THE DRUG SCANDAL: AFL TRIBUNAL DECIDES

[beelzebub 23,383]

Mick Warner's article is a little vague.

all you needed to say really

Of course he's vague. He's just stirring the pot with what little (npi) he has to hand. The gravy train of leaks via the EFC will have dried up now. The ball's in another's court now. Must be so annoying for them, the fanboy media etc lol

Edited May 1, 2015 by beelzebub

[Dees2014 2,377]

Wow, check out the comments on that story. Not one (yet) who wants to see the case appealed.

Yes noticed that too. The Hird PR machine is very quickly out of the blocks as crunch time is approaching, and they are getting more and more nervous.

It would stagger me if McDevitt would bother to go to Montreal at all unless this appeal was under serious consideration. My guess is it is a planning meeting. After all, he has already admitted publicly that though this process he is in almost daily contact with WADA. None of the details of the case will come as any surprise to them.

Crunch time is upon us!

[Bluey's Dad 3,419]

Yes noticed that too. The Hird PR machine is very quickly out of the blocks as crunch time is approaching, and they are getting more and more nervous.

It would stagger me if McDevitt would bother to go to Montreal at all unless this appeal was under serious consideration. My guess is it is a planning meeting. After all, he has already admitted publicly that though this process he is in almost daily contact with WADA. None of the details of the case will come as any surprise to them.

Crunch time is upon us!

Yep. McDevitt even said he didn't want to appeal as it would just get in the way of WADA getting it to CAS. ASADA having another ping through the AFL appeals tribunal would just lengthen the process and nothing would change.

I like McDevitt. Everything I've read about him indicates to me that he feels that what went on at Essendon was unconscionable and he can't stand the way in which Essendon have conducted themselves throughout the process.

He knows they took drugs. He can't prove it. Trying to prosecute under the flawed AFL tribunal system is futile, so he's pushing WADA to do it at CAS where there is a much better chance of a just outcome.

As a side note, the people I've spoken to about the Essendon saga unfortunately seem heavily influenced by Hird's media cheer squad. I struggle to find anyone outside this forum with an informed opinion (one way or the other). It frustrates me to no end when I bring up issues I've read on here and they just shrug, or look confused at me because my opinion doesn't align with theirs. The misinformation and blatant lobbying by some members of the media disgusts me as it influences far more people than I had realised.

[Dees2014 2,377]

Yep. McDevitt even said he didn't want to appeal as it would just get in the way of WADA getting it to CAS. ASADA having another ping through the AFL appeals tribunal would just lengthen the process and nothing would change.

I like McDevitt. Everything I've read about him indicates to me that he feels that what went on at Essendon was unconscionable and he can't stand the way in which Essendon have conducted themselves throughout the process.

He knows they took drugs. He can't prove it. Trying to prosecute under the flawed AFL tribunal system is futile, so he's pushing WADA to do it at CAS where there is a much better chance of a just outcome.

As a side note, the people I've spoken to about the Essendon saga unfortunately seem heavily influenced by Hird's media cheer squad. I struggle to find anyone outside this forum with an informed opinion (one way or the other). It frustrates me to no end when I bring up issues I've read on here and they just shrug, or look confused at me because my opinion doesn't align with theirs. The misinformation and blatant lobbying by some members of the media disgusts me as it influences far more people than I had realised.

Yes the Hird PR machine is a highly professional and well run outfit - and extremely expensive. you would expect them to do everything possible to influence the outcome as they have been doing. the bad news for them is that the train has left the station and they cant do anything about it.

I'm sure they are trying to dig up all sorts of dirt on McDevitt, but being a senior cop in the Federal Police im sure he has seen that all before and is not in any way intimidated by it, unlike some of the key witnesses to this saga.

Yes like you I find people look at you in bewilderment when you talk about this scandal to them, although what I am finding lately is people are becoming more open minded about it and are starting to appreciate what McDevitt and WADA are trying to achieve and why they are trying to achieve it.

They also can see how Hird has trashed his brand and wonder why he would do such a thing. They are not alone

Edited May 1, 2015 by Dees2014

[bing181 9,328]

This is the way they eventually nabbed Armstrong, O'Grady, Hodge and Matt White for blood doping.

Not sure what you mean. If it's the retrospective testing for the 1998 Tour, that was for EPO (not blood doping), it only concerned Armstrong and O'Grady, and these weren't official tests (no B-sample for example) so there were never any associated penalties or charges.

Hodge and Matt White never tested positive, even retrospectively. Both confessed to doping after their retirement.

