Justice prevails for Essendon players

MF, the following was reported in The Age on 4th of July 2013 in regards to an invoice: "Concerns that Essendon players were given a banned performance-enhancing drug have strengthened with the emergence of an invoice showing the club was billed for a "Thymosin peptide". The invoice provides a paper trail between the club and the possible provision to players of Thymosin beta 4." So whilst your comment is correct in suggesting the words "Thymosin Beta 4" do not appear on any invoice, the invoice description is ambiguous enough, when read in conjunction with the injection schedules admitted by the players (which contrast heavily from those given for just Thymosin), to draw a reasonable conclusion that the drugs were TB4. Yet somehow, ASADA still fell short of comfortably satisfying three retired court judges. You suggest it is remarkable they even levelled an accusation. I'd suggest the club was probably very astute in destroying the evidence before it voluntarily dobbed itself in. Unlike the Melbourne Storm, who foolishly kept a second journal onsite at their offices, revealing the true nature of remuneration agreements which were outside the NRL salary cap.

PD you are supporting much of what I have just said. Because this was an alleged non-presence violation (i.e. no positive tests), the players were not required to provide any evidence whatsoever. It is ASADA making the accusations, and it is ASADA prosecuting the case (we now understand, on fairly flimsly evidence). For the life of me, I am struggling to understand why anyone would think that ASADA should be able to make a case against an athlete on such flimsy evidence. The players, quite rightly, put the onus completely on ASADA to prove their case. In fact, the players never even appeared as witnesses before the tribunal. They never gave evidence. They didn't have to, it was ASADA's case to make, and they failed by a big margin. Of the four or five key elements which ASADA was required to prove before the Tribunal, it was not comfortably satisfied that any of them had occurred, and it was unanimous.

Excellent points PG, but I don't think that there is a simple answer to the question 'why?' as everyone will have their own narrative to justify doing something that is suspect, illegal or unethical. What is simple though, is that if the people in charge allow a 'why not?' environment, then you are in trouble. I would imagine that today there are quite a few AFL players, coaches and administrators asking 'why not?'

Do Chinese suppliers produce tax invoices? In fact, the Chinese supplier did produce an invoice. In fact, people might be surprised to hear that there is no shortage of documentation surrounding the shipment of peptides in question, but this is the important bit, absolutely nowhere do the words Thymosin Beta 4 appear, and no doubt this went a long way to the Tribunal correctly not being comfortably satisfied that Thymosin Beta 4 was administered to the players.

Are we at loggerheads? :)

Micka, I don't think that's right. The other 11 clubs relates to all Victorian clubs, as these are the only ones within Worksafe's scope. They were all investigated for governance of their "sustenance programs" (peptides, etc. in tablet form). I've never read or heard of any other clubs injecting substances in players bodies with needles, other than to treat injuries. Essendon seems to be alone on that front.

Mister Football, from what I've read the injection schedule admitted by players matched that required for TB4 and is in strong contrast to that required for just Thymosin. Yet the players weren't asked to explain what they might have been injected with that would match their injection schedule, if it wasn't TB4. And this was because the defense lawyers all argued, "we don't know what we were injected with and therefore you can't prove it was TB4". I'm not having a go at you by any means, I'm just saying its curious that the players weren't required to at least speculate on what else it could have been, that would match the TB4 injection schedule. They were allowed to use the Sir Joh Bjelke Peterson defense of, "I don't know" (and our club records are conveniently absent). Criminals get off all the time, through lack of sufficient evidence to satisfy a court. Doesn't mean they are innocent. Despite all the evidence and processes and retired judges, the AFL tribunal system here following the WADA code has revealed some loopholes and failed to exhaustively examine and test justice.

Totally agree Nicko. The players have suffered a fair penalty probably, but there's no denying they were stupid, gullible, secretive, complicit and did the wrong thing.

Well said HarryT.

I couldn't disagree more Jackson. There is a very mig difference between Guera receiving an injection for an injured hamstring and uninjured Essendon players receiving injections for ... um, what exactly? Irrespective of club pressure, group peer mentality and icons of the game imploring you to 'do whatever it takes', surely any person with half a brain and any sense of ethics stops and says, "Hang on, why would I take injections for no injury? Isn't the only logical rationale that I'm trying to enhance performance by injecting substances into my body? Is this ethical (the question of 'legal' is a whole other matter)?" 12 of the 46 listed Essendon players in 2012 were not served infraction notices, so presumably a large portion of them (including Zaharakis) elected not to be tempted. I believe the 34 players have suffered sufficient penalty already and I'm not unhappy that they've been cleared. I feel sorry for them in a minor way for being gullible and stupid - but they all voluntarily agreed to an injection program to improve their performance. The major downside of the players not being found guilty is that Hird and Little feel vindicated and are allowed to continue in their priveleged public roles. Hird championed the injection program and the Board, including Little, supported it complicitly. Irrespective of whether the substances injected were illegal or not, and irrespective of whether they were dangerous to the players' health or not it was highly unethical, immoral and unsporting to take this unchartered path. It should not be confused with 'cutting edge' - it was junkie time. The fact that Hird paid convicted drug criminal Shane Charter to be his dietary consultant during his own playing career tells you where Hird's ethics lie. I remain disgusted with Essendon FC and James Hird and it's a blight on the game (and definitely the club!) that many of the Board members from 2012 and Hird remain in public positions.

