The Australian Sports Anti-Doping Authority has failed in its attempt to force three reluctant witnesses to testify at the AFL’s anti-doping tribunal hearing, which commences on Monday.
The Supreme Court on Friday refused to issue subpoenas compelling biochemist Shane Charter, compound pharmacist Nima Alavi and an unnamed “support person” to cooperate with the prosecution of ASADA’s doping case against 34 former and present Essendon players.
The anti-doping authority had sought to have the court issue the subpoenas under the Commercial Arbitration Act. But Justice Clyde Croft found that the proceedings before the anti-doping tribunal “are not properly classified as commercial arbitration proceedings to which the Commercial Arbitration Act applies”.
On that basis the application was dismissed, he said.
Charter has admitted to having imported the raw materials necessary to the manufacture of the banned peptide Thymosin Beta-4 and supplying them to Alavi for compounding. Thymosin Beta-4 is the prohibited substance allegedly administered to the 34 players facing doping charges.
Alavi is alleged to have compounded the materials and provided the resulting performance-enhancing peptide to the unnamed “support person”, who is alleged to have administered the substance to the players in an injecting regime that ran throughout 2012.
The relevance of the three to the tribunal hearing was not seriously questioned during the two-day Supreme Court proceeding, which concluded on Thursday.
But that became irrelevant itself when Justice Croft found there was no jurisdiction under the Act to compel their attendance at what was in effect a domestic disciplinary tribunal and not, as ASADA contended, a tribunal of arbitration, as the latter is understood in the international context.
Much of the preceding two days was spent debating the correct characterisation of the relationship between the players, their clubs and the AFL. Daniel Star, representing ASADA, argued that it was primarily a “tripartite” commercial relationship and therefore subject to the Commercial Arbitration Act.
Star reminded the court that Australian Rules Football was “very big business” and said any rule violation which threatened the integrity of the sport was necessarily relevant to its commercial performance. That made it a commercial dispute, he said.
Tony Rodbard-Bean, for Alavi, characterised the relationship as essentially “employer-employee” in nature and the dispute more properly a matter for person-to-person employment law than overarching commercial legislation.
Alavi alone formally opposed the application. Charter provided an affidavit to the court on Tuesday indicating that he wished to adopt Alavi’s grounds of opposition. But he was not a formal party to the case and did not provide a copy of his affidavit to either ASADA or the AFL, as would be the minimum compliance requirements under the Supreme Court rules.
Neither Alavi, Charter nor the unnamed (but probably not entirely mysterious) “support person” attended the court hearing.
Earlier, Star had explained that both Charter and Alavi had been fully cooperative and content to appear at the tribunal until two weeks ago, when their attitudes suddenly changed. It remains to be seen whether ASADA’s prospects at the tribunal suffer a similar volte-face.
David Ward
micka
Guest
"Although Dank mentioned Thymosin Beta-4, he clearly wasn’t talking about Thymosin Beta-4." "Dank inadvertently ran with the word Thymosin Beta-4, which McKenzie had planted in his head." Please.... So the Age are using the powers of suggestion and mind control to make Steven Dank accidentally use the term "Thymosin-Beta-4" which I agree just rolls off the tongue and is very easy to slip out. Especially in an interview with a major paper regarding the use of prohibited substances. I'd have thought that is the time you would be very categorical and clear on language and terms.
micka
Guest
Says "conchie"... Nothing pathetic about the truth champ.
