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

[DemonFrog 1,347]

Essendon...... How ever long it takes !!

[Ash35 425]

First of all, I come in peace.

I haven't read past this current page of this thread, but it's not difficult to get what vibe is going on here.

I'm sorry DemonFrog, I can't see us getting kicked out of the comp forever.

Anyway, that would take away the satisfaction you get from beating us just about every year.

Anyway, I know there are some guys on here from the legal profession.

I read an article recently about this situation and I would like your take on it, as most of what was written went way over my head.

The article seemed to point to a favourable outcome for the players, which I know will upset all of you on here.

So I repeat, I'm not here for an argument, I'm here for you guys with a legal background to either say "yes, this is possible" or "no, that's crap".

This is not my opinion, this is just an excerpt from an article I read.

Here is the relevant passage, word for word.

The standard of proof that would apply in this case would be the "Briginshaw Principle". Legal minds present would know this derives from a 1938 case, Briginshaw V Briginshaw in which Dixon J stated :

"that the standard is one of 'reasonable satisfaction': ...but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer."

In other words as I understand it, and our learned friends present might correct me, it falls somewhere between the criminal standard of beyond reasonable doubt, and the civil standard - the balance of probabilities - depending on the seriousness of the matter.

In this case one would imagine it would be closer to the criminal standard of proof than the civil, given that the livelihoods of 34 athletes and the very existence of an AFL club are at stake. And it seems to me that "beyond reasonable doubt" will be an impossible standard to achieve in this case, because there were no positive blood tests, only circumstantial evidence - enough for show-cause notices, but no more.

In the circumstances I think it is very unlikely that any Essendon player will be suspended at all. Perhaps 5-10% chance, no more. If it happened, the club would financially be in the hands of the AFL and would either be forcibly merged with another, or there would be a decade or more of cellar dwelling to recover.

Why is the existence of the Club at stake? Because unless the penalties was the sort of risible, cynical one applied to the Cronulla Sharks players - that is, time served while they were playing, so an effective suspension of three weeks - then all the players affected would sue the club for the rest of their playing careers' loss of earnings - tens of millions dollars. The Club would quickly be bankrupt.

[Elusive Tunbridge 795]

My only comment: "only circumstantial evidence" is a phrase that implies that circumstantial evidence is second-rate evidence. Direct evidence is often unavailable - no eye witnesses, no blood tests, no records - but direct evidence can be "lost", destroyed or intimidated. Very many completely sound criminal convictions have been obtained on the basis of circumstantial evidence alone. "Beyond reasonable doubt" is a phrase that means that the balance of probabilities is very powerfully one way - BRD and BOP are not mutually exclusive, but points on a continuum.

[beelzebub 22,230]

Ash.. I think you'll find it'll be a bit of a slam dunk

ASADA will have amassed enough evidence, some circumstantial , some testimonial, some demonstrative .

Im sure the players will adopt the exculpatory line . Problem is as per the code, that in itself does not absolve the athlete of their responsibilities as per the agreement they play under.

Many i feel make the mistake when looking at all of this is they see it as a sort of crime and that the normal process of law applies. This is proprietary in as much as its a sporting violation against a set of rules that all parties agree to.

The question will be put to the players. "can you prove what you took was legal and not prohibited under WADA code"? yes/no there's no maybe...or he made me, or I dunno etc.

[deanox 8,676]

Ash, you raise some valid points, however I think that the nature of the actual charge needs to be considered in the same context.

The WADA charges don't only relate to taking a banned substance. They also Reigate to "attempting to". It could be that the signed waiver forms, which list banned substances, together with the purchase and sales paper trail that ASADA claim to have, would be enough to prove "attempted use" of a substance.

One other thought, is I believe any SCN's will be tailored to individual statements. If, as alleged, some players said things like "yes I was injected" or "thymosin sounds familiar but I don't know what type, I never asked", then they may be in more trouble than those who said "no idea about anything". If that is true, it will be disappointing that some players get punished for telling the truth.

