News EFC asks AFL and ASADA for probe into own training regime

[BrunoV]

Forget the waivers. If the players are found to have taken prohibited substances, waivers wont help them one iota.

You cant simply indemnify yourself from ASADA sanctions by signing a waiver, and then taking a substance offered to you by a third party be that third party a doctor, sports science guy, coach or whomever.

The player will be banned. He can then sue the crap out of the person that administered the gear to him, but it wont protect him from the ASADA sanction.

The only effect those waivers will have (assuming the substance taken was prohibited) will be to possibly reduce the length of the ban from 2 years to 1 by evidencing the fact that the player genuinely did not know that the substance taken was prohibited.

See my post above.

If the document refers to "Y legal drug" then there is a very strong defence that it was reasonable for the players to rely on the advice and take the administered Y (where they had not reason to suspect that Y wouldn't be Y).

I'd say that this doesn't stop it from getting very messy for the club.

 

[SharkShuffler]

Yes, they should be. The onus is on the person taking the drug to check whether it is legal or not. In reality, no one actually checks, they trust their doctor. But if a sportsman is caught with a banned substance in their system, they cant roll out he line "but the doc said it was ok". It just doesn't cut it.

Are we getting to a stage where sportspeople have to have a "Passport" and then keep a "Logbook" of everything (hopefully legal) that they pump into their bodies. And then like an Annual Report (for a business) it becomes knowledge (across the team) say at the end of the season so we all know that it wasn't just the "flood" etc why they won. It's bizarre isn't it. My kids are only in Primary School but I won't be training them up to be elite.... just to compete.

 

[Malifice]

You have to remember that our link to all of this shit is Dank. He was employed by us in a fitness capacity and at the same time has links to Dr Stangelove and whoever else.

Thats what the report alludes to.

Dank has criminal connections. He either directly or indirectly administered PED's or contaminated gear sourced from dodgy third parties to a large portion of your playing list.

Im not suggesting for a second that Hird or anyone else signed off on the practice knowing what was happening was unlawful. No-one is that stupid. Its more of a case that adewuate measures were not put in place to supervise this whole shenanigans. As a consequence it appears as if a few members of your team may have been exposed to prohibited substances by a rogue element within the club.

The link is wholly meaningless until a charge is laid. Even then, if in the worst case it is proved that we were using something illegal, the way it is shaping if McVeigh's understanding of the consent/waiver is accurate, the players seem all but protected (listen to Erlich on SEN - I agree with him because the general application of these WADA rules has been in situations where there individuals or small collectives who have no evidence of following proper process, there must always be a defence of what effectively amounts to reasonableness in the circumstances).

Any waivers signed will not indemnify a player found to have taken a PED. If players are found to have taken a PED, they will be suspened for a minimum of 1 year (and that includes mitigation).

Seeing as everyone is prepared to hang Dank, is it really that much of a stretch to think that a guy in Dank's position would have some business on the side juicing up body builders, athletes and whoever else approaches him; and that he keeps this side of his practice completely separate from his professional "front".

That appears to be the case here. You better hope that he keeps his two lives separate, because if he hasnt it could be curtains.

 

[monty1104]

Are we getting to a stage where sportspeople have to have a "Passport" and then keep a "Logbook" of everything (hopefully legal) that they pump into their bodies. And then like an Annual Report (for a business) it becomes knowledge (across the team) say at the end of the season so we all know that it wasn't just the "flood" etc why they won. It's bizarre isn't it. My kids are only in Primary School but I won't be training them up to be elite.... just to compete.

Not necessarily, they just need to be aware of what is legal and what isn't.

Even outside of sport, we should be aware of what we are taking. Doctors give people antibiotics for diseases that dont even respond to antibiotics, just to keep them happy. It's ridiculous how little people know bout things that doctors give them.

 

[Malifice]

If the document refers to "Y legal drug" then there is a very strong defence that it was reasonable for the players to rely on the advice and take the administered Y (where they had not reason to suspect that Y wouldn't be Y).

There is precedent that this is not the case. ASADA's rules are also very clear.

Its an absolute liability system. The buck stops with the Athlete. Every Athlete knows this (they do seminars on it yearly).

The Waiver may reduce liability (i.e. It may serve to act as evidence that the Athlete did everything in their power to ensure that the substance taken was above board and all regulations were adhered to).

About the only way an Athlete can ever 'get off' is if it can be shown exceptional circumstances exist (ASADA cite as an example where a competitor drugs the Athlete to gain an advantage).

These aren't exceptional circumstances. The players knew they were skirting the line here. Waiver or no, if the crossed it, they're boned.

 

[Ambrosia]

There is precedent that this is not the case. ASADA's rules are also very clear.

