AFLPA- give us all evidence. ASADA no only what is relevant to the case.

[Armchair Critic]

Not for attempted use.

Yes they are

11.2 Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method.9
(a) It is each Player’s personal duty to ensure that no Prohibited Substance enters
his body. Accordingly, it is not necessary that intent, fault, negligence or
knowing Use on the Player’s part be demonstrated in order to establish an Anti
Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.
(b) The success or failure of the Use or Attempted Use of a Prohibited Substance
or Prohibited Method is not material. It is sufficient that the Prohibited
Substance or Prohibited Method was Used or Attempted to be Used for an Anti
Doping Rule Violation to be committed.10

 

[Whatsonswhat]

Yes they are

11.2 Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method.9
(a) It is each Player’s personal duty to ensure that no Prohibited Substance enters
his body. Accordingly, it is not necessary that intent, fault, negligence or
knowing Use on the Player’s part be demonstrated in order to establish an Anti
Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.
(b) The success or failure of the Use or Attempted Use of a Prohibited Substance
or Prohibited Method is not material. It is sufficient that the Prohibited
Substance or Prohibited Method was Used or Attempted to be Used for an Anti
Doping Rule Violation to be committed.10

 

[Armchair Critic]

View attachment 94560

Fair enough , my mistake .The next sentence is interesting though

10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that
intent may be required to prove this particular Anti Doping Rule Violation does not undermine the strict liability principle
established for violations of Clause 11.1 and violations of Clause 11.2 in respect of Use of a Prohibited Substance or Prohibited
Method.


Clearly written in the code that Strict Liability applies to 11.1 "And" 11.2

 

[Whatsonswhat]

Fair enough , my mistake .The next sentence is interesting though

10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that
intent may be required to prove this particular Anti Doping Rule Violation does not undermine the strict liability principle
established for violations of Clause 11.1 and violations of Clause 11.2 in respect of Use of a Prohibited Substance or Prohibited
Method.


Clearly written in the code that Strict Liability applies to 11.1 "And" 11.2

It sure is.

Makes sense an athlete wouldn't be strictly liable for attempted use, but I'm sure it still hurt 'em that they couldn't include it.

 

[Whatsonswhat]

It does seem though that it's one thing to have it in the code, but another to be able to prosecute through a tribunal a non-presence violation where there might be a genuine no (significant) fault claim, if there are no examples of this having been done.

 

[Argy]

It does seem though that it's one thing to have it in the code, but another to be able to prosecute through a tribunal a non-presence violation where there might be a genuine no (significant) fault claim, if there are no examples of this having been done.

No contradiction at all. Strict liability kicks in as soon as a non-presence violation has been established to the level of comfortable satisfaction. "No fault" affects the penalty, not the degree of guilt.

 

[Whatsonswhat]

No contradiction at all. Strict liability kicks in as soon as a non-presence violation has been established to the level of comfortable satisfaction. "No fault" affects the penalty, not the degree of guilt.

Not a contradiction, but this is where strict liability for presence and non-presence violations are shown to be a different kettle of fish.

With presence, there's no other valid information to be taken into consideration for a violation to be found and strict liability to apply.

With non-presence, an argument needs to be made that there was use despite the non-presence, to which the defense can provide a counter argument. During those arguments, it might be revealed that the players would be at no fault even if a banned substance was administered. This might have an effect on the tribunal members' decision to find in favour of violation, since doing so will force the players to be penalised even though at no fault, albeit at a reduced amount. Obviously there are no considerations like this when there's a positive sample.

Edit: to clarify; the effect might be that the level of satisfaction required to be comfortably satisfied that there was use, might be subjectively increased if there's evidence for no fault regardless.

 

[Albert Ross]

Going through the WADA code in a strict, legal sense is fraught with danger. WADA is an international body, it's code sits within Swiss (?) law. As I understand it every local country is obliged to enact local laws consistent with their own country's legal codes. They have to pass the WADA act, or a form of it, into local legislation ( This is why someone decided we need the SCN phase). Clearly the ability to appeal via the Administrative Appeals Tribunal is not in the WADA code, because it is relevant only to Australia.

There have been reposts of the Mark French case which considered Briginshaw and the question of how much proof to do you need to establish comfortable satisfaction and should the burden go up as the case becomes more serious. Well that case is entirely Australian.