[DemonFrog 1,347]

When a Club has an endorsed legal substance program which is administrated to a majority of its players, IMO there is only one outcome possible that truly reflects a suitable punishment for the crime and that is expulsion from the league. However knowing how greedy and dishonest the AFL can be, it unlikely this will happen. However this will only encourage Clubs to push the limits on the use of legal/illegal substances in the future.

How the Essendon Board, Members and Supporters have allowed the people who have instigated the supplement program on their Club and which has tarnished the reputation of the league is beyond comprehension. One can only draw the conclusion that they either support the illegal supplement program or simply don't care. Essenedon should follow Melbourne's lead from the 2013 season and get rid of all those who have done the wrong thing the the Club which included board members, staff and coaches.

It was my understanding when drug taking is known to have occurred but can not be associated to specific athletes then penalties can be imposed again the Club? If that is true and I was an Essendon Supporter I would be extremely worried still as their are in a no win situation.

Not sure what article is being quoted here but assume it may have come from the same reliable source as the advise the Essendon that they would win the first high court challenge to the ASADA investigation.

Time will tell what the result will be with regards to player suspension and other penalties but remember the Melbourn FC received a $500,000 fine for not controlling its employees from the Tanking investigation. What penalty would the Essendon FC get for purchasing illegal substances to give to its players?

Its also important to remember there is a work safe investigation plus likely future player compensation and loss of sponsorship opportunities which is in addition to what already be paid by the Club in termination payments, fines and ongoing legal costs. The 2011/12 supplement program will cost the Essendon FC tens of millions of dollars and the AFL should not give the Club $1 towards these costs.

From the Essendon's 2013 Financial Report it is clear the Club has potentially serious cash flow issues so my advice to you Ash35 is to save yourself some pain and come join the Melbourne FC as our issues would be considered minor to what's about to happen to your current Club.

[beelzebub 22,230]

Ash...in simple terms Essendon crossed a line from which Im not sure there should be any path back.

[Ash35 425]

Time will tell what the result will be with regards to player suspension and other penalties but remember the Melbourn FC received a $500,000 fine for not controlling its employees from the Tanking investigation. What penalty would the Essendon FC get for purchasing illegal substances to give to its players?

I understand you have very strong believes about this topic.

You have every right to hope Essendon are banished forever.

But as you say, realistically, here on planet Earth, the AFL won't let that happen.

And yes, time will tell what happens from the ASADA side of things. Player suspensions or not, that will play out, hopefully sooner rather than later.

But I would compare the AFL fine you received for "Tanking" to our punishments last August for governance.

I wasn't around here when the Tanking business was being discussed, but from the evidence I heard, I think you guys tanked.

The AFL was nice enough to word it differently so you guys weren't labelled officially as "Tankers".

So tanking was worth a $500,000 fine.

Our lack of governance was worth a $2mil fine, lost of draft picks for 2 seasons and disqualification from the 2013 Finals series.

I'm comfortable with that.

But I'm struggling to see how we have got off lightly.

Especially with, as everyone here seems to think, suspensions to players from ASADA are still to come.

We are getting our right whack, and deservedly so, but being kicked out of the AFL forever is going way too far in my opinion, and frankly, with all due respect, doesn't show me there is a lot of logic in your argument. Are you that blinded by the hatred for EFC that you honestly think kicking them out of the AFL is justice?

Essendon have done a lot of things wrong since 2012. A lot.

And I fully understand how happy most opposition supporters are that we are under the pump from all angles.

We have suffered, and will continue to suffer.

And we can't complain about it.

Surely the years to come of pain is punishment enough.

[Ash35 425]

When a Club has an endorsed legal substance program which is administrated to a majority of its players, IMO there is only one outcome possible that truly reflects a suitable punishment for the crime and that is expulsion from the league. However knowing how greedy and dishonest the AFL can be, it unlikely this will happen. However this will only encourage Clubs to push the limits on the use of legal/illegal substances in the future.

Can't see this happening. Whatever happens to Essendon going forward, surely if the entire football world has learnt anything from this whole saga, it's not to experiment with this sort of supplements program.

