Demonising Justin Gatlin
13th September 2015
Last night, the Court of Arbitration for Sport (CAS) upheld the World Anti-Doping Agency’s (WADA) appeal against the Australian Football League’s (AFL) decision to clear 34 players of breaching AFL anti-doping rules, sanctioning 34 players with backdated two-year bans, all of which will expire between November 2016 and February 2017. None of the players have reported a positive doping test – indeed, the CAS award discounts WADA’s attempts to show the presence of Thymosin Beta-4 in a 2012 sample taken from an Essendon player. ‘Neither the statistics or the science could, in the Panel’s view, inculpate any of the players’, read its 48-page judgment.
However, the CAS Panel found that the circumstantial evidence was enough for it to be ‘comfortably satisfied that all players violated clause 11.2 of the 2010 AFL Anti-Doping Code and were significantly at fault in so doing’. This is in stark contrast to the 31 March AFL Anti-Doping Tribunal decision, which read: ‘‘The Tribunal was not comfortably satisfied that any player was administered Thymosin Beta-4. The Tribunal was not comfortably satisfied that any player violated clause 11.2 of the AFL Anti-Doping Code.’ Essentially, 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.
There has been much debate about whether it is fair to sanction players for a programme initiated by the club’s management. ‘This finding is heartbreaking for our players, who will struggle to understand how two tribunals could come to such different conclusions based on the same evidence’, said Essendon Chairman Lindsay Tanner in a statement. ‘The Supplements Program of 2012 was a mistake of the highest magnitude. That said, the penalty imposed on the 34 players is manifestly unfair. At all times, our players acted in good faith. They sought assurances, and were provided them. If ever there was a case to be made for a finding of no significant fault, this was it.’
Under Article 2.2 of the 2009 World Anti-Doping Code, which was replicated in the applicable AFL rules at the time, athletes are ultimately responsible for ensuring that no prohibited substance enters their body. ‘It is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation’, reads the 2009 Code.
In August 2013, former AFL Deputy CEO Gillon McLachlan told the Herald Sun that “there is not one scintilla of evidence” that the players had any knowledge of what was going on, however the CAS decision suggests they may have had an inkling. ‘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.’
However, despite this assertion, none of the players declared the injections. “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.”
WADA emphasised the importance of the CAS decision to clean athletes, who may have felt cheated having competed against Essendon during the period in question. “While today’s decision represents the right result for the anti-doping community, it most importantly represents justice for clean athletes in Australia and worldwide,” said WADA Director General, David Howman, in a statement.
Howman also explained that it was important to pursue the case against the athletes, as allowing the AFL Tribunal decision to stand could have damaged the anti-doping community’s ability to sanction athletes who had not reported a positive test, but where circumstantial evidence exists that they may have doped. For example, the Athlete Biological Passport (ABP) relies on the ability of being able to pursue a potential anti-doping rule violation (ADRV) based on analysis of blood values over a period of time, rather than any positive test.
“This case shows that analytical and non-analytical evidence gathered through an investigation can be successfully presented to an independent panel” said Howman in the statement. “WADA is pleased that the CAS panel upheld the standards of proof set out under the World Anti-Doping Code. If the AFL Tribunal’s decision had prevailed, it would have set a damaging precedent for future non analytical anti-doping cases; and, therefore, been detrimental for anti-doping efforts worldwide.”
The AFL Players Association is currently conducting a review of the decision with its legal team, and has not ruled out the possibility of legal action by some of the affected players against Essendon. ‘It is important to note that the players took all reasonable steps to assure themselves that what they were being given was compliant with the WADA Code’, read an AFLPA statement. ‘They expressly sought confirmation that all supplements they were to be provided were in compliance with the Code, and were provided with written documentation to this effect […] Whilst we have seen no evidence throughout this process that proves the players were administered supplements which were not compliant with the Code, if this is the case then they have been deceived. They are the victims, not the perpetrators.’
As 12 current Essendon players will now be suspended, the AFL has put in place contingency plans to allow the club to field a team. The AFL confirmed that no further action would be taken against the club. ‘I would note that the WADA Code does allow for action to be taken against a club that has two or more players suspended within a 12-month period’, read a statement from McLachlan, now AFL CEO. ‘The AFL has already acted against the Essendon Football Club with the penalties handed down in 2013, and there will be no further action against the Essendon Football Club by the AFL on this matter’.
In August 2013, the AFL fined Essendon A$2 million, revoked its opportunity to play in the 2013 finals series and suspended Coach James Hird and General Manager Danny Corcoran. The CAS still has to hear WADA’s appeal against the AFL Anti-Doping Tribunal’s decision to clear Essendon’s Sport Scientist, Stephen Dank, of 21 charges in relation to the case. A date for the hearing has yet to be announced.
• July/August 2011: Sports scientist Stephen Dank meets Maged Sedrak, a compounding chemist, in Sydney, who begins supplying peptides to Dank.
• August/September 2011: Working for National Rugby League (NRL) club Penrith Panthers, Dank begins treating Sandor Earl.
• 28 September 2011: Dank is interviewed for the post of sports scientist at Essendon, and it is agreed that Dank will run a supplements programme in compliance with the WADA & AFL Anti-Doping Codes.
• 1 November 2011: Dank starts work as sports scientist at Essendon and introduces himself to Nima Alavi, a compounding chemist, who he asks to become an official supplier of pharmacy products to Essendon.
• January 2012: In the CAS’s words, it ‘becomes apparent’ that Essendon players are being administered substances without the approval of club doctor, Dr. Bruce Reid. Players raise concerns about supplements, and Dr. Reid writes to Essendon head coach James Hird and General Manager of football Paul Hamilton about concerns over players being administered AOD-9604.
• 12 February 2012: The ‘vast majority’ of players sign ‘patient information/informed consent’ forms in which they consented to the administration of four substances including AOD-9064 and ‘Thymosin’ by way of injections.
• May 2012: Dank told to cease injecting players.
• September 2012: Essendon reports its concerns over the supplements programme to the AFL and ASADA.
• February 2013: ASADA begins its investigation.
• 14 November 2014: Infraction notices issued to players.
• 15 December 2014: Proceedings against the players commence.
• 30 January 2015: Australian Federal Court dismisses challenge against the lawfulness of the investigation, lodged by Essendon coach Hird.
• 31 March 2015: AFL Anti-Doping Tribunal clears all 34 players of doping.
• 17 April 2015: AFL Anti-Doping Tribunal finds Dank guilty of 10 breaches of the AFL Anti-Doping Code, but clears him of 21 charges.
• 11 May 2015: WADA announces it will appeal the AFL Anti-Doping Tribunal decision.
• 1 June 2015: WADA appeals the decision to clear Dank of 21 charges.
• 22 June 2015: ASADA agrees to support WADA case at the CAS.
• 26 June 2015: AFL issues Dank with lifetime ban.
• December 2015: WorkSafe Victoria charges Essendon with two breaches of Victoria’s Occupational Health and Safety Act.
• 11 January 2015: CAS upholds WADA’s appeal against the AFL Anti-Doping Tribunal decision to clear 34 Essendon players of breaching AFL Anti-Doping rules.
The Court of Arbitration for Sport (CAS) has issued its decision in the arbitration procedure...