The footy world was left reeling by the Court of Arbitration for Sport’s (CAS) decision to suspend 34 past and present Essendon players (the Players) for 24 months, which was partially backdated and resulted in the players being banned for the 2016 season.

Emotions are strong, and misinformation is rife—in the media, and in everyday conversations. In the discourse accompanying this decision, a number of concerns have been repeatedly articulated. I have identified what appear to be the major concerns and converted them into 15 questions—my response to each of these is provided below. I hope that this post will provide a useful resource in moving the discussion forward.

In this post, my goal is to remove the emotion and hyperbole from the discussion, to step back, and dispassionately examine the decision handed down by the CAS. I urge readers to do the same, and look forward to receiving your feedback.

The 15 questions are:

With no positive tests, no whistleblowers, and no confessions, how can the Players have been found guilty? How can two Tribunals arrive at such different verdicts with no new evidence? How could the CAS Panel place any weight on the evidence of Mr Charter, Mr Dank, or Mr Alavi, given the unrel­iability of these individuals? Were the individual circumstances of each player considered on a case-by-case basis? How could the CAS Panel find against all of the Players? In doing so, did the Panel effectively reverse the onus of proof? How could the CAS Panel be sure that it was TB-4, and not some other variant of Thymosin? Given that this case took almost three years to resolve, why wasn’t there a greater discount for delay? Why did the Players not receive a ‘No Significant Fault’ discount? How can the Players be accused of hiding the regime from Dr Reid, when he was present for Nathan Lovett-Murray’s injections? It has been stated that the decision wasn’t unanimous, with 4 out of 6 judges clearing the players—Is this fair? Is it true that Henry Slattery didn’t receive any injections and Mark McVeigh was only injected with Melatonin? The CAS Panel claimed that Mr Dank injected Sandor Earl with TB-4—Was this correct? The fact that Mr Dank ordered blood tests was considered relevant by the CAS Panel—How can this be relevant, when the tests weren’t for TB-4? Did WADA change the rules in 2015, and therefore was it wrong for CAS to conduct the hearing ‘de novo’? Should the AFL simply refuse to enforce the CAS decision, and walk away from the WADA Code?

Please feel free to join in the discussion on Twitter.

With no positive tests, no whistleblowers, and no confessions, how can the Players have been found guilty?

With no positive tests or admissions from any of the Players, WADA’s case was circumstantial.

Despite how the term is used in American legal dramas, a circumstantial case is not necessarily a weak one. It all depends on the weight of the evidence. In a typical example used by the Judicial College of Victoria, if I was to see someone enter my house wearing a raincoat and carrying an umbrella, both dripping wet, this would be circumstantial evidence that it’s raining outside. Viewers of the Netflix series ‘Making a Murderer’ would be well aware that a strong circumstantial case can be much better than a case with direct evidence.

There is currently no test for Thymosin Beta-4 (TB-4). The test developed by the Cologne laboratory, and used to test the Players’ frozen urine samples, was not accepted as reliable by the CAS Panel. This was because the test could not reliably determine the difference between TB-4—as naturally produced by the body—and TB-4 injected artificially (CAS Decision [149]). As noted in the AFL Anti-Doping Tribunal (AFL Tribunal) hearing, some of the Players were tested between January 2012 and September 2012, but ‘[t]hose tests were not designed to detect TB4’ (AFL Tribunal [33]).

There are ten separate types of Anti-Doping Rule Violations, and the Players here were accused of ‘Use…of a Prohibited Substance’ (now cl 10.3 in the 2015 Code). This is a separate violation to ‘Presence of a Prohibited Substance…in a Player’s Sample’ (now cl 10.2 in the 2015 Code). The ‘Use’ violation is designed for cases such as this one where there is no requirement of a positive test.

Accepting that a positive test isn’t required, and indeed wasn’t even possible here, WADA still had no ‘direct’ evidence (ie confessions, whistleblower testimony, etc). But there’s no reason that this should be required. On this point, the CAS Panel referred to USADA v Tim Montgomery, and explained that doping offences can be proved by a variety of means (CAS Decision [102]).

How can two Tribunals arrive at such different verdicts with no new evidence?

In May 2015, when it was first announced that WADA was appealing this decision to CAS, former Victorian Premier and Hawthorn President Jeff Kennett summed up the thoughts of many in the football world.

.@Mfj2012Mfj Not against the truth being establishedJust can’t see how 2 different bodies could deliver different outcomes on same evidence — Jeff Kennett (@jeff_kennett) May 12, 2015

On the face of it, this is a valid view, and one that many still struggle with now. However, like most things in life, it is not as simple as that, as a reconsideration of the AFL Tribunal’s decision will show. It is also not true to say that no new evidence was produced.

First, WADA submitted new analytical evidence showing elevated TB-4 readings in the urine samples taken from two Essendon players in 2012. For the reasons listed in Point 1 above, WADA wisely did not rely on this evidence in its closing submissions (CAS Decision [150]) and the CAS Panel rejected this evidence.

Secondly, and more importantly, new evidence was provided which fundamentally changed the approach of the panel. This new evidence came from one of WADA’s experts, Dr James Cox. Dr Cox ‘wholly convinced’ the CAS Panel that the substance compounded by Nima Alavi’s assistant—and tested at the Bio21 laboratory—was TB-4 (CAS Decision [132]). It was due to this new evidence from Dr Cox that ASADA made a submission abandoning its previous ‘links in the chain’ approach as the presence of TB-4 at the Como pharmacy meant it was no longer necessary to prove the source of the TB-4 (CAS Decision [115]). As explained below, the AFL Tribunal was almost wholly focused on establishing the source of the TB-4.