Edited October 16, 2014 by Ash35

[Bedraggled Dee 336]

Ash, I think your assumption that the majority on here would like to see the players hung drawn and quartered is incorrect. There is/was significant sympathy for the players position but that has been erroded somewaht due to the intransigent and letigious nature of the players, administrators and the club.

You are correct regarding the standard of proof but what many at the Bombers fail to grasp is that ASADA only need need to esblish proofs for what is in effect an absolute offence. Ie, they only need to prove to the reasonable satisfaction that the act occurred or was attempted. It does not need to establish that anyone indended to do anything illegal.

The response of the Bombers is also contradictory. "we definately did not take anything illegal but we have no or incomplete records of what players took what and when" We will be in very good position when the truth comes out but we will spend millions on legal action to prevent eveidence being presented" "I take full responsibility for everything that happened in the football deptment except for the things that occured wihout my knowlegde, without proper governance and may or may not have been illegal".

The response by Essendon is flawed and to this point a complete failiure in terms of avoiding any sanctions, resolving the issues and showing that nothing illegal was done. It could be argued that regardless of the outcome from here the club due to its actions will forever remain tainted by this issue. In my opinion if Evans was still in charge, the matter would be finalised, you would have a full list going forward into next season free from any of this and the club the comp and the media could move on. This will drag on now well into next season and much longer if Hird remains as coach I doubt the outcome will be any better than if Evans was allowed to see things through.

[Canberra Demon 159]

I understand you have very strong believes about this topic.

You have every right to hope Essendon are banished forever.

But as you say, realistically, here on planet Earth, the AFL won't let that happen.

And yes, time will tell what happens from the ASADA side of things. Player suspensions or not, that will play out, hopefully sooner rather than later.

But I would compare the AFL fine you received for "Tanking" to our punishments last August for governance.

I wasn't around here when the Tanking business was being discussed, but from the evidence I heard, I think you guys tanked.

The AFL was nice enough to word it differently so you guys weren't labelled officially as "Tankers".

So tanking was worth a $500,000 fine.

Our lack of governance was worth a $2mil fine, lost of draft picks for 2 seasons and disqualification from the 2013 Finals series.

I'm comfortable with that.

But I'm struggling to see how we have got off lightly.

Especially with, as everyone here seems to think, suspensions to players from ASADA are still to come.

We are getting our right whack, and deservedly so, but being kicked out of the AFL forever is going way too far in my opinion, and frankly, with all due respect, doesn't show me there is a lot of logic in your argument. Are you that blinded by the hatred for EFC that you honestly think kicking them out of the AFL is justice?

Essendon have done a lot of things wrong since 2012. A lot.

And I fully understand how happy most opposition supporters are that we are under the pump from all angles.

We have suffered, and will continue to suffer.

And we can't complain about it.

Surely the years to come of pain is punishment enough.

I thought we were found not guilty of tanking?

[beelzebub 22,230]

Ash... youre problem isnt with the AFL...they are corrupt and rubbery

youre problem is with WADA/ASADA. And they dont care, nor should they .

[Jack Jack 415]

In this case one would imagine it would be closer to the criminal standard of proof than the civil, given that the livelihoods of 34 athletes and the very existence of an AFL club are at stake. And it seems to me that "beyond reasonable doubt" will be an impossible standard to achieve in this case, because there were no positive blood tests, only circumstantial evidence - enough for show-cause notices, but no more.

Deanox is right, positive blood tests aren't necessary for a violation to occur.

AFL Anti Doping Code

Use or Attempted Use by a Player of a Prohibited Substance or a Prohibited Method

(i) It is each Players personal duty to ensure that no Prohibited Substance enters his or her body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Players part be demonstrated in order to establish an Anti-Doping Rule Violation for Use of a Prohibited Substance or Prohibited Method.

(ii) The success or failure of the Use or Attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an Anti-Doping Rule Violation to be committed.

The code also sets out the standard of proof required.

AFL shall have the burden of establishing that an Anti Doping Rule Violation has occurred. The standard of proof shall be whether AFL has established an Anti Doping Rule Violation to the comfortable satisfaction of CAS or the Tribunal bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability, but less than proof beyond a reasonable doubt.

