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A critique of the Essendon CAS verdict (Part 1)

The end of the Essendon saga looks to be nearing. (AAP Image/Julian Smith)
Roar Guru
16th January, 2016
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4740 Reads

I should know well enough to leave the issue of the Essendon players’ suspension alone.

The vast majority of Australian sports fans appear more than pleased with the Court of Arbitration for Sport (CAS) having reversed the AFL anti-doping tribunal’s decision to ultimately find that all 34 footballers had indeed used Thymosin Beta-4 (TB4).

But sometimes it’s fun to be the odd one out, and I am heartened that others more knowledgeable than I have already started raising similar questions about the CAS decision, most recently the sports lawyer Darren Kane of The Age.

This whole matter is so complex, and so textured, with many, many sub-plots that I would like to break down my critique into two parts.

In this first part, I will follow Kane’s lead in comparing the AFL anti-doping tribunal’s approach with that of the CAS, but I will at arrive at a slightly different conclusion than he did.

In the second part, I will focus on many of the oddities, errors and embellishments in the CAS judgement, thus allowing me to keep the first part as uncluttered as possible (alas, I will probably fail).

AFL anti-doping tribunal
Kane describes the AFL tribunal’s judgement as “logical”. The tribunal laid out three key steps which had to be proven:
A. that TB4 was procured from Chinese sources;
B. that it was compounded by the pharmacist Nima Alavi and then provided to Stephen Dank in his capacity as an Essendon employee; and
C. that it was injected into each of the 34 Essendon footballers.

The ASADA case fell over at step A, failing to demonstrate to the tribunal that TB4 was indeed the substance procured in China. While the tribunal was satisfied that Dank may have had the intention to procure TB4, ASADA failed to prove that one of two shipments, the larger one, ever occurred.

Of the smaller shipment, its certification ended up being a falsified document, which the ASADA had to embarrassingly concede before the tribunal.

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So having failed to meet step A, there could not have been a step C.

The tribunal even went to the effort of examining step B for the sake of the exercise, but there were no financial records which indicated that EFC had paid for, or received any such substance, and nothing else in Alavi’s records provided any other information demonstrating a link to EFC in regard to TB4.

The CAS judgement
WADA took a completely different approach in convincing the CAS of the guilt of the 34 footballers, and surprisingly, the CAS was more than willing to go along for the ride.

Having seen ASADA flounder in proving the links in the chains, WADA dispensed with any such pretense, devising its ingenious ‘Strands in the Cable’ argument.

So well did this approach work, so willing was the CAS to accept it unconditionally, that it’s almost as if they both sat around the table and devised it jointly.

The Strands in the Cable approach meant that theoretically both WADA and the CAS could jump from A to C and not be bothered with such details about where the TB4 came from, where it was compounded, how it got into the blood streams of the footballers.

Almost like a jazz improv, they could go anywhere with it and they did.

The theory behind the approach is that there are so many strands to the cable that if even a few are knocked out, the CAS could get to A from C at all times.

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Except for one problem – it’s pure fantasy.

The problem is that none of the strands ever go from A to C, let alone most of them. In fact so weak are these strands, that even combinations of all of them never get you from A to C.

The CAS openly admits during its judgement that it does not have to concern itself about the source of the TB4, or which players received injections, or any such thing – it simply jumps from A to C.

As Kane notes: “…the CAS did not make any finding that any player was administered TB4 at any specific time on any particular day. “

Burden of proof
The reversal of the AFL tribunal’s decision by the CAS has raised the question whether the AFL tribunal applied too high a burden of proof, and whether the CAS decision is at the other end of the spectrum.

Both bodies are required to be comfortably satisfied, a burden of proof set at higher than the balance of probability normally used in civil cases and the much higher standard of beyond reasonable doubt used in criminal cases.

To help answer whether the CAS set the bar too low, or got it right, it’s instructive to review the 2005 CAS case involving Australian cyclist, Mark French.

To summarise, a prohibited substance had been found in Mark French’s hotel room and he had originally been suspended, but appealed the matter to the CAS.

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The CAS had some interesting things to say in that case which now appear to have been thrown out the window: “In the absence of evidence of the presence of a prohibited substance in the athletes [sic] body, such as a urine sample and its laboratory analysis, what is required to be prove[n] is the use of the prohibited substance itself.”

The panel found that French could not be found to have committed a doping offence because “there was no direct evidence that Mr French used the material in the sense that no one saw him use it and he has consistently denied use.”

It’s important to note the direct connection which was established between the athlete and a prohibited substance, compared to the EFC case where no direct connection was ever established between any of the 34 and a prohibited substance.

At no point has any evidence been presented that places a prohibited substance anywhere near any of the 34 players.

In the history of CAS cases, we can go as far as to say that no other case has ever involved as little direct evidence of use as the EFC case.

A change in CAS
The abyss which exists between the French case and that of the EFC case is not the only hint we have that something has changed.

ABC Radio National recently discussed the issue of a growing cosiness between WADA and the CAS.

Brendan Schwab, the head of UNI World Athletes, says that both WADA and the CAS are controlled by the international sporting federations, meaning an individual athlete does not have an equal say in the appointment of arbitrators.

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Schwab goes on to say that the global one-size-fits-all has led to a series of unjust results for athletes without actually solving the problem of cheating in sport.

Despite greater powers, harsher penalties, and now seemingly the ability to impose guilt with an extremely low burden of proof, cheating in sport is no more under control today than it was 30 years ago.

Will this approach by WADA and the CAS signal a new era of fewer drugs in sport, or merely a diminution of the legal rights of individual athletes and more unjust outcomes?