THE DRUG SCANDAL: AFL TRIBUNAL DECIDES

[Chris 2,892]

I am enjoying this conversation.

If the club did a power point display for the players showing correspondence saying that the supplements that they planned on using were all OK and the players did a check and found Thymosin (for example) was OK it would give credence to the lack of intent to use illegal PED's. Most if not all clubs use supplements, do you think the players check if they are OK? I know that they should but do they?

Essendon knew that they were cheating so they would not contact ASADA. Hird inquired with the AFL about peptides and was told to steer clear of them. He ignored that advice.

How could the players ask ASADA about the legality of a drug if they were not told what it was and had been shown documents (I presume) to say the program was OK?

It all comes down to not treating the players like they are little boys. These are adults who should be responsible for their own welfare. The players, especially the senior players leading the younger ones, should not have taken a single thing that they didn't know what it was. If they know what it is then they can check.

I am sure almost all clubs would have been saying things are fine, and I am fairly sure the AFL training said to check with the club doctor. This attitude is seriously flawed and has resulted in the last 2 years.

[Devil is in the Detail 883]

It all comes down to not treating the players like they are little boys. These are adults who should be responsible for their own welfare. The players, especially the senior players leading the younger ones, should not have taken a single thing that they didn't know what it was. If they know what it is then they can check.

I am sure almost all clubs would have been saying things are fine, and I am fairly sure the AFL training said to check with the club doctor. This attitude is seriously flawed and has resulted in the last 2 years.

Spot on Chris.

James Turd has abused this loophole in the due diligence check by the players, and that is why the EFC, AFL, ASADA and anyone else associated are at this point today.

[ManDee 7,148]

It isn't intent to knowingly taking a banned substance. It is intent to take a banned substance. To me the players intended to follow the clubs program, and as such defer their own intent to that of the program, which begs the question, did the program intend to use banned drugs?

I think what you suggest is a transference of guilt. I don't think you can tranfer the clubs intent onto the players. I don't think 34 players would sign a waiver and then intend on taking a banned substance.

[Chris 2,892]

Incorrect. Intent is only relevant if you can prove what was intended to be taken was illegal.

I missed a n't in the previous post. I think we both agree but have read each others posts wrong.

My take is, intent is irrelevant in the prosecution in the case of a positive test.

Intent is relevant if you can prove someone intended to take a banned substance. This is where Essendon may be relevant, did they intend to give TB4 to the players? Did the players intend to follow the program, and therefore intend to take TB4?

[beelzebub 23,376]

Incorrect. Intent is only relevant if you can prove what was intended to be taken was illegal.

Red..are there no two aspects to this though

Firstly...the idea of intending to use a magical elixir , lets call it " Wunderbah"

People line up to use it, indeed they have signed their desire to use it through a waiver. they only know it as.."Wunderbah "

whether they realise it or not.. this Wunderbah is being sought from Dodgy Bros Pharmacy and Sporting Goods Inc by the Fairy Average Footy Club for which the "people" belong

Indeed all and sundry ( but apparently not the people to use it ) know that Wunderbah is Wunderbad. Indeed later its deemed that DBP&SG were always going to supply the "W-Bad"

What we have here are two parts to an equation

An intent to use an elixir.. The people arent actually aware of know exactly what it is though but still keen to try. There is an intent

We also have the situation whereby the Wunderbah thats going to be provided ( as asked for by FAFC ) is not exactly Kosher ( shhhhh !!! )

This Good Wunderbah( W-bad ) is frowned upon by the "Code" to which the FAFC is signed up .

Here we have the situation

People are intending to use Wunderbah. The club Intends supplying Wunderbad.

If the "people' had done their homework and asked the Folk of the Code about Wunderbah they would have been told undoubtedly that what they describe is actually Wunderbad. the 'bah version isnt of much use to their needs. The Bad one is, but its bad and not to be used, so dont.

To show that the People desired to use the elixir you only have to look at the waiver they signed. That it wasnt what they though is actually a separate thing

The issue surely then is that the players intended to use "Thymosin" not necessarily that they intended to use ILLEGAL Drug TB4, just something called Thymosin. Then there is the legalilty of using said drug as another issue.

In other words. they dont have to know or not know the legalilty of the drug up front in order to get pinged. Whether they set out to use a prohibited substance , or not, doesnt dilute the idea.

They set out to use a drug. It also happens to be contrary to the code. They may or may not have set out to use a drug contrary to the code but all the same they set out to use the drug.

[Chris 2,892]

I think what you suggest is a transference of guilt. I don't think you can tranfer the clubs intent onto the players. I don't think 34 players would sign a waiver and then intend on taking a banned substance.