I was under the impression that the case was based on intent to use. The players apparently signed waiver forms that weren't specific, stating "thymosin" only, leaving it open to speculation as to exactly which drug is was. That coupled with the recent public revelation that Essendon/Charter/Dank may have procured TB4 from a Chinese manufacturer, seems to indicate that ASADA have some pretty damning evidence.

WJ mentions a few pages back that McDevitt claims to also have evidence of actual use. If that's is the case you'd have to assume that ASADA have well and truly covered their burden of proof.

[Ash35 425]

Thank you everyone for the measured responses.

It's difficult for me to digest a lot of what my club has done over the past couple of years.

As I have said all along, I'm preparing for the worst, hoping for the best.

[beelzebub 22,230]

Thank you everyone for the measured responses.

It's difficult for me to digest a lot of what my club has done over the past couple of years.

As I have said all along, I'm preparing for the worst, hoping for the best.

Id hate to be in your shoes mate. You just know thats NOT a light at the end of the tunnel.....it IS a Mack !!

Still I have to say youve done sort of ok bolstering the stocks , in a way to get you through . Rest is with the gods...as I suspect is the thinking of the players concerned.

[sue 8,454]

Ash, many of us hate your club for all sorts of reasons. In my case for the thuggery in the 2000 GF (which wasn't even necessary for Essendon to win as they were by far the best team all year).

I have zero sympathy for the admin, a little for the players, especially the younger ones. Surprisingly the people I have the most sympathy for are you supporters (no matter how much any rabid behaviour by them has ever annoyed me). It must be gut wrenching to see your club (over who you have little control) drag itself through the mire like this. I shudder to think what some of the depressives on this board would be like if it was us.

Edit to add: forgot Hird, is there such a thing as a negative sympathy?

Edited October 16, 2014 by sue

[Bedraggled Dee 336]

Ash, I know how I felt over the last half dozen years of tragedy and tribulations at the Dees. I know Bombers supporters who are indignant, angry and devastated all at the same time. I feel for the players and I feel for the supporters but I hold the club and its officials in utter contempt regarding their response to this matter.

Do I think Essendon used TB4 on the players, yep. Do I think Dank was fully aware of TB4's status probably not, I think he was using the compunding pharmacy to edge around the S4 rules. Did anyone at Essendon (including Dank) intend to use a substance on the banned list, highly unlikely but I belive the club intended to go to the very edge of what is legal without appropriate governance or risk mitigation. From what could be deduced from Interim report and knowing what I do about investigative procedures I think Essendon is knackered. Much of the evidence will be phyical evidence of phone records and documentation, there will obviously be some circumstantial evidence about what hapened to the TB4 after Dank got it but if he had evidence proving is was destroyed then surely he would provide it. There is no reason not to.

Ash, Keep your head up mate it will end and diminish and a once great club will rise again. I truely believe that becuase if i didn't what is the point of following the Dees.

[Red and Bluebeard 2,043]

Thank you everyone for the measured responses.

It's difficult for me to digest a lot of what my club has done over the past couple of years.

As I have said all along, I'm preparing for the worst, hoping for the best.

Ash, it is a tough time to be an Essendon supporter. I think one of the biggest issues is the unknowns -- not just who took what, but what this will mean for the public perception of Essendon, the AFL and Australia, and the time it will all take. I have no doubt, though, that once all the seemingly endless investigation procedure is concluded (perhaps a year or two away yet, sadly), that a cleanout of any remaining Essendon staff associated with the drug scandal (Hird, Reid, Thompson, Little etc.) will see the general public move on, albeit more slowly than you would probably like. Till then, chin up, and welcome to the world of the Demon supporter ...

[daisycutter 28,612]

thought the scn's were to be delivered this week......not much of the week left

[DemonFrog 1,347]

I understand you have very strong believes about this topic.

You have every right to hope Essendon are banished forever.

But as you say, realistically, here on planet Earth, the AFL won't let that happen.

And yes, time will tell what happens from the ASADA side of things. Player suspensions or not, that will play out, hopefully sooner rather than later.