[robbiefrom13 892]

Worksafe sanctioning Essendon would be welcome, but it won't cut it for me. I want to see Sport throw out these crooks. I want to be reassured that Sport rejects cheating, not Occupational Health and Safety finding stuff to complain about. For me, Essendon challenged clean sport, and at this stage are getting away with it. If so, it just has to be a watershed. So, if the full gamut of Sport authorities let it go through, I really am finished with sport. For me, it all comes to an end Tuesday week.

I have asked myself what I'll do if in twelve months' time there's a test that proves it, and then the sanctions finally kick in. Not good enough, I think - right now there doesn't seem to be the will to insist Sport be kept clean, and that's the real deal-breaker for me. (Though if in twelve months' time ASADA/WADA/the AFL/whoever run the tests and declare Essendon guilty after all, and annihilate them, maybe if I was missing footy badly enough I'd relax my outrage, and be saying "better late than never" instead of what I now imagine would be a "too little too late" reaction. Maybe...)

I can't get to the Sydney game, so right now I'm going on Sunday thinking it may be the last game I see.

[Dees2014 2,377]

Not sure what you mean. If it's the retrospective testing for the 1998 Tour, that was for EPO (not blood doping), it only concerned Armstrong and O'Grady, and these weren't official tests (no B-sample for example) so there were never any associated penalties or charges.

Hodge and Matt White never tested positive, even retrospectively. Both confessed to doping after their retirement.

Yes of course they did, but they knew that their blood samples were still being stored when the new sanctioned test for blood doping was invented, and they also knew that within those samples contained potentially positive tests. I venture they would never have "confessed" otherwise.

What hangs over Essendon is a new methodology for detecting beta 4, which my medical professor friend tells me is only months away. Essendon and Hird know this contains proof of what really happened and is the also the rope that will lead to their conviction. No amount of PR or legal games will be able to hide it after that.

[DemonFrog 1,356]

I see the MFC ihas a strong anti drug message on its web site.

[Dees2014 2,377]

I know a number of you have expressed, both here and privately by email to me, doubts about my contention that WADA will get Essendon and Hird in the end. I thought it might be useful if I set out a bit more of what I know and why I am confident of an eventual fair outcome now that we are at the point of decision by WADA to refer the Essendon case to CAS.

First, lets explore what WADA attitude might be in the Essendon case. The unofficial spokesperson for WADA in Australia (and a member of its inner circle) is its former global President, and ex NSW Premier John Fahey. After the AFL Tribunal decision was handed down, he had this to say in an interview in The Age in Melbourne.

Former WADA boss says Essendon should not feel exonerated by drug ruling Date March 31, 2015 The Age by Samantha Lane Sports Writer

Former WADA president John Fahey says Essendon should not feel exonerated by the ASADA ruling.

If Essendon feels exonerated by a favourable ruling for its players, it should re-read the scathing assessment published about its experimental 2012 regimen, according to former World Anti-Doping Authority president John Fahey.

As Australian Sports Anti-Doping Authority boss Ben McDevitt lambasted Essendon's injection program as "absolutely and utterly disgraceful" on Tuesday despite an anti-doping tribunal ruling that did not find banned drug use Fahey's criticism of the AFL club was that the protracted saga could have been handled much better.

"Essendon's behaviour though this was almost un-Australian," Fahey, who was WADA chief from 2007 to 2013, said.

"To effectively shoot the messenger, and prevent a proper examination of what everybody knows occurred and everybody knows that what occurred was, to say the least, strange if not a breach of anti-doping rules.

"It is still extraordinarily strange that players could be given thousands of needles, off site.

"Every attempt was made to prevent an independent tribunal examining all the facts. That has cost literally millions of dollars and put the future sporting careers of many young footballers in jeopardy. It should have been dealt with long ago, and that is the tragedy of the whole case that it wasn't allowed to proceed in a reasonable time to a proper conclusion.

"I can understand the players' relief. From the club's point of view, if they feel jubilant today then my advice is that they should re-read Ziggy Switkowski's report and then examine their own behaviour in this whole process. It has left a lot to be desired."

Soon after ASADA launched a joint investigation with the AFL into Essendon, in February 2013, then-Bomber chairman David Evans commissioned former Telstra boss Switkowski to review the club's supplements program.

The most infamous line from the damning report was Switkowski's finding of "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".

Fahey has been consistently scathing of the move last year by Essendon, and its coach James Hird, to take their grievances with elements of the process to the Federal Court.

"Clearly the case was taken to prevent the [AFL anti-doping tribunal] inquiry occurring, They sought injunctions to prevent any information gathered by ASADA being used for purposes of examining anti-doping rule violations. They sought injunctions through the Federal Court and then Hird appealed the original decision.