Its an absolute liability system. The buck stops with the Athlete. Every Athlete knows this (they do seminars on it yearly).

The Waiver may reduce liability (i.e. It may serve to act as evidence that the Athlete did everything in their power to ensure that the substance taken was above board and all regulations were adhered to).

About the only way an Athlete can ever 'get off' is if it can be shown exceptional circumstances exist (ASADA cite as an example where a competitor drugs the Athlete to gain an advantage).

These aren't exceptional circumstances. The players knew they were skirting the line here. Waiver or no, if the crossed it, they're boned.

That was my interpretation as well until I heard the SEN interview with the Barrister now I'm not sure it's as black and white as you make out.

 

[Malifice]

That was my interpretation as well until I heard the SEN interview with the Barrister now I'm not sure it's as black and white as you make out.

I'm no Silk, but I'm also a Barrister.

The waivers would most likely have been given to indemnify the club, and not the players (and they wouldn't be all that effective at shielding the club either).

I would be astonished if an Athlete can engage in a cutting edge 'sports science' regime, and indemnify themselves from ASADA sanctions if those techniques turn out to be prohibited, simply by signing a waiver.

You cant 'contract out' of legislation remember.

The safest bet (and the correct procedure) is to get ASADA medical indemnity via a an ASADA waiver beforehand. The ASADA website contains the correct protocols.

 

[Ben the Gooner]

They weren't waivers, they were agreements the players asked for that listed everything they took and ensured that they had been ticked off by WADA/ASADA. Surely that counts as due diligence in ensuring they were not taking illegal substances.

 

[Ambrosia]

I'm no Silk, but I'm also a Barrister.

The waivers would most likely have been given to indemnify the club, and not the players (and they wouldn't be all that effective at shielding the club either).

I would be astonished if an Athlete can engage in a cutting edge 'sports science' regime, and indemnify themselves from ASADA sanctions if those techniques turn out to be prohibited, simply by signing a waiver.

You cant 'contract out' of legislation remember.

The safest bet (and the correct procedure) is to get ASADA medical indemnity via a an ASADA waiver beforehand. The ASADA website contains the correct protocols.

But if Spike is to be believed it was the players who asked for the waivers or whatever in order to make the club stipulate that they weren't injecting/dosing them with banned substances.

 

[Kong]

Are we getting to a stage where sportspeople have to have a "Passport" and then keep a "Logbook" of everything (hopefully legal) that they pump into their bodies. And then like an Annual Report (for a business) it becomes knowledge (across the team) say at the end of the season so we all know that it wasn't just the "flood" etc why they won. It's bizarre isn't it. My kids are only in Primary School but I won't be training them up to be elite.... just to compete.

The corporate world's like this.

Everything needs to be provided in writing, mostly to protect yourself.

Really sad.

 

[Malifice]

They weren't waivers, they were agreements the players asked for that listed everything they took and ensured that they had been ticked off by WADA/ASADA. Surely that counts as due diligence in ensuring they were not taking illegal substances.

There is no 'due dilligence'. There is strict liability.

From the ASADA regs:

It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Athletes are responsible for any Prohibited Substance or its Metabolites or Markers found to be present in their Samples. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an antidoping violation under Article 2.1.

Comment to Article 2.1.1: For purposes of anti-doping rule violations involving the presence of a Prohibited Substance (or its Metabolites or Markers), the 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, an Athlete is responsible, and an anti-doping rule violation occurs, whenever a Prohibited Substance is found in an Athlete’s Sample. The violation occurs whether or not the Athlete intentionally or unintentionally Used a Prohibited Substance or was negligent or otherwise at fault.

The strict liability rule for the finding of a Prohibited Substance in an Athlete'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" Athletes and fairness in the exceptional circumstance where a Prohibited Substance entered an Athlete’s system through No Fault or Negligence or No Significant Fault or Negligence on the Athlete’s part.

It is important to emphasize that while the determination of whether the anti-doping rule violation has
occurred is based on strict liability, the imposition of a fixed period of Ineligibility is not automatic. The
strict liability principle set forth in the Code has been consistently upheld in the decisions of CAS.

In summary, a waiver doesnt help you avoid liability.

It may reduce the penalty handed out.

In this case (players accidentally or unknowingly doped by rogue elements in the clubs administration while engaging in a sports science program) it would probably lead to a reduction from a mandatory 2 year ban to a single year.

The players would need to be able to show (for example) willful sabotage by a third party competitor to get off scott free.

 

[Malifice]

But if Spike is to be believed it was the players who asked for the waivers or whatever in order to make the club stipulate that they weren't injecting/dosing them with banned substances.

Wont help the players under strict liability.