But I would compare the AFL fine you received for "Tanking" to our punishments last August for governance.

I wasn't around here when the Tanking business was being discussed, but from the evidence I heard, I think you guys tanked.

The AFL was nice enough to word it differently so you guys weren't labelled officially as "Tankers".

So tanking was worth a $500,000 fine.

Our lack of governance was worth a $2mil fine, lost of draft picks for 2 seasons and disqualification from the 2013 Finals series.

I'm comfortable with that.

But I'm struggling to see how we have got off lightly.

Especially with, as everyone here seems to think, suspensions to players from ASADA are still to come.

We are getting our right whack, and deservedly so, but being kicked out of the AFL forever is going way too far in my opinion, and frankly, with all due respect, doesn't show me there is a lot of logic in your argument. Are you that blinded by the hatred for EFC that you honestly think kicking them out of the AFL is justice?

Essendon have done a lot of things wrong since 2012. A lot.

And I fully understand how happy most opposition supporters are that we are under the pump from all angles.

We have suffered, and will continue to suffer.

And we can't complain about it.

Surely the years to come of pain is punishment enough.

I once seriously considered supporting the Essendon FC back in 1999 due to a number of ex players who also played for my WAFL team. If I had not decided to support Melbourne I would have chosen the Bombers.

It does not matter to me which team it was, if the had/has a Club sanctioned illegal substance program I would want them kick out of the AFL as well. I have an intense dislike for drug cheats and IMO its only a matter of time before we this this issue again with another Club due to the weak action of the AFL.

The AFL needs to send a strong message to all Clubs that if you cheat using illegal substances your gone from the competition.

In my opinion the need to get rid of the Essendon FC from the AFL has only gotten strong due to the behaviour of its Senior Coach and Club Officials.

Not sure what getting caught tanking would be worth as the Melbourne FC was found not guilty.

Edited October 16, 2014 by DemonFrog

[Sir Why You Little 34,615]

Sympathy for Essendon??

Sorry no can do.

In 1990 out at Windy Hill i was very nearly king hit for wearing a demon scarf after our epic win.

Windy Hill was the worst ground to attend during the VFL days.

Filth supporters were bad. Essendon locals punched on because they felt like it.

The 2000 GF Thuggery which was well explained above.

Dean Wallis & Michael Long. Lest we NEVER forget

So to the supplement scandal of 2012. I watched the press conference live. I saw 3 men who knew they were guilty. Before the lawyers stepped in and changed the output.

To the players i have some sympathy. BUT if i was getting multiple injections weekly i would be wanting 2nd & 3rd opinions of what was shooting into my belly. Even as a young person.

People are over 18 are legally responsible for their actions.

I am angry that Essendon held up the entire draft week so they could get a good deal for Ryder.

He should of just been able to walk.

Nothing personal Ash but your club can go buggery for what it has done over the last 2-3 years.

I wait for WADA to flex its considerable muscle and clout over Hird and the EFC.

Let us not forget that the origins of the EFC came from a very strong Masonic background.

The Masons have always been good at turning a blind eye and giving a secret handshake to those within the bretheren.....

Edited October 16, 2014 by why you little

[beelzebub 22,230]

thought the scn's were to be delivered this week......not much of the week left

funny if they were served tomorrow !!

(now the trades are over )

Edited October 16, 2014 by beelzebub

[Ash35 425]

I'm glad we can all talk about this here in a civil manner.

I'm not here looking for sympathy.

Hird has to go.

Dank should be locked up.

[SaberFang 7,141]

It would've been nice if the club went into meltdown two weeks ago with infraction notices.

I'd feel much better about our trade period if there'd been a fire sale of Zaharakis/Heppell/Carlisle and Goodwin brought in all 3.

[Sir Why You Little 34,615]

I'm glad we can all talk about this here in a civil manner.

I'm not here looking for sympathy.

Hird has to go.

Dank should be locked up.

i am amazed that Dank has been able to flout this whole situation.

To only speak at pie nights!!

If he cannot supply records of what was bought and administered why is that not a criminal offense?