Bombers scandal: charged, <redacted> and <infracted>

[ManDee 7,134]

mac...you have to give Worksafe a bit of slack. They can only investigate when there is evidence of an unsafe workplace.

An unsafe scaffold is obvious. Suspected drug use is not.

In all likelihood that evidence has not been available. They need proof of the use of illegal drugs.

What is interesting is that NOW they are acting....ergo they have been provided with proof of some sort to warrant an investigation.

I'm sorry but I disagree.

The club freely admits that thousands of injections were made to their players.

They have no records of what was injected.

I would be in jail now if I had done this in my business. Failure to keep adequate records of treatment is sufficient for charges to be laid.

I have to keep a book recording any injury in my workplace, including paper cuts and bandaid use, in case there are complications in the future.

It is my responsibility as a company director to maintain a safe work place, can the Essendon Football Club directors guarantee that they have?

Worksafe should have been onto this over a year ago. It is irrelevant if other bodies (ASADA) are investigating other that the ability to pool resources and information.

If the AFL have fined EFC that has nothing to do with Worksafe, they have an independent responsibility to act.

Edit a to are

Edited May 16, 2014 by ManDee

[beelzebub 23,350]

Youd have to think the potential Class action against the cub would wipe it out.

Reminds a bit of the scene in Blazing Saddles where everyone is lining up to have a whack.

At least that was funny. This whole thing just flies in the face of care and concern for those on their charge.

Disgusting

[Whispering_Jack 30,036]

Case against Dons could be challenged in court says key lawyer

So now an eminent lawyer maintains that a possible defence to doping is the length of time it took to lay charges.

Galbally said the legal grounds for challenging ASADA - should it issue infraction notices against players - would be ''abuse of process'' and that this could be used to apply for a permanent stay, which in essense, would see the case(s) dismissed against the players.

''That's certainly one of the grounds that I'd be looking at [in] challenging.''

No wonder lawyers (and I'm one of them) get rich and are generally unpopular with the public.

I have a contrary view - to mount that argument would be ''abuse of process'' and I'll explain why below.

[Whispering_Jack 30,036]

The news this week of the impending issue of show cause notices has once again raised concerns about the fairness or otherwise of possible sanctions against players accused of ingesting prohibited substances. There is a concern that this occurred without a deliberate decision on their part and it's therefore unfair that they should be charged, especially after a long drawn out investigation, but this is almost completely irrelevant under the World Anti-Doping Code and furthermore, if the length of the investigation is determined partly or wholly by the actions of the parties involved they don't deserve any consideration for that either.

The principle of "strict liability" applies to the WADA Code meaning that athletes are ultimately responsible for any substances found in their bodies regardless of how they came to be there (the one exception being the case of a substance administered in a hospital to an unconscious athlete) - see AFL (WADA) Drug Code

5.3 c) It is the obligation of each Person to whom this Code applies to inform himself

of all substances and methods prohibited under this Code. It is not a defence to

any claim that a Person has breached this Code for that Person to contend:

(i) ignorance that a substance or method is prohibited;

(ii) an honest and reasonable, but mistaken, belief that a substance or

method is not prohibited under this Code;

(iii) lack of intention to use or administer a Prohibited Substance or Prohibited

Method;

(iv) inadvertent use or administration of a Prohibited Substance or Prohibited

Method;

(v) that the substance or method was used or administered for therapeutic

purposes unless permission has been given on behalf of the AFL under

clause 10; or

(vi) that the substance or method in question did not enhance the

performance.

This would seem to eliminate the arguments put in defence of the players involved in the Essendon situation. They claim they don't know what was injected but strict liability means athletes have a responsibility to know what they ingest - see here

The rationale for the strict liability principle was set out in a Court of Arbitration for Sport case, Quigley v UIT:

It is true that a strict liability test is likely in some sense to be unfair in an individual case ... where the athlete may have taken a medication as the result of mislabelling or faulty advice for which he or she is not responsible ... but it is also in some sense unfair for an athlete to get food poisoning on the eve of an important competition. Yet in neither case will the rules of the competition be altered due to the unfairness.

Just as the competition will not be postponed to await an athletes recovery, so the prohibition of banned substances will not be lifted in recognition of its accidental absorption.

The strict liability principle does not cater for the careless or ill-informed player, it does not cater for the unwitting consumption of contaminated supplements or the use of a banned substance not intended to enhance performance.

Another area where there is confusion about Anti-Doping Rule Violations is that many think a positive doping test is essential to prove a violation took place but this is not the case - see here

Doping, as defined by the Code, is the occurrence of one or more of the following anti-doping rule violations:

* The Presence of a Prohibited Substance or its Metabolites or Markers in an Athletes Sample.