There intent though was to blindly follow the program without undertaking any due diligence. How could this not be seen as linking the intent of the program with the intent of the player?

[Devil is in the Detail 883]

Red..are there no two aspects to this though

Firstly...the idea of intending to use a magical elixir , lets call it " Wunderbah"

People line up to use it, indeed they have signed their desire to use it through a waiver. they only know it as.."Wunderbah "

whether they realise it or not.. this Wunderbah is being sought from Dodgy Bros Pharmacy and Sporting Goods Inc by the Fairy Average Footy Club for which the "people" belong

Indeed all and sundry ( but apparently not the people to use it ) know that Wunderbah is Wunderbad. Indeed later its deemed that DBP&SG were always going to supply the "W-Bad"

What we have here are two parts to an equation

An intent to use an elixir.. The people arent actually aware of know exactly what it is though but still keen to try. There is an intent

We also have the situation whereby the Wunderbah thats going to be provided ( as asked for by FAFC ) is not exactly Kosher ( shhhhh !!! )

This Good Wunderbah( W-bad ) is frowned upon by the "Code" to which the FAFC is signed up .

Here we have the situation

People are intending to use Wunderbah. The club Intends supplying Wunderbad.

If the "people' had done their homework and asked the Folk of the Code about Wunderbah they would have been told undoubtedly that what they describe is actually Wunderbad. the 'bah version isnt of much use to their needs. The Bad one is, but its bad and not to be used, so dont.

To show that the People desired to use the elixir you only have to look at the waiver they signed. That it wasnt what they though is actually a separate thing

The issue surely then is that the players intended to use "Thymosin" not necessarily that they intended to use ILLEGAL Drug TB4, just something called Thymosin. Then there is the legalilty of using said drug as another issue.

In other words. they dont have to know or not know the legalilty of the drug up front in order to get pinged. Whether they set out to use a prohibited substance , or not, doesnt dilute the idea.

They set out to use a drug. It also happens to be contrary to the code. They may or may not have set out to use a drug contrary to the code but all the same they set out to use the drug.

That was Wunderful

[bazza226 74]

Maybe the reason Dank won't come forward with what he gave the players is because he gave them placebos - he was using Essendon's funds to supply his clinics with the 'good stuff'.

Essendon would have some action against Dank for fraudulent invoices etc.

The fact that the players bulked up and had numerous soft tissue injuries doesn't back up this theory!

[ManDee 7,148]

This is a really good discussion

I haven't read the waiver either.

But generally waivers are set up to prevent companies from getting sued from obvious risks. eg. Sorry for the go-karting metaphor. The waiver form at go-karting is not signing rights away as such. But says that you understand the risk in the activity and if you get injured from this activity you can't sue us because you have accepted the risks.

In the Essendon case, (if i was EFC) it wouldn't be written "legal drug" or "illegal drug" I would have written the name of the drug (whether how accurate the name was). Then it would be the responsibility of the player to find out from ASADA whether the drug is illegal or, in the Thymosin case, we require more information before we can say whether this drug is acceptable for use.

So by signing the waiver form without doing the research with ASADA, the player have said they understand the risks involved with this supplement program, and take responsibility of future consequences.

By signing a waiver you do not absolve the waivee of negligence or dishonesty or misrepresentation, but of known risks like you might hurt yourself because what you choose to do may be risky. If the players suffer ill health as a result of being administered drugs that they were not fully informed of EFC will be sued successfully.

[Devil is in the Detail 883]

By signing a waiver you do not absolve the waivee of negligence or dishonesty or misrepresentation, but of known risks like you might hurt yourself because what you choose to do may be risky. If the players suffer ill health as a result of being administered drugs that they were not fully informed of EFC will be sued successfully.

Again depends what was written in the waivers. Waivers, can seem insignificant but can be very powerful.

[hemingway 7,627]

Red..are there no two aspects to this though

Firstly...the idea of intending to use a magical elixir , lets call it " Wunderbah"

People line up to use it, indeed they have signed their desire to use it through a waiver. they only know it as.."Wunderbah "

whether they realise it or not.. this Wunderbah is being sought from Dodgy Bros Pharmacy and Sporting Goods Inc by the Fairy Average Footy Club for which the "people" belong

Indeed all and sundry ( but apparently not the people to use it ) know that Wunderbah is Wunderbad. Indeed later its deemed that DBP&SG were always going to supply the "W-Bad"

What we have here are two parts to an equation

An intent to use an elixir.. The people arent actually aware of know exactly what it is though but still keen to try. There is an intent

We also have the situation whereby the Wunderbah thats going to be provided ( as asked for by FAFC ) is not exactly Kosher ( shhhhh !!! )

This Good Wunderbah( W-bad ) is frowned upon by the "Code" to which the FAFC is signed up .

