News Essendon past and present players banned by WADA for 2016

[Hard Ball Get]

Actually had a chat to one of the 34 a few days ago. More convinced than ever he had no idea what was going on.

 

[Yojimbo]

That's not true at all. Other clubs couldn't put an exact fingerprint on who administered the substance, which would just be a name column in their program they use. Big difference from saying they don't know what the substances were. Essendon did know imo

Collingwood players - different scenario, they were taking illegal drugs, not trying to gain competitive advantage. Hard to link the cases together

Gordon needs to put up with it and move on. If Stew wants to appeal that's fine, but leave it to the lawyers. Gordon is making the club look embarrassing with his false facts

Sorry compact72 i was just taking the piss i am a bit over how everyone is
suddenly an expert on performance enhancing drugs. Sadly it's just human
nature another example of someone trying to keep up with the joneses in
an environment with no checks and balances in place i do feel sympathy
for the players as they were clearly pawns in a sick perverted game of
chess. I doubt the AFL will ever be able to flush this toilet as it is blocked
up with some serious turds.

 

[compact72]

Actually had a chat to one of the 34 a few days ago. More convinced than ever he had no idea what was going on.

I don't think the players knew what was going on, however they chose to hide it and keep it a secret, they also decided not to do their own homework and find out what was being administered.

Reason CAS found it so daming amongst the players, is because CAS refer to the WADA code too. It's a strict liability, so even though we may feel sorry for them, the rules are that they should know whats being administered to them.

The players have also been misguided by Essendon and the lawyers, they weren't represented properly. They were lucky David Grace was there for the AFL Tribunal, but thats the only thing they got right

 

[littlenails]

I've been out of the loop a bit lately so I'm not sure if this question has been asked. But I think there are enough knowledgeable types on this board to provide an answer.

Reading some of the above posts (which mostly revisit familiar arguments for and against the players' guilt) I wonder what it means for players in future. Specifically, what is model / defensible behaviour if your club says "we're going to give you a course of injections (or pills) - this is what they are called, here's how they will benefit you and we can assure you they are allowed under the WADA code. Please sign your consent and authorisation here"?

It seems the model response would include at a minimum the following (and this probably wouldn't have been standard practice at any club before the EFC case):

• not signing or ingesting any substances immediately - waiting until all doubts have been addressed
• checking with the AFL, ASADA on the nominated drug prior to undertaking such a course of pills/injections

But even if the player did the above, what if the club told the player it was one drug when it was actually administering another? Or what if the club itself thought it was a legal drug but the hired sports scientist did a shifty and actually administered an illegal one?

You can't even take a sample and submit it to ASADA for verification because that can only prove your one-off sample was legitimate, not the entire course of drugs that were subsequently swallowed or injected.

My point here is that regardless of what happened at EFC (and any subsequent attempts to cover-up) there are some practical limits to how far a player can "be responsible for what goes into his body". Is there a point at which they can say "I took all the prescribed steps to ensure I was clean but I was duped"? Will they be exonerated by ASADA/WADA if that is the case? How far does a player have to go in personally assuring himself that what he has taken or has been given is legitimate? Does he personally have to check the audit trail of purchases, compounding, the labels on containers, etc etc?

The case of cyclist Michael Rogers - I think it was accidental ingestion of Clenbuterol when eating meat in China - seems to offer some sort of precedent. He was at first banned but later exonerated on appeal.

Finding a foolproof procedure for athletes to protect themselves - and later to be able to prove they have done the right thing - seems to be pretty difficult. Apart from total abstinence from all medications, is there such a foolproof procedure?

The situation is as follows:

The players were found to have taken TB-4 are are in breech of a doping code. There are precedents in place to absolve those who are thought to have been duped.

The players received a two year ban backdated to March 15 2015.

If any player could show that they were completely innocent then the ban could be reduced by up to 2 years (no ban). But the panel of judges found otherwise, they found that there was a systematic cover-up or negligence by the players.

Below are a few excerpts from their report that explains the decision not to give leniency. Bit long, but a good read.

Clause 14.4(b) of the 2010 AFL Anti-Doping Code, substantially reflecting 2009 WADC Article 10.5.2 provides so far as material:

If a Player establishes an individual case that he bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced.

The commentary on Clause 14.4(b) states: For purposes of assessing the Player’s fault the evidence considered must be specific and relevant to explain the Players‘ departure from the expected standard of behaviour. Thus, for example, the fact that a Player would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the Player only has a short time left in his career or the timing of the sporting calendar would not be relevant factors to be considered in reducing the period of Ineligibility under this Clause.

aa) The objective element of the level of fault

At the outset, it is important to recognise that, in theory, almost all anti—doping rule violations relating to the taking of a product containing a prohibited substance could be prevented. The athlete could always
(i) read the label of the product used (or otherwise ascertain the ingredients),
(ii) cross—check all the ingredients on the label with the list of prohibited substances,
(iii) make an internet search of the product,
(iv) ensure the product is reliably sourced and
(v) consult appropriate experts in these matters and instruct them diligently before consuming the product.

However, an athlete cannot be reasonably expected to follow all of the above steps in every and all circumstances. Instead, these steps can only be regarded as reasonable in certain circumstances:

a. For substances that are prohibited at all times (both in and out-of-competition), the above steps are appropriate, because these products are particularly likely to distort competition.