* Use or attempted use by an athlete of a Prohibited Substance or a Prohibited Method.

* Refusing or failing without compelling justification to submit to Sample collection after notification as authorized in applicable anti-doping rules or otherwise evading Sample collection.

* Violation of applicable requirements regarding Athlete availability for Out-of-Competition Testing including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.

* Tampering or Attempted Tampering with any part of Doping Control.

* Possession of Prohibited Substances and Prohibited Methods.

* Trafficking or Attempted Trafficking in any Prohibited Substance or Prohibited Method.

* Administration or attempted administration to any athlete In-Competition of any Prohibited Method or Prohibited Substance, or administration or attempted administration to any athlete Out-of-Competition of any Prohibited Method or any Prohibited Substance that is prohibited Out-of-Competition, or assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation or any Attempted anti-doping rule violation.

Article 10 of the Code affords the athlete with the possibility of avoiding or having reduced sanctions if he or she can establish how the substance entered his or her system, demonstrate that he or she was not at fault or significant fault or in certain circumstances did not intend to enhance his or her sport performance - the burden of proof is on the athlete.

No Fault or Negligence means the player needing to establish that he did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that he or she had used or been administered a prohibited substance.

One of these form of violation relates to "attempted administration" and this naturally requires proof of intent.

In the case of the claims against Essendon players:-

* they signed "waiver" forms that listed prohibited substances;

* the club purchased banned substances;

* it has been suggested that there is evidence of attempts to tamper with purchase invoices; and

* one player (Watson) has publicly stated that he believed he might have ingested AOD9604.

The players need to prove they checked for themselves that the listed drugs were approved for their use. However, there had not been a single suggestion that any one player actually carried out an independent check to ascertain whether this was the case (despite the fact that they regularly attend education sessions on doping organised by the AFL). Checking with their own club personnel (doctors, trainers etc.) does not count - see here.

[NOTE: I haven't even started with TB4]

A google search on the drugs listed on the waiver forms alone would have raised alarm but apparently in this case, neither the players, the medical staff, coaches or club officials took the trouble to research the matter further or get a proper determination.

Instead, they relied on Dank who claimed he got approval for the use of one of the drugs (AOD9604) from the "bowels" of ASADA. Dank has had the opportunity to produce the evidence sought which, if he's telling the truth, would have cleared the matter up without the need for such pain and concern among the players, the club and its supporters. But Dank has refused to take up the opportunity and ASADA will now act against him, the club and the players.

It should be noted that virtually no athlete has had sanctions removed. Some very rarely have had sanctions reduced (ignoring reductions to 6 months for incriminating other cheating athletes which Essendon players have not done).

The WADA Code is a voluntary behavioral code. People are investigated, prosecuted and judged under sovereign law merely by being a citizen, or by being in the particular jurisdiction when a crime was committed.

The AFL, by voluntarily signing up to the WADA Code, accepted the provisions of the Code which are specifically different to those in sovereign law.

The argument put against ASADA is that it bungled the investigation as evidenced by the length of time taken to deliver a final report. Given the resources available, the lack of co-operation of many of the parties and the complexity of the matter, does time matter that much if time is what's needed to get the truth?

And if delay is what leads to "abuse of process" which should absolve offenders then the message being sent by this camp is that all you need to do to avoid being sprung for doping violations is to ensure the evidence is destroyed, that no co-operation whatsoever is afforded to the investigators and that the public be treated to a glittering display of smoke and mirrors.

[monoccular 17,426]

^^^

Thanks WJ. Clearly presented outline of the state of play. Haven't seen it set out as easily understandable to the layman..

[sue 9,102]

WJ you sum things up well. One minor disagreement, where you said:

"Given the resources available, the lack of co-operation of many of the parties and the complexity of the matter, does time matter that much if time is what's needed to get the truth?"

Surely the lack of resources provided by the 'Prosecution' is grounds for abuse of process from resulting delay?

In any case if Essendon got off on a legal technicality their name and the AFL's would be mud. Not that that might worry Essendon.

Edited May 15, 2014 by sue

[Whispering_Jack 30,036]

WJ you sum things up well. One minor disagreement, where you said:

"Given the resources available, the lack of co-operation of many of the parties and the complexity of the matter, does time matter that much if time is what's needed to get the truth?"

Surely the lack of resources provided by the 'Prosecution' is grounds for abuse of process from resulting delay?

In any case if Essendon got off on a legal technicality their name and the AFL's would be mud. Not that that might worry Essendon.

