Mega Thread JUDGMENT -Essendon/Hird v ASADA Trial: Investigation legal (club/ASADA/AFL/AFLPA/WADA statements)

[TerryWallet]

My summary of the case, for those interested:

http://sociallitigator.com/2014/09/...understanding-essendon-hird-v-asada-judgment/

Thanks for that.

IMO, EFC's case was doomed when Howe QC for ASADA pointed out to Middleton that if he accepted EFC's narrow ruling of the Act and NADS, then "the sword of damocles" would forever hang over ASADA's head in every investigation and almost rule them obsolete in fighting drugs in sport..

Middleton did that thing he does when he's thinking where he sat back in his chair and put his 2 index fingers to his lips and gently nodded.

 

[Ancient Tiger]

Yes correct , but what if as has been said they new what peptide it was and that it was legal, as far as WADA was concerned, ASADA tells them later its not. So either they were or weren't taking something illegal.
If they did know what they were taking and its illegal then they should be hammered.
But they haven't been charged with anything and ASADA want them to incriminate themselves by their own voices.

Whether they took drugs or legal substances is not publicly clear.

All I have ever said about this is that the powers that be , have taken two years and so far haven't charged or even accused a footballer, all they've done is said whether or not you have done something wrong come forward and tell everyone.

Why? because maybe ASADA have no convincing evidence.

If I had found something like this I would have wanted the whole sports doping , supplementing thing investigated openly and so thoroughly that it would be finished with and , if you like , poor old Essendon may not have any players at all full stop.

But Watson has said he was injected and thought all was fine, so why hasn't he been charged or accused or what? And why is Ryder shooting through, does he know or think he's been drugged up, answer those things, the court case not favouring Essendon is done , and tell me whats happening now.
Nothing?
I suspect that the players will say nothing and ASADA CAN GO ON A 25 YEAR INVESTIGATION AND IT WILL MEAN NOTHING AGAIN.
Just stuff up some young players careers , who I think didn't know what was happening , so why should they get any type of penalty at all?
Tell me that?When they are charged with hard evidence , then we'll know, right now its all bulldust.

You do not seem to understand the process at all.
When enquiries are made about a drugs "legality" they are time stamped and recorded by ASADA or WADA. So you can't have the scenario you have suggested. I know an Essendon doctor claims that he was told AOD was permitted by ASADA. However this was not done by an enquiry through the correct channels BEFORE they used AOD. It was done after it had been used for over a year and not through the drug hotline.
As others have said, ASADA cannot entirely be blamed for taking such a long time. The main reason it took so long is that, without positive blood or urine samples, they had to piece together a complex paper trail. Of course Essendon had very little, if any, documentation which made their job almost impossible. Ultimately they did a good job despite this, because they came up with enough evidence to convince a former Federal court Judge that SCNs could be issued.
ASADA is probably waiting now for the season to finish before it proceeds with expecting a response from the players to the SCNs.

 

[jatz14]

No panodol is not illegal is it? What was the illegal substance that any one can prove these blokes took, if any.
There is plenty of drugs and peptides and sport supplements with fancy names and numbers, What?Who?Needle or mouth ?vitamin or dope?Dimetriou involved in cover up ??? Its stuffed.

Peptides are not illegal either, they are banned.
Also, an athlete does not need to take anything to be punished. They do not even need to be thought to have taken anything to be suspended. Not following the process to ensure you are not taking stuff that is banned is enough.

Answer this, if an athlete not believed to have taken anything can be banned because he missed tests, how is it you think an athlete known to have taken something will not be banned because the evidence it is banned is, in your opinion, weak. They are required to be informed of what they have taken, they are required to have evidence that what they have taken is approved. An admission they took something, not entirely sure what, cant seem to find any documentation, is in itself punishable.

 

[Westy Bogan]

Is it normal for ASADA to provide evidence in SC notices?

 

[jatz14]

jatz14 I think you're confused with the process - ASADA does have to provide evidence of a doping offence at some point.

At this point ASADA don't have to show evidence but if it gets to the tribunal stage they need to present evidence - enough evidence to comfortably satisfy the tribunal that a doping offence has occurred - that evidence can be tested by the accused.