While you and I are in loggerheads on this whole saga Mr F, that was a bloody good response.

As I understand it there were 11 other clubs that had injection regimes (the go to argument of some Essendon supporters) but these regimes were investigated by WorkSafe or the like and were found to have minor flaws in their records but had more than adequate records to show what was given to which players and when.

So there was insufficient evidence to convict the Essendon players? Fair enough. I'm sure they, their club and all Essendon supporters are relieved. But what seems clear is that Essendon's behaviour was somewhere along the spectrum from grossly irresponsible to morally disgraceful to outright illegal. Essendon supporters are right to feel relieved; but they have no right to feel vindicated.

No it wasn't TB4, it was tractor parts. I'm guessing that the tax invoice was misplaced some time between the ACC informing Demetriou that a club was under investigation and a week later when the EFC self reported to the AFL and ASADA.

Also, worth referencing the actual words in the Tribunals 133 page report: “After considering the submissions of the parties, assessing the evidence and considering the cumulative effect of the evidence, the tribunal is comfortably satisfied that Mr Charter purchased the first shipment of peptides, including what was purported to be TB4, from GL Biochem and it was arranged to be sent to Mr Alavi,’’ the tribunal’s report said. But it continues: “There is a critical issue as to whether what was purported to be purchased was in fact TB4.” The report goes on: “After considering the submissions of the parties (and) assessing the evidence ... the tribunal is not comfortably satisfied that the 0.25g of the substance purported to be TB4 in the first shipment from China delivered to Mr Alavi was, in fact, TB4.”

Johno The charges were actually made under the WADA code to which the AFL is a signatory. The process to date has been as required under the ASADA Act and the NAD Scheme. The AFL Anti-doping Code operates with direct reference to the WADA prohibited list and the NAD Scheme. WADA cannot appeal this directly to the CAS, ASADA must first appeal to the AFL anti-doping appeals tribunal. Noting the lack of evidence thus far, and the flimsy case ASADA made before the Tribunal, I just don't know what an appeal is meant to achieve in all honesty.

Brett The WADA Code is about individual athletes, not clubs. The show cause notices and infraction notices went to 34 players, as individuals. EFC was not a party to ASADA's case, in fact, EFC officials were not even allowed into the tribunal. There is the concept of "strict liability" in the WADA code, but it applies when there is a positive test (or when it is otherwise known definitively that a particular substance entered the body of an athlete). Under those circumstances, the onus of proof is reversed. This case is what is known as a non-presence violation and the onus of proof remains squarely with ASADA at all times. There are club sanctions available under the AFL anti-doping code, and it is there where one would need to look for penalties against clubs for the sort of thing you are talking about (and arguably, the AFL have already imposed heavy penalties for that very thing). It's also worth mentioning that last year the AFL amended it's own code to basically make any form of injection prohibited, with the exception of certain pain killers. On the surface at least, the AFL anti-doping code is now much stricter than WADA. Arguably, with those changes, we should never see again anything like what happened at EFC. But, as you know, you can't watch over every individual footballer at all times....

Read the article in the Age today by John Pierik and Jake Niall. "The tribunal was comfortably satisfied that biochemist Shane Charter had bought thymosin beta-4 in his first shipment of peptides from GL Biochem in China and that those peptides were passed on to compounding pharmacist Nima Alavi. There was some inference in correspondence from Alavi that he had compounded the drug. But the tribunal was not sure that Dank had received the drug in his capacity as an Essendon representative." So basically it had gone to Dank, but who was he working for at the time is questionable. The thing that saved the Bombers was their own "deplorable absence of records in the program relating to its administration" If the Bombers had kept accurate records of what happened I would suspect that there would be a whole bunch of players sitting out this season. So the thing all AFL clubs learnt out of this, if you're going to do something dodgy make sure you don't keep any records of what you do. Now you have McLachlan, Little and everyone urging ASADA not to appeal the case. Why? Because I suspect they all know that if they do then the players will be found guilty under ASADA and WADA's codes and the AFL will look like the two bit operation it is.

Just curious, Mr F, why shouldn't the onus equally have been on Essendon to prove the legal status of what they were injecting their players with? If ASADA had enough evidence to know that *something* was being administered to the players, why shouldn't the club have been made to prove what they were doing was above board. I get that if ASADA don't have the evidence, they can't make the case. What I don't get is why Essendon, who did know - or who SHOULD know - what was injected, didn't have to prove anything? (Note, I ask all this genuinely; not trying to poke any bears or stir any hornet's nests..)

The key issue in this particular case is that ASADA was not able to demonstrate to the comfortable satisfaction of the AFL Anti-doping tribunal that it was TB4 which went into the bodies of the players. Contrary to a lot of popular opinion, the onus was on ASADA to make the case. There was zero onus on the players.