There’s a possible outcome of WADA appealing the Essendon case to a full re-hearing at the Court of Arbitration for Sport that nobody seems to be talking about – guilty verdicts with no games being missed.

Hear us out.

The provisional suspension

We have the Essendon provisional suspensions beginning around 15 November and running through to March 30, that’s a period of around 4 months and 15 days. When the tribunal couldn’t find to their comfortable satisfaction that anti-doping rule violations (ADRVs) had occurred, those provisional suspensions were ended and players free to play.

If WADA’s appeal to the CAS is upheld and Essendon players are found to have violated the anti-doping code, their period of ineligibility will have the already served provisional suspension counted. This is what occurred in the case of Alberto Contador, who was initially cleared by the Spanish cycling federation’s process but then suspended on CAS appeal. He was given 2 years, minus the 5 months he’d served before being initially cleared.

Consensus around the CAS process seems to suggest a fairly protracted hearing and then a further wait for a verdict. Richard Ings guesstimated the outcome being known by Christmas if things move quickly. Others think the process may be a bit more expedited. For Essendon players to be found to have violated the anti-doping code, yet escape missing any matches, they’d have to hope a finding weren’t reached before their season ends in September or October.

No significant fault

The standard anti-doping violation sanction for prohibited substances under the 2009 WADA Code is 2 years. That’s what Essendon players would be facing prior to any reductions for fault or other things. Section 10.5.2 provides for a reduction by half of the sanction if an athlete can establish “no significant fault” to their infraction. Given the circumstances at Essendon this seems a reasonable bet to be applied.

(A finding of “no fault” can entirely eliminate a suspension but is impossible here as Essendon’s situation – substances administered to athletes by support people – is ruled out of the zero suspension “no fault” clause.)

Reduction for no significant fault gets our hypothetical suspensions down to a year, ie seven and a half months more to serve.

If a guilty finding on Essendon players’ ADRVs were to be reached on, say, September 15 2015, that would leave players ineligible until around the end of April of the 2016 season. The tricky bit is how to get from 12 months down to the minimum of 6 months and missing no games at all.

It should be noted the Cronulla Sharks players did not get a 6 month sanction. Sharks players seem to have received 12 month suspensions backdated due to inordinate delays not caused by the athletes. That’s unlikely to apply in this situation.

Substantial assistance

The way a further reduction could potentially occur is under the “substantial assistance” clause, 10.5.3, of the Code. Under this, an authority may:

suspend a part of the period of ineligibility imposed in an individual case where the athlete or other person has provided substantial assistance to an anti-doping organisation, criminal authority or professional disciplinary body which results in the anti-doping organisation discovering or establishing an anti-doping rule violation by another person

We’re not sure if the clause is applicable. It’s a tough sell.

It’s usually used to get people to give evidence against other bigger fish (eg, it helped catch Armstrong), but if all that’s required is assistance in establishing someone else’s violation by the giving of evidence then it may end up applying.

Essendon players didn’t test positive to anything, so an anti-doping violation has to be established using investigative evidence. By all accounts Essendon players probably cooperated and gave evidence to the investigation to the best of their ability.

So if we want to get cute, in the event of guilty findings, evidence given by any particular player would certainly have substantially assisted in establishing rule violations by some other given player.

That’s probably a bit too cute and technical to fly. But there’s another possible angle.

Stephen Dank accidentally helping

The commentary around the WADA code makes particular mention that assistance in establishing trafficking violations are more likely to activate the substantial assistance clause. This makes sense – they’re more serious violations and thus a higher priority. Indeed, it was the Australian Crime Commission investigation of organised crime and trafficking activities that first brought the whole situation to light.

Stephen Dank has been found guilty on 10 anti-doping violations. This includes a number of trafficking and attempted trafficking findings including some that occurred at Essendon around:

“prohibited substances in a product known as Humanofort, namely Insulin Growth Factor 1 (IGF-1), Insulin Growth Factor 2 (IGF-2), Mechano Growth Factor (MGF), Fibroblast Growth Factor (FGF), Follistatin and Thymosin Beta 4, between about January 2012 and September 2012.”

If players’ cooperation in interviews helped establish to the evidence around Dank’s successfully prosecuted rule violations, that should clearly let them use clause 10.5.3 to argue their ineligibility down to the minimum of 6 months.

Deduct time already served and that’s about 6 weeks of further suspension.



If this is the finding – guilty of rule violations but reduced sanction to 6 months due to no significant fault and substantial assistance in helping get Dank for trafficking – then a guilty verdict any time before February would leave Essendon players free to line up in Round 1 of 2016 (albeit going in a bit underdone).

At the end of the day, perhaps Stephen Dank has helped the Essendon players after all. Just not in the way he might have intended, and the cost of potentially a life ban from sport for himself.

-Sean