Sent from my Nexus 7 using Tapatalk

In order to ban them for putting substance X in their body, yes. I would think though, and I admit I am not certain, that failing to be able to to show control over what goes into your body is punishable, otherwise all a team needs to do is run a shell game. Use outside agents to obtain dodgy products, de identify them, pass them through a middle man, make sure that the person giving it doesn't know what they are and voilà. Then if people raise questions, run the EFC defence, we do not know what they are but we know they are OK and you cannot prove otherwise so piss off.

 

[zeggie]

I think certain people have forgotten that this is not criminal proceedings (yet).

There is a reverse onus of proof. Essendon have to give evidence of what they took and that it was legal. They cannot. Asada will have evidence of TB4 being sourced. Essendope dont want the players to respond to the SCNS because Essendope can't tell them what they injected them with. Essendope are screwed.

Otherwise every doping case the guilty parties will just simply use a 3rd party, burn the paperwork and give the Essendope defence of "I dunno wot we took lol".

 

[thegerman]

I think certain people have forgotten that this is not criminal proceedings (yet).

There is a reverse onus of proof. Essendon have to give evidence of what they took and that it was legal. They cannot. Asada will have evidence of TB4 being sourced. Essendope dont want the players to respond to the SCNS because Essendope can't tell them what they injected them with. Essendope are screwed.

Otherwise every doping case the guilty parties will just simply use a 3rd party, burn the paperwork and give the Essendope defence of "I dunno wot we took lol".

Actually incorrect, take a look at the Jarrod Bannister case. Failed to turn up to testing three times in 18 months, suspended 20 months due to the avoidance of testing giving the inference that he was taking banned substances.

So the I don't know defence is not going to stand up, which is probably the main reason of the stalling tactics.

 

[zeggie]

Actually incorrect, take a look at the Jarrod Bannister case.

What part of what I wrote are you saying is incorrect?

 

[ChrisKaias]

I think certain people have forgotten that this is not criminal proceedings (yet).

There is a reverse onus of proof. Essendon have to give evidence of what they took and that it was legal. They cannot. Asada will have evidence of TB4 being sourced. Essendope dont want the players to respond to the SCNS because Essendope can't tell them what they injected them with. Essendope are screwed.

Otherwise every doping case the guilty parties will just simply use a 3rd party, burn the paperwork and give the Essendope defence of "I dunno wot we took lol".

Again, there is no reverse onus of proof.

The best analogy I can give - think of it like being accused of murder and not having an alibi. You don't have to be able to prove where you were (though it would certainly help you if you could), just like Essendon don't have to prove what they took was legal. BUT, the lack of an alibi and the lack of records proving what you did take is weighed against the evidence that you actually did commit the crime/doping violation.

Still very much on ASADA to prove their case, and it isn't enough alone that Ess can't prove what they did take conclusively but it doesn't help if ASADA have enough evidence that what they took was banned and Ess can't rebut it

 

[sauce_head]

Again, there is no reverse onus of proof.

The best analogy I can give - think of it like being accused of murder and not having an alibi. You don't have to be able to prove where you were (though it would certainly help you if you could), just like Essendon don't have to prove what they took was legal. BUT, the lack of an alibi and the lack of records proving what you did take is weighed against the evidence that you actually did commit the crime/doping violation.

Still very much on ASADA to prove their case, and it isn't enough alone that Ess can't prove what they did take conclusively but it doesn't help if ASADA have enough evidence that what they took was banned and Ess can't rebut it

A better analogy is to use health and safety law. One has to demonstrate that they took proper precautions, which is essentially a reverse onus of proof. In this instance ASADA merely need to address the charge to a balance of probability level (or similar wording). Essendon then have to prove otherwise.

Given a judge has already determined the evidence suggests infraction noticed are likely to he issued, the injectors are in the brown stuff.

 

[Ancient Tiger]

http://www.heraldsun.com.au/sport/a...essendon-players/story-fni5f6kv-1227069503270

Interesting was the line:

"Lawyers have advised the club that they have strong grounds to convince the Full Federal Court that ASADA's joint investigation with the AFL was unlawful."

Are these guys serious? Are these lawyers just wanting to milk millions more from Essendon? I don't think Justice Middleton could have made the decision any more emphatic that the investigation WASN'T unlawful.

I wonder what ChrisKaias thinks about this........

