THE DRUG SCANDAL: AFL TRIBUNAL DECIDES

[bing181 9,425]

If there is no positive test a different rule applies. Intent to take a prohibited substance.... And it would appear that is how the players have received no penalty. They cannot prove that the players intended to take a prohibited substance.

Sorry, reading this thread backwards ...

That's just not the case ManDee.

If they were "duped", that may have some impact on the penalties, as they can apply for reductions under the various categories. But ... they would still be guilty. You don't have to demonstrate intent to be found guilty of intent ... this is exactly the Wade Lees case. He intended to take a product, but didn't know it contained a banned substance. He was found guilty of intent. Same with Mick Rogers, tested positive for Clenbuterol after eating contaminated meat in China. Guilty - but no intent on his part, so no penalty (except the 6 months he spent provisionally suspended ...)

The Essendon players got off not because of a demonstration of a lack of intent, but because ASADA couldn't establish that what Dank administered to them was definitely TB4. They agree that Dank attempted to administer TB4, but there is no confirmation that what was in the vial marked "TB4" was in fact TB4.

They got off because though it looked like a duck, and quacked like a duck, no-one was able to throw it into a lake to see if it could swim.

Edited April 2, 2015 by bing181

[beelzebub 23,390]

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.

you're not alone

[ManDee 7,320]

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."

Sorry but 6.1.1 refers to failed test.

We don't have a failed test.

[bing181 9,425]

AOD's illegality was ambiguous at the time it was used by EFC.

No, that's not the case. AOD has never received authorisation for therapeutic use, and as such, it was always banned under the S0 category. Always.

However, there has been ambiguity regarding information about the legality of AOD.

Which is why there haven't been prosecutions, because athletes "couldn't be expected to have known".

[beelzebub 23,390]

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.

shh...I want to see him walk into court . want to see him take the oath....and stand before someone who can "ASK" him things !!! shhhhh!!

[Dees2014 2,377]

Surely WADA have to.

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

That is the thing that most people here fail to understand. The precedence with WADA and CAS has already been firmly set, and that precedence will find ESSENDON and their players firmly guilty. There have been numerous far less serious cases go through CAS than this, and have come out the other side as guilty. This will be no different. But don't expect any change from the AFL appeals tribunal, the AFL has them firmly under control. It will need to get to CAS for there to be any change.

[bing181 9,425]

As you said, she failed a drug test. They know what she took. The Essendon players didn't. They don't know what they took.

Intent doesn't come into it in the Essendon case.

Wade Lees never failed a drug test.

Under the WADA code, intent does come into it, but it was never tested - we never got that far once ASADA failed to established that the TB4 was TB4.

[ManDee 7,320]

Sorry, reading this thread backwards ...

That's just not the case ManDee.

If they were "duped", that may have some impact on the penalties, as they can apply for reductions under the various categories. But ... they would still be guilty. You don't have to demonstrate intent to be found guilty of intent ... this is exactly the Wade Lees case. He intended to take a product, but didn't know it contained a banned substance. He was found guilty of intent. Same with Mick Rogers, tested positive for Clenbuterol after eating contaminated meat in China. Guilty - but no intent on his part, so no penalty (except the 6 months he spent provisionally suspended ...)

The Essendon players got off not because of a demonstration of a lack of intent, but because ASADA couldn't establish that what Dank administered to them was definitely TB4. They agree that Dank attempted to administer TB4, but there is no confirmation that what was in the vial marked "TB4" was in fact TB4.

They got off because though it looked like a duck, and quacked like a duck, no-one was able to throw it into a lake to see if it could swim.

No personal insults yet, this is a good thread.

Wade Lees ordered a product that contained a banned substance. In this case it is his responsibility to ensure the product was legal. He intended to take a substance that was illegal. How could the Essendon players be found guilty?

1 Positive test NO

2 Provable chain that TB4 was administered - Failed

3 Intent and that is difficult to prove.

None of us know what really happened at the tribunal, but it is fascinating.

[beelzebub 23,390]

Wade Lees never failed a drug test.

Under the WADA code, intent does come into it, but it was never tested - we never got that far once ASADA failed to established that the TB4 was TB4.

strangely it couldnt be proved to be anything else

[ManDee 7,320]

AOD's illegality was ambiguous at the time it was used by EFC. It was decided that ADADA would not continue with AOD charges as a result.

No, that's not the case. AOD has never received authorisation for therapeutic use, and as such, it was always banned under the S0 category. Always.

However, there has been ambiguity regarding information about the legality of AOD.

Which is why there haven't been prosecutions, because athletes "couldn't be expected to have known".

I think I will quote you to answer this one.

"However, there has been ambiguity regarding information about the legality of AOD.

Which is why there haven't been prosecutions, because athletes "couldn't be expected to have known".

[deanox 10,045]

No, this is simply wrong:

"6.1.1 It is each Athletes 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 Athletes 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."

To me, this infers of an athlete signs to use thymosin (a banned substance) or doesn't mate whether they actually get thymosin or chickenpox vaccine.

[ManDee 7,320]

Great discussion guys, have a great Easter.

[daisycutter 29,892]

Was Wade Lees done for intent to take or trafficking.

well i thought it was for "importing a wada banned substance for the intent of using"

i thought the importing aspect was the more condemning factor

......but i may be wrong

[bing181 9,425]

Sorry but 6.1.1 refers to failed test.

We don't have a failed test.

Good pick up. But irrelevant. Here's the full the quote from WADA's own guidelines:

Does intent matter when it comes to an anti-doping rule violation?