This follows from Article 4.2.1 WADC which states: “The Prohibited List shall identify those Prohibited Substances and Prohibited Methods which are prohibited as doping at all time (both In-Competition and Out-of—Competition) because of their potential to enhance performance in future Competitions ”. As a result, an athlete must be particularly diligent and, thus, the full scale of duty of care designed to prevent the athlete from ingesting these substances must apply.

bb) The subjective element of the level of fault

Whilst each case will turn on its own facts, the following examples of matters which can be taken into account in determining the level of subjective fault can be found in CAS jurisprudence (cf also LA ROCHEFOUCA ULD, CAS Jurisprudence related to the elimination or reduction of the period of ineligibility for specific substances, CAS Bulletin 2/2013, p. 18, 24 et seq.).

a. An athlete ’s youth and/or inexperience (see CAS 2011/A/2493, para 42 et seq; CAS 2010/A/2107, para. 9. 35 et seq. ).
b. Language or environmental problems encountered by the athlete (see CAS 2012/A/2924, para 62).
c. The extent of anti-doping education received by the athlete (or the extent of anti-doping education which was reasonably accessible by the athlete) (see CAS 2012/A/2822, paras 8.21, 8.23).
d. Any other “personal impairments” such as those suffered by.’
i. an athlete who has taken a certain product over a long period of time without incident. That person may not apply the objective standard of care which would be required or that he would apply if taking the product for the first time (see CAS 201]/A/2515, para 73).
ii. an athlete who has previously checked the product’s ingredients.
iii. an athlete is suffering from a high degree of stress (CAS 2012/A/2 756, para. 8.45 seq. ).
iv. an athlete whose level of awareness has been reduced by a careless but understandable mistake (CAS 2012/A/2 756, para. 8.37).

cc) Other factors
77. Elements other than fault {such as CAS 2012/A/2924, para 62) should e in principle —not be taken into account since it would be contrary to the rules. Only in the event that the outcome would violate the principle of proportionality such that it would constitute a breach of public policy should a tribunal depart fiom the clear wording of the text.

In UCI v Fernandez et al (CAS 2005/A/872), a CAS Panel said:

5.7 . . . It has been said many times by many CAS panels that it is an athlete’s responsibility to ensure that what goes into his body does not contain a prohibited substance. . .

It is not open to an athlete simply to say “I took what I was given by my doctor who I trusted” . . . At the very least, an athlete who has been given medicines by a doctor should specifically ask to be informed of what are the contents of those medicines. He should ask whether the medicines contain any prohibited substance. He should attempt to obtain written confirmation from the doctor that the medicines do not contain any prohibited substances.

It will no doubt be objected that to require an athlete to ask such questions and to obtain such confirmation would be to place too heavy a burden on the athlete. The Panel rejects such an objection. It rarely, if ever, is the case that medicines are given to an athlete in circumstances in which it would not be possible for him to ask such questions or to obtain such confirmation.

5.9 If an athlete wants to persuade an anti—doping tribunal, or a CAS Panel, that he has been found to have a prohibited substance in his body, but that he was not at fault or negligent, or that he was not substantially at fault or negligent, he must do more than simply rely on his doctor.

Looking at the matter through the lens of the Cilic guidelines the following features are notable:

(i) The Players had all received education in anti—doping. It was common ground that the AFL anti—doping training for the Players included emphasis on individual responsibility for what supplements were used and an obligation to declare use of any supplements.

A clear warning to that effect appeared on the cover of the 2010 AFL Anti-Doping Code. Mr. Hille, among others, conceded awareness of the AFL anti—doping education program.

(ii) No Player appears to have made use of the WADA hotline or indeed any other hotline.

(iii) No Player appear to have conducted internet searches for Thymosin or to have made any other inquiry as to its elements or properties.

(iv) No Player asked the Club doctor — the obvious first port of call ~ for advice about Thymosin, although all signed a consent form to its administration.

Given that it is the primary responsibility of a Player to ensure that he does not make use of a prohibited substance, the Players’ lack of curiosity is fatal to the success of this particular plea. Nor is it relevant that a Player received only a handful of injections as distinct from multiple injections.

The appropriate time to make enquiry was when the Player consented to submit to the regime of which he was ex hypothesi aware.

A number of matters were prayed in relief on behalf of the Players. AFL gave a lead in this aspect.

It was said that:
(i) all reasonably assumed that Dr. Reid had approved the program; hence all necessarily relied on his approval;
(ii) the consent form itself indicated that the substance to be injected was not prohibited;
(iii) particularly in a team environment, all could take additional comfort from the fact that senior officials of the club, including Mr. Hird, were aware of and approved the program;
(iv) in respect of certain players, notably Mr. Dell’Olio, his youth and inexperience could be prayed in aid; and
the letter from the Chief Executive Officer of ASADA (dated 12 November 2014 and addressed to the AFL and WADA) which informed of his decision to recommend that the AFL issue infraction notices: “based on the information that ASADA presently has, a maximum reduction of 50% of the applicable period of ineligibility (i.e. two years) for No Significant Fault or Negligence pursuant to clause 14.4(b) of the AFL Anti-Doping Code 2014 would be appropriate”.

None of these pleas in mitigation come, in the Panel’s view, within measureable distance of providing a platform for the submission that ineligibility should be reduced on account of the display of due care.

As to reliance on the ill-founded assumption about the Club doctor’s knowledge of the Dank program: this was wholly inadequate, especially when the Player did not seek — easy though it would have been — to test the validity of the assumption, a fortiori if he declined even to inform the club doctor, let alone seek his advice.

In the light of the consistent CAS jurisprudence (of which Fernandez is only an example) that reliance on a doctor does not per se prove absence of significant fault, it is difficuit to conceive of how, where, as in this case even, that elementary step was not taken, such proof was available.

The consent form, with its express identification of the substance to be injected, i.e. ‘Thymosin’: this should have been the trigger for enquiry rather than an excuse for not making it.

Mr. Prismall did apparently ask Dr. Reid about the immuno-acids and vitamin injections he received prior to Christmas 2011 . It was submitted that he had no reason to apprehend that he was signing a consent form for other than that which Dr. Reid had approved. The Panel does not accept that given the circumstances of the February 2012 meeting (e.g. references to specific substances including ‘Thymosin’, the procuring of a signature on consent forms, the elaborate explanation given by Mr. Dank and Mr. Robinson, the concerns already expressed by certain senior Players), he can reasonably have thought, as he claimed, that there was no new aspect to the regime or that it was simply more of the same.