 

[Bluesince62]

If there are no records of Thymomodulin being supplied to EFC/Dank and there are records of Thymosin B4 being supplied, the players are in trouble as there is no alibi. Player's signed consent to take Thymosin adds to the circumstantial case. Player's admission they were injected with some substances but there are no records what those substances were also adds. Throw in any text messages mentioning Thymosin - if there are any. Dank's "it was Thymosin" then "it was Thymomodulin" infers it is one or the other.

AFLPA leaks that the circumstantial case is weak could fit this scenario but it is enough to refute any defence.

EFC fought the court case and will appeal because the consent forms and player's admissions that they received injections are key components

It is game over, at the burden of proof level required in this case.

A defence of you can't prove I specifically was injected with Thymosin B4 will not work. The burden of proof is substantially less than for a criminal case.

Only records showing what was taken when or proof of supply of Thymomodulin could get them off in this scenario if the appeal fails.

EDIT Just read a similar but more detailed post from 60sbomber on the Essendon board. He mentions the quantity of Thymosin provided is a critical point which on reflection I tend to agree with. Proof of supply of Thymomodulin is the get out of jail card.

 

[Laphroaig]

"Lawyers have advised the club that they have strong grounds to convince the Full Federal Court that ASADA's joint investigation with the AFL was unlawful."
.

Gotta keep those billable hours ticking over.

Middleton put Essendon and Hird over his knee and gave them a bare arse whooping for all the world to see.

How amusing it would be to see the full bench taking turns.

 

[SaintsSeptember]

http://www.heraldsun.com.au/sport/a...essendon-players/story-fni5f6kv-1227069503270

Interesting was the line:

"Lawyers have advised the club that they have strong grounds to convince the Full Federal Court that ASADA's joint investigation with the AFL was unlawful."

Are these guys serious? Are these lawyers just wanting to milk millions more from Essendon? I don't think Justice Middleton could have made the decision any more emphatic that the investigation WASN'T unlawful.

I wonder what ChrisKaias thinks about this........

Well before the case, I heard that some lawyers had advised Essendon that they "didn't" have a case. Wanting to hear what they wanted to hear Essendon asked other lawyers, I assume that these are the ones they are still asking.

I saw one article that suggested that even if Essendon win an appeal, its unlikely to invalidate the results of the previous investigation.

 

[TerryWallet]

Well before the case, I heard that some lawyers had advised Essendon that they "didn't" have a case. Wanting to hear what they wanted to hear Essendon asked other lawyers, I assume that these are the ones they are still asking.

I saw one article that suggested that even if Essendon win an appeal, its unlikely to invalidate the results of the previous investigation.

That is the case.

EFC were originally advised they had little chance of a case.

Like all litigious animals, Paul Little bought different advice that he liked more.

 

[sauce_head]

Let's Ll just recall that the FACTS as deteinedxby JM cannot be appealed. It's a brave and hungry (food not career) lawyer that appeals. Will always get one to suggest its feasible though. Especially if their ego is already bruised...!

 

[ChrisKaias]

A better analogy is to use health and safety law. One has to demonstrate that they took proper precautions, which is essentially a reverse onus of proof. In this instance ASADA merely need to address the charge to a balance of probability level (or similar wording). Essendon then have to prove otherwise.

Given a judge has already determined the evidence suggests infraction noticed are likely to he issued, the injectors are in the brown stuff.

That's not a reverse onus of proof, the onus is still on ASADA to prove to the 'comfortable satisfaction' of the tribunal, Essendon are going to try and lead evidence to reduce it below that level but the onus never leaves ASADA.

It's semantics anyway but important semantics, it's not like ASADA can just make an allegation and Essendon have to disprove, ASADA need evidence a violation occurred

 

[blackshadow]

Gotta keep those billable hours ticking over.

Middleton put Essendon and Hird over his knee and gave them a bare arse whooping for all the world to see.

How amusing it would be to see the full bench taking turns.

What would be more amusing is the club deciding not to appeal but Prince Albert appealing on his lonesome.

Sent from my Nexus 7 using Tapatalk

 

[BeinPurplenGreen]

That's not a reverse onus of proof, the onus is still on ASADA to prove to the 'comfortable satisfaction' of the tribunal, Essendon are going to try and lead evidence to reduce it below that level but the onus never leaves ASADA.

