THE ESSENDON 34: ON TRIAL

[sue 9,096]

Sue.. I dont see how they can. Its drummed into them TO know. They are by extension signatories to the WADA code. Theres nowhere to run, its not permitted. No excuses.

it take all of about 30 secs t get to the relevant page on the ASADA look up to understand whether or not they should have allowed themselves to be jabbed.

Its up to them ( the player ) to ask. if they dont , they're culpable.

Were the players lied to Sue ? Seems to me many knew there was something dodgy and just went along.

I'm sure you are right, they did know. But if they lie and say 'we were lied to', it is a line of defence which sadly may be successful. How good a line of defence it might be would depend on things that we the public don't know as yet.

Don't worry OD, this will go well beyond 80 pages and many years. I think we'll both be pushing up the daisies before it ends.

[bing181 9,191]

The only evidence they have of TB4 is from some purported invoices and oral evidence of Charters and Alavi who aren't giving any evidence at the Tribunal and so can't be cross examined etc. ASADA's ability to prove the veracity of any of the documents is enormously weakened because they are not giving evidence and so can't be cross examined etc.

You're wrong on all those counts. Not only that, on the one hand, you say that we only know what's been reported in the papers, but then go on to make assertions as to what's gone/going on inside the tribunal and what evidence has been presented.

I'd also be interested to know what a "purported invoice" is. I'll chase it up with my accountant. I just always assumed you had an invoice, or you didn't have an invoice.

[daisycutter 29,596]

from http://www.ausport.gov.au/supporting/integrity_in_sport/anti_doping/anti_-_doping_policy

Article 7 Proof of doping

7.1 Burdens and standards of proof

ASADA or the ASC shall have the burden of establishing that an anti-doping rule violation has occurred. The standard of proof shall be whether ASADA or the ASC has established an anti-doping rule violation to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation that 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. Where this Policy places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except as provided in Articles 19.5 and 19.7 where the Athlete must satisfy a higher burden of proof.¹²

Edited February 23, 2015 by daisycutter

[bing181 9,191]

The onus is simply not on the players.

ASADA will present its case. All 300 pages of it. Then, the players get a chance to either a) discredit that evidence or b) present an alternative. If they can do neither, or just sit on their hands and do nothing, then the ASADA case stands.

[bing181 9,191]

I'm sure you are right, they did know. But if they lie and say 'we were lied to', it is a line of defence which sadly may be successful.

It can't be successful in terms of guilty or not. If you took it, you took it, intentionally or not. But it can help to minimise a penalty under the "no fault" clause. But "no fault" is more for someone who was injected while they were unconscious, not someone whose phone had a flat battery the day they went to call ASADA.

Mick Rogers was cleared of having intentionally taken Clenbuterol last year, due to him being able to successfully establish that it wasn't intentional, and could have (and almost certainly did) entered into his system through contaminated meat in China. (so much for no onus on the players ...) However, he was still disqualified from the race where he tested positive, as he'd tested positive, innocently or not.

Edited February 23, 2015 by bing181

[binman 42,468]

Exactly my point. Thanks for clearing things up DC. When in doubt go to the rules. Pretty clear

ASADA will present its case. All 300 pages of it. Then, the players get a chance to either a) discredit that evidence or b) present an alternative. If they can do neither, or just sit on their hands and do nothing, then the ASADA case stands.

[sue 9,096]

It can't be successful in terms of guilty or not. If you took it, you took it, intentionally or not. But it can help to minimise a penalty under the "no fault" clause. But "no fault" is more for someone who was injected while they were unconscious, not someone whose phone had a flat battery the day they went to call ASADA.

Mick Rogers was cleared of having intentionally taken Clenbuterol last year, due to him being able to successfully establish that it wasn't intentional, and could have (and almost certainly did) get into his system through contaminated meat in China. (so much for no onus on the players ...) However, he was still disqualified from the race where he tested positive, as he'd tested positive, innocently or not.

That is a different sort of case. He inadvertently had an advantage at that one event and was disqualified for it. I presume he wasn't disqualified from future events.

