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”.
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?
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:
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.
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.
inXs
Guest
How even the strands in a cable argument even was good enough for CAS still blows my mind. Every one of the strand arguments is circumstantial at best or a complete lie at worst. I could be a murderer, you could be a rapist going by how WADA choose guilt. There was never evidence or positive tests that proved Sandon Earl had used TB4. Just comments from Dank that he had used TB4 to help with a previous shoulder repair at the time of Earls injury. Decision: inconclusive What Dr Cox found shouldn't have even mattered. EFC wasn't the only client of Dank, he was still running a supplements business at the time so there could have been any number of clients he could have been sourcing TB4 for. Decision: inconclusive The injecting regime is no more likely to represent TB4 or thymomodulin, which is used to prevent getting colds and flu. Decision: inconclusive The FACT that there was NO POSITIVE test ever for TB4 in ANY Essendon player. Decision: Unlikely or maybe we can try the fanciful conspiracy theory that players like Watson and Heppell are like Lance Armstrong. On top of that we have the nerve to question the integrity of 2 ex-judges on the tribunal that cleared the players. Do you think a person who is guilty would seriously want to have all the details of the case shown in front of a legal court? Do not worry, there will be a legal challenge to this, and it will prove what a monumental stitch up this whole process was. Then the majority of people will, like with Lindy Chamberlain, wonder how they were brainwashed once again by the mainstream media.
Joan
Guest
To David Ward: Please get your facts right and don't rely on assertions in the CAS report as fact. Read the AAT report. The AAT did NOT rule that Dank administered TB4 to Earl. It ruled that such was possible, which is a long way from the assertion that the AAT "expressly found".
PilbaraFrenzy
Guest
Very well summarised, looking forward to reading more of your work.
Pumping Dougie
Guest
Mister Football, I can understand your frustration that all 34 players have been found guilty, despite WADA being unable to prove guilt on an individual case-by-case basis. I disagree with your assertion that ASADA accept the injection regime was 'all over the shop', because I've never heard that acknowledged anywhere and I think is a crucial piece (or 'strand') of evidence that does support a guilty verdict (including on an individual level). Essendon lost the ability to refute this by shredding (most likely in my opinion) or failing to keep (seems implausible but is technically possible) the evidence. The players have suffered unreasonably throughout this ordeal (and the Australian Government of the day should be criticised for not finding ASADA adequately), but much of this angst for the players could have been avoided if Hird and the club weren't so litigious and the players had accepted a deal. Watson saying he couldn't plead guilty to something he felt he was innocent of, just indicates he's too gullible to recognize his behavior was maverick and irresponsible, unethical and designed only to cheat. Sad.
Pumping Dougie
Guest
Where have you been David?! Excellent article, skillfully summised and irrefutable. Brilliant job!
Mister Football
Roar Guru
Just to underscore how wrong it is to treat the 34 individuals as one and find them guilty as one - Henry Slattery, one of the 34 players charged, wasn't even part of the program - so how can he be found guilty of using TB4? Because what the CAS has done is wrong. They had to be comfortably satisfied that each of the 34 players used TB4, and WADA should have provided evidence on each of the 34 players - but CAS has allowed WADA to make a case against the 34 player as one, and the CAS has determined guilt as one. I say again - that is wrong and unjust. And while people are struggling to understand where I'm coming from, I am struggling to understand why so many sports fans are comfortable with WADA and the CAS being able to determine guilt under these sorts of circumstances and in that manner.
Mister Football
Roar Guru
70s Mo I fight for the little man and what is right. WADA is big enough and ugly enough to look after themselves and don't need my support. The 34 players went up before the CAS as individuals, but the CAS has determined collective guilt. I say to you - that is wrong. Mass murderers would receive a fairer hearing than that.
