The Roar
The Roar

AFL
Advertisement
Advertisement
Advertisement

Bonfire of the certainties: Dissecting CAS's Essendon decision

The end of the Essendon saga looks to be nearing. (AAP Image/Julian Smith)
Roar Guru
13th January, 2016
31
2078 Reads

Another day, another doping adjudication, and once again we’re forced to confront the question that is always too large: what does it mean?

The answer is simple in all the ways canvassed within about twenty minutes of yesterday’s decision by the Court of Arbitration for Sport (CAS). It’s problematic in ways that take longer to understand and will remain problematic for a good while yet.

For the 17 players still on AFL lists, the CAS verdict means they’ll have a lot of spare time on their hands between now and mid-November.

For that contingent and another 17 former Essendon teammates, it means a backdated pall over their reputations that won’t go away and surely overstates their culpability.

For Jobe Watson, whose explanation for staying on an injection program he had grave misgivings about was regarded by CAS as “not wholly convincing”, it probably means losing his Brownlow Medal.

More Essendon:
» The AFL must not abandon the WADA Code
» Lindsay Tanner looms as Essendon’s saviour
» Essendon doping saga: What did we learn?
» Devastated Watson speaks after WADA bans
» Essendon need their fans in 2016
» What the Essendon bans could mean for the 2016 AFL season

Watson reasoned it was easier to say “yeah, okay” (his words) to Stephen Dank’s dubious experiment rather than (for example) “No, this is not okay”. That won’t have helped when it came time to try catching a break on the sanctions front.

Mind you, the widespread assumption that discounted penalties were ever a formality says less about the nature of the cooperation those discounts required than about the aggregate IQ of our football media, which has finally succeeded in achieving parity with the legal blood alcohol limit for driving.

For James Hird, who had already endured the forced servitude of subsidised study at a graduate business school in Fontainebleau, it meant the further indignity of witnessing “a miscarriage of justice for 34 young men”.

Advertisement
Advertisement

There’s no doubting the sincerity of Hird’s anguish at the changed reality his former charges have just awoken to. Nor is his entirely unreasonable sense of his own personal virtue at all difficult to understand, given the headwinds of malice he’s been marching into daily for the last three years. I don’t know how hale and well met I’d be in the same circumstances. I probably wouldn’t leave the house.

But his tendency to regard the judgments of superior courts as “let’s agree to disagree” type arrangements is a vice of different compounding. It enhances no one’s appeal. I’ll save you the cost of another airfare to the Sorbonne, James: they’re not. They’re as conclusive as last year’s grand final result. In your case they’re as conclusive of Geelong’s 20-odd goal win over Port Adelaide in 2007.

For St Kilda, it means the priceless draft pick they threw away for Jake Carlisle, and a lot of money, better not turn out to be a Joel Selwood or Scott Pendlebury. We knew all this and plenty more by ten past nine yesterday morning.

What we don’t know and can’t know is hardly less important. The CAS verdict means the end of this particular road, for sure. But it doesn’t mean the end of time and it probably doesn’t mean the end of doping – to the contrary, obviously.

What it means in its implications for the future prosecution of circumstantial (or ‘non-presence’) cases is far from clear – the decision is certainly not the roadmap that the Federal Court decisions established for future investigations, for example.

Those rulings made it plain that sporting bodies like the AFL not only can but must cooperate with ASADA in doping investigations, and closely. That’s why the witless chorus – “bad call, AFL”, “get your process right, ASADA” – is so vacuous. ASADA got the process dead right. The AFL had no call to make.

This ruling offers no such illumination.

How did the World Anti-Doping Authority’s case clear the standard of proof where its Australian equivalent fell so far short?

Advertisement
Advertisement

WADA’s chances at the CAS hearing appear to have benefitted from the superior presentation skills of the Lance Armstrong-slaying US sports lawyer, Richard Young. The indications are that Young’s MO was to dispense with everything inessential where his ASADA counterpart, Malcolm Holmes QC, opted to drown the tribunal panel in a merciless excess of ‘narrative’, to the tune of an opening submission that ran for seven full days without arriving anywhere.