For a more detailed analysis of the ‘links in the chain’ approach vs. the ‘strands in a cable’ approach, see Natalie Hickey’s thorough analysis.

To understand this fully, we need to step back and look at the approach adopted at the AFL Tribunal. All parties agreed that there were three indispensable links in the chain—each of which needed to be proven to the Tribunal’s ‘comfortable satisfaction’:

TB-4 was procured from sources in China; and TB-4 was obtained by Mr Alavi, compounded, and then provided to Mr Dank in his capacity as an Essendon Sports Scientist; and Mr Dank administered TB-4 to each player.

Having considered the first two links of this chain, the AFL Tribunal was not comfortably satisfied on either link, and therefore did not need to consider the third link. In this sense, by characterising the reasoning process as a series of ‘links in a chain’—rather than as ‘strands in a cable’—logic dictated that if one link wasn’t established, then it was not necessary to consider subsequent links; and the argument could not be maintained. In contrast, if the reasoning process is characterised as consisting of strands in a cable, then the removal of one strand does not necessarily destabilise the rest of the argument.

With the agreement of all parties, the AFL Tribunal adopted an approach where it was necessary to prove the source of the substance—i.e. track it all the way back to the factory it was produced in. Even using this extremely strict approach, the AFL Tribunal was still comfortably satisfied that Mr Charter purchased ‘what was purported to be TB-4’ from the Chinese factory in late-2011, and then arranged for it to be sent to Mr Alavi (AFL Tribunal [477]). The critical issue for the AFL Tribunal was whether—what the Chinese factory, Mr Charter, and Mr Alavi believed to be TB-4—was, in fact, TB-4 (AFL Tribunal [478]). As ASADA did not provide scientific proof that the substance was TB-4, the Tribunal was not satisfied on this point.

In my view, this area of the Tribunal’s judgment was always the most open to criticism as it set an incredibly high burden of proof which would be difficult to meet in any doping case that didn’t involve a positive test. It is a burden that is at least at the level of ‘beyond reasonable doubt’, rather than the ‘comfortable satisfaction’ required.

To modify a common saying: if it looks like a duck, walks like a duck, and quacks like a duck, you don’t need DNA evidence to prove that it’s a duck.

In the CAS appeal, tracking the substance back to the ‘source’ became less important, once Dr Cox’s evidence satisfied the CAS Panel that TB-4 was, in fact, compounded at the Como pharmacy. In contrast to the approach taken by the AFL Tribunal, the CAS Panel noted that it is not essential in a ‘Use’ case that the ‘source’ of the product is identified—to require that would be ‘a significant bar to the fight against doping’ (CAS Decision [142]). Or, as the Panel put it, ‘[p]recisely when, how and from whom Mr Dank obtained TB-4 is not the real issue. The real issue is whether there is sufficient evidence that he handled TB-4 and administered that substance to the Players’ (CAS Decision [141]). In a criminal trial, if scientific proof that a substance was cocaine was provided, it would be hard to imagine requiring the prosecution to prove the source of it all the way back to Colombia.

Having said that, if a ‘source’ can be identified, this can strengthen a case—i.e. by providing another strand to the cable. The CAS Panel—while not needing to decide definitively on this point—saw no reason to doubt that the Chinese factory indeed provided the TB-4 that it said it was providing (CAS Decision [143]).

Overall, the reason that the AFL Tribunal and the CAS Panel came to such different conclusions was a mixture of Dr Cox’s new evidence that put TB-4 at the Como pharmacy (justifying a switch from ‘links in a chain’ to ‘strands in a cable’), and arguably an unacceptably high burden of proof that was required by the AFL Tribunal.

How could the CAS Panel place any weight on the evidence of Mr Charter, Mr Dank, or Mr Alavi, given the unreliability of these individuals?

One of the reasons that ASADA’s case failed at the AFL Tribunal was the Tribunal’s refusal to accept any statements made by these individuals, unless they could be corroborated by other evidence.

As a result, the Tribunal refused to accept admissions made by Mr Dank, to Nick McKenzie, that he used TB-4 on the players (AFL Tribunal [212]), or statements made by Mr Dank to the Players (AFL Tribunal [213])—presumably the evidence from six players that Mr Dank told them that they were being injected with ‘Thymosin’ (CAS Decision [120](vii)).

The AFL Tribunal was right to be cautious about the evidence from these three individuals. Similarly, the CAS Panel made clear that they also were treating any statements made ‘with appropriate caution’ (CAS Decision [118]).

However, the AFL Tribunal arguably made a mistake by failing to distinguish between statements made contrary to the individual’s own interests, as opposed to self-serving statements. For example, what reason would Mr Dank have to lie when he told Nick McKenzie that he used TB-4 on the Essendon players, or when he told players that he was injecting them with Thymosin? The AFL Tribunal adopted a blanket approach that essentially said ‘we can’t trust anything that comes out of their mouths’. On the other hand, the CAS Panel distinguished between ‘statements [that] were self-serving as distinct from admissions against interest’ (CAS Decision [118]).

The CAS Panel’s approach is consistent with Australian evidence law, which treats admissions against interest differently to other statements (see Part 3.4 of the Uniform Evidence Acts)—thus recognising that people are more likely to lie to help their own interests, rather than to hinder them.

In any case, the CAS Panel clearly placed greater weight on the material evidence, including the electronic communications; but, unlike the AFL Tribunal, it refused to rule out any consideration of the evidence of statements made by the three individuals (CAS Decision [118]).

Were the individual circumstances of each player considered on a case-by-case basis?

Criticism has emerged that the circumstances of each player were not individually considered by the CAS Panel.