Reliance upon senior persons within the club who were not even medically qualified: this was even less impressive than reliance on the club doctor.

The explanation falls short of an excuse. (The present is not the case to explore whether the team environment can ever justify the failure to take steps obligatory for an athlete in an individual sport).

The fact that no player was a minor: although youth can be considered in the context of the relevant duty of care (see Cilic), it only has resonance where athlete is an individual with no ready access to instruction about the anti—doping rules, which is not the position of any Player in this team environment.

ASADA’ s position: this was based on what ASADA knew at the time and cannot bind the Panel with its fuller appreciation of the material facts.

Under Clause 7.1 of the 2010 AFL Anti—Doping Code, Players are obliged to comply with that code. There are two particular aspects of that duty relevant to this appeal: first, to ensure that a Player did not use prohibited substance; second, that he should, whenever subject to a test, make full disclosure of any substance which he had used.

In respect of TB—4, there was no evidence that any Player complied with either of these duties.

As to the first, to repeat, no Player made any enquiry of the nature or properties of the substance with which he was being injected, although all had signed a consent form for injection with ‘Thymosin’. All appeared to have relied upon the assurance of Mr. Dank and Mr. Robinson that they could use the substance without being in breach of AFL anti—doping rules or the WADC.

None sought the advice of the club doctor about Thymosin, although he was to many a friend as well as a physician. All said that they assumed that Dr. Reid was aware of the content of the Dank program, although none could provide any specific basis for the assumption which was in fact wholly unfounded.

Mr. McVeigh, afier ASADA’s investigation had commenced, googled some of the substances which administration Mr. Dank had him consent to and agreed that had he done so earlier, he would have gone straight to Mr. Hird’s office or done something else about it.

As to the second, no Player tested during the 2012 season revealed on his doping control form that he was in receipt of Thymosin injections. The explanation of Mr. McVeigh that he had ceased to have injections at the time he was tested and had, in consequence, to complete his doping control form was particular to his case.

But the experience of others who continued to receive injections over the period during which they omitted to make such disclosure on the doping control form was revealing. Mr. McVeigh said that it was common for Players only to report what they had up to seven days or two weeks previously.

Mr. Hille said in relation to the DCF, “you list the things that you feel you need to list”, and that he didn’t feel he needed to list the injections Mr. Dank gave him. He said, “it was just something I didn‘t think to list.”

Mr. Dell’0lio thought that the doping control form obliged him to refer only to supplements taken within the last three or four days; Mr. Dyson a period of one to two days. Given that, as was by the end of the hearing common ground, the TB~4 injections designed to aid recovery took place usually and for good and sufficient reason at the start of a week after the weekend game, such explanation had no basis in either the WADC or the rules, neither of which expressly set limits to the period in respect of which such use must be made.

Such evidence appeared a calculated (but vain) attempt to justify the non-disclosures. Mr.Gumbleton, who never had to complete a DCF at any material time conceded that he would have disclosed injections had he been tested when in receipt of them. That was, in the Panels view, clearly right.

Furthermore, the Players accepted that they used to have a couple of supplements before a game and that the pill box provided by Mr. Dank was part of the program. Nonetheless few, if any, provided that information on the DCF. It is indicative of the casual approach (at its best) to the secretive (at its worst) approach of his duty of disclosure that Mr.

Dell’Olio, although agreeing that prior to every game in which he played, he was given pills by Mr. Dank, failed to disclose even those on his doping control form.

Both these breaches, in the Panel’s view, sprang from a single source, namely a group decision by the Players on the direction of Mr. Dank and Mr. Robinson, to keep secret the nature his new regime.

WADA neither did, nor needed to, advance a case against the Players on the basis that they consciously submitted to injections of what they knew to be a prohibited substance and the Panel makes no such finding. Since the Players themselves have sought to rely on the no significant fault or negligence plea in mitigation of the standard two year period, the Panel is entitled, indeed obliged, to consider the basis on which they accepted subjection to the Dank drug regime.

Mr. Dyson recollected either Mr. Robinson or Mr. Dank at the February 2012 meeting saying that it was like “being on a cliff’ and going right to the end but not going over it”. In the Panel’s view, however, the Players must have appreciated that the regime to which they were being asked to submit was, if not over the edge, at any rate near to it and being invited to go near the edge and, in the event, went over it.

As the Panel has already observed, there would be no reason to cast a veil of secrecy over something that was known positively to be lawful and innocent. The equation that some Players sought to make between disclosure of team tactics and disclosure of the injection regime was not, in the Panel’s view, at all convincing.

In a desire, not unique to these Players, to gain every competitive advantage available, they were insufficiently careful as to the nature of the regime to which they were subjected. By way of example, Mr. Prismall in his interview about the consent form said, “I don’t recall who gave it to me, it was probably just sitting in a pile and I picked it up with the majority of other blokes”.

It was surely by design, not through accident, that the regime was not disclosed outside the closed circle during the season.

In the 32 ASADA interviews, six Players said that Mr. Dank had identified what he was injecting as ‘Thymosin’.
(viii) Two Players, including Mr. Crameri, saw the word ‘Thymosin’ on the vials which contained the
substance with which they were injected.

In the letter dated 17 January 2012 to the Essendon coach and Essendon football manager, referred to at paragraph 25 above, Dr. Reid said: I have some fundamental problems being the club doctor at present. This particularly applies to the administration of supplements.

Although we have been using supplements for approximately three months, despite repeated requests as to exactly what we are giving our players in literature related to this I have at no time been given that until last Sunday.

Last week the players were given subcutaneous injections not by myself and I had no idea that this was happening and also the drug that was involved

The letter makes no reference to Thymosin but says in relation to AOD-9604, “I think we are playing at the edge”.

On 15 January 2012, Dr. Reid framed his protocol to the effect that any substance administered must be proven to be legal, safe, explained to the players and in receipt of their informed consent.