conchie
Roar Rookie
I have some incredibly bad news for you and your colleagues at the Age. I am not sure anyone at Fairfax Media genuinely believes in anything. However, for the sake of this argument, I shall assume Fairfax Media believes Dank’s alleged comment to Nick McKenzie that he gave the Essendon players Thymosin Beta-4 is the smoking gun that will lead to the players being convicted. Fairfax Media writers have pushed this line so often I have been forced to reach for the bucket. I have had enough and it’s time Fairfax Media was exposed for its duplicity and breaches of the various journalists’ codes. Item (The Age – 24 August 2013 excerpts from Nick McKenzie’s interview in April with Steve Dank) 1: NM: Thymosin Beta 4 – why was that used in Essendon players given there is an opinion from a doctor or researcher and other scientists that its effects are uncertain? (note: The AFL believes it has a strong circumstantial case that TB-4 was used on players.) SD: That's not totally true Nick because, with all due respect, right, there is good data – very good data – that supports Thymosin Beta 4 in the immune system [my emphasis]. NM: OK, why give it to all Essendon players if only some of them had colds and flu? [my emphasis] SD: Well, the point is that there is a degree of immunosuppression after a game or a hard training week, right. Often times the ability to back up next week is decreased by the hit on the immune system. [my emphasis]. NM: Did you see any indications in Essendon players that it actually helped them? SD: Well apart from the fact they won 11 out of their first 14, right, and we did regular bloods [blood tests] . . . at the end of the day I was very happy with the science, I was very happy after working a long time in football, right, that there are periods of malaise which are possibly related to sub-clinical flus and sub-clinical colds, right, which can affect performance.” [my emphasis] My Comment: 1. McKenzie made the initial statement that Dank used Thymosin Beta-4. It was a bit like “have you stopped beating your wife”. 2. Dank inadvertently ran with the word Thymosin Beta-4, which McKenzie had planted in his head. 3. It was obvious to all but the brain-dead, or mischievous, people at the Age, that Dank was talking about Alpha 1 or Thymomodulin. Dank went to great lengths explaining that the substance he used helped the immune system. Thymosin Alpha 1 and Thymomodulin are used to help the immune system. Thymosin Beta-4 suppresses the immune system in order to help speed tissue injury recover. Although Dank mentioned Thymosin Beta-4, he clearly wasn’t talking about Thymosin Beta-4. BUT THERE IS MORE, MUCH MORE TO DISCREDIT THE AGE: On 11 April 2013, Nick McKenzie and Richard Baker, said, "Records of Hird and Dank's dealing reveal the coach knew specific details about the supplementation regime, including the intravenous administration of vitamins and injections into the stomach or oral administration of other supplements, includingAN IMMUNE-BOOSTER KNOWN AS THYMOSIN[my emphasis]. These two clowns went on to say: "When asked why Thymosin peptides were given to players as an immune system booster [my emphasis] when there is debate about their effectiveness, Dank said: 'Well, apart from the fact that we won 11 out of our first 14 games ... at the end of the day, I was very happy with the science." For those at the Age who have no understanding of the benefits of each substance, let's simplify what Baker and McKenzie have said: 1. There are records of Essendon using the immune-boosting Thymosin [my emphasis]. Guess what? The immune-boosting Thymosin is Thymosin Alpha 1 and Thymomodulin. 2. Dank admits to using the immune-boosting Thymosin on the Essendon players. Given this amazing admission by Baker and McKenzie, one naturally wants to know the consequences of this revelation: 1. Baker and McKenzie, and many others from the Age, who have made a big deal about Dank saying he gave the players Thymosin Beta-4, all should be hauled before the Australian Journalists Council for unbalanced reporting. Every time an Age journalist referred to Dank saying Thymosin Beta-4 they should have included details of his comment on 11 April 2013. Baker and McKenzie made a big deal of what was obviously an inadvertent slip-of-the-tongue, but have deliberately ignored that there were not only records of the players being administered AN IMMUNE-BOOSTER KNOWN AS THYMOSINbut they quoted Dank as saying he used the immune-boosting variety. 2. At the risk of being vulgar, ASADA can shove Baker and McKenzie's smoking gun where the sun doesn't shine. Baker and McKenzie have provided compelling evidence that the players were administered the immune-boosting Thymomodulin. Sadly, there is more to the shenanigans at the Age. In a column on December 16, 2013, Baker and McKenzie said: "On June 15, 2012, Essendon's then high-performance boss Dean Robinson emailed Hird, senior assistant coach Mark Thompson, football chief Danny Corcoran, doctor Bruce Reid and other senior officials a document titled Supplements till GF 2012. "One of the drugs to be injected fortnightly two days before a game was the anti-dementia drug Cerebrolysin. The Interim Report said "On 15 June 2012, Robinson emailed Dr Reid a list of supplements to be administered between the mid-year bye and the 2012 Grand Final which included Thymomodulin ... and Cerebrolysin." Gee, I wonder why Baker and McKenzie didn't mention that the 15 June 2012 email had a schedule for administering Thymomodulin? It is amazing that vital information was left out. A bit like ASADA deliberately leaving out Jobe Watson’s evidence from the Interim Report that he was administered Thymomodulin. Jon, please do me a favour, stop pushing the garbage about Dank admitting he used Thymosin Beta-4. And please tell your mates the Age has been caught out again. Baker and McKenzie have stuffed up – again Bruce Francis
conchie
Roar Rookie
Only to be bettered by a internet poster posting pathetic comments under a alias.