It should first be noted that the Players have not objected at any point to all cases being heard together (AFL Tribunal [113]).

The CAS Panel deal with this case-by-case point directly, and say that that while the cases were all heard together, each Player was given individual consideration and the statements of each player were made available to and were considered by the CAS Panel (CAS Decision [119]). The CAS Panel also states that failure to mention individual players doesn’t mean they weren’t considered, just that nothing was relevantly different about their case to need mentioning (CAS Decision [119]).

Therefore, the CAS Panel has made clear that they did in fact consider the individual circumstances of each player on a case-by-case basis.

How could the CAS Panel find against all of the Players? In doing so, did the Panel effectively reverse the onus of proof?

The CAS Panel’s determination that TB-4 was used by all Players has proved to be one of the most controversial elements of their decision. Jeff Gleeson QC, the AFL’s lawyer, suggested that the CAS Panel should reject WADA’s appeal outright on this point alone, although Mr Gleeson admitted that it is ‘difficult to resist the inference that he’s been giving it to some players’ (CAS Decision [136]; emphasis added).

To understand the decision on this point, it’s necessary to set out some background information.

(i) Two key planks in the WADA case

We know that 38 players signed forms consenting to receive injections of Thymosin (AFL Tribunal [149]). According to at least one player (Kyle Reimers)—who spoke to the media—not all of the players who’d signed the forms received injections. In addition, there were reportedly others who received injections, but did not sign consent forms for Thymosin, such as Hal Hunter. As well as making it impossible to prove the case, it could be inferred that if a player did not sign a consent form for Thymosin, they were not a part of the same ‘injection regime’ as those who did.

The 34 Players that charges were brought against includes all Players that both:

signed a consent form to receive Thymosin; and

admitted receiving injections from Mr Dank.

These appear to be the two key planks in the WADA case against the Players. The CAS Panel was comfortably satisfied (for the reasons that follow) that all Players who signed the consent form, and received injections, thereby received TB-4.

(ii) Text message evidence

A key factor supporting this inference was the August 2011 text message sent by Mr Dank, to Mr Robinson, which indicated that Thymosin would be a ‘vital cornerstone next year’ (CAS Decision [120](ii)). This suggested that Thymosin was the ‘jewel in the crown of the regime’, and the CAS Panel noted that it was not designed for any player in particular (CAS Decision [126]). The CAS Panel said that it ‘would have made no sense’ for Mr Dank to arbitrarily omit giving an injection of Thymosin to a player, and further noted that Mr Dank did not discuss the importance of other drugs (such as AOD-9604) in the same way that he discussed the importance of Thymosin (CAS Decision [126]). The CAS Panel made the point that it would make no sense for Mr Dank to abandon what he believed to be the most potent element of his regime, particularly when his reputation as a ‘sports guru’ depended on the results he was getting (CAS Decision [120](x)).

The CAS Panel further relied on the 9 March 2012 text message from Mr Dank to James Hird: ‘I.V. start next week. And Thymosin with Ubiquinone. We will start to see some real effects’. This was followed by a text message on 12 April 2012: ‘all…injections completed’, and a further text message on 19 April 2012: ‘all injections completed for the week’. The CAS Panel found that these messages supported an inference that the program extended to all of the players; and, that this inference was strengthened by the evidence of David Hille, who believed that all of the players were in the same supplementation program, even if the dosage might have varied between the players (CAS Decision [126]).

(iii) Player evidence rejected by the Panel

The Players argued that Mr Dank was haphazard with the injection regime, and therefore it could not safely be said that all players received Thymosin. In response to this submission, the CAS Panel pointed to text messages that Mr Dank sent to the Players to keep tabs, and ensure that they didn’t miss their dose (CAS Decision [127]).

The CAS Panel did not accept some of the evidence the Players provided on this point for the following reasons (CAS Decision [129]):

there were no records kept by the Players (or club);

the Players were interviewed a year after the injections occurred, so their memories might have been less than precise;

in their interviews, the Players were inexact about the number and timing of their injections;

in their evidence at CAS, the Players were also inexact and inconsistent;

by the time of their interviews, the Players were aware that TB-4 was a target of the investigation, and thus it would be a natural tendency for them to mislead, or at least ‘be somewhat economical with the truth’;

when getting tested, the vast majority of the Players failed to declare receiving injections on their doping control form, which ‘[did] not encourage confidence in their statements’; and

the Players would have little idea what they were being injected with, other than what they were told by Mr Dank.

The first bullet point in the list above is worthy of further discussion. If the CAS Panel had refused to find the Players had used TB-4 because records did not indicate exactly who got what and when, this would put a huge dent in the fight against doping, as it would encourage the destruction of records or the failure to keep records in the first place. In a hypothetical example, if a team had 40 players who were part of an injection program—and it was known that only 39 players received EPO, with 1 player receiving a placebo—then, under a strict burden of proof (such as ‘beyond reasonable doubt’), all 40 players would be cleared. Where the burden of proof is less strict (such as ‘comfortable satisfaction’), the hypothetical outcome above would be less appropriate. I would argue that there are strong public policy reasons for favouring the ‘comfortable satisfaction’ approach exercised by the CAS Panel in the Essendon case, particularly where the inference—that all Players did receive Thymosin injections—is open on the facts.

(iv) The Crameri and Prismall defences

The CAS Panel pointed out that the lawyers for Mr Crameri and Mr Prismall made discrete points, in an attempt to distinguish their clients’ position on the ‘use’ and ‘fault’ levels. However, it is not mentioned in the CAS Decision whether the defence team for the other 32 Players sought to make separate defences for each of their clients.