The Panel were not prepared to accept that, because Dr. Reid was privy to the player Mr. Lovett-Murray to 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. Nor can the Panel construe the letter of complaint written by Dr. Reid to the head coach and team manager on 17 January 2012 as indicative in any way of a knowledge (even then) that Dr. Reid knew about the injections, still less thereafter when he clearly did not, in particular about injections with Thymosin.

The Players, during the season, were instructed to keep it secret. One of the Players, Mr. Davis, in his statement to ASADA said, “they wanted to be confidential within the playing group, because they didn’t want other teams to find out”.

In the same interview, Mr. Davis also said, “I remember them saying that only a couple of the coaches were aware of what the supplement program was going to be”.

Though several of the players disputed that they received such instructions, their behaviour, keeping the club doctor out of the loop, and failing to record the injections on the doping control forms, clearly justifies such inference being drawn.

This was, at its lowest, consistent with an appreciation of its controversial nature

 

[dogwatch]

The situation is as follows:

The players were found to have taken TB-4 are are in breech of a doping code. There are precedents in place to absolve those who are thought to have been duped.

The players received a two year ban backdated to March 15 2015.

If any player could show that they were completely innocent then the ban could be reduced by up to 2 years (no ban). But the panel of judges found otherwise, they found that there was a systematic cover-up or negligence by the players.

Below are a few excerpts from their report that explains the decision not to give leniency. Bit long, but a good read.

Clause 14.4(b) of the 2010 AFL Anti-Doping Code, substantially reflecting 2009 WADC Article 10.5.2 provides so far as material:

If a Player establishes an individual case that he bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced.

The commentary on Clause 14.4(b) states: For purposes of assessing the Player’s fault the evidence considered must be specific and relevant to explain the Players‘ departure from the expected standard of behaviour. Thus, for example, the fact that a Player would lose the opportunity to earn large sums of money during a period of ineligibility or the fact that the Player only has a short time left in his career or the timing of the sporting calendar would not be relevant factors to be considered in reducing the period of Ineligibility under this Clause.

aa) The objective element of the level of fault

At the outset, it is important to recognise that, in theory, almost all anti—doping rule violations relating to the taking of a product containing a prohibited substance could be prevented. The athlete could always
(i) read the label of the product used (or otherwise ascertain the ingredients),
(ii) cross—check all the ingredients on the label with the list of prohibited substances,
(iii) make an internet search of the product,
(iv) ensure the product is reliably sourced and
(v) consult appropriate experts in these matters and instruct them diligently before consuming the product.

However, an athlete cannot be reasonably expected to follow all of the above steps in every and all circumstances. Instead, these steps can only be regarded as reasonable in certain circumstances:

a. For substances that are prohibited at all times (both in and out-of-competition), the above steps are appropriate, because these products are particularly likely to distort competition.

This follows from Article 4.2.1 WADC which states: “The Prohibited List shall identify those Prohibited Substances and Prohibited Methods which are prohibited as doping at all time (both In-Competition and Out-of—Competition) because of their potential to enhance performance in future Competitions ”. As a result, an athlete must be particularly diligent and, thus, the full scale of duty of care designed to prevent the athlete from ingesting these substances must apply.

bb) The subjective element of the level of fault

Whilst each case will turn on its own facts, the following examples of matters which can be taken into account in determining the level of subjective fault can be found in CAS jurisprudence (cf also LA ROCHEFOUCA ULD, CAS Jurisprudence related to the elimination or reduction of the period of ineligibility for specific substances, CAS Bulletin 2/2013, p. 18, 24 et seq.).

a. An athlete ’s youth and/or inexperience (see CAS 2011/A/2493, para 42 et seq; CAS 2010/A/2107, para. 9. 35 et seq. ).
b. Language or environmental problems encountered by the athlete (see CAS 2012/A/2924, para 62).
c. The extent of anti-doping education received by the athlete (or the extent of anti-doping education which was reasonably accessible by the athlete) (see CAS 2012/A/2822, paras 8.21, 8.23).
d. Any other “personal impairments” such as those suffered by.’
i. an athlete who has taken a certain product over a long period of time without incident. That person may not apply the objective standard of care which would be required or that he would apply if taking the product for the first time (see CAS 201]/A/2515, para 73).
ii. an athlete who has previously checked the product’s ingredients.
iii. an athlete is suffering from a high degree of stress (CAS 2012/A/2 756, para. 8.45 seq. ).
iv. an athlete whose level of awareness has been reduced by a careless but understandable mistake (CAS 2012/A/2 756, para. 8.37).

cc) Other factors
77. Elements other than fault {such as CAS 2012/A/2924, para 62) should e in principle —not be taken into account since it would be contrary to the rules. Only in the event that the outcome would violate the principle of proportionality such that it would constitute a breach of public policy should a tribunal depart fiom the clear wording of the text.

In UCI v Fernandez et al (CAS 2005/A/872), a CAS Panel said:

5.7 . . . It has been said many times by many CAS panels that it is an athlete’s responsibility to ensure that what goes into his body does not contain a prohibited substance. . .

It is not open to an athlete simply to say “I took what I was given by my doctor who I trusted” . . . At the very least, an athlete who has been given medicines by a doctor should specifically ask to be informed of what are the contents of those medicines. He should ask whether the medicines contain any prohibited substance. He should attempt to obtain written confirmation from the doctor that the medicines do not contain any prohibited substances.

It will no doubt be objected that to require an athlete to ask such questions and to obtain such confirmation would be to place too heavy a burden on the athlete. The Panel rejects such an objection. It rarely, if ever, is the case that medicines are given to an athlete in circumstances in which it would not be possible for him to ask such questions or to obtain such confirmation.

5.9 If an athlete wants to persuade an anti—doping tribunal, or a CAS Panel, that he has been found to have a prohibited substance in his body, but that he was not at fault or negligent, or that he was not substantially at fault or negligent, he must do more than simply rely on his doctor.