It's semantics anyway but important semantics, it's not like ASADA can just make an allegation and Essendon have to disprove, ASADA need evidence a violation occurred

Sorry, Chris, but the statement you have made is wrong. ASADA do not "need evidence a violation occurred".

All ASADA need to do (via the Show Cause Notice process) is raise the allegation of inappropriate conduct [ I've chosen this phrase to try to capture all of the various types of behaviour set out in the codes] - once the delegate has issued the SCN it is up to the regulated athlete to show (to their governing authority - in this case the AFL) that they did not take the actions that are alleged in the SCN.

As a passing observation to explain why the ASADA process is so drawn out, I note that ASADA, as with any Commonwealth regulatory agency, is subject to the Commonwealth DDA provisions for improper administrative action. As such, given the substantial payouts for unlawful administrative actions, and the substantial impact on individual public servants for issuing allegations withoutr proof, without supporting evidence (independently reviewed) ASADA don't issue SCNs.

Beyond the decision to issue the SCN, which includes the decision making process within ASADA that leads to the delegate's decision that there is sufficient evidence to support the allegations contained in the SCN, no "onus" is on ASADA - the provisions of strict liability on the athletes are quite clear (much as Hardie, B Schwab and others might protest about the fairness of this approach).

The players must prove, on the balance of probabilities, and using the evidentiary standards applicable to normal Commonwealth administrative processes, that they (the individual athlete) ingested no banned or unregulated substances, and that any allegations of (or evidence of) unapproved substances and/or potentially unlawful compounds have no basis, or are demonstrably wrong.

Most importantly, "Essendon" (or any other "club" in any code) have no role at all once SCNs are issued - unless the player defence is that the club brainwashed or grossly misled them.

The players (or more accurately the "regulated athletes") have the onus to prove that they have nothing to respond to. Hence the notion of Show Cause Notices - you, the player (not your club, doctor or agent) must show that you have no cause to answer.

It is up to ASADA if they attach any supporting evidence to any SCN issued to any athlete - there is no statutory requirement on them to do so, and if they don't provide any evidence, all it does is make it easier for the athlete to meet the onus of responding to the allegation.

The Anti Doping Rule Violation Panel decides, based on the allegations in SCNs and the responses from the players, whether or not it is possible that an anti-doping rule violation might have been committed - noting that this is far below even the civil standard of proving that something occurred.

Once the ADRVP have decided that a violation might have been committed, the ASADA penalty recommendations will be considered by the ADRVP - in the context of the statements made in the Show Cause Notices.

Again, ASADA does not have to "prove" to "the comfortable satisfaction of" anyone that "violations" or "doping offences" occurred. Indeed, apart from one passing reference in a single comment by one judicial review officer, the phrase "to the comfortable satisfaction of" has no meaning in any case law on any field of Commonwealth administrative or regulatory law. It is also not a phrase that has ever been recognised at State, local or statutory agency decision making.

Ultimately, the AFL are responsible for the action against the players registered with the AFL competitions, not ASADA - the AFL run the process of determining the penalty applicable to the athlete (through the AFL doping tribunal).

ASADA (and for that matter WADA) only have a role if they are dis-satisfied with the penalty that the regulating sports authority (in this case the AFL, in the case of Cronulla the NRL) have chosen to apply, or if they have concerns that the appropriate administrative processes have not been followed (see for example the WADA action against UCI on cycling's initial "investigation" process on Armstrong).

The ADVRP has a role as a forum for the players to respond to the Show Cause Notices, but it is not a forum that imposes obligations of proof (or prosecutorial burdens) on ASADA. Ultimately, the final penalty considerations (and the weight to give to any pleas in mitigation by individual players) are the responsibility of the AFL doping tribunal.

As with any other Commonwealth regulatory action, persons who feel aggrieved by the administrative processes can always try to seek judicial review of the process - but given the publicly available information in this case, Middelton's findings on process, and the damning findings of the Switkowski review that was commissioned by EFC, it is difficult to see how EFC or any individual player can claim that there is no evidence of any potentially unlawful or inappropriate behaviour. This is particularly the case when one considers the sheer volume of injections administered by the EFC.

By the way, given your prolific public tweeting on this case, and your apparent statements of certain knowledge on this case:

• do you have a law degree?
• have you ever practiced at any stage in sports law cases or in Commonwealth administrative law?
• how many cases have you appeared at the ADVRP in?
• apart from attending the public hearings of the (very limited scope) injunctory application by Hird and Essendon, what hearings have you attended on other doping allegations in other sports, and what interactions have you had with doping regulatory officials in other jurisdictions?

Again - ASADA do not need to "prove" "a violation occurred" - it is enough for ASADA to have reasonable suspicions that a breach may have occurred - it is then up to the players (NOT Essendon) to prove - to the balance of probabilities - that any alleged breach did not occur.

Essendon have no role at all in "leading evidence" or "reducing" anything - indeed Essendon aren't even a party recognised under the ADVRP! They would need special leave to even appear as a party to make submissions!

 

[thegerman]

^^^^^ great post. I keep on posting to those that don't seen to have a clue, to look at the bannister case. He missed 3 tests in 18 months, simply the inference of something sinister was enough to imply wrong doing on his part.

No positive results, only implied.

Suspended 20 months.

The essendon players are poorly represented if they don't take this into consideration. Secondly, the club itself is most likely going to be in ruin for a while, whilst players decide whether to leave or sue, or both.

 

[Laphroaig]

^^^^^ great post. I keep on posting to those that don't seen to have a clue, to look at the bannister case. He missed 3 tests in 18 months, simply the inference of something sinister was enough to imply wrong doing on his part.

No positive results, only implied.

Suspended 20 months.

The essendon players are poorly represented if they don't take this into consideration. Secondly, the club itself is most likely going to be in ruin for a while, whilst players decide whether to leave or sue, or both.

Apart from the ample evidence available that listening to the version of events touted by the guy who gets nailed is not a good idea...

You might want to take the elementary step of finding out what violation the gentleman in question was nailed for.

 

[Laphroaig]

Again, ASADA does not have to "prove" to "the comfortable satisfaction of" anyone that "violations" or "doping offences" occurred. Indeed, apart from one passing reference in a single comment by one judicial review officer, the phrase "to the comfortable satisfaction of" has no meaning in any case law on any field of Commonwealth administrative or regulatory law. It is also not a phrase that has ever been recognised at State, local or statutory agency decision making.

Again - ASADA do not need to "prove" "a violation occurred" - it is enough for ASADA to have reasonable suspicions that a breach may have occurred - it is then up to the players (NOT Essendon) to prove - to the balance of probabilities - that any alleged breach did not occur.

Selectively quoted to highlight the most ill informed of all those of all those ramblings.

 

[thegerman]

QUOTE="Laphroaig, post: 35325372, member: 145020"]Apart from the ample evidence available that listening to the version of events touted by the guy who gets nailed is not a good idea...

You might want to take the elementary step of finding out what violation the gentleman in question was nailed for.[/QUOTE]

Are you serious? Jarrod Bannister, missed three tests, by giving wrong room numbers, and at times the wrong hotel.

As I said, which you obviously cannot read, is that there is an implied term, that if structure or policy is not followed, you are still responsible for your own actions, whether you tested positive or not.

Maybe read the post above mine, that I linked with the arrows and commenting directly that post before posting.


Perhaps read this also

http://m.theaustralian.com.au/sport...693984949?nk=88ba6026144f2960a9d3fe80ded04a4f

 

[Laphroaig]

Are you serious? Jarrod Bannister, missed three tests, by giving wrong room numbers, and at times the wrong hotel.

Well he's a seriously unlucky guy. Who'd have thunk that the same thing could happen three times in a row to the one fella, and yet not happen to anyone else?

Or maybe luck is not the issue.

I don't know where you got the idea that a positive test is or even should be the only anti doping violation.

 

[thegerman]

Well he's a seriously unlucky guy. Who'd have thunk that the same thing could happen three times in a row to the one fella, and yet not happen to anyone else?

Or maybe luck is not the issue.

I don't know where you got the idea that a positive test is or even should be the only anti doping violation.

Do you have a problem with comprehension?

That is the whole gist of the last few pages of this thread, and, directly what I'm saying.

A positive test is not the only smoking gun.

ASADA would have the compounding chemist and the importer all lined up and ready to go.