Due to their separate defences, the Panel dealt specifically with the cases of Mr Crameri and Mr Prismall, but it saw no reason to distinguish the situation of these two players from the cases of the other players, particularly in respect of Mr Crameri who testified that he saw the word ‘Thymosin’ on the vial of the substance administered to him (CAS Decision [130]). The CAS Panel has been criticised as having used language appearing to reverse the onus of proof (‘the Panel cannot identify any fact in their cases which would justify the conclusion that they were themselves not subjects of the Thymosin regime’)— that, in effect, the players had to prove that they didn’t take Thymosin. However, that criticism is misguided. The CAS Panel drew the inference that all players, who signed a consent form and received injections, were part of the same injection regime, and that all received the ‘cornerstone’ drug of the program.

It has been suggested that athletes generally should be worried about the CAS Panel’s decision on this point, but I would suggest—as would many athletes themselves—that athletes who conduct adequate research (including making reasonable enquiries), and ensure that adequate records are kept, should have nothing with which to be concerned.

How could the CAS Panel be sure that it was TB-4, and not some other variant of Thymosin?

I have discussed the reasons for the CAS Panel’s ‘comfortable satisfaction’ that all players were injected with Thymosin at Point 5 above; however, in this section, I will explore why the Panel was satisfied that the Thymosin administered to the Players was the banned TB-4, rather than the legal variants such as Thymosin Alpha-1.

I will first clarify something in the judgment that I believe has been misread by many. The CAS Panel said at [131]: ‘Despite these varying forms of Thymosin, there is no evidence that what Mr. Dank injected into the Players was Thymosin Alpha or, indeed, any other form’ (emphasis added). In this statement, the Panel is commenting that there is no evidence to indicate that the Players were injected with Thymosin Alpha or any other form of permissible Thymosin; that is, a form of Thymosin other than TB-4. The CAS Panel was not suggesting, as some would have you believe, that there is an absence of evidence that Mr Dank injected the Players with TB-4. It is an important distinction, and one that is obvious upon careful reading of the decision.

(i) The red herring: Thymomodulin

James Hird recently stated in an interview that he believed that the players had been injected with Thymomodulin.

To answer this question, I first need to explain the difference between these substances. The following explanation is derived from the expert evidence before the AFL Tribunal (AFL Tribunal Transcript 12/01/2015).

Although many have confused the terminology, Thymomodulin is not Thymosin Alpha-1—and, in fact, is not a variant of Thymosin at all. It is an extract of calf thymus, which has historically been produced by grinding up the thymuses of dead calves; it contains a vast array of different proteins and substances. At some point, Thymosin Alpha-1 and Thymosin Beta-4 were ‘fractionated’ (meaning divided or separated into parts) from Thymomodulin, and purified to the extent that they are considered single substances. Their amino acid sequences are small enough to be produced synthetically by machines. To any endocrinologists who might be reading this post, I apologise for the over-simplification.

The key take-away point is that Thymomodulin is not a Thymosin. This needs to be kept in mind when it is claimed that the players were injected with Thymomodulin. Mr Dank demonstrated his awareness of this difference, when Mark Robinson from the Herald Sun asked him if he had ordered ‘Thymosin’ for the Melbourne Demons. Mr Dank replied: ‘No. It was Thymomodulin.’

(ii) Basis for TB-4 finding

For the combination of reasons below, the CAS Panel found that the ‘Thymosin’ that was injected into the Players was TB-4:

In a text message to Mr Robinson, Mr Dank said: ‘Thymosin is so effective in soft tissue maintenance’. TB-4 is used to aid recovery and repair tissue, where Thymosin Alpha-1 is not (CAS Decision [120](ii), (ix));

The consent forms for Thymosin included an injection schedule that matched Mr Charter’s email to Mr Dank, which was titled ‘TB4’. The email contained instructions on how to use TB4 (CAS Decision [120](vi) and AFL Tribunal [307] for further clarification);

In September 2011, Mr Dank told Mr Charter that he needed TB-4 (CAS Decision [120](ii));

In an interview with Nick McKenzie of The Age newspaper, Mr Dank stated that he used TB-4 on the Players. He sought to retract this statement after it was pointed out to him that TB-4 was a prohibited substance (CAS Decision [120](xii));

While there are more than 27 varieties of Thymosin, only Thymosin Alpha-1 and TB-4 are available on the market (CAS Decision [132]);

On 9 May 2012, Mr Alavi’s assistant, Vania Giordani, tested a substance at the Bio21 laboratory that she believed to be TB-4; the testing confirmed that the substance was TB-4 (CAS Decision [132]). The Players’ own expert, Dr John Vine, accepted that there was a 97% to 98% certainty that the substance tested was TB-4, while Dr James Cox thought it a 99% certainty. The reading at the Bio21 laboratory was a molecular weight of 4971 , and TB-4 at its purest has a reading of 4963 ; a near perfect match, which led to the high level of confidence expressed by the WADA expert, and the Players’ expert. By comparison, the molecular weight of Thymosin Alpha-1 is 3066 (AFL Tribunal Transcript 12/01/2015). Both ASADA’s and the Players’ expert concluded that the substance tested could not be Thymosin Alpha-1; and

, and TB-4 at its purest has a reading of ; a near perfect match, which led to the high level of confidence expressed by the WADA expert, and the Players’ expert. By comparison, the molecular weight of Thymosin Alpha-1 is (AFL Tribunal Transcript 12/01/2015). Both ASADA’s and the Players’ expert concluded that the substance tested could not be Thymosin Alpha-1; and Only TB-4 had the kind of properties for which Mr Dank designed the program. Only TB-4—and not any other form of Thymosin—would be able to provide Mr Dank with the results he was looking for (CAS Decision [131]).

It has been suggested that WADA ‘could not place’ TB-4 at Essendon, but this is negated by the above reasons. Having placed the TB-4 at Essendon, the above reasons also show that WADA was able to prove that all players were injected with ‘Thymosin’, and that the ‘Thymosin’ referred to was TB-4.

Given that this case took almost three years to resolve, why wasn’t there a greater discount for delay?

Ordinarily, a player’s ban would commence on the date of the CAS Award (decision); in this case, it would have been 11 January 2016. However, the CAS Panel changed the commencement date of the Players’ two-year ban to 31 March 2015; thus providing an 8.5 month discount due to ‘substantial delays … not attributable to the Player[s]’.

The CAS Panel has set out some key legal propositions to be used in interpreting this provision (now cl 21 of the 2015 AFL Anti-Doping Code), including that (CAS Decision [167]):

‘delay’ simply means the passage of time, and does not have negative connotations;

all delays can be taken into account, whether they were for explicable and reasonable reasons or not;

the CAS Panel has full discretion as to the effect delays have in any given case.

The WADA Code has a provision (the footnote to cl 10.11.1) which recognises that, in cases without a positive test, the relevant Anti-Doping Organisation needs time to discover the facts, and states that there should be no discount for delays in those cases. Luckily for the Players, the CAS Panel pointed out that this provision isn’t replicated in the AFL Anti-Doping Code (CAS Decision [167](iv)).

The CAS Panel’s decision on the delay provision in the AFL Code is notable for two reasons.

The first is the generous way in which the CAS Panel interpreted the meaning of ‘delay’. The Panel considered Essendon’s removal from the 2013 AFL Finals series (for governance reasons) to be a relevant consideration in determining a discount for delay. The Panel also considered the players’ expectation that the maximum sanction would be one year to be a relevant consideration (CAS Decision [170]). Reasonable minds might differ on this point; however, it was a decision entirely within the discretion of the CAS Panel.

The second is the CAS Panel’s decision that the 2014 Federal Court challenge was attributable to the Players (CAS Decision [169]). The Panel was clearly aware of the circumstances surrounding that challenge. At [168](vii), it noted that ‘[o]n 13 June 2014, Essendon and its then-head coach, Mr Hird, commenced proceedings against ASADA … alleging that ASADA had conducted its investigation unlawfully’. Although the proceedings were clearly commenced on the Players’ behalf, the Players attempted to avoid full participation—and co-operation—by refusing to be joined as parties, and by amending their submissions in an attempt to take a less active role in the proceedings. It would be quite a loophole to allow a discount for delay when the reason for the delay is an act entirely for the behalf of the Players. This was not an ‘error’ by CAS, but a finding of fact that the cause for the delay was attributable to the Players.

Overall, the players were fortunate that the CAS Panel interpreted the meaning of delay so generously, but not so fortunate that the CAS Panel attributed the Federal Court delays to them. Both decisions, however, were findings of fact that were open to the CAS Panel to make.

Why did the Players not receive a ‘No Significant Fault’ discount?

The biggest surprise from the decision to the general public was that players did not receive a No Significant Fault discount, which could have reduced the suspension by up to a year.

(i) ‘Due care’

It should be noted that the standard period of ineligibility is two years, and that the onus is on the individual to establish why they bear No Significant Fault or Negligence. That is, to support a reduction on this ground, a player would have to demonstrate that they displayed ‘due care’ (CAS Decision [157]).

The CAS Panel set out previous CAS authorities on this point, with a focus on the objective level of fault of athletes. In other words: the standard of care that is expected from a reasonable person in the Players’ situation. The CAS Panel also cited a previous CAS decision, UCI v Fernandez et al, in which it states that ‘[i]f an athlete wants to persuade … a CAS Panel … that he was not substantially at fault or negligent, he must do more than simply rely on his doctor’ (CAS Decision [154]).

The CAS Panel noted that the Players had all received anti-doping education; that no Player contacted the WADA or ASADA hotline to check the status of Thymosin; that no Player conducted internet searches for Thymosin, nor did they make any other inquiries about it; and, that no Player spoke to Dr Reid about Thymosin (CAS Decision [155]). It was this lack of curiosity, which meant that they could not claim to have displayed ‘due care’.

(ii) The Players’ arguments

The Players put forward several points in their favour (CAS Decision [156] and [158]):

The Players reasonably assumed that Dr Reid had approved the program. The CAS Panel rejected this proposition, as none of the players sought to test this assumption by asking the doctor. In any event, this wouldn’t be enough by itself. The consent form indicated that the Thymosin was not prohibited. The CAS Panel rejected this argument, noting that the consent forms should have triggered inquiries by the players, and that they did not provide an excuse for failing to do so. The Players felt comforted that James Hird and other senior officials approved of the program. The CAS Panel rejected this as those senior officials were not medically qualified. Certain players, including Cory Dell’Olio, were young and inexperienced. The CAS Panel rejected this, saying that no player was a ‘minor’, and that youth is only a consideration where an athlete doesn’t have access to the anti-doping rules and education. In November 2014, the ASADA CEO indicated that ‘based on the information that ASADA presently has, a maximum reduction of 50% … for No Significant Fault or Negligence … would be appropriate’. The CAS Panel rejected this indication as it was based on what ASADA knew at the time and, in any case, it could not bind the CAS Panel.

(iii) Failure to show ‘due care’

The CAS Panel made the finding that there was a group decision by the Players to keep the program a secret, and that this inference could be drawn from the fact that the Players kept the program from Dr Reid, and that no player who filled out a doping control form during the 2012 season declared Thymosin on the form (CAS Decision [160]–[163]). Only one player declared any injection on the doping control form, and that was for Vitamin B. The CAS Panel asked the players present at the hearing why they did not declare the injections on the form, but did not accept the answers. It found that the ‘evidence appeared a calculated (but vain) attempt to justify the non-disclosures’ (CAS Decision [161]). The culture of secrecy was said to be so strong that a Player suffering from a heart arrhythmia did not disclose the injections to his treating doctor, who presumably may then report it back to Dr Reid (CAS Decision [121]).

The final nail in the coffin for the Players’ No Significant Fault claim appears to be the evidence given by the Players at the CAS hearing regarding the nature of the February 2012 players meeting with Mr Dank and Mr Robinson; the meeting at which the consent forms where signed. Ricky Dyson recalled the program being described as like ‘being on a cliff and going right to the end but not going over it’. Given that statement, the Players were aware of the risky nature of the program and were ‘insufficiently careful as to the nature of the regime’. This was highlighted by Mr Prismall saying that the consent form ‘was probably just sitting in a pile and I picked it up with the majority of other blokes’ (CAS Decision [164]).

A common criticism of the decision is that all players were treated the same, even though not all of the players had completed doping control forms. This, however, misunderstands the reasoning of the CAS Panel. The CAS Panel found that the players did not demonstrate due care given the nature of the program. The CAS Panel used the failure by all players to inform the doctor of the injections, and the non-disclosure on doping control forms (by those who had to fill them in) to infer that there was a conscious decision to keep the program a secret. This meant that the players were aware there was something controversial about the program, but did not show the due care expected of them in that situation.

Due to a combination of the factors outlined above, the Players were unable to satisfy the CAS Panel that they were eligible for a reduction from the standard two-year ban.

How can the Players be accused of hiding the regime from Dr Reid, when he was present for Nathan Lovett-Murray’s injections?

As discussed above, one of the key factors weighing against the players was that they kept the Thymosin injection program from the club doctor. In an attempt to disprove this fact, there have been media reports that the club doctor was present while Nathan Lovett-Murray received injections.

The CAS Panel directly deal with this issue, and say at [120](xiv):

‘The Panel were not prepared to accept that, because Dr. Reid was privy to the player Mr. Lovett-Murray…being injected with muscle relaxant by another professional practitioner, Dr. Hartmann, doubt should be cast upon his ignorance of the injections of Thyomsin by Mr. Dank. That was a submission too far.’

In other words, the CAS Panel found that, being present for some injections of a muscle relaxant, could not be used to suggest that Dr Reid was aware of the Thymosin program. Dr Reid gave evidence via video-link at the CAS Panel, and the CAS Panel accepted Dr Reid’s evidence on this point.

It has been stated that the decision wasn’t unanimous, with 4 out of 6 judges clearing the players—Is this fair?

This is a point that has been raised by Western Bulldogs President Peter Gordon. He claims that, of the six judges who considered the matter (combining the AFL Tribunal and the CAS Panel), four decided that the players should not be banned.

This statement is misleading at best and, potentially, plainly wrong. For one thing, the extent of the dissent by the third member of the CAS Panel is not entirely clear.

Let’s look more closely at the actual wording of the decision:

151. For the above reasons: (i) the majority of the Panel is comfortably satisfied that all players violated Clause 11.2 of the 2010 AFL Anti-Doping Code and were significantly at fault in so doing; and (ii) one member of the Panel agrees with that conclusion save in the case of several players in respect of whom he is not comfortably satisfied that such use is made out. (emphasis added)

This is an ambiguous statement, and there are two clear possibilities:

All three CAS Panel members agreed that all 34 Players used TB-4, but one panel member felt that ‘several players’ were not significantly at fault; or Two CAS Panel members agreed that all 34 Players used TB-4 and were significantly at fault, one CAS Panel thought that TB-4 use could not be proved for ‘several players’ (but agreed with the other CAS Panel members on use and fault levels for remaining players).

The ambiguity comes from the term ‘such use’ in the CAS Award. ‘Such use’ could refer to use where the Player is significantly at fault, or it could simply refer to the use of TB-4. No firm conclusion can be drawn.

What is clear is that the CAS Panel members were unanimous for most of the reasons, and only either disagreed on whether ‘several players’ used TB-4, or whether ‘several players’ were significantly at fault. For those other players (and the amount would depend on your interpretation of ‘several’), the CAS Panel was unanimous on use and fault.

Putting that aside for a moment, this kind of argument is weak at best. There have been cases in Australian law where a decision is made by a single judge, upheld unanimously 3-0 by an appeal court, but then overturned 4-3 by the High Court. In those examples, 4 judges hold sway against 7 judges who disagree, but nobody would argue that the view of a lower court judge should be added to, and given the same weight, as that of a High Court judge.

It should also be remembered that all three members of the CAS Panel are respected Queens Counsels; two of them have extensive sports law experience, as well as experience in previous CAS arbitrations. While some have suggested that the CAS is unfriendly to athletes, the ex-Executive Director of the Jamaican Anti-Doping Commission, Renee Anne Shirley, noted that Jamaican athletes ‘find CAS rather “athlete friendly”’.

@ChrisKaias @DarylAdair @ringsau @al_field @SportIntegrity and why…But in recent years the experience of JA aths is they find CAS rather — Renee Anne Shirley (@RAnneShirley) December 5, 2015

A parochial response to the CAS decision would do a great disservice to the advancement of Australian sport, and undermine the professionalism displayed by a majority of sporting organisations in this country.

Is it true that Henry Slattery didn’t receive any injections and Mark McVeigh was only injected with Melatonin?

(i) Henry Slattery

The Henry Slattery question is one that has been popping up regularly, and it seems to have originated from a series of articles by journalist Richard Earle in The Advertiser. In one article, the journalist states: ‘[i]t’s understood Slattery never featured in Essendon’s injection regime during 2012’. However, in a follow-up article the next day, a quote from Mr Slattery indicates his belief that he received Vitamin B or D. Players in the past have stated that they believed they were receiving vitamin injections.

It’s reasonably safe to conclude that the journalist misunderstood Mr Slattery’s comments, and that Mr Slattery did, in fact, receive injections; he just believes them to have been something other than Thymosin.

This is supported by the CAS Panel’s finding that ‘[a]ll players admitted receiving injections by Mr Dank’ (CAS Decision [120](iv)).

(ii) Mark McVeigh

The Players gave evidence of their belief that they were injected with substances other than TB-4, including Mark McVeigh’s claim that he was injected with Melanotan II – a substance that has side effects that include tanned skin and drowsiness. This was the same substance that Mr Dank injected into James Hird and supplied to Essendon CEO Xavier Campbell.

The CAS Panel noted that while Mr Dank had told Mr McVeigh he was receiving Melanotan II, Mr McVeigh was ‘vehement’ that he did not experience any tanning effect (CAS Decision [129](viii)). The CAS Panel used this as an example of where the Players’ evidence about what they believed Mr Dank was injecting them with may not be accurate.

There is also a theory raised by Chip Le Grand from The Australian that Mark McVeigh may have been injected with Melatonin, a sleeping aid that is usually taken orally before bed, instead of Melanotan II. Under this theory, Mr McVeigh may have recalled the name of the substance incorrectly.

Mr McVeigh had also previously stated publicly that ‘[t]he only injection I ever had was a vitamin C or vitamin B injection’, which appears to conflict with the evidence he gave to ASADA investigators and to the CAS Panel.

It’s impossible to be certain either way, but it would appear to me likely that the substance McVeigh thought he was injected with was Melanotan II, and not Melatonin. I come to this conclusion in light of the inconsistent statements made by Mr McVeigh, the fact Melanotan II was present and used by Dank on others at Essendon, the fact that Melatonin is generally an oral supplement, and that it would intuitively appear odd to have an injection of Melatonin in the daytime at the football club when it is generally taken just before bed to aid with sleep.

In any case, this does not appear to be a key element of the case and merely one of eight different pieces of evidence used to support the single point that the CAS Panel could not rely on the Players’ evidence to prove that not all Players received TB-4.

The CAS Panel claimed that Mr Dank injected Sandor Earl with TB-4—Was this correct?

The CAS Panel cite the decision of the Administrative Appeals Tribunal (AAT) in relation to former NRL player Sandor Earl, and state that the AAT ‘found expressly that Mr Dank … had used TB-4 on a Mr Earl’ (CAS Decision [120](i)).

In the AAT decision at paras [105]–[106], Frost DP quoted an interview between Sandor Earl and Karl Stefanovic, where Mr Stefanovic read out text messages between Mr Dank and Mr Robinson in which Mr Dank said he was using Thymosin in another case involving a shoulder injury. Mr Earl was recovering from a double shoulder reconstruction when he was first in contact with Mr Dank. Mr Earl said to Mr Stefanovic that he believed the text messages were about him, and that he ‘definitely used a form of Thymosin’.

Mr Earl had texted Mr Dank on 31 August 2011 requesting Thymosin. Mr Earl stated in an interview on 18 November 2013 that when he accompanied Mr Dank to a Mascot clinic to collect his peptide order, Mr Dank ‘told me…he was using Thymosin on horses.’ (AFL Tribunal transcript 18/12/2014).

Frost DP then came to the conclusion that the Thymosin used by Mr Earl was likely to be TB-4. This conclusion was based on Mr Dank’s text message stating that: ‘Thymosin is so effective in soft tissue maintenance’. Frost DP noted that TB-4 has regenerative capacity, whereas Thymosin Alpha is used as an immune system stimulant in cases of Hepatitis B and C.

The CAS Panel endorsed Frost DP’s analysis and conclusion, but noted that the decision was under appeal. It’s also appropriate to treat this with caution as the AAT merely had to determine whether it was ‘possible’ that TB-4 was used. The CAS Panel used the statements and text messages quoted in the AAT decision, and applied the same analysis regarding the properties of TB-4 as compared to Thymosin Alpha-1, to reach the conclusion that the ‘Thymosin’ referred to was TB-4.

The fact that Mr Dank ordered blood tests was considered relevant by the CAS Panel—How can this be relevant, when the tests weren’t for TB-4?

In late November 2011, Mr Dank took blood samples from the Essendon players (without the knowledge of the Essendon club doctors), and sent them to NSW for analysis by Dr Ijaz Khan (AFL Tribunal [415]). The blood was tested for Insulin Growth Factor-1 (IGF-1), which is a blood test that is recommended before undergoing a peptide regime; many of the peptides banned by WADA stimulate growth hormones. A website that Dank refers to states that IGF-1 testing is required when taking growth hormone stimulating peptides (AFL Tribunal Transcript page 508).

When asked by the AFL and ASADA about the IGF-1 testing, Dr Brendan de Morton, an Essendon club doctor, noted that it is not a garden variety test; it is the kind of test that you would generally do on a child that was not growing properly, and not on an athlete. When asked if he could think of any reason to check for IGF-1, sinister or otherwise, Dr de Morton could only think of ‘sinister’ reasons (see CAS Panel [120](iii)).

Therefore, the criticism on this point is misguided. The CAS Panel has not claimed that the blood tests were for TB-4. Mr Dank tested the blood of the players for IGF-1 prior to the commencement of the injection program, which is exactly what is recommended before using banned peptides. Further to this, the doctor that the blood tests were conducted through—Dr Ijaz Khan—is the doctor that has admitted injecting banned peptides into Sandor Earl on behalf of Mr Dank. No reasonable alternative explanation was provided for the blood tests. It is a strong ‘strand’ in WADA’s ‘cable’.

Did WADA change the rules in 2015, and therefore was it wrong for CAS to conduct the hearing ‘de novo’?

By way of some background, there are three main types of appeal:

A ‘strict’ appeal, which is limited strictly to errors of law, and no new evidence is permitted;

A ‘rehearing’, where the case is not heard again from the beginning, but new evidence may in some cases be permitted; and

An appeal ‘de novo’, a complete rehearing of the case where new evidence can be produced, provided that it wasn’t unreasonably withheld originally.

The CAS conducted this proceeding on a ‘de novo’ basis – a complete re-hearing, which is its usual practice in all appeals that it hears.

Western Bulldogs President Peter Gordon has argued that this should not have been permitted, and his view has been summarised succinctly by Jon Pierik in The Age:

‘Gordon said the players had initially fallen under the 2010 AFL anti-doping code, which stipulated that rulings could only be appealed if the decision involved legal error or gross unreasonableness. But he said the upgraded AFL anti-doping code unveiled in January last year – when the case before the AFL anti-doping tribunal was underway – allowed CAS to pursue the entire case again.’

This point appears to be legally without merit for three reasons.

(i) The 2010 Anti-Doping Code does not specify the type of appeal

It would appear that Mr Gordon has not correctly represented what is in the 2010 AFL Anti-Doping Code for the following reasons:

The 2010 AFL Anti-Doping Code does not stipulate that rulings can only be appealed if the decision involves legal error or gross unreasonableness. The 2010 Code does not specify or limit the type of appeal at all; and

stipulate that rulings can only be appealed if the decision involves legal error or gross unreasonableness. The 2010 Code does not specify or limit the type of appeal at all; and As the 2010 Code does not specify the type of appeal to the AFL Appeals Board, the position would arguably be the default position under normal AFL Appeals Board procedure, which is to limit an appeal to errors of law or gross unreasonableness. The default position under the CAS procedure is a ‘de novo’ hearing.

Further to this, the 2015 Code adds provision 20.1(b), which says that Appeals Board proceedings are ‘de novo’. However, even the 2015 Code is silent on the type of appeal to the CAS.

Therefore, it is not correct to say that the rules changed in 2015. The 2010 Code did not specify the type of appeal for either the Appeals Board or the CAS, and the 2015 Code still does not refer to the type of appeal to CAS.

(ii) The newer 2015 Anti-Doping Code would apply in any case

Even if the 2010 Code had in some way restricted the type of appeal to the CAS, the CAS Panel noted at [114] that it is the newer 2015 Code that applies to the procedural (as opposed to the substantive) aspects of the appeal.

As argued by leading academic Richard Garnett in Substance and Procedure in Private International Law, issues concerning appeals are procedural and not substantive ([6.16]–[6.19]).

(iii) The AFL Anti-Doping Code cannot validly restrict the CAS’s ability to hear an appeal ‘de novo’

Even further still, in the hypothetical scenario that the 2015 Code prevented the CAS from hearing a case ‘de novo’, the CAS Panel noted that such a provision would not reflect the provisions of the World Anti-Doping Code; would be a violation of a signatory’s obligations; and, as per previous CAS jurisprudence, would be inapplicable (CAS Decision [114]).

Should the AFL simply refuse to enforce the CAS decision, and walk away from the WADA Code?

This question is somewhat outside the scope of what I’m trying to achieve with this post; however, it’s something that has been commonly asked, so I’ll answer it briefly.

I think that there are two key elements to this question: what are the consequences if the AFL does not enforce the decision; and, is the WADA Code appropriate for a team sport such as the AFL?

First, it’s important to note that there is a legislative obligation on the AFL to enforce the decision. Division 2.2 of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) sets out ‘Sporting Administration Body Rules’, and r 2.04(m) states that a ‘sporting administration body must … enforce sanctions imposed by a sporting tribunal’. Failure to do so would prompt the CEO to notify the Australian Sports Commission of the failure to comply (see r 2.03(2)(b)) and have potential funding implications. There are also clearly public relations considerations to take into account.

Secondly, I find it hard to accept the argument that the WADA Code is inappropriate in a team sports environment. There is often a comparison with individual sports such as cycling; however, it should be noted that Lance Armstrong was a member of the US Postal Service Team and, even in athletics, there are ‘team doctors’. It’s a very rare scenario in which there is not some kind of team environment, even in notionally individual sports. Note that the two athletes that I quote below are from team Olympic sports.

Finally, the lack of sympathy extended toward the Players from athletes in other sports is illuminating.

The thoughts are perhaps best summed up by Essendon supporter George Bazeley, who plays for the Australian Olympic hockey team, the Kookaburras.

As an @EssendonFC fan I am disillusioned. As an athlete this is absolutely the correct decision. Ignorance is not an excuse. No sympathy. — George Bazeley (@georgebazeley) January 11, 2016

The Players have learnt a harsh lesson that they should have already known. The message for athletes is the same that it has been all along, it is ultimately their responsibility for what goes into their bodies, and they must exercise due care or face the consequences.

If every athlete does not learn from AFL case there is something wrong with them! Take responsibility for what you ingest ! YOU are liable! — Dr Peter Larkins (@doclarkins) January 12, 2016