Looking at the matter through the lens of the Cilic guidelines the following features are notable:

(i) The Players had all received education in anti—doping. It was common ground that the AFL anti—doping training for the Players included emphasis on individual responsibility for what supplements were used and an obligation to declare use of any supplements.

A clear warning to that effect appeared on the cover of the 2010 AFL Anti-Doping Code. Mr. Hille, among others, conceded awareness of the AFL anti—doping education program.

(ii) No Player appears to have made use of the WADA hotline or indeed any other hotline.

(iii) No Player appear to have conducted internet searches for Thymosin or to have made any other inquiry as to its elements or properties.

(iv) No Player asked the Club doctor — the obvious first port of call ~ for advice about Thymosin, although all signed a consent form to its administration.

Given that it is the primary responsibility of a Player to ensure that he does not make use of a prohibited substance, the Players’ lack of curiosity is fatal to the success of this particular plea. Nor is it relevant that a Player received only a handful of injections as distinct from multiple injections.

The appropriate time to make enquiry was when the Player consented to submit to the regime of which he was ex hypothesi aware.

A number of matters were prayed in relief on behalf of the Players. AFL gave a lead in this aspect.

It was said that:
(i) all reasonably assumed that Dr. Reid had approved the program; hence all necessarily relied on his approval;
(ii) the consent form itself indicated that the substance to be injected was not prohibited;
(iii) particularly in a team environment, all could take additional comfort from the fact that senior officials of the club, including Mr. Hird, were aware of and approved the program;
(iv) in respect of certain players, notably Mr. Dell’Olio, his youth and inexperience could be prayed in aid; and
the letter from the Chief Executive Officer of ASADA (dated 12 November 2014 and addressed to the AFL and WADA) which informed of his decision to recommend that the AFL issue infraction notices: “based on the information that ASADA presently has, a maximum reduction of 50% of the applicable period of ineligibility (i.e. two years) for No Significant Fault or Negligence pursuant to clause 14.4(b) of the AFL Anti-Doping Code 2014 would be appropriate”.

None of these pleas in mitigation come, in the Panel’s view, within measureable distance of providing a platform for the submission that ineligibility should be reduced on account of the display of due care.

As to reliance on the ill-founded assumption about the Club doctor’s knowledge of the Dank program: this was wholly inadequate, especially when the Player did not seek — easy though it would have been — to test the validity of the assumption, a fortiori if he declined even to inform the club doctor, let alone seek his advice.

In the light of the consistent CAS jurisprudence (of which Fernandez is only an example) that reliance on a doctor does not per se prove absence of significant fault, it is difficuit to conceive of how, where, as in this case even, that elementary step was not taken, such proof was available.

The consent form, with its express identification of the substance to be injected, i.e. ‘Thymosin’: this should have been the trigger for enquiry rather than an excuse for not making it.

Mr. Prismall did apparently ask Dr. Reid about the immuno-acids and vitamin injections he received prior to Christmas 2011 . It was submitted that he had no reason to apprehend that he was signing a consent form for other than that which Dr. Reid had approved. The Panel does not accept that given the circumstances of the February 2012 meeting (e.g. references to specific substances including ‘Thymosin’, the procuring of a signature on consent forms, the elaborate explanation given by Mr. Dank and Mr. Robinson, the concerns already expressed by certain senior Players), he can reasonably have thought, as he claimed, that there was no new aspect to the regime or that it was simply more of the same.

Reliance upon senior persons within the club who were not even medically qualified: this was even less impressive than reliance on the club doctor.

The explanation falls short of an excuse. (The present is not the case to explore whether the team environment can ever justify the failure to take steps obligatory for an athlete in an individual sport).

The fact that no player was a minor: although youth can be considered in the context of the relevant duty of care (see Cilic), it only has resonance where athlete is an individual with no ready access to instruction about the anti—doping rules, which is not the position of any Player in this team environment.

ASADA’ s position: this was based on what ASADA knew at the time and cannot bind the Panel with its fuller appreciation of the material facts.

Under Clause 7.1 of the 2010 AFL Anti—Doping Code, Players are obliged to comply with that code. There are two particular aspects of that duty relevant to this appeal: first, to ensure that a Player did not use prohibited substance; second, that he should, whenever subject to a test, make full disclosure of any substance which he had used.

In respect of TB—4, there was no evidence that any Player complied with either of these duties.

As to the first, to repeat, no Player made any enquiry of the nature or properties of the substance with which he was being injected, although all had signed a consent form for injection with ‘Thymosin’. All appeared to have relied upon the assurance of Mr. Dank and Mr. Robinson that they could use the substance without being in breach of AFL anti—doping rules or the WADC.

None sought the advice of the club doctor about Thymosin, although he was to many a friend as well as a physician. All said that they assumed that Dr. Reid was aware of the content of the Dank program, although none could provide any specific basis for the assumption which was in fact wholly unfounded.

Mr. McVeigh, afier ASADA’s investigation had commenced, googled some of the substances which administration Mr. Dank had him consent to and agreed that had he done so earlier, he would have gone straight to Mr. Hird’s office or done something else about it.

As to the second, no Player tested during the 2012 season revealed on his doping control form that he was in receipt of Thymosin injections. The explanation of Mr. McVeigh that he had ceased to have injections at the time he was tested and had, in consequence, to complete his doping control form was particular to his case.

But the experience of others who continued to receive injections over the period during which they omitted to make such disclosure on the doping control form was revealing. Mr. McVeigh said that it was common for Players only to report what they had up to seven days or two weeks previously.

Mr. Hille said in relation to the DCF, “you list the things that you feel you need to list”, and that he didn’t feel he needed to list the injections Mr. Dank gave him. He said, “it was just something I didn‘t think to list.”

