The Australian Sports Anti-Doping Agency (ASADA) yesterday announced that it will not appeal the Australian Football League (AFL) Tribunal’s decisions relating to 34 players and sports scientist Stephen Dank, as any appeal would remain within the AFL framework. It also said that any ASADA appeal would delay WADA’s right to independent appeal to the Court of Arbitration for Sport (CAS), so has handed over its entire case file to to WADA and has said that it would support any WADA-initiated appeal.

“I am conscious that ASADA does not have a direct right of appeal to the Court of Arbitration for Sport (CAS) and the only appeal avenue open to ASADA at this time is the AFL Anti-Doping Appeals Tribunal”,  said ASADA CEO Ben McDevitt in a statement, adding that the decision had been taken following legal advice. “I am also aware that appealing any of these decisions within the AFL framework would ultimately serve only to delay consideration of these matters by WADA. I have therefore arranged to provide the entire case file encompassing all 35 matters to WADA for its independent review. This is in accordance with global anti-doping protocols. WADA will then be able to make an independent decision as to whether to exercise its appeal options.”

On 31 March, the AFL Anti-Doping Tribunal was unable to find any evidence that 34 players were administered Thymosin Beta-4 during the 2012 season. In line with that decision, it cleared former Essendon sports scientist Stephen Dank of charges of attempting to administer the substance on 17 April, however it found him guilty of 10 other breaches of the AFL’s Anti-Doping Code.

It is understood that ASADA is concerned that if it appealed to the AFL Anti-Doping Appeals Tribunal, that could delay any WADA appeal. Under Article 13.1.3 of the World Anti-Doping Code, WADA has a right to appeal directly to the CAS where ‘no other party has appealed a final decision within the anti-doping organisation’s process […] without having to exhaust other remedies in the anti-doping organisation’s process’. However, in a statement, WADA confirmed that it must lodge any CAS appeal within 21 days. In practical terms, this means that if ASADA appealed, WADA would have to wait for the outcome, otherwise it would risk its right to appeal to the CAS timing out.

As no party has appealed the decision regarding the 34 players, this leaves WADA free to appeal that decision. However, Stephen Dank is appealing, which means that any WADA action relating to that case would have to wait until the outcome of that appeal. ’We will now advise the Australian Football League of our intention to appeal the decision’, read a written statement from Dank to ABC News Radio. ‘We find the outcome quite inconsistent with facts and very angry at the amount of lies and misinformation used as evidence in the case. Barrister Clive Evatt is also currently looking at the legal options for those people who have provided such misinformation.’

‘WADA acknowledges the Australian Anti-Doping Authority’s (ASADA) decision not to appeal to the AFL Anti-Doping Appeals Tribunal in respect of the decisions in relation to 34 current and former Essendon players’, read the WADA statement. ‘WADA has received the full case file, including all evidence related to the decisions, and will independently review the information in accordance with World Anti-Doping Code rules. WADA will make no further public comment on this matter until it has decided whether or not to exercise its independent right of appeal to the Court of Arbitration for Sport (CAS). WADA has 21 days to exercise this right.’