Do the ASADA/WADA rules actually say you have to be unconscious to be 'no fault'? Obviously a flat battery argument will fail, but it seems to me that there will be a level of excuse between that and totally unconscious that might suffice to get a player off. For example, the doc/nurse showing the player a mislabelled vial which reads vitamin B.

[bing181 9,191]

Exactly my point. Thanks for clearing things up DC. When in doubt go to the rules. Pretty clear

ASADA will present its case. All 300 pages of it. Then, the players get a chance to either a) discredit that evidence or b) present an alternative. If they can do neither, or just sit on their hands and do nothing, then the ASADA case stands.

Suspect that the quoting hasn't quite worked out as intended, and not sure who the DC is in a quote from me. Nevertheless ...

There IS an onus on the players, and that is the onus to defend themselves - well, if they want to give themselves a chance of being cleared.

[beelzebub 23,311]

The onus is simply not on the players. I think I'll believe the former CEO of Masada rather than random DL posters. Or a sports lawyerhttp://m.theage.com.au/afl/afl-news/asada-has-its-work-cut-out-for-it-in-proving-a-case-against-essendon-players-20131220-2zqr9.html

soory. Not wishing to be glib but where particularly in that article does it actually show how EFC inc players Hird etc are absolved or advantaged. In reality a beat up fluff piece and all it really says is ASADA will have to abide its own rules (of engagement ). The supposed notion of having its work cut out suggests a more than difficult position. Reality is there was indeed a lot to cOver but nothing beyond the possible.

Or I might have missed something. ..possible

[bing181 9,191]

For example, the doc/nurse showing the player a mislabelled vial which reads vitamin B.

I don't believe that that's enough - a couple of quick examples below. It's only in the third of these 3, where the player was in such a state that he wasn't in a position/state to ask questions, that he got off:

“They must show “no significant fault or negligence” (penalty 12-24 months) or “no fault or negligence” where “the player (must) establish that he did not know or suspect, and could not reasonably have known or suspected” that he was using a prohibited substance or method (penalty 0-12 months). However, these tests are generally difficult to satisfy. Take the following cases from the Court of Arbitration for Sport:

MEDICINAL cream used by a 17-year-old swimmer purchased in a foreign country for a foot condition unknowingly contained a steroid.

No performance enhancement but a 12-month suspension ensued.

TWO Australian weightlifters aged 17 and 18 tested positive for a stimulant similar to substances on the prohibited list.

CAS found they had failed to properly inquire, though had not failed to inquire altogether, as to the integrity of the supplement drink. Two-year ban, not reduced on appeal.

AN ice hockey player was administered the steroid Nandrolone by a doctor at hospital following a heavy “body check” in a Ukranian championship game.

CAS accepted there was no fault or negligence as his very bad physical and mental condition made it impossible for him to monitor or ask questions about medications. He wanted to save his life; no suspension was imposed.

http://www.sportslawyer.com.au/wada-compliant-afl-anti-doping-code-severe-in-penalties-on-banned-substances/

Edited February 23, 2015 by bing181

[binman 42,468]

Suspect that the quoting hasn't quite worked out as intended, and not sure who the DC is in a quote from me. Nevertheless ...

There IS an onus on the players, and that is the onus to defend themselves - well, if they want to give themselves a chance of being cleared.

Yes. Annoying posting using the phones. I quoted you because you made the point I am trying to make. It is up to adada to make the cade players are guilty. The burden of proof is theirs. Not sure what you mean the onus is on the players to defend themselves. That's a funny way of stating the obvious. In any cade it is not entirely true. Asada may not mount a credible case in which case the players would not need to respond.

As for DC. He quoted the relevant legislation that made it 100% clear burden of proof is on asada. It is impossible to argue otherwise

[bing181 9,191]

That is a different sort of case. He inadvertently had an advantage at that one event and was disqualified for it. I presume he wasn't disqualified from future events.

That's the point I was trying to make: the "no fault" clause doesn't have an effect on guilt or innocence, only on the penalties. He was found guilty, but no penalty was imposed - though he did serve nearly 6 months of provisional suspension while the case was underway.