Mr. Dell’0lio thought that the doping control form obliged him to refer only to supplements taken within the last three or four days; Mr. Dyson a period of one to two days. Given that, as was by the end of the hearing common ground, the TB~4 injections designed to aid recovery took place usually and for good and sufficient reason at the start of a week after the weekend game, such explanation had no basis in either the WADC or the rules, neither of which expressly set limits to the period in respect of which such use must be made.

Such evidence appeared a calculated (but vain) attempt to justify the non-disclosures. Mr.Gumbleton, who never had to complete a DCF at any material time conceded that he would have disclosed injections had he been tested when in receipt of them. That was, in the Panels view, clearly right.

Furthermore, the Players accepted that they used to have a couple of supplements before a game and that the pill box provided by Mr. Dank was part of the program. Nonetheless few, if any, provided that information on the DCF. It is indicative of the casual approach (at its best) to the secretive (at its worst) approach of his duty of disclosure that Mr.

Dell’Olio, although agreeing that prior to every game in which he played, he was given pills by Mr. Dank, failed to disclose even those on his doping control form.

Both these breaches, in the Panel’s view, sprang from a single source, namely a group decision by the Players on the direction of Mr. Dank and Mr. Robinson, to keep secret the nature his new regime.

WADA neither did, nor needed to, advance a case against the Players on the basis that they consciously submitted to injections of what they knew to be a prohibited substance and the Panel makes no such finding. Since the Players themselves have sought to rely on the no significant fault or negligence plea in mitigation of the standard two year period, the Panel is entitled, indeed obliged, to consider the basis on which they accepted subjection to the Dank drug regime.

Mr. Dyson recollected either Mr. Robinson or Mr. Dank at the February 2012 meeting saying that it was like “being on a cliff’ and going right to the end but not going over it”. In the Panel’s view, however, the Players must have appreciated that the regime to which they were being asked to submit was, if not over the edge, at any rate near to it and being invited to go near the edge and, in the event, went over it.

As the Panel has already observed, there would be no reason to cast a veil of secrecy over something that was known positively to be lawful and innocent. The equation that some Players sought to make between disclosure of team tactics and disclosure of the injection regime was not, in the Panel’s view, at all convincing.

In a desire, not unique to these Players, to gain every competitive advantage available, they were insufficiently careful as to the nature of the regime to which they were subjected. By way of example, Mr. Prismall in his interview about the consent form said, “I don’t recall who gave it to me, it was probably just sitting in a pile and I picked it up with the majority of other blokes”.

It was surely by design, not through accident, that the regime was not disclosed outside the closed circle during the season.

In the 32 ASADA interviews, six Players said that Mr. Dank had identified what he was injecting as ‘Thymosin’.
(viii) Two Players, including Mr. Crameri, saw the word ‘Thymosin’ on the vials which contained the
substance with which they were injected.

In the letter dated 17 January 2012 to the Essendon coach and Essendon football manager, referred to at paragraph 25 above, Dr. Reid said: I have some fundamental problems being the club doctor at present. This particularly applies to the administration of supplements.

Although we have been using supplements for approximately three months, despite repeated requests as to exactly what we are giving our players in literature related to this I have at no time been given that until last Sunday.

Last week the players were given subcutaneous injections not by myself and I had no idea that this was happening and also the drug that was involved

The letter makes no reference to Thymosin but says in relation to AOD-9604, “I think we are playing at the edge”.

On 15 January 2012, Dr. Reid framed his protocol to the effect that any substance administered must be proven to be legal, safe, explained to the players and in receipt of their informed consent.

The Panel were not prepared to accept that, because Dr. Reid was privy to the player Mr. Lovett-Murray to 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. Nor can the Panel construe the letter of complaint written by Dr. Reid to the head coach and team manager on 17 January 2012 as indicative in any way of a knowledge (even then) that Dr. Reid knew about the injections, still less thereafter when he clearly did not, in particular about injections with Thymosin.

The Players, during the season, were instructed to keep it secret. One of the Players, Mr. Davis, in his statement to ASADA said, “they wanted to be confidential within the playing group, because they didn’t want other teams to find out”.

In the same interview, Mr. Davis also said, “I remember them saying that only a couple of the coaches were aware of what the supplement program was going to be”.

Though several of the players disputed that they received such instructions, their behaviour, keeping the club doctor out of the loop, and failing to record the injections on the doping control forms, clearly justifies such inference being drawn.

This was, at its lowest, consistent with an appreciation of its controversial nature

I haven't read your whole post so forgive me if I've missed something. However I think you might have missed the point of my own post. I was wondering what it means for the future behaviour of ALL players - I was not trying to analyse exactly what happened in the E34 case and who was or was not guilty.

To rephrase my question:
How are players meant to establish beyond reasonable doubt that what they are being administered is legal and what steps can they take to indemnify themselves under the ASADA/WADA code if someone is pulling a swifty on them? Is total abstinence from pills, ointments and injections the only way?

Has anybody answered that question yet? Or even attempted to?

 

[bontshow]

How are players meant to establish beyond reasonable doubt that what they are being administered is legal and what steps can they take to indemnify themselves under the ASADA/WADA code if someone is pulling a swifty on them? Is total abstinence from pills, ointments and injections the only way?

You can ask them whether something is allowed. Back when AOD-9604 was the focus, Essendon claimed to have a letter from ASADA saying it is OK (not banned under S2) but then WADA said it wasn't approved for human use at all therefore banned under S0. ASADA ended up going after them on TB4 instead

Having said that, Ahmed Saad got done on an unmarked ingredient in a protein powder. No way he could have known that without performing the same lab test ASADA did to convict him, which is not very practical. It's very much a zero tolerance system that removes any room for excuses or explanations. Many honest people have had their names tarnished and careers severely disrupted in the name of catching the cheats

 

[Yojimbo]

A thymosin is a hormone-like substance that plays an important
role in regulating the immune system. Discovered in the mid-
1960's, it was originally found in the thymus gland, but has also
been located in many different human and animal tissues. Two
significant types of thymosins include alpha groups which play
a role in DNA transcription and replication, and the beta groups
which operate in the cellular cytoplasm and contribute to cell
mobility. Thymosin beta 4, for example, which is found in blood
platelets and fluids within wounds, helps to regenerate tissue
following injuries. Different types of thymosins have been used
in the detection and treatment of different diseases. Extensive
study of the immune system led to the discovery of thymosins.
These polypeptides affect how t-cells, the germ killing white
blood cells, function. Such molecules are found in people,
animals and most multicellular living things.

