THE DRUG SCANDAL: AFL TRIBUNAL DECIDES

[Qwerty30 196]

The level of proof of guilt is the same ... but real people have to decide what that level is. As the Social Litigator column pointed out, judges with a background in criminal law (beyond reasonable doubt) may well see things differently to judges with a background in civil law (balance of probabilities). The suggestion from that column is that the level of proof applied by the Tribunal is (much) too strict, and as has been pointed out since, is in fact so strict that it renders a non-presence ADRV almost impossible to prove without a confession. The reality is that Lance Armstrong might well have walked free had his case been heard by this Tribunal, because "I saw Lance with a vial of EPO" becomes "you can't prove it was EPO".

There has been a suggestion that WADA-related cases should be heard by judges and/or panel members with a background in sports law. Which none of the AFL tribunal members has.

Further to that, the CAS case isn't just an appeal, they re-hear the case from scratch and can include or exclude any (new) material/evidence/witnesses they want.

Thanks. If you are right Bing or the Social Litigator is right, then

1. The level of proof is lower for CAS than the AFL Tribunal ( Take note Bub!)

2. CAS will hear the whole case on the basis you said. If there is new evidence presented to CAS that was not made available to the Tribunal to strengthen the case you would wonder why it did not get present to the Tribunal in the first place.

While it sounds good I am not sure what specifically is special to sports law that would apply more broadly in other legal actions. I would have thought they have to create a link ( to CAS's standard of proof) that a particular player took XXX and XXX is a banned substance.

[beelzebub 22,225]

I love a good taint with corruption conspiracy theory. Don't get me wrong.

I have never suggested that CAS require a lower standard at all. I was asking how WADA will get outcomes you crave for when as you say the evidence is the evidence ( and the absence of records) undermines it substantial. Aside from the corruption theories what will measure of proof will CAS decide that they can't get through the AFL tribunal? And if WADA/ASADA are so confident about CAS why are they sweating on a Tribunal Appeal. Quack quack

A number of interesting things there.

Im not actually personally 100% convinced that ASADA will/would appeal. Well not with the thinking it will actually get very far. It may need to as some sort of 'face' thing. who knows. It might be playing a clever counter ploy of 'protesting too much " in a fashion whilst all along knowing Uncle WADA will carry the can and call in the Cavalry.Either way WADA doesnt get its chance ASADAS 21 days is up

The difference between how WADA/CAS might view something as opposed how the AFL tribunal dealt with the suppositions ASADA presented ought to go to whats accepted and whats not on the basis of the evidence. Keep in mind WADA can bring in new evidence etc The CAS might well give a different weight and hence outcome to particular aspects.

Also what I thought interesting is that under the code only INTENT need be established but this for what ever reason was not the path the AFL took. Here in lays subtle differences.

The AFL Tribunal , whilst under the guidance of ASADA in terms of adherence to codes actually ran do a difference one. it was run as per the AFL's own Anti Doping Code and the facility it gives for hearings. WADA will front the CAS where WADA code is spoken , understood and adhered to.

Quoting the Social Litigator http://sociallitigator.com/2015/04/03/a-question-of-proof-might-an-asada-appeal-have-legs/

"What vexed the Tribunal apparently came down to this: Those involved thought they were buying, distributing, compounding and dispensing Thymosin Beta-4 (or ‘TB4’). However, the Tribunal could not be satisfied the substance was, in fact, TB4"

they did however feel comfortable about :

* Shane Charter bought what he believed to be TB4 and arranged to have it sent to chemist Nima Alavi;

* Mr Alavi believed he then compounded TB4;

* Mr Alavi dispensed 26 vials of a substance he believed to be TB4 to Stephen Dank;

* Correspondence between Mr Alavi and Mr Dank regarding “thymosin” refers to TB4;

* Mr Alavi’s lab technician compounded 15 vials of a substance she believed to be TB4 for Mr Dank;

Required to prove this circumstantial case were the following matters:

1* TB4 was procured from sources in China; and

2* TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and

3* TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and

4* Mr Dank administered TB4 to each Player.

The Tribunal reportedly did not consider 3.. This is because it was not comfortably satisfied by 1. and 2. For the Tribunal, belief did not translate into fact.

What then was the substance administered to each player?

Circumstantial cases rely on inference. Here, the Tribunal faced a fork in the road.

The Tribunal could have inferred that because:

the substance was not Thymousin A1; and

it was satisfied the key protagonists involved in administering the product to players all thought they were using the prohibited substance TB4,

then the substance was – to their comfortable satisfaction – TB4.

