29th March 2017

AFL Commission internal review endorses joint AFL/ASADA investigation

An internal Review has endorsed a joint investigation carried out by the Australian Football League (AFL) and the Australian Sports Anti-Doping Agency (ASADA) that initially cleared 34 Essendon players, who were later sanctioned with backdated two-year bans after the World Anti-Doping Agency (WADA) appealed to the Court of Arbitration for Sport (CAS), using additional evidence supplied by ASADA. ‘The AFL acted within its rules, and with respect to our commitments to the WADA and ASADA framework’, wrote Mike Fitzpatrick, Chairman of the AFL Commission, which conducted the Review (PDF below).

In the Review, the AFL Commission ‘reaffirms its commitment to joint investigations with ASADA when appropriate as determined by the AFL General Counsel’. It also introduces a number of rule changes that will be in force should any similar future investigations take place. These include removing the CEO of the AFL from Commission decisions regarding rule breaches or sanctions; allowing the AFL Commission or General Council to ‘refer a matter in whole or in part for determination by the Tribunal or another body’; new rules on protecting whistleblowers and more.

In terms of AFL anti-doping regulations, the Review points out that the AFL has strengthened its rules governing supplementation and medical treatments. This includes the banning of injections by anyone other than a medical practitioner; a needle ban; and new obligations regarding the storage and inventory of treatments. Interestingly, the review states that the AFL Commission ‘look forward to ongoing discussions with ASADA and WADA regarding the challenges for the prosecution of investigation based doping offences, and the application of the ASADA processes to a team-based sport with a regular season’.

The AFL Review also provides a clue as to why the CAS sanctioned the players after they were cleared by the AFL. In its 48-page judgment, the CAS ruled that the evidence regarding the supplements programme carried out at Essendon during the 2011 and 2012 seasons was persuasive enough to issue sanctions against the 34 players. This finding appears to be due to the 34 players signing consent forms regarding the administration of substances via injection.

‘On 12 February 2012, the Essendon players attended a meeting a the club auditorium’, read the CAS ruling. ‘Either at the meeting or shortly thereafter, the vast majority of players signed “patient information/informed consent” forms in which they consented to the administration of four substances including AOD-9064 and “Thymosin” by way of injections. It was asserted in the form that the proposed treatment was WADA compliant.’

An extract from the CAS verdict dismissing the pleas in mitigation
An extract from the CAS verdict dismissing the pleas in mitigation

ASADA argues that none of the players declared the injections during 30 testing missions. ‘The complete failure of the vast majority of players who had to fill in a doping control form (DCF) during the season to reveal the receipt of injections does not encourage confidence in their statements’, reads the CAS judgement. However, the fact that the AFL has introduced new rules on injections appears to support the theory that the players were not aware they had to declare them.

ASADA blamed the players for not declaring injections when asked if they had taken supplements. “Of 30 ASADA [Australian Sports Anti-Doping Authority] testing missions during the period in question, none of the 18 players tested declared the injections, despite being asked each time whether they had taken any supplements”, said ASADA CEO Ben McDevitt in a statement. “At best, the players did not ask the questions, or the people, they should have. At worst, they were complicit in a culture of secrecy and concealment.”

Article 10.7 of the AFL National Anti-Doping Code in force at the time requires players to declare any injections on a doping control form. Under the strict liability principles of the World Anti-Doping Code, athletes are ultimately responsible for what goes into their system and so are responsible for this failing, even if told by the club that they did not have to declare them. This is perhaps one of the reasons why the CAS supported WADA’s appeal against the AFL’s decision to clear the players. However, interestingly, although ASADA is a signatory to the World Anti-Doping Code, the AFL is not.

As The Sports Integrity Initiative has previously reported, there is also a considerable debate as to whether the substance alleged to have been injected by the CAS – ‘Thymosin’ – was prohibited at all. In a July 2012 email, ASADA asked WADA if it had considered the prohibited status of thymomodulin. ‘The List Committee discussed thymosin beta-4 and considered it prohibited under S2.5’, reads WADA’s response. ‘It is not clear what type of thymosin thymomodulin is. Thymosin alpha is an immunomodulator and unrelated to thymosin beta-4.’

Dr. Kim Sawyer of the University of Melbourne has argued that whilst there is evidence that thymomodulin was administered by Dr. Stephen Dank at Essendon, “there is no evidence whatsoever of thymosin beta-4 at Essendon”. He alleges that text messages from 2012 showing that Dank had used thymomodulin during a previous supplement programme at Melbourne FC were not produced at AFL and CAS hearings.

Unfortunately for the AFL, the release of the AFL Commission Review is unlikely to draw a line under the Essendon supplements saga. It is, however, likely to reawaken allegations that the 34 Essendon players have been unfairly sanctioned.

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