His case was found to be governed by CAS Rules and Chapter 12 of the Swiss Private International Law Act of 18 December 1987

In that case CAS agreed that the jurisdiction would be NSW. "As is permitted under Rule 58 of the CAS Rules the CA and the ASC have chosen
as the applicable law that of the Australian State of New South Wales"

So the WADA code provides a framework only. What is or isn't Strict Liability in a purely legalistic sense really is a concern for national legislators. WADA is more about making it clear to them that defences of negligence, accident etc should not be considered.

 

[Gigantor]

Going through the WADA code in a strict, legal sense is fraught with danger. WADA is an international body, it's code sits within Swiss (?) law. As I understand it every local country is obliged to enact local laws consistent with their own country's legal codes. They have to pass the WADA act, or a form of it, into local legislation ( This is why someone decided we need the SCN phase). Clearly the ability to appeal via the Administrative Appeals Tribunal is not in the WADA code, because it is relevant only to Australia.

There have been reposts of the Mark French case which considered Briginshaw and the question of how much proof to do you need to establish comfortable satisfaction and should the burden go up as the case becomes more serious. Well that case is entirely Australian.

His case was found to be governed by CAS Rules and Chapter 12 of the Swiss Private International Law Act of 18 December 1987

In that case CAS agreed that the jurisdiction would be NSW. "As is permitted under Rule 58 of the CAS Rules the CA and the ASC have chosen
as the applicable law that of the Australian State of New South Wales"

So the WADA code provides a framework only. What is or isn't Strict Liability in a purely legalistic sense really is a concern for national legislators. WADA is more about making it clear to them that defences of negligence, accident etc should not be considered.

Not disagreeing with anything you have written, but an obvious distinction needs to be made between a case involving an AAF (where the athlete is immediately denied the defence of negligence, accidental use, etc), and a non-presence violation where the onus remains on ASADA to demonstrate use or attempted use (assuming the athlete is arguing he or she has not used).

 

[Argy]

Not disagreeing with anything you have written, but an obvious distinction needs to be made between a case involving an AAF (where the athlete is immediately denied the defence of negligence, accidental use, etc), and a non-presence violation where the onus remains on ASADA to demonstrate use or attempted use (assuming the athlete is arguing he or she has not used).

If there is a distinction it is not in relation to strict liability.

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 for use of a Prohibited Substance or a Prohibited Method or when an AAF violation occurs.
​

 

[Gigantor]

If there is a distinction it is not in relation to strict liability.

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 for use of a Prohibited Substance or a Prohibited Method or when an AAF violation occurs.
​

I am happy to leave this discussion here, but your quote makes me wonder:

1. It uses the expression "use", yet we know that the relevant ADRV lumps together "use" and "attempted use". Does that mean that your quote above does not apply to "attempted use"? (which, incidentally, makes some sense).

2. Are you sure an AAF violation means what you think it means? Is it referring to cases involving an AAF, or is referring to a special category of violation surrounding sampling? (I don't know the answer by the way)

 

[Lance Uppercut]

Athletes are strictly liable for non presence ADRV's aswell. It cannot be written any clearer in the code. You don't want to call it Strictly Liability then fine but they are 100% still Strictly liable for any ADRV that occurs.

Absolutely. It's known as the athlete being responsible for anything that enters their body, and that is across the board regardless of AAF. and across all ADRVs. Because of this responsibility intent is not a factor. The code is very clear on this, I can't see how anyone can reasonably deny it frankly.

 

[Argy]

I am happy to leave this discussion here, but your quote makes me wonder:

1. It uses the expression "use", yet we know that the relevant ADRV lumps together "use" and "attempted use". Does that mean that your quote above does not apply to "attempted use"? (which, incidentally, makes some sense).

2. Are you sure an AAF violation means what you think it means? Is it referring to cases involving an AAF, or is referring to a special category of violation surrounding sampling? (I don't know the answer by the way)

Jesus wept! I was paraphrasing. Read the actual words in Articles 2.1 and 2.2 of the WADA code. They mean players are strictly liable. (The same wording is replicated in the AFL anti-doping code.)