Instead, rather than turning left, the Tribunal turned right, onto the road where belief does not offer sufficient proof.

Presumably, the only sufficient proof would have been scientific proof.

If on the other hand you are inclined to believe that the substance was indeed TB4 and that it was intended to inject the players with this as it matched the annecdoctal evidence of players ( some ) as well as known protocols for delivery of this substance together with the suggestion that it would not have been anything other than TB4 because Thymosin was always discussed and Thymodulin needs neither injection nor compounding then you would probably turn left not right as the Tribunal did.

So it seems the tribunal applied one set of reasonings to part of the submission and another to other parts. Now what Red says is that they are entitled to do so. What some, like WJ, suggest is theres no consistency to this..its skewed. When things lack consistency theres often a reason.

In judical land its imperative that all thigs seem squeaky clean. this is done by the separation of those judging from those with vested interests. The AFL is nothing if not an entirely self-interested beast. The Tribunal is and of the AFL. How can you possibly guarantee no contamination when its all done in-house, even with ring-ins !! Who set the rules of the Tribunal, who outlined the scope and who briefed the bench ?

quack !

[Qwerty30 196]

Qwerty: Of course , you are right, all we have is circumstantial evidence that the AFL has not behaved like good chaps. If we knew for sure about a smoking gun, then it would be news outside of Demonland forums.

Come on Sue! But Blind Freddie.... And there is this quacking going on.

Seriously I think every one wishes there was the smoking gun ( ie records) that definitively shows what was taken, when and by whom.

More importantly for the players health and peace of mind.

[bing181 8,149]

1. The level of proof is lower for CAS than the AFL Tribunal ( Take note Bub!)

2. CAS will hear the whole case on the basis you said. If there is new evidence presented to CAS that was not made available to the Tribunal to strengthen the case you would wonder why it did not get present to the Tribunal in the first place.

1. No, it's the same, "comfortable satisfaction". But it's for the panel/judges to decide what that level is. The suggestion is that the AFL Tribunal members were considerably (impossibly?) harder to be comfortably satisfied than what the law requires, or what precedence establishes (e.g., the Armstrong case).

2. It's not so much about new evidence, it's about a) what evidence is admitted and b) what weight it is given. CAS could decide that Dank's interview where he admitted giving the Essendon players TB4 is all that they need for a guilty - or they could decide, as the Tribunal did, that as it's an unsworn statement, communicated by a third party (the journalist), they're going to pretty much ignore it.

[bing181 8,149]

So it seems the tribunal applied one set of reasonings to part of the submission and another to other parts. Now what Red says is that they are entitled to do so.

I don't think anyone disputes that legally speaking, they were entitled to do so - the question is whether they were right to do so.

[beelzebub 22,225]

I don't think anyone disputes that legally speaking, they were entitled to do so - the question is whether they were right to do so.

I concur..

also...they arent really answerable to anyone really.

[sue 8,409]

Come on Sue! But Blind Freddie.... And there is this quacking going on.

Seriously I think every one wishes there was the smoking gun ( ie records) that definitively shows what was taken, when and by whom.

More importantly for the players health and peace of mind.

Yes, the quacking is deafening and when combined with the waddling we all would put money on dastardly deeds being done and the AFL being part of the flock.

One thing I am 100% sure of is that if the players get off on the grounds that we can't be sure what they were injected with, then someone must end up in very deep duck poo or there is no justice and a bad precedent will have been set.

Edited April 16, 2015 by sue

[Qwerty30 196]

Yes, the quacking is deafening and when combined with the waddling we all would put money on dastardly deeds being done and the AFL being part of the flock.

One thing I am 100% sure of is that if the players get off on the grounds that we can't be sure what they were injected with, then someone must end up in very deep duck poo or there is no justice and a bad precedent will have been set.

Bird analogies aside I am afraid that the absence of records will result in lower level of justice we would have expected.

[Sir Why You Little 34,405]

Episode 8 of "Better Call Saul" was all about shredded evidence...

Watched it this afternoon....Superb show...Thought of Drugendon straight away.

Pity ASADA didn't find the shredded documents in the dumpster...

[Chook 14,388]

Episode 8 of "Better Call Saul" was all about shredded evidence...

Watched it this afternoon....Superb show...Thought of Drugendon straight away.

Pity ASADA didn't find the shredded documents in the dumpster...

At least it wasn't cross-cut...

[bing181 8,149]

Just to put the Tribunal's decision in context, here's a case that emerged today: hearing on May 7. Concerns a Belgian rider, Greg Van Avermaet who rides for BMC, Cadel Evans' old team. No positive test, the whole case rests on an email exchange. According to the AFL Tribunal, this would prove nothing, because though he was prescribed Diprophos, and took Diprophos, we can't be sure it was actually Diprophos.