Sue - the investigator's lack of funding as part of the reason for delays is still not a valid argument. The test is whether the delay is so extreme as to impair the investigating body's capacity to assess the subject matter and circumstances of its enquiry? I think not. The only time you could maintain it IMO would be if the investigator(s) are completely remiss in carrying out their duties in such a way that it constitutes an abuse. Here, whilst the players might have cooperated with the investigation. Dank, a former employee of EFC, certainly didn't and hasn't co-operated, Essendon hasn't (missing records?) and the AFL has carried on in self preservation mode rather than in the spirit of co-operation. It's hindered the enquiry.

If you accept Galbally's argument you would ensure that the cheats in a club environment would almost always get away - they would need only to follow the Essendon blueprint. Hide or lose the evidence and blame everybody but yourself.

[biggestred 5,078]

besides, you cant tell me a delay in the investigation etc is the same punishment as A 12 MONTH BAN

[jnrmac 20,059]

Who cares how long it takes as long as the right result is acheived?

Who says that an alleged perpetrator of an infringement must have the case dealt with within a certain time frame? Can't see why that is an abuse of process.

And given the number of witnesses to interview and the fact that key players have aparently refused to be interviewed , how would this be the fault if the investgator?

More kite flying and attempted media manipulation of the game.

They are cooked.

[beelzebub 23,350]

galbally ...king of the strawman argument

[binman 42,903]

^^^

Thanks WJ. Clearly presented outline of the state of play. Haven't seen it set out as easily understandable to the layman..

Bloody hell though - imagine if he had billed us for his time and advice!

Edited May 16, 2014 by binman

[beelzebub 23,350]

I sense all that essendrug is really doing is posturing as well as hopefully finding a chink in ASADAS armour . In a way it has nothing to lose from this. I doubt theyll find anything. Seems they ASADA are doing just the opposite and tightening their ship and stocking the armory .

Windy hill reminds me of the once mighty Spanish navy who showed contempt for their British counterparts.

Little .....prepare for your Trafalgar !!

[Elusive Tunbridge 795]

Trafalgar - Brits v French, both playing away in Spanish waters.

[beelzebub 23,350]

Trafalgar - Brits v French, both playing away in Spanish waters.

Actually..British v French and SPANISH..

knocked out both... both disrespectful and arrogant...

Hird and Little....hmmmmm

[monoccular 17,426]

Actually..British v French and SPANISH..

knocked out both... both disrespectful and arrogant...

Hird and Little....hmmmmm

There must be a beginning of any great matter, but the continuing unto the end until it be thoroughly finished yields the true glory.

― Francis Drake

Topical in light of the length of this saga - but as he said, don't cut corners for a quick result.

Edited May 16, 2014 by monoccular

[DemonOX 8,791]

My daughter is one of the fans you mention WJ.

If the EFC folded she would be lost to the AFL.

If infraction notices are issued and a large number of players suspend it will probably end her enthusiasm any way.

She said to me Yesterday " dad I have stopped watching Essendon as it is too painful I think we are gone and they deserve it"

Old dee the most concerning part of your post is that your daughter is an essendon fan.

What is going on old dee?

U should be like me and give the kids no choice!

As my mates say you are a cruel cruel man.

[pantaloons 2,019]

You guys are all missing the big issue here. The air raid siren before the game. How long have they been doing this? It makes the trumpeter look like an ingenious idea.

[biggestred 5,078]

Cmon swannies

[Maple Demon 449]

Cmon swannies

Only because I picked them in the tipping comp. I can't bring myself to actually cheer for either team this year.

[monoccular 17,426]

Cmon swannies

They took the ultrashort acting stuff ANZAC Day

Tonight maybe the new delayed action version, or maybe just the placebo :-)

[sue 9,102]

If you accept Galbally's argument you would ensure that the cheats in a club environment would almost always get away - they would need only to follow the Essendon blueprint. Hide or lose the evidence and blame everybody but yourself.

WJ - The issue of delays due to lack of prosecutor funding is one that can be argued -- the extent to which ASADA was remiss in not having enough staff to investigate so many cases at once. I don't blame ASADA for being under-funded, that goes upstairs. I don't accept Galbaly's argument because given the number of cases I don't think ASDA has been 'completely remiss', but that is the only bit of his argument with any strength.

I completely agree that the lack of cooperation etc is grounds to grind Essendon.

[biggestred 5,078]

Did anyone see Rita Panahi's (spelling?) Opinion piece in yesterdays Herald Sun?

She hits the nail on the head.

[Melbman2 226]

Did anyone see Rita Panahi's (spelling?) Opinion piece in yesterdays Herald Sun?

She hits the nail on the head.

http://www.news.com.au/national/football-stars-are-not-special-cases-in-drug-probes/story-e6frfkp9-1226921887341

[rjay 24,917]

Did anyone see Rita Panahi's (spelling?) Opinion piece in yesterdays Herald Sun?

She hits the nail on the head.

It's a good article.

[biggestred 5,078]

Thanks Melbman2, i couldnt find it online