The world authority’s success was also due to the ‘reformulation’ of the prosecution case as ‘strands in a cable’ rather than ‘links in a chain’. The former refers to the reliance on the ‘cumulative weight’ of circumstantial evidence rather than the specific merits of any particular strand. The ‘links in a chain’ approach refers to the analysis relied on by ASADA at the AFL tribunal hearing last summer.

To explain: ASADA had to establish to the tribunal’s comfortable satisfaction that the banned peptide Thymosin Beta-4 (TB4) was procured, compounded and administered to Essendon players (by Shane Charter, Nima Alavi and Dank, respectively) in 2012. Since the tribunal couldn’t be satisfied that the substance procured by Shane Charter from China was TB4, it didn’t think it needed to seriously consider the second and third links in the narrative chain.

At the CAS hearing, WADA was able to convince the panel that the substance compounded at Nima Alavi’s Como pharmacy was TB4 and not any of the other variants of Thymosin that lawyers for the players had previously thrown up as possibilities, real or fanciful.

This was achieved on the basis of new analytical evidence provided by Dr James Cox, a specialist with expertise in the molecular structure of the peptide under investigation. Dr Cox analysed the substance compounded at Alavi’s Como pharmacy and had no doubt it was TB4.

That made Charter’s procurement activities in China irrelevant. He could have been procuring bath salts for all it now mattered to the CAS panel. WADA didn’t have to establish that first link in the chain.

As a consequence, the cumulative weight of all that circumstantial evidence – the strands in the cable – could be used to answer the question the AFL tribunal believed it didn’t even need to consider. What is Dank likely to have done with the TB4 compounded for him by his associate Alavi?

Among the reasons the panel concluded it was TB4 in the syringes jabbed into the limbs of Essendon players were that:

Advertisement
Advertisement

Dank had form. The Australian Administrative Appeals Tribunal ruled on December 31 2014 that Dank had used TB4 on NRL player Sandor Earl (currently under appeal);

the injecting regime was consistent with the dose and frequency “recommended for peptides like TB4”;

achieving the purpose of the Essendon program devised by Dank – quicker recovery from intense physical exertion and greatly increased strength – depended on the efficacy of the specific properties of TB4, not the other variant of Thymosin; and

Dank’s repeated insistence that he “needed a free reign” from supervision, in which he was spectacularly successful.

CAS also reminds us in its arbitral award that only one injection of TB4 is required to constitute a violation of the anti-doping rules.

Clearly, the expert analysis of Dr Cox was pivotal to the success of the WADA case and the failure of ASADA’s ‘narrative’. The CAS panel regarded his expertise as “relevant and specific”. It was “wholly convinced” by his “impressive evidence”.

Neil Clelland QC, legal counsel for the players, was sufficiently troubled by the new evidence to point out that, even if Dr Cox was right, the prohibited substance found was “of indeterminate source and indeterminate destination”. The Panel admired the phrase but remained unconvinced by its substance, so to speak. We don’t care where it came from, the three panelists said. And we have a pretty good idea where it went.

The analysis provided by Dr Cox was not available to the AFL tribunal and appears to have been critical to the CAS verdict.

Advertisement
Advertisement

Just how critical depends on what you understand “comfortable satisfaction” to mean. I’m not sure it means anything – specific, anyway. Both judgments and all relevant Codes define that standard of proof as “more than the mere balance of probabilities but not as high as beyond reasonable doubt”. That’s like saying Beijing is somewhere between Sydney and Lausanne. Balance of probability and beyond reasonable doubt are as good as self-evident in their meaning, not least because they’ve been applied to millions of legal cases, all over the world.

Comfortable satisfaction still sounds like a figure of speech to me. (The CAS award refers to it as a “term of art”, helpfully enough.)

Crack lawyer or not, new expert or not, it is problematic that the same standard of proof appears to have meant different things to the two sets of arbitrators. In this case, it wasn’t the difference between true and false that mattered. It was the difference between one-tenth of the truth and one-hundredth of it.

Your guess is as good as mine.