The players can't "get off" if it can be shown that an infringement occurred, no matter what the circumstances. In such an outcome, they will (always) be guilty. Penalties is another story, but as above, going to be a bit like getting that camel through the eye of a needle to establish "no fault".

[bing181 9,191]

Not sure what you mean the onus is on the players to defend themselves. That's a funny way of stating the obvious.

Because there's a school of thought, even repeated here, that the players don't have to do anything. If they do nothing, they'll be found guilty - presuming, as you rightly point out, that ASADA can make the case. But we wouldn't be here if ASADA couldn't make their case - it wouldn't have even passed the ADRVP stage.

[Its Time for Another 4,184]

Wow 80 pages of the same things we have been discussing for 18 months.

My biggest fear is this saga has at least another 80 pages to go.

It will be way more if they get off.

[Its Time for Another 4,184]

You're wrong on all those counts. Not only that, on the one hand, you say that we only know what's been reported in the papers, but then go on to make assertions as to what's gone/going on inside the tribunal and what evidence has been presented.

I'd also be interested to know what a "purported invoice" is. I'll chase it up with my accountant. I just always assumed you had an invoice, or you didn't have an invoice.

Come on Bing. I thought you were smarter than that. A purported invoice is a piece of paper with the heading invoice. That doesn't prove anything. If you don't understand that give me your address and I'll send you a piece of paper with the word Invoice on it and my bank details and please pay the amount into my bank account.

To be an actual invoice that you rely on to show someone received drugs you have to prove there was a business transaction, that money changed hands and good were received. If you can't do that it is nothing more than a purported invoice.

You're correct I'm guessing what evidence is being presented in court without knowing for sure. But I do read and give credence to actual quotes from the parties. There was plenty of these about why ASADA brought the proceedings to try to force Charters and Alavi to give evidence. I would have thought it goes without saying that the chain of evidence they were involved in was critical to ASADA's case. I have also read some of the actual evidence presented in the Hird Bombers case not opinions from the papers that indicated the evidence that they were trying to suppress and ASADA were going to rely on. I'm not doing it on the basis of opinions in the papers most of which come from sports journalists who's opinions about this case are generally beyond laughable.

You get out of bed on the wrong side this morning.

Edited February 23, 2015 by It's Time

[hardtack 10,506]

"Nine Victorian AFL clubs have been cleared of alleged breaches of occupational health and safety but the Victorian WorkCover Authority's probe into Essendon and the AFL continues."

http://www.smh.com.au/afl/afl-news/nine-afl-clubs-cleared-but-workcover-probe-into-essendon-afl-continues-20150223-13mict.html

[CHF 2,716]

Canberra Bombers?.... Never know, but I can see the emergence of the Tassie Devils from the ashes of the crashed Bombers.

[jnrmac 20,042]

Unfortunately I fear the players may be able to hide behind 'we didn't know'. What if they say they were lied to as to what was being injected. Can they reasonably be expected to read the label on every vial no matter how often and systematic. What if the label is misleading.

I agree that these loopholes are weak, but I fear they are there.

Yes, the onus is on the players. But being lied to is almost as good a defense as being comatose when you are injected with a banned substance.

Just because a few said 'no' doesn't help much unless they gave evidence of better reasons for saying no than they don't like needles.

Sue

You seem pretty smart. Try reading post 1992. It can;t work any other way.

[sue 9,096]

Sue

You seem pretty smart. Try reading post 1992. It can;t work any other way.

I understand the principle that the code has to put the onus on the player. I've strongly supported the reasons for that many pages back.

I'll concede that they can be convicted even if comatose. But the penalty may still be OD's wet tram ticket if they can claim or reasonably establish they were deceived.

Very few of us will be satisfied if the outcome is a headline in the HUN reading: 'Players cleared to play'

and in the fine print it mentions they were found responsible but is was all the fault of some other parties. The AFL may not even dare to mention the name of the party until they try him. (I understand Hird isn't on trial here. Hopefully he will be.)