Here we have the situation

People are intending to use Wunderbah. The club Intends supplying Wunderbad.

If the "people' had done their homework and asked the Folk of the Code about Wunderbah they would have been told undoubtedly that what they describe is actually Wunderbad. the 'bah version isnt of much use to their needs. The Bad one is, but its bad and not to be used, so dont.

To show that the People desired to use the elixir you only have to look at the waiver they signed. That it wasnt what they though is actually a separate thing

The issue surely then is that the players intended to use "Thymosin" not necessarily that they intended to use ILLEGAL Drug TB4, just something called Thymosin. Then there is the legalilty of using said drug as another issue.

In other words. they dont have to know or not know the legalilty of the drug up front in order to get pinged. Whether they set out to use a prohibited substance , or not, doesnt dilute the idea.

They set out to use a drug. It also happens to be contrary to the code. They may or may not have set out to use a drug contrary to the code but all the same they set out to use the drug.

Beelze, hope you are getting away at Easter for a long well deserved break. Dr Ernie recommends no access to Demonland.

[beelzebub 23,376]

Beelze, hope you are getting away at Easter for a long well deserved break. Dr Ernie recommends no access to Demonland.

I am

And I won't.

Cheers

[bing181 9,236]

1 For the players to be found guilty for attempted use you would have to establish that they new what they attempted to take was not approved for use.

Not at all.

Wade Lees says hi.

Ignorance/not knowing is not a defence.

[Whispering_Jack 30,125]

Perhaps people should look at the WADA Code, the ASADA Code and the AFL antidoping policies and look at the legislation involved.

All of these things were established to catch drug cheats. Lack of intent only helps if you had no conscious intent to have a substance ingested into the system. The only case in the history of the current anti doping regime in which it was found an athlete didn't have intent to ingest a substance which later turned out to be illegal was one where the athlete was operated on while unconscious.

Throughout this saga, it has been stressed time and again that athletes are responsible for the substances that go inside their bodies. These athletes signed waiver forms showing they intended to take a raft of substances including thymosin. The question is whether the evidence proferred by ASADA was sufficient to lead to a ruling on the basis of comfortable satisfaction in accordance with the AFL's Code and whether the Tribunal correctly ruled it could not come to a decision on the comfortable satisfaction standard because of the absence of sworn statements from Dank, Charter and/or Alavi?

[Devil is in the Detail 883]

Perhaps people should look at the WADA Code, the ASADA Code and the AFL antidoping policies and look at the legislation involved.

All of these things were established to catch drug cheats. Lack of intent only helps if you had no conscious intent to have a substance ingested into the system. The only case in the history of the current anti doping regime in which it was found an athlete didn't have intent to ingest a substance which later turned out to be illegal was one where the athlete was operated on while unconscious.

Throughout this saga, it has been stressed time and again that athletes are responsible for the substances that go inside their bodies. These athletes signed waiver forms showing they intended to take a raft of substances including thymosin. The question is whether the evidence proferred by ASADA was sufficient to lead to a ruling on the basis of comfortable satisfaction in accordance with the AFL's Code and whether the Tribunal correctly ruled it could not come to a decision on the comfortable satisfaction standard because of the absence of sworn statements from Dank, Charter and/or Alavi?

There in lies the problem.

AFL had their own agenda.

[Whispering_Jack 30,125]

There in lies the problem.

And the answer will lie in Switzerland if WADA is serious about protecting its code and the clean athletes of the world.

[Chris 2,892]

Perhaps people should look at the WADA Code, the ASADA Code and the AFL antidoping policies and look at the legislation involved.

All of these things were established to catch drug cheats. Lack of intent only helps if you had no conscious intent to have a substance ingested into the system. The only case in the history of the current anti doping regime in which it was found an athlete didn't have intent to ingest a substance which later turned out to be illegal was one where the athlete was operated on while unconscious.

Throughout this saga, it has been stressed time and again that athletes are responsible for the substances that go inside their bodies. These athletes signed waiver forms showing they intended to take a raft of substances including thymosin. The question is whether the evidence proferred by ASADA was sufficient to lead to a ruling on the basis of comfortable satisfaction in accordance with the AFL's Code and whether the Tribunal correctly ruled it could not come to a decision on the comfortable satisfaction standard because of the absence of sworn statements from Dank, Charter and/or Alavi?

I question the wording of findings as they seemed to stress that they could not be comfortable the players were given TB4, the question for mine is why did ASADA, or the tribunal, not look at the intent of the players and the club. Even from what of the findings has been released, they seem to think the intent was there, just not enough to say it happened.