Thymosin is your friend.

 

[Deadly Darcy]

I haven't read your whole post so forgive me if I've missed something. However I think you might have missed the point of my own post. I was wondering what it means for the future behaviour of ALL players - I was not trying to analyse exactly what happened in the E34 case and who was or was not guilty.

To rephrase my question:
How are players meant to establish beyond reasonable doubt that what they are being administered is legal and what steps can they take to indemnify themselves under the ASADA/WADA code if someone is pulling a swifty on them? Is total abstinence from pills, ointments and injections the only way?

Has anybody answered that question yet? Or even attempted to?

As I understand it, they are not obliged to determine "beyond all reasonable doubt" but they are obliged to have "exhausted all reasonable endeavours". The gist of the findings was that whilst some of the players may have challenged dank or the horse-whisperer at various moments; none of the players had actively enlisted support from Dr. Reid, the WADA helpline, the AFL disclosure documemts etc etc which are all there to help protect them from this crap. The systems in place are already fine for the future - it's just that this event has really underpinned the Global Sporting Drug Codes foundation: personal responsibility. What you can't do is lacidasically or deliberately accept at face value another's word and use that to avoid responsibility. You need to know and or research efficiently enough to be as confident as a "reasonable man" can be that what you take, swallow, sniff or inject is absolutely compliant. And if you aren't sure, you don't take it, and you scream about it to the heavens. The players patently didn't do that in this instance which is what the above describes.

 

[Pugz89]

Actually had a chat to one of the 34 a few days ago. More convinced than ever he had no idea what was going on.

Just because one may not, doesn't mean they all are in that section. Whether or not they knew, surely they do their own investigation. Crammers was the only one i read/heard about actually looking into it. And yes, i know he ended up still taking it but at least he took the initiative.

 

[immortalmike]

As I understand it, they are not obliged to determine "beyond all reasonable doubt" but they are obliged to have "exhausted all reasonable endeavours". The gist of the findings was that whilst some of the players may have challenged dank or the horse-whisperer at various moments; none of the players had actively enlisted support from Dr. Reid, the WADA helpline, the AFL disclosure documemts etc etc which are all there to help protect them from this crap. The systems in place are already fine for the future - it's just that this event has really underpinned the Global Sporting Drug Codes foundation: personal responsibility. What you can't do is lacidasically or deliberately accept at face value another's word and use that to avoid responsibility. You need to know and or research efficiently enough to be as confident as a "reasonable man" can be that what you take, swallow, sniff or inject is absolutely compliant. And if you aren't sure, you don't take it, and you scream about it to the heavens. The players patently didn't do that in this instance which is what the above describes.

Came to post this. Brilliant stuff DD.

 

[littlenails]

As I understand it, they are not obliged to determine "beyond all reasonable doubt" but they are obliged to have "exhausted all reasonable endeavours". The gist of the findings was that whilst some of the players may have challenged dank or the horse-whisperer at various moments; none of the players had actively enlisted support from Dr. Reid, the WADA helpline, the AFL disclosure documemts etc etc which are all there to help protect them from this crap. The systems in place are already fine for the future - it's just that this event has really underpinned the Global Sporting Drug Codes foundation: personal responsibility. What you can't do is lacidasically or deliberately accept at face value another's word and use that to avoid responsibility. You need to know and or research efficiently enough to be as confident as a "reasonable man" can be that what you take, swallow, sniff or inject is absolutely compliant. And if you aren't sure, you don't take it, and you scream about it to the heavens. The players patently didn't do that in this instance which is what the above describes.

I believe what you say is the case.

It is not up to the players to prove that they are innocent, rather it is up to WADA to prove that they are guilty. If found guilty then the players are able to get off to varying degrees due to the circumstances involved. The Essendon case has lessons for all of the players.

 

[Yojimbo]

As I understand it, they are not obliged to determine "beyond all reasonable doubt" but they are obliged to have "exhausted all reasonable endeavours". The gist of the findings was that whilst some of the players may have challenged dank or the horse-whisperer at various moments; none of the players had actively enlisted support from Dr. Reid, the WADA helpline, the AFL disclosure documemts etc etc which are all there to help protect them from this crap. The systems in place are already fine for the future - it's just that this event has really underpinned the Global Sporting Drug Codes foundation: personal responsibility. What you can't do is lacidasically or deliberately accept at face value another's word and use that to avoid responsibility. You need to know and or research efficiently enough to be as confident as a "reasonable man" can be that what you take, swallow, sniff or inject is absolutely compliant. And if you aren't sure, you don't take it, and you scream about it to the heavens. The players patently didn't do that in this instance which is what the above describes.

I understand your position and statement, but don't you think your so called
"reasonable man" might also say these injections happened over three years
ago and they players no longer have elevated readings of TB4 in their
systems. Hell i think they only found two elevated levels in the blood samples
from 2012, they were skating close to the edge using experimental non TGA
approved substances, if i was an Essendon player i would ask could you not
afford the good stuff.

 

[Deadly Darcy]

I understand your position and statement, but don't you think your so called
"reasonable man" might also say these injections happened over three years
ago and they players no longer have elevated readings of TB4 in their
systems. Hell i think they only found two elevated levels in the blood samples
from 2012, they were skating close to the edge using experimental non TGA
approved substances, if i was an Essendon player i would ask could you not
afford the good stuff.