[Cards13 9,117]

"Nine Victorian AFL clubs have been cleared of alleged breaches of occupational health and safety but the Victorian WorkCover Authority's probe into Essendon and the AFL continues."

http://www.smh.com.au/afl/afl-news/nine-afl-clubs-cleared-but-workcover-probe-into-essendon-afl-continues-20150223-13mict.html

Bonus for us. So VWC is reviewing Ess but waiting for the outcome and will then use all reports available. Great.

[jnrmac 20,042]

I understand the principle that the code has to put the onus on the player. I've strongly supported the reasons for that many pages back.

I'll concede that they can be convicted even if comatose. But the penalty may still be OD's wet tram ticket if they can claim or reasonably establish they were deceived.

Very few of us will be satisfied if the outcome is a headline in the HUN reading: 'Players cleared to play'

and in the fine print it mentions they were found responsible but is was all the fault of some other parties. The AFL may not even dare to mention the name of the party until they try him. (I understand Hird isn't on trial here. Hopefully he will be.)

WADA won't allow that to happen. This is a huge case for them. It may even be the first team sport the amended code to be done. If so that would make it even a bigger reason for them to go hard. What gives me a level of comfort is that it isn't ultimately in the AFLs hands. They can't sweep it under the carpet with a sweetheart deal.

[grazman 7,394]

The AFL are between a rock and a hard place here. If as reasonably expected ASADA can establish a case that the EFC instituted a regime of illegally administered supplements then there has to be a significant penalty. This involves not only the standing of the AFL within Australia, but Australia's international sporting image as well. I doubt WADA would accept any sought of leniency on the grounds of expedience for a domestic competition from a club that not only tried to conceal evidence, but instituted legal proceedings on the basis that the competition they were involved in should not be involved in cooperating to find drug cheats. It would not only inflict further reputational damage on an already tarnished image it would serve as absolutely no deterrence to any other club on how to avoid/mitigate their punishment. A six month ban would be a complete blight on the game. I expect the punishment to be harsh for the players and very severe for those that were responsible for the oversight of the program. (perhaps including a lifetime ban)

Edited February 23, 2015 by grazman

[beelzebub 23,311]

Bonus for us. So VWC is reviewing Ess but waiting for the outcome and will then use all reports available. Great.

It reads that way.

Much of whats transpired to date would indicate the endgame being the current tribunal. Maybe some tactic has been to accommodate the inevitable inquiry from Worksafe ?

[Its Time for Another 4,184]

Because there's a school of thought, even repeated here, that the players don't have to do anything. If they do nothing, they'll be found guilty - presuming, as you rightly point out, that ASADA can make the case. But we wouldn't be here if ASADA couldn't make their case - it wouldn't have even passed the ADRVP stage.

This is a fair point to a point. The fact that the retired Fed Crt Judge Downes and the US architect of the whole WADA code support ASADA's view that they have enough evidence certainly would indicate that the players are going to have to do more than just sit on their hands. But they still only have to get the Tribunal to decide that ASADA's evidence fails the comfortable satisfaction standard. They don't have to prove what they took was not illegal. To me this makes a nonsense of the whole proceedings and I hope that one outcome of this case is that the Government legislates so that in future the onus is on athletes to prove what they took was legal.

All the ADRVP have to decide is whether there is enough of a question to require a Tribunal hearing. This is a long way below the much higher standard of proof and much greater legal forensic examination of a Tribunal, so of itself it doesn't indicate the likely success of ASADA's case.

[sue 9,096]

WADA won't allow that to happen. This is a huge case for them. It may even be the first team sport the amended code to be done. If so that would make it even a bigger reason for them to go hard. What gives me a level of comfort is that it isn't ultimately in the AFLs hands. They can't sweep it under the carpet with a sweetheart deal.

Let's hope so. EFC be able to play for time and turn over their list.

A number of us paranoids always suspected it was Essendon that got the Workcover people to investigate other clubs. At least that has been knocked oevr and EFC are still in their gunsights.