"... according to reports in the Belgian media, the Royale Ligue vélocipédique Belge accusations against Van Avermaet focus on the use of two medicines: the corticoid Diprophos, which is only banned in competition but can be used with a medical certificate, and Vaminolact, a fortifying baby food that helps improve recovery. This is banned if injected. Van Avermaet's defence claimed he was given a prescription for the substance but never took it to a pharmacy. A report by Sporza suggests that the case against Van Avermaet is based on an email exchange between Dr. Mertens and Van Avermaet. It appears Van Avermaet was treated with Diprophos, under medical supervision, for a heel problem that still causes him problems. His lawyer insisted that he used the corticoid for treatment, not to boost his performance in races."

[DeeGee 141]

FWIW, Chip le Grande was on SEN this morning saying the Dank decision would be announced this arvo.

He reckons he will be found guilty of all charges except the ones involving actually giving PEDs to Essendon players. Not sure the logic behind that but we will know soon it seems.

[beelzebub 22,225]

Just to put the Tribunal's decision in context, here's a case that emerged today: hearing on May 7. Concerns a Belgian rider, Greg Van Avermaet who rides for BMC, Cadel Evans' old team. No positive test, the whole case rests on an email exchange. According to the AFL Tribunal, this would prove nothing, because though he was prescribed Diprophos, and took Diprophos, we can't be sure it was actually Diprophos.

"... according to reports in the Belgian media, the Royale Ligue vélocipédique Belge accusations against Van Avermaet focus on the use of two medicines: the corticoid Diprophos, which is only banned in competition but can be used with a medical certificate, and Vaminolact, a fortifying baby food that helps improve recovery. This is banned if injected. Van Avermaet's defence claimed he was given a prescription for the substance but never took it to a pharmacy. A report by Sporza suggests that the case against Van Avermaet is based on an email exchange between Dr. Mertens and Van Avermaet. It appears Van Avermaet was treated with Diprophos, under medical supervision, for a heel problem that still causes him problems. His lawyer insisted that he used the corticoid for treatment, not to boost his performance in races."

Further exposes the Tribunal as a crock. I may seem rather biased in this but I cant for the life of me understand how in a situation whereby the only drug actually mentioned or sourced ( or even attempted to be if you want to take the wowsers stance ) was TB4. That this is accepted by the member of the tribunal as being the one sought, indeed in all likelihood the one compounded. That we know the players were injected with something that followed the protocols of TB4 that players exhibited reactions/results as one would having taken TB4 that you can then come out and say...well we're not comfortable it was TB4..cat say what else it was or even could have been ...but...but...but.

The learned wise ones seem less learned and short on wisdom. Hope they enjoy the money.

[jnrmac 18,914]

FWIW, Chip le Grande was on SEN this morning saying the Dank decision would be announced this arvo.

He reckons he will be found guilty of all charges except the ones involving actually giving PEDs to Essendon players. Not sure the logic behind that but we will know soon it seems.

The logic would be they can't prove it. And if they can't prove it Dank would sue the pants off them.

Much easier to ban him for bringing the game into disrespute etc, running a drug regime with no records....

[binman 37,736]

Just to put the Tribunal's decision in context, here's a case that emerged today: hearing on May 7. Concerns a Belgian rider, Greg Van Avermaet who rides for BMC, Cadel Evans' old team. No positive test, the whole case rests on an email exchange. According to the AFL Tribunal, this would prove nothing, because though he was prescribed Diprophos, and took Diprophos, we can't be sure it was actually Diprophos.

"... according to reports in the Belgian media, the Royale Ligue vélocipédique Belge accusations against Van Avermaet focus on the use of two medicines: the corticoid Diprophos, which is only banned in competition but can be used with a medical certificate, and Vaminolact, a fortifying baby food that helps improve recovery. This is banned if injected. Van Avermaet's defence claimed he was given a prescription for the substance but never took it to a pharmacy. A report by Sporza suggests that the case against Van Avermaet is based on an email exchange between Dr. Mertens and Van Avermaet. It appears Van Avermaet was treated with Diprophos, under medical supervision, for a heel problem that still causes him problems. His lawyer insisted that he used the corticoid for treatment, not to boost his performance in races."

Sorry did i miss something above. I'm not sure why the baove info puts the AFL tribunal in any context.

If i read it correctly the Royale Ligue vélocipédique Belge will argue Van Avermaet was treated with Diprophos, with the evidence being the email exchange. What was the outcome? Was Van Avermaet found guilty?