The concept of the "reasonable man" is a legal benchmark phrased in a variety of different ways. Essentially it is a benchmark for the judiciary to reference in bringing judgements I.e "what would society expect a reasonable man should or would do in that position". So yes, in theory the players might argue the blood sample condition had deteriorated over three years if they could find experts to help prove that but you wouldn't need to use the "reasonable man" argument it would just be based on the science. The players got stung more because the question being considered was kind of this:

If an average guy/reasonable man, was asked to submit to an injection regime, what should they "reasonably" have done to ensure that what they accepted in their bodies was clean?

CASA did not accept that a reasonable person trying to ensure compliance with the code would have kept silent, not checked online for compliance to the code, not actively enlisted an opinion from their club doctor or personal doctor etc etc. All of which are options the players could have taken and didn't and failed to explain reasoning for those failings in personal governance.

 

[Yojimbo]

The concept of the "reasonable man" is a legal benchmark phrased in a variety of different ways. Essentially it is a benchmark for the judiciary to reference in bringing judgements I.e "what would society expect a reasonable man should or would do in that position". So yes, in theory the players might argue the blood sample condition had deteriorated over three years if they could find experts to help prove that but you wouldn't need to use the "reasonable man" argument it would just be based on the science. The players got stung more because the question being considered was kind of this:

If an average guy/reasonable man, was asked to submit to an injection regime, what should they "reasonably" have done to ensure that what they accepted in their bodies was clean?

CASA did not accept that a reasonable person trying to ensure compliance with the code would have kept silent, not checked online for compliance to the code, not actively enlisted an opinion from their club doctor or personal doctor etc etc. All of which are options the players could have taken and didn't and failed to explain reasoning for those failings in personal governance.

I get it mate and i am in no way trying to defend anyone, but ask yourself
how many players in AFL history have faced this predicament that is right
none have ever and i see that fact as a precedent there is no template
in a legal sense for what happened here.

 

[Deadly Darcy]

I get it mate and i am in no way trying to defend anyone, but ask yourself
how many players in AFL history have faced this predicament that is right
none have ever and i see that fact as a precedent there is no template
in a legal sense for what happened here.

Sorry - misunderstood. The whole thing totally sucks yes. Massively unfair in AFL terms but I wonder if that is because the AFL has run such an unaccountable illicit drugs policy for so long. If you were a player aware of a massive Coke-head at another club who was merrily on his 2nd or 3rd undisclosed strike and you got barred for this would you think it reasonable...

I'd be taking the pitchfork and a burning torch on AFL house to get an "explaination" about fairness yes...

 

[NBates]

Blah blah blah. I'm just enjoying what is the demise of the essendon football club. Bring it on! Karma at last.

Sent from my SM-G900I using Tapatalk

 

[immortalmike]

I get it mate and i am in no way trying to defend anyone, but ask yourself
how many players in AFL history have faced this predicament that is right
none have ever and i see that fact as a precedent there is no template
in a legal sense for what happened here.

My answer to that is a great big "so what". That there was no precedent for NFL players running a dogfighting ring didn't stop the rightful banning of Michael Vick.
We in Australian sport love to complain about the cheating practices of sports people from other nations but we are all too understanding when it's one of our own.

 

[Yojimbo]

My answer to that is a great big "so what". That there was no precedent for NFL players running a dogfighting ring didn't stop the rightful banning of Michael Vick.
We in Australian sport love to complain about the cheating practices of sports people from other nations but we are all too understanding when it's one of our own.

As i have always said they should have taken the deal and kept well away
from a potential CAS hearing, three weeks beats the crap out of two years.

 

[compact72]

Please don't be Crameri

 

[james1995]

Please don't be Crameri

Nathan Lovett Murray

 

[BRWB]

I haven't read your whole post so forgive me if I've missed something. However I think you might have missed the point of my own post. I was wondering what it means for the future behaviour of ALL players - I was not trying to analyse exactly what happened in the E34 case and who was or was not guilty.

To rephrase my question:
How are players meant to establish beyond reasonable doubt that what they are being administered is legal and what steps can they take to indemnify themselves under the ASADA/WADA code if someone is pulling a swifty on them? Is total abstinence from pills, ointments and injections the only way?

Has anybody answered that question yet? Or even attempted to?

Simple.

Get a medical dr to sign off on the drugs.

 

[King Harold]

I haven't read your whole post so forgive me if I've missed something. However I think you might have missed the point of my own post. I was wondering what it means for the future behaviour of ALL players - I was not trying to analyse exactly what happened in the E34 case and who was or was not guilty.

To rephrase my question:
How are players meant to establish beyond reasonable doubt that what they are being administered is legal and what steps can they take to indemnify themselves under the ASADA/WADA code if someone is pulling a swifty on them? Is total abstinence from pills, ointments and injections the only way?

Has anybody answered that question yet? Or even attempted to?

The problem for the E34 was the secretive nature of the whole program , in which they allowed themselves to become complicit . I don't think we would be in this position if trained medical people were included.
This is where Reid has to be called to account. He had obvious concerns , and needed to show a lot more balls in dealing with the drug cartel running the footy department.
In the end chickened out .

 

[Roscoe_au]

Nathan Lovett Murray

Has a coaching career to start and nothing else going for him. Essentially looking at the dole queue for 12 months.

 

[Fossie 32]

https://www.change.org/p/senator-ri..._+5Mtakee5RG36cTg4ea49AJmyTzdAk1OmNC+XHt8EgU=

 

[Mattdougie]

Anyone that thinks the AFL actually run by the 3 strike policy is a moron.

There are so many loopholes to the testing regime that in fact it is still basically an open strike policy.

Players can no longer self report continually but loopholes still exist for "sick leave" and "depression" and other "medical" issues. Whilst players are under any of the above they can still be tested but the results are void.

If you lucky enough to know a player sit down and read his copy of the AFL policy on behaviour and responsibilities.

IF the AFL actually ran the policy as they suggest there wild be so many players banned they would be calling me to have a kick.