 

[Gigantor]

It is irrelevant that a definition of Strict Liability is absent in the 2009 code. The reason? The wording in Articles 2.1.1 and 2.2.1 includes the definition.

In other words, whether you call it "strict liability" or not, the wording of 2.1.1 and 2.2.1 put strict liability into effect.

From the 2009 WADA code...

View attachment 94504
View attachment 94505

The highlighted portions are the definition of strict liability.

Let us revisit this post.

Both WADA and ASADA state: Under the ... strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

So personally, I would put the emphasis on: "ultimately responsible for any substance found in their body".

Note: "found in their body".

How do you find a prohibited substance in the body? Via an AAF.

In other words, with an AAF, you have the immediate and automatic application of strict liability, because the starting point is that a prohibited substance has been found in the body.

Without an AAF, that cannot be the starting point because ASADA will need to prove use or attempted use.

Richard Ings, former ASADA CEO, puts it thus:

Strict liability only triggers once ASADA proves a PED was used. ASADA has to prove it. Not just accuse it.
​

An AAF gets you immediately and automatically to the point where PED use is proven, and thus strict liability becomes immediately applicable.

Until that point is reached, quite obviously, strict liablility cannot apply, it has not yet been triggered.

This is consistent with the WADA definition on WADA's own site:

The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.​

 

[Armchair Critic]

Let us revisit this post.

Both WADA and ASADA state: Under the ... strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

So personally, I would put the emphasis on: "ultimately responsible for any substance found in their body".

Note: "found in their body".

How do you find a prohibited substance in the body? Via an AAF.

In other words, with an AAF, you have the immediate and automatic application of strict liability, because the starting point is that a prohibited substance has been found in the body.

Without an AAF, that cannot be the starting point because ASADA will need to prove use or attempted use.

Richard Ings, former ASADA CEO, puts it thus:

Strict liability only triggers once ASADA proves a PED was used. ASADA has to prove it. Not just accuse it.
​

An AAF gets you immediately and automatically to the point where PED use is proven, and thus strict liability becomes immediately applicable.

Until that point is reached, quite obviously, strict liablility cannot apply, it has not yet been triggered.

This is consistent with the WADA definition on WADA's own site:

The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.​

Let us revisit the AFL Anti Doping Code, the actual document that determines the code (The WADA Q & A page holds no legal weight)

11.2 Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method.9
(a) It is each Player’s personal duty to ensure that no Prohibited Substance enters
his body. Accordingly, it is not necessary that intent, fault, negligence or
knowing Use on the Player’s part be demonstrated in order to establish an Anti
Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.
(b) The success or failure of the Use or Attempted Use of a Prohibited Substance
or Prohibited Method is not material. It is sufficient that the Prohibited
Substance or Prohibited Method was Used or Attempted to be Used for an Anti
Doping Rule Violation to be committed.10

In the fine print below it states:

10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that
intent may be required to prove this particular Anti Doping Rule Violation does not undermine the strict liability principle
established for violations of Clause 11.1 and violations of Clause 11.2 in respect of Use of a Prohibited Substance or Prohibited
Method.

 

[Gigantor]

Let us revisit the AFL Anti Doping Code, the actual document that determines the code (The WADA Q & A page holds no legal weight)

11.2 Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method.9
(a) It is each Player’s personal duty to ensure that no Prohibited Substance enters
his body. Accordingly, it is not necessary that intent, fault, negligence or
knowing Use on the Player’s part be demonstrated in order to establish an Anti
Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.
(b) The success or failure of the Use or Attempted Use of a Prohibited Substance
or Prohibited Method is not material. It is sufficient that the Prohibited
Substance or Prohibited Method was Used or Attempted to be Used for an Anti
Doping Rule Violation to be committed.10

In the fine print below it states:

10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that
intent may be required to prove this particular Anti Doping Rule Violation does not undermine the strict liability principle
established for violations of Clause 11.1 and violations of Clause 11.2 in respect of Use of a Prohibited Substance or Prohibited
Method.

Ok, I now see the problem. You and your mates are referring to the old AFL anti-doping code.