micka
Guest
Wrong. Defamation and libel only apply if false and derogatory claims are made. If it is the truth and in the public interest (a certain blackest day in sport press conference and Essendon's many media releases have ensured that the farce has become of public interest) then they will have a hard time trying to get newsagencies on defamation. Hird would have some gaul suing a paper for defamation while going to all efforts trying to stop any verification of his innocence being possible. Even if he is innocent of the drugs issue I reckon he has proven himself to be a Teflon scumbag.
Paul
Guest
Andy, Remember that I mentioned the AFL's workplace health and safety obligations? Well it would appear that Nathan Lovett Murray has the same advice - especially after the decision in court last week. the AFL is in a great deal of trouble and indeed their best defence is that there is no evidence that they knew of the issue and that clothier was only working from memory and added the note two years later! What integrity!
Pope Paul VII
Guest
Just roll the tape where Dank says they were using TB4
conchie
Roar Rookie
There has been talk that Dank was ordering stuff payed by Essendon for his own gain, in other words fraud.
Professor Rosseforp
Guest
There might be any number of reasons why these guys would not wish to give evidence, including legal advice from their lawyers. We can't make assumptions from their silence, though.
andyl12
Guest
An Essendon fan on this forum has said as much, Strayan. He actually said Charter came to Essendon with the offer, saying he'd switch sides for $400K.
Professor Rosseforp
Guest
Telling the truth about someone can still be defamatory or libellous. Hird should definitely be looking at damage done to his reputation and compensation for it.
Paul
Guest
Unfortunately part of that evidence is that he does not know what substance he gave to Dank. If ASAnDa cannot show with certainty it went to Essendon and then was administered to specific players then they have no case
Jakarta Jeff
Guest
Strayan, that is sick slander!
Dalgety Carrington
Roar Guru
Charter seems highly self-interested so it, ill-advisably, possibly was thought to be one way to get him to think about doing the right thing. He's not testifying the other way, so you couldn't say it was to sway his testimony, just to testify itself.
conchie
Roar Rookie
OK, so a possible future position for testimony then, is that better ?.
Dalgety Carrington
Roar Guru
According to Charter that is…so hardly exposed and the email turned up by the highly credible Herald Sun only really hints at a future position, nothing ben remotely firm.
Bobbo7
Guest
Why would these guys not want to give evidence if EFC did nothing wrong? Oh that's right, the fact EFC drugged its players is irrelevant. Let's just sue, avoid and fight it in the courts until it all goes away. This entire episode makes the AFL look like a joke. That Hird will probably continue is nothing short of a disgrace.
Mister Football
Roar Guru
Although it was ASADA which was exposed as offering a job to Charter in exchange for his testimony.
Dan
Guest
I wonder if you had the oxygen supply to your brain cut off for an extended period of time at some point.
strayan
Guest
i wonder if Essendon and Hird paid off these dodgy people and told them NOT to testify.