[Devil is in the Detail 883]

And the answer will lie in Switzerland if WADA is serious about protecting its code and the clean athletes of the world.

Surely WADA have to.

This EFC case could set precedence for the rest of the sporting teams around the world.

Edited April 2, 2015 by Devil is in the Detail

[deanox 9,919]

Guilty.

Edit; Weightlifter Fails Rule 1. Presence of a prohibited substance or its metabolites or markers in an athletes sample

This does not apply to EFC players

Essendon players:Rule 2. Use or attempted use by an athlete of a prohibited substance or prohibited method.

Requires knowledge that a substance was prohibited.

I appreciate your response but i don't quite understand how it can be that way.

Why can't you be guilty of "Use or attempted use by an athlete of a prohibited substance or prohibited method" without knowing it is banned?

It is your responsibility to know that everything you take isn't banned.

The only reason I can see a not guilty verdict is because it can't be proved to the comfortable satisfaction of the Tribunal that the illegal substance was in fact what was taken.

Nothing to do with whether the players knew or not.

[bing181 9,236]

But that ignores the possibility that they were told one drug (legal) and given another (illegal drug). In that case they did not intend to use a prohibited drug. They intended to use a legal drug. Then it falls to a positive test, If positive they are guilty under a different rule.

No, this is simply wrong:

"6.1.1 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 anti-doping rule violation under Article 6.1"

and thus ...

"It is not a defense to an anti-doping rule violation that, for instance, someone in your entourage or camp gave you a substance; or that a banned substance was not listed on a product label; or that a prohibited substance or method would not have improved your performance. If you use or try to use a prohibited substance or method, that is doping. The “success” or “failure” of the use or attempted use does not matter. It is considered doping."

[dpositive 1,665]

Surely WADA have to.

This EFC case could set precedence for the rest of the sporting teams around the world.

Has this monumental case been reported internationally yet???

[ManDee 7,148]

There intent though was to blindly follow the program without undertaking any due diligence. How could this not be seen as linking the intent of the program with the intent of the player?

And now we know why this failed at the AFL tribunal. It is murky.

2. Use or attempted use by an athlete of a prohibited substance or prohibited method.

So have we established that they may have attempted to use a prohibited substance by inference?

Is that strong enough for a guilty verdict? I understand why the tribunal let the cheats off. WADA can still get them. They can issue subpoenas.

[Devil is in the Detail 883]

Has this monumental case been reported internationally yet???

Don't know. But if I was a sporting team anywhere in the world I would be ringing EFC to see what they did. If EFC don't get done by WADA.

Edited April 2, 2015 by Devil is in the Detail

[beelzebub 23,376]

Not at all.

Wade Lees says hi.

Ignorance/not knowing is not a defence.

exactly.

You dont necessarily need to set out to take an illegal drug in order to take a drug thats illegal

[Dr John Dee 1,057]

Dank to sue (or so he says), should be interesting:

http://www.abc.net.au/news/2015-04-02/stephen-dank-to-sue-asada-chief-ben-mcdevitt-reports/6368224

From Australian Sports Anti-Doping Act 2006 (Part 9)

78 Protection from civil actions

(1) Each of the following:

(a) an ASADA member;

(b) a member of the ASADA staff;

© an individual whose services are made available to the ASADA under section 50;

(d) an individual appointed as a chaperone, or as a drug testing official, under the NAD scheme;

is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith:

(e) in the performance or purported performance of any function of the ASADA; or

(f) in the exercise or purported exercise of any power of the ASADA.

(2) An ASDMAC member is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith:

(a) in the performance or purported performance of any function of the ASDMAC; or

(b) in the exercise or purported exercise of any power of the ASDMAC.

(3) Civil proceedings do not lie against the ASADA or the Commonwealth in respect of loss, damage or injury of any kind suffered by another person because of a publication or disclosure in good faith:

(a) in the performance or purported performance of any function of the ASADA; or

(b) in the exercise or purported exercise of any power of the ASADA.

(4) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

(a) the making of a statement to, or the giving of a document or information to, the ASADA or the ASDMAC alleging a possible violation of an anti-doping rule;

(b) the making of a statement to, or the giving of a document or information to, the ASADA or the ASDMAC in connection with an investigation under the NAD scheme;

© the making of a statement to, or the giving of a document or information to, the ASADA or the ASDMAC that may be capable of supporting an allegation of a possible violation of an anti-doping rule;

(d) the making of a statement to, or the giving of a document or information to, the ASADA in connection with the performance by the ASADA of any of its functions under the NAD scheme;

(e) the making of a statement to, or the giving of a document or information to, the ASDMAC in connection with the performance by the ASDMAC of any of its functions under the NAD scheme.

Good luck with that Steve.