Your best starting point is to refer to the current code:
http://www.afl.com.au/staticfile/AFL Tenant/AFL/Files/AFL Anti-Doping Code 2014 FINAL.pdf

Here, you will find some interesting footnotes:

For purposes of Anti-Doping Rule Violations involving the presence of a Prohibited Substance (or its Metabolites or Markers), the WADA Code (and therefore this Code) adopts the rule of strict liability which was found in the Olympic Movement Anti-Doping Code. Under the strict liability principle, a Player is responsible, and an Anti-Doping Rule Violation occurs, whenever a Prohibited Substance is found in a Player’s Sample.

The strict liability rule for the finding of a Prohibited Substance in an Player’s Sample, with a possibility that sanctions may be modified based on specified criteria, provides a reasonable balance between effective anti-doping enforcement for the benefit of all “clean”.​

 

[Armchair Critic]

Ok, I now see the problem. You and your mates are referring to the old AFL anti-doping code.

Your best starting point is to refer to the current code:
http://www.afl.com.au/staticfile/AFL Tenant/AFL/Files/AFL Anti-Doping Code 2014 FINAL.pdf

Here, you will find some interesting footnotes:

For purposes of Anti-Doping Rule Violations involving the presence of a Prohibited Substance (or its Metabolites or Markers), the WADA Code (and therefore this Code) adopts the rule of strict liability which was found in the Olympic Movement Anti-Doping Code. Under the strict liability principle, a Player is responsible, and an Anti-Doping Rule Violation occurs, whenever a Prohibited Substance is found in a Player’s Sample.

The strict liability rule for the finding of a Prohibited Substance in an Player’s Sample, with a possibility that sanctions may be modified based on specified criteria, provides a reasonable balance between effective anti-doping enforcement for the benefit of all “clean”.​

The new Anti Doping code state the exact same thing though.

10a-
(a) The presence of a Prohibited Substance or its Metabolites or Markers in a
Player's Sample

10-b

(b) Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method9


10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that intent
may be required to prove this particular Anti-Doping Rule Violation does not undermine the strict liability principle established for
violations of Clause 10(a) and violations of Clause 10(b) in respect of Use of a Prohibited Substance or Prohibited Method.

 

[Gigantor]

The new Anti Doping code state the exact same thing though.

10a-
(a) The presence of a Prohibited Substance or its Metabolites or Markers in a
Player's Sample

10-b

(b) Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited
Method9


10 Demonstrating the “Attempted Use” of a Prohibited Substance requires proof of intent on the Player’s part. The fact that intent
may be required to prove this particular Anti-Doping Rule Violation does not undermine the strict liability principle established for
violations of Clause 10(a) and violations of Clause 10(b) in respect of Use of a Prohibited Substance or Prohibited Method.

Yes, but the definition the AFL has provided in its own code, as a footnote, is pretty much identical to the WADA definition I have quoted many times.

I also note that you haven't quoted the whole of footnote 10.

Perhaps people are broadening the definition of "strict liability" as they view it?

Maybe that would be a good starting point.

ASADA's definition is: Under the World Anti-Doping Code’s strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

Note: "found in their body".

How do you find something in an athlete's body? Via an AAF.

Note also this quote from Richard Ings, former ASADA CEO:

Strict liability only triggers once ASADA proves a PED was used. ASADA has to prove it. Not just accuse it.
​

Now, this is interesting. You can argue that as long as PED use is proven, by whatever means, then strict liability applies. Ok, that might be so, but I simply respond that an AAF gets you there automatically, otherwise, ASADA must prove use, and logically, strict liability cannot apply until PED use is proven.

 

[Armchair Critic]

Yes, but the definition the AFL has provided in its own code, as a footnote, is pretty much identical to the WADA definition I have quoted many times.

I also note that you haven't quoted the whole of footnote 10.

Perhaps people are broadening the definition of "strict liability" as they view it?

Maybe that would be a good starting point.

ASADA's definition is: Under the World Anti-Doping Code’s strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

Note: "found in their body".

How do you find something in an athlete's body? Via an AAF.

Note also this quote from Richard Ings, former ASADA CEO:

Strict liability only triggers once ASADA proves a PED was used. ASADA has to prove it. Not just accuse it.
​

Now, this is interesting. You can argue that as long as PED use is proven, by whatever means, then strict liability applies. Ok, that might be so, but I simply respond that an AAF gets you there automatically, otherwise, ASADA must prove use, and logically, strict liability cannot apply until PED use is proven.