As noted before, you are responsible – “strictly liable” – for anything and everything in your system. To establish an anti-doping rule violation for use or presence of a prohibited substance, it is not necessary to demonstrate intent, fault, negligence or knowing use on your part.

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.

(From the WADA Athlete Reference Guide, 2015).

[beelzebub 23,390]

well i thought it was for "importing a wada banned substance for the intent of using"

i thought the importing aspect was the more condemning factor

......but i may be wrong

Lees was charges by ASADA with "attempted use of a prohibited substance violation"

the importing was an aside. Not relevant to ASADA...maybe to Customs ...maybe

[daisycutter 29,892]

If people are hung up on intent, think about this.

What did the Essendon players intend to do? Take a supplement.

What was their belief? That it was legal.

Which supplement were they to take? The one that Dank was going to give them.

What was that? Who the hell knows?

What testing was done on the substance received by Dank to properly identify it? None that we know of.

Did he give them that substance? Who the hell knows ( other than Dank who is not talking)?

Where is the proof of intent to knowingly take a banned substance then?

understand and agree red

now about the waiver.

have you seen it (I haven't)

does it specify to allow to be injected with tb4 (or is it more vague)

if so, wouldn't that be intent to take tb4 (regardless if they were ignorant of its wada status, which is clearly their responsibility)

just saying, because i am unclear on this waiver business

[bing181 9,425]

In this case it is his responsibility to ensure the product was legal.

Same for the Essendon players. It's clear they made no attempt to check that the product/s were/are legal, because by their own admission "we don't know what we took". So how could they have ensured that the products were legal?

You're just wrong here ManDee. If you're an athlete and you go to your doctor for a vitamin shot and s/he gives you TB4, and the doctor then confesses to ASADA that they gave you TB4, then you're guilty of an ADRV, whether you intended to or not - and whether you test positive for it or not.

Penalties would be reduced, or even not applied - but you'd still be guilty.

[sue 9,195]

I think WADA has to get serious about this case. It seems to me that EFC bumbled their way to this point. I'm not referring to their legal and PR tactics, but to what happened earlier so that the AFL Tribunal, kosher or not, could come up with this decision. Other codes around the world could look at this case and systematically do what Essendon did probably more by luck than 'good' management. WADA can't allow that.

[beelzebub 23,390]

Ive obviously been reading far too much Conan Doyle of late , but two quotes that come to mind seem interestingly relevant to this whole schmozzle.

In solving a problem of this sort, the grand thing is to be able to reason backward

and

when you have eliminated the impossible, whatever remains, however improbable, must be the truth?

....and on those notes, a Safe Easter all.

Edited April 2, 2015 by beelzebub

[Redleg 41,952]

Lees was charges by ASADA with "attempted use of a prohibited substance violation"

Correct. They tested the substance in Lees' case and knew it was prohibited. Wade admitted to importing it for use.

With Essendon, the players attempted to use the substance imported by Charters. What was it? Was it prohibited? Who the hell knows.

The best we know is that some Chinese bloke said to Charters I sent you TB4, as you ordered. It could have been rice. That is not proof of what the substance was and if that is what they attempted to take, then the relevant test of proof is not met.

I am done. Happy Easter all. Go Dees.

[Whispering_Jack 31,144]

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

Good luck with that one Mr. Dank.

Section 78 ASADA Act 2006

(1) Each of the following:

(a) the CEO;

(b) a member of the ASADA staff;

© an individual whose services are made available to the CEO under section 24M;

(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 CEO; or

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

Edited April 2, 2015 by Whispering_Jack
See it was already covered above

[Whispering_Jack 31,144]

Correct. They tested the substance in Lees' case and knew it was prohibited. Wade admitted to importing it for use.

With Essendon, the players attempted to use the substance imported by Charters. What was it? Was it prohibited? Who the hell knows.

The best we know is that some Chinese bloke said to Charters I sent you TB4, as you ordered. It could have been rice. That is not proof of what the substance was and if that is what they attempted to take, then the relevant test of proof is not met.

I am done. Happy Easter all. Go Dees.

I think you'll find that a lot more than that was put to the Tribunal.

They took the easy way out.

[beelzebub 23,390]

Correct. They tested the substance in Lees' case and knew it was prohibited. Wade admitted to importing it for use.

To the best of my recollection ( happy to be corrected ) He admitted importing it... But he said he wasnt aware of anything prohibitive about it. He was pinged

With Essendon, the players attempted to use the substance imported by Charters. What was it? Charters has said is was to be TB4 Was it prohibited?well if TB4 then yes Who the hell knows. Those not telling (yet )

I am done. Happy Easter all. Go Dees.

safe Easter Red

[Dr John Dee 1,057]

Good luck with that one Mr. Dank.

On quotes and things, Jack, I'd be interested in what you think about this (from the Davies paper):

"CAS has also made it clear that ‘oth the initial arbitration panel (as with the initial decision maker) and the appeal arbitration panel are not bound by the rules of evidence and may inform themselves in such manner as the arbitrators think fit’." (2012: 6)

[bing181 9,425]

On quotes and things, Jack, I'd be interested in what you think about this (from the Davies paper):

"CAS has also made it clear that ‘oth the initial arbitration panel (as with the initial decision maker) and the appeal arbitration panel are not bound by the rules of evidence and may inform themselves in such manner as the arbitrators think fit’." (2012: 6)

That's what was supposed to be the case here as well (with the Tribunal) - the decision to not include the Alavi/Charters evidence, or not give it much weight seems at odds with that.