May help the players if they intend on suing the pants off the club if those substances turn out to be banned however.

'You promised me it wasn't bad, it turned out it was bad, and I lost my livelihood' type of argument.

 

[Ben the Gooner]

There is no 'due dilligence'. There is strict liability.

From the ASADA regs:






In summary, a waiver doesnt help you avoid liability.

It may reduce the penalty handed out.

In this case (players accidentally or unknowingly doped by rogue elements in the clubs administration while engaging in a sports science program) it would probably lead to a reduction from a mandatory 2 year ban to a single year.

The players would need to be able to show (for example) willful sabotage by a third party competitor to get off scott free.

What more can the players do short of a science degree and physically testing the drugs themselves?

 

[Malifice]

What more can the players do short of a science degree and physically testing the drugs themselves?

Nothing. Thats the meaning of strict liability. The buck stops with the players. There are reasons why this is the case (very good ones). See also: the 'Warne defence'.

Ideally, a good place to start would be don't skirt the line with controversial sports science programs. Stick to protein shakes and avoid controversial sports 'scientists' with bikie connections wanting to inject shit into you to bulk you up would also be a good place to start.

The players themselves were reportedly sketchy as hell about the whole thing, and rightly so.

 

[4#Didak#4]

I'm no Silk, but I'm also a Barrister.

The waivers would most likely have been given to indemnify the club, and not the players (and they wouldn't be all that effective at shielding the club either).

I would be astonished if an Athlete can engage in a cutting edge 'sports science' regime, and indemnify themselves from ASADA sanctions if those techniques turn out to be prohibited, simply by signing a waiver.

You cant 'contract out' of legislation remember.

The safest bet (and the correct procedure) is to get ASADA medical indemnity via a an ASADA waiver beforehand. The ASADA website contains the correct protocols.

Thats not how the players reported it as happening. They are saying that they requested (via senior players)the club to provide assurances that what they were taking was above board - this is what they signed and were also under the impression it was the right form in terms of the relevant drug bodies approval as you referred to.

I am sure they also signed standard medical indemnity waivers which are irrelevant and there was also confidentiality agreements signed as well - which are a whole other issue the AFLPA will take up.

Whether any of that still protects them is doubtful. However, if the players went through the right process & forms then that should provide them some sort of protection in terms of penalties. I think ASADA does have some discretion and if they believe that the players were deceived - i.e. provided by the club officials false of incorrect forms/authorities to sign then the focus should be on the deceivers.

The way its lining up is that the administration is in serious dogpoo, its making Stephen Trigg & Chris Connelly look like saints. They have exposed their players either through negligence or deliberately. I am struggling to see how many of the current administration/coaching/medical could possibly survive the fall out of this whether by AFL sanctions or member/sponsor outrage.

I remain optimistic that common sense can prevail regarding the players, I think its different to say a rogue player consulting someone externally & using the substance - which there is probably some across the league. Given James Hird cosulted Dank in his playing days, I am now open to believe any of the players could be.

 

[Ambrosia]

Wont help the players under strict liability.

May help the players if they intend on suing the pants off the club if those substances turn out to be banned however.

'You promised me it wasn't bad, it turned out it was bad, and I lost my livelihood' type of argument.

From what I gathered from Paul Ehlrich was that if the players prove that they did everything a reasonable minded person would do to ensure they weren't taking prohibited substances then that counts as a "complete defense".

 

[BrunoV]

There is no 'due dilligence'. There is strict liability.

From the ASADA regs:



In summary, a waiver doesnt help you avoid liability.

It may reduce the penalty handed out.

In this case (players accidentally or unknowingly doped by rogue elements in the clubs administration while engaging in a sports science program) it would probably lead to a reduction from a mandatory 2 year ban to a single year.

The players would need to be able to show (for example) willful sabotage by a third party competitor to get off scott free.

Basically semantics. Presumably no one has any interest in "re-offending" and the notion of strict liability ends up depriving itself of its meaning if there are mitigating factors available which could operate to the extent of a complete defence allowing "offenders" to potentially avoiding any meaningful penalty.

I don' think anyone will give two shits if players are found guilty on the basis of strict liability but the penalty is mitigated to irrelevance on the basis of the exceptional circumstances that there was not even negligence as to taking the drugs which is the case if everything McVeigh said is true and he hasn't left anything out.

 

[cymarak]

So if I understand correctly, a player who's going to be given a 'substance' could do all of the following:
- ask the club doctor what it is and have the club doctor say it's X, and it's fine with WADA
- ask the administering doctor / nurse / etc. what is, and have the club doctor say it's X, and it's fine with WADA
- be given a form by a club official saying it's X, and it's fine with WADA
- lookup X on the WADA website and confirm that X is not banned
- check the packaging, and confirm that the packaging says it's X

... and if they take it, and find out that it's actually Y (packaging error, deception by doctor / official, contamination, etc.), then they're still screwed. Maybe not for 2 years, but denied their livelihood for a period of time and branded as a drug cheat.