"There were four judges that had to look at it in a proper court of law before the inquiry could proceed to conduct the examination of evidence, which it has done in the last couple of months."

Fahey was unprepared to forecast whether ASADA or the world authority on sports anti-doping would appeal Tuesday's decision.

"They [WADA] look at all decisions ... and they'll satisfy themselves one way or the other relating to the proper application of the (WADA) code"

I dont think Fahey could have been any more specific about WADAs intentions here, without actually saying the world body is about to act.

With the announcement yesterday that Ben McDevitt, boss of ASADA, is in Montreal now, a week or so before the announcement whether WADA will appeal the AFL Tribunal decision, this situation is clearly coming to a head.

There now seems a high likelihood the appeal will be launched in the near future, at least that is what my contacts are telling me, although in all honesty no-one, except the inner circle, actually knows as yet. The institution itself though seems in no doubt an appeal will be launched is my information, and in all likelihood McDevitt is in Montreal on a range of sports doping matters, amongst which is planning for the Essendon appeal.

ASADA boss Ben McDevitt to meet with WADA bosses in Montreal

Lets assume there is a case launched appealing the AFL Tribunal ruling. Where to from here? Lets first explore what CAS is. On CASs website, the following information is given about appeals to CAS which I think clarifies a lot of questions on here over the last 12 months or so:

What is the Court of Arbitration for Sport?

The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for servic­es in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the­ specific needs of the sports world.

The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS).

The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year.

What is the function of the CAS?

The CAS has the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgements of ordinary ­courts.

What kinds of dispute can be submitted to the CAS?

Any disputes directly or indirectly linked to sport may be submitted to the CAS.

These may be disputes of a commercial nature (e.g. a sponsorship contract), or of a disciplinary nature following a decision by a sports organisation (e.g. a doping case).

Who can refer a case to the CAS?

Any individual or legal entity with capacity to act may have recourse to the services of the CAS. These include athletes, clubs, sports federations, organisers of sports events, sponsors or television companies.

What are the CAS procedures?

For disputes resulting from decisions taken by the internal bodies of sports organisations, the appeals arbitration procedure is applicable.

How does one set the arbitration in motion?

The party wishing to submit a dispute to the CAS must send the CAS Court Office a request for arbitration (ordinary procedure) or a statement of appeal (appeals procedure), the contents of which are specified by the Code of Sports-related Arbitration.

In the case of the appeals procedure, a party may lodge an appeal only if it has exhausted all the internal remedies of the sports organisation concerned.­

How are the arbitrators chosen?

Generally speaking, the arbitration is submitted to a panel of three arbitrators. Under the appeals procedure, each party chooses an arbitrator, and the president of the panel is selected by the President of the Appeals Arbitration Division. If the parties agree, or if the CAS deems this appropriate, a sole arbitrator may be appointed, depending on the nature and importance of the case. The arbitrators must be independent, that is to say have no particular connection with any of the parties, and must not have played any role in the case in question.­

How does CAS arbitration procedure work?

Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the CAS. After any additional exchange of statements of case, the parties are summoned to a hearing to be heard, produce evidence and argue their case. The final award is communicated to the parties some weeks later, unless it is pronounced the same day (under the appeals procedure).­

How long does CAS arbitration last?

For the appeals procedure, an award must be pronounced within three months after the transfer of the file to the Panel. In urgent cases and upon request, the CAS may, within a very short time, order interim measures or suspend the execution of a decision appealed against.­

What is the scope of an award pronounced by the CAS?

An award pronounced by the CAS is final and binding on the parties from the moment it is communicated. It may in particular be enforced in accordance with the New York Convention on the recognition and enforcement of arbitral awards, which more than 125 countries have signed.­

Is it possible to appeal against a CAS award?

Judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.­­­

CAS has their courts in the world in Switzerland, New York and Sydney perhaps putting paid to those of you who do not believe Australia is a superpower not only in sports but also Sport Governance. The President of the Board of CAS is also Australian, John Coates (vice President of the IOC, and President of the AOC).

For those of you who have doubts about the attitude of CAS to doping cases, let me quote none other than John Coates himself from this Age report in 2013 Australian Olympic Committee chief John Coates has expressed some sympathy for ASADA as the anti-doping body comes under fire from the AFL players for its laborious investigation into the 2012 Essendon drugs program.

Australia's most senior Olympic official reinforced his view that all athletes remained responsible for the substances they ingested whether or not they intended to cheat.

"I can understand this view from the big team sports and from what we've seen from Cronulla and Essendon that the clubs needed to show a greater duty of care to their athletes