a side show.
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