Mister Football
Roar Guru
Paul D I'm conceding I don't know, and neither does the CAS or WADA - and that is an injustice. CAS has openly admitted that it is not concerned in proving whether TB4 made it to the club or which specific players used TB4 - it has used this strands of a cable baloney to lump all 34 players together as one. That is wrong and completely unjust. There were 34 individual charges. It is incumbent on WADA to have made a case against each individual athlete and demonstrate to the comfortable satisfaction of the CAS that each individual athlete used TB4. That was not attempted, not did the CAS care. That is wrong and unjust.
Reccymech
Roar Rookie
Clarity....at last! Well written, excellently (is that a word?) presented.
Christo the Daddyo
Guest
I think Hird has spent so long denying any responsibility for what's happened he's beyond help. If I were the Essendon leadership I'd be writing a memo to all employees asking them to never mention his name again.
onside
Guest
Thanks Christo, got that wrong. I just feel that Hird is still messing about in the margins instead of owning the problem. He introduced this dreadful 'virus' to Essendon and the players , yet continues to deny culpability.The healing process starts and ends with Hird.
Christo the Daddyo
Guest
Er, it's spelled 'Hird' actually. But to your question - do you really think ANY other club would hire him as a coach ever again? It might not be official, but his coaching career is over.
onside
Guest
Why isn't Heard banned from coaching. Sure Heard had an enforced sabbatical in Paris , but he (not Dank) was the prime mover in this disaster. Heard made a decision that has brought a Club and many players to their knees. Jimmy has a lot to answer for.
Paul Nicholls
Roar Guru
I must admit to being surprised by your attitude Mr. Football considering I generally either agree or at least understand your points on most topics. For me, I don't care if they were injecting red cordial. The point is they were systematically cheating: 1) the other teams in the comp 2) other sports people in Australia 3) the sponsors and most importantly, 4) The fans of the sport This decision is the best thing that could have happened to these players. Mistakes are now officially acknowledged and any sports minded fan should welcome these players back with open arms in 2017
morebeer
Guest
Agreed...excellent work.
Vocans
Guest
Thanks David. It's good to have a legal mind separate the spaghetti into strands of a cable.
Nicko
Guest
I have been continuously amazed that throughout this whole saga, that experts that appear to have gotten their legal qualifications by watching Law and Order and CSI and have their source of evidence as Mark Robinson, suggest they understand the law in relation to the WADA code better than WADA and some of the best sports legal minds in the WORLD. They have been found guilty...GUILTY...they did it...get it? Gaols around the world are full of "innocent" victims... As for James: a more delusional, self centred poor excuse for an individual I have not seen for many a long time...pity, he was such a great footballer...
Paul D
Roar Guru
Mister Football - if Dank wasn't injecting the TB4 into the players, why was he sourcing it for the club? From reading your post I gather you're conceding that some players were probably given TB4, however you're stating that WADA wasn't able to prove which players actually were injected with TB4, implying that some may not have. I agree they weren't able to prove that every player was injected, but it was either punish all or none. Surely you can see that. The legal argument was always was there a comfortable level of satisfaction TB4 was used as part of the program, and CAS decided yes. Hence all who participated were deemed guilty. I guess I'm saying you can disagree with their decision, but I can't see how you can say their decision is "illogical" - the article explains quite clearly the legal (and logical) process that led them to arrive at their decision. To the author - Great article, very informative.
Gerome
Guest
Great article! I want to read more of this blokes' analysis & articles. He sure does know his stuff!
spruce moose
Guest
Take the blinkers off mister football. You are looking for conclusive proof in a hearing where that was not necessary. You constantly ignore the fact that the players had repeated opportunity to research further what was being injected into their bodies. Secondly it was proven by dr cox that dank at least had access to tb4. Where it came from is irrelevant. There is enough evidence to form a reasonable conclusion that the Essendon players were injected with tb4....and the only person who can say otherwise - on record - is stephen dank. And yet he won't say a word. In your sad, desperate eyes, why don't you ask yourself why dank never testified if he can unequivocally prove that tb4 was never injected? Come on...why? Accept reality champ. I'm not saying it's obvious, but it's more than likely....and that's all that's needed. You are wanting something that no one is mandated to determine.