Edited April 16, 2015 by binman

[dpositive 1,547]

Can ASADA , WADA or any one else force Danks to give evidence?

He constantly claims he will tell all in an appropriate court and didnt see the procedure so far as constituting that court.

Under oath He could confirm the results of his tests, he could confirm that the records were at Essendon, he could confirm who he gave them to, he could outline the program including the placebos and blind tests that were conducted he could identify any other person involved in the trials the nurses who gave them the doctors who tested etc. This would appear to be new evidence or have the Essendon club protective systems ensured blind and devoted loss of memory which would make any such course of action a further waste of time.

And as others have said INTENT must surely be the overiding factor.

Essendon intended to do what ever it takes to gain an advantage and even had this as their club slogan

That this included taking performance enhancing drugs is probable but not proven.

[dpositive 1,547]

This matter further demeans the club the competition and sport in general which is why WADA must take action.

Jobe Watson admitted his club gave him injections the year he won the highest award in the competition.

As an athlete he played in an international game. He did not know what the injected substances were which he is obliged to know.

What part of comfortable do we need to refer to.

He is tainted, the award is tainted, the game is tainted.

It is so so sad

[Qwerty30 196]

The logic would be they can't prove it. And if they can't prove it Dank would sue the pants off them.

Much easier to ban him for bringing the game into disrespute etc, running a drug regime with no records....

Agree. ASADA may have been sweating on if Dank is found guilty of administering PEDs it may give support to an argument that the players took PEDs.

Once again the lack of records may curtail proper justice. This time on Danks.

Danks impetus to sue ASADA will be diminished if he is found to be bringing the game into disrepute.

[beelzebub 22,225]

My understanding is WADA can NOT compel Danks

But it doesnt need to really, not to sanction EFC

[beelzebub 22,225]

Agree. ASADA may have been sweating on if Dank is found guilty of administering PEDs it may give support to an argument that the players took PEDs.

Once again the lack of records may curtail proper justice. This time on Danks.

Danks impetus to sue ASADA will be diminished if he is found to be bringing the game into disrepute.

Danks is a nutter..he last folly would be to ever enter a courtroom, hes all bluf, bullshlt and mock bravado

[Qwerty30 196]

Danks is a nutter..he last folly would be to ever enter a courtroom, hes all bluf, bullshlt and mock bravado

Same could have been said about Hird. And lawyers had a field day.

I think his court threats will be hollow if he is found to have brought the game into disrepute. And I can't see why WADA would not look at seeking further sanctions against him.

The toxic pharmacist should be finished in any legal and legitimate sporting code anywhere.

[beelzebub 22,225]

Danks should be run out of town...and left to his demise.

Wada may well go against him but im not believing they can subpoena him or force any attendence. They might not need him in person to mount a case.

If Danks ever sues anyone then the defendant has every right to a cross and thats the crack that would develop into a fissure..a chasm and then a canyon.

His self destruction would be worth buying a ticket to.

[jnrmac 18,914]

This matter further demeans the club the competition and sport in general which is why WADA must take action.

Jobe Watson admitted his club gave him injections the year he won the highest award in the competition.

As an athlete he played in an international game. He did not know what the injected substances were which he is obliged to know.

What part of comfortable do we need to refer to.

He is tainted, the award is tainted, the game is tainted.

It is so so sad

A small point but he said he was injected with AOD9604. ASADA have never pursued that drug as being illegal.. Might be some truth to the EFC line that they have an email from ASADA saying it was OK

[deefrag 277]

Just a post to keep upcoming BRANDZAC day top of mind!

A time to reflect on and celebrate the selfless exploits of PVT J. Watson No Aod9604. . . Heroic member of Bomber platoon.

"Because the truth of the Gallipoli experience was probably not "eating great tucker, watching historic footage on huge screens, seeing iconic entertainers live on stage and camping in authentic swags" ... or it might have been if you could add in the constant possibility of lingering and painful death, the stench of [censored] and bloated bodies, the gibbering fear in the boy beside you stinking with his own nervous urine and sweat."

http://www.abc.net.au/news/2015-04-16/green-anzacs-lest-we-forget-to-turn-a-buck/6396176

[beelzebub 22,225]

A small point but he said he was injected with AOD9604. ASADA have never pursued that drug as being illegal.. Might be some truth to the EFC line that they have an email from ASADA saying it was OK

Asada never gave any such OK. All that was ever communicated was via Danks. Its his suggestion that that he was given the ok.Asada have never had the view thete was confusion. Danks has deliberately clouded much to suit his cause/story etc