I agree, you are doing exactly that. It is there in black and white. STRICT Liability applies to A & B. End of story.

Of course Strict Liability only occurs after a Violation is proven.

 

[Gigantor]

I agree, you are doing exactly that. It is there in black and white. STRICT Liability applies to A & B. End of story.

Of course Strict Liability only occurs after a Violation is proven.

No, not quite.

With an AAF, strict liability applies immediately.

Where there is no AAF, it does not apply immediately.

On top of that. there's a long, long list of related footnotes you are ignoring, some of which might make you reconsider the distinction you are seeing between 10(a) and 10(b).

 

[Armchair Critic]

No, not quite.

With an AAF, strict liability applies immediately.

Where there is no AAF, it does not apply immediately.

On top of that. there's a long, long list of related footnotes you are ignoring, some of which might make you reconsider the distinction you are seeing between 10(a) and 10(b).

I have read them , how can you claim one thing as fact because it is written in the code but then dismiss another sentence even though it is written in the code.. The line clearly states "STRICT LIABILITY" refers to 10b.

It does not matter WHEN the "STRICT LIABILITY" comes into play it is still "STRICT LIABILITY" and you cannot state otherwise

 

[Whatsonswhat]

Maybe it's clearer to look at it backwards?

To have a conviction, you need fault and the determination that a banned substance has been administered.

Strict liability assumes fault is true, unless proven otherwise.

Therefore, if a banned substance is detected, you have a conviction.

And, if a banned substance is otherwise determined to have been administered, you have a conviction.

Athlete needs to prove no or no significant fault in order to remove or reduce the automatic value of the penalty from any convictions.

Can we all agree on that?

 

[Gigantor]

I have read them , how can you claim one thing as fact because it is written in the code but then dismiss another sentence even though it is written in the code.. The line clearly states "STRICT LIABILITY" refers to 10b.

It does not matter WHEN the "STRICT LIABILITY" comes into play it is still "STRICT LIABILITY" and you cannot state otherwise

But I ask you: what is the distinction you are seeing between 10a and 10b?

10a quite clearly involves an AAF, I think we are both agreed on that point.

But are you sure that 10b does not involve an AAF at all times? Please read all of the footnotes.

Lastly, let us keep in mind the definition of strict liability: Under the World Anti-Doping Code’s strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

It's about substances being found in the body.

 

[Armchair Critic]

But I ask you: what is the distinction you are seeing between 10a and 10b?

10a quite clearly involves an AAF, I think we are both agreed on that point.

But are you sure that 10b does not involve an AAF at all times? Please read all of the footnotes.

Lastly, let us keep in mind the definition of strict liability: Under the World Anti-Doping Code’s strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.

It's about substances being found in the body.

OMG , I feel dumber for reading this crap. Only a troll or a fool would make the arguments you are trying to make. WTF do you think a guilty finding for "Use" proves.

 

[Gigantor]

OMG , I feel dumber for reading this crap. Only a troll or a fool would make the arguments you are trying to make. WTF do you think a guilty finding for "Use" proves.

Ok, let me explain it for you if you are feeling dumber.

You mention footnote 10, which refers to the application of the "strict liability principle" as if that, of itself has meaning.

But the obvious question is: what is that principle?

I will tell you.

From WADA:

The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.​

From ASADA:

Under the World Anti-Doping Code’s strict liability principle, athletes are ultimately responsible for any substance found in their body, regardless of how it got there.​

From the AFL code (footnote 7):

For purposes of Anti-Doping Rule Violations involving the presence of a Prohibited Substance (or its Metabolites or Markers), the WADA Code (and therefore this Code) adopts the rule of strict liability which was found in the Olympic Movement Anti-Doping Code (“OMADC”) and the vast majority of pre-Code anti-doping rules. Under the strict liability principle, a Player is responsible, and an Anti-Doping Rule Violation occurs, whenever a Prohibited Substance is found in a Player’s Sample. The violation occurs whether or not the Player intentionally or unintentionally Used a Prohibited Substance or was negligent or otherwise at fault.​

Please advise if that is not clear enough for you.