In other words, there's no reasonable way an athlete can make sure they don't fall foul of the rules, short of refusing all injections / supplements / tablets / painkillers / cough medicine / etc.

 

[TOA.]

So if I understand correctly, a player who's going to be given a 'substance' could do all of the following:
- ask the club doctor what it is and have the club doctor say it's X, and it's fine with WADA
- ask the administering doctor / nurse / etc. what is, and have the club doctor say it's X, and it's fine with WADA
- be given a form by a club official saying it's X, and it's fine with WADA
- lookup X on the WADA website and confirm that X is not banned
- check the packaging, and confirm that the packaging says it's X

... and if they take it, and find out that it's actually Y (packaging error, deception by doctor / official, contamination, etc.), then they're still screwed. Maybe not for 2 years, but denied their livelihood for a period of time and branded as a drug cheat.

In other words, there's no reasonable way an athlete can make sure they don't fall foul of the rules, short of refusing all injections / supplements / tablets / painkillers / cough medicine / etc.

The only thing they could do if they were worried is take the substance to get tested independently themselves, but whether that is reasonable is the question.

 

[Malifice]

Thats not how the players reported it as happening. They are saying that they requested (via senior players)the club to provide assurances that what they were taking was above board - this is what they signed and were also under the impression it was the right form in terms of the relevant drug bodies approval as you referred to.

All this does is empower the players to sue the crap out of the club.

It doesn't shield them from ASADA sanctions. ASADA (and the Law) is crystal clear on this point.

Whether any of that still protects them is doubtful. However, if the players went through the right process & forms then that should provide them some sort of protection in terms of penalties.

The waivers may serve to mitigate the penalties, but they wont remove liability.

What counts against the players here is the fact that they knew they were 'pushing it'.

Clearly it was forseeable that what they were taking was suspicious; the players expressed concerns over the program throughout and demanded waivers from the club in response. If anything this demonstrates culpability.

If any player is suspended over this, there will be proceedings against the clubs responsible.

I bet you a million dollars that the AFLPA are already in deep discussions with a Silk as we speak preparing for any fallout, and readying cases against clubs by any player burnt.

 

[Blueboys11]

From what I gathered from Paul Ehlrich was that if the players prove that they did everything a reasonable minded person would do to ensure they weren't taking prohibited substances then that counts as a "complete defense".

IF we say there were banned drugs used, and IF we say the players were indemnified because they did everything possible to insure themselves they wernt taking anything illegal ,then where does the blame fall. It has to fall at the Football Club. I'd dare say you would rather the players cop the punishment, then the football club as a whole, cause i dare the say the penalty would be a crippling one in the short to medium term.

These are all ifs, and im assuming guilt in this scenario which we all know hasnt been established yet, and most probably wont.

 

[TheGreatBarryB]

The players would need to be able to show (for example) willful sabotage by a third party competitor to get off scott free.

Well if the player has signed consent from everyone saying you are taking legal substance A and it's found that someone from the high performance team was not "upfront" about it and that it was actually illegal substance B then isn't that sabotage? And open to a criminal investigation?

 

[Ben the Gooner]

Nothing. Thats the meaning of strict liability. The buck stops with the players. There are reasons why this is the case (very good ones). See also: the 'Warne defence'.

Ideally, a good place to start would be don't skirt the line with controversial sports science programs. Stick to protein shakes and avoid controversial sports 'scientists' with bikie connections wanting to inject shit into you to bulk you up would also be a good place to start.

The players themselves were reportedly sketchy as hell about the whole thing, and rightly so.

That will lead to some very, very messy court cases then. Common sense will prevail if this hypothetical is the case and the players will get off.

 

[jmac70]

Well if the player has signed consent from everyone saying you are taking legal substance A and it's found that someone from the high performance team was not "upfront" about it and that it was actually illegal substance B then isn't that sabotage? And open to a criminal investigation?

I think it is fraud, although I am not a lawyer.

 

[Malifice]

From what I gathered from Paul Ehlrich was that if the players prove that they did everything a reasonable minded person would do to ensure they weren't taking prohibited substances then that counts as a "complete defense".

You think a reasonably minded person wouldn't have concerns about a cutting edge sports science program administered by a bloke who injected cows blood into athletes?

The players clearly had concerns about the program.

I feel for them, but according to the law, if they have been administered prohibited substances in this scheme they will go down.

And then sue the shit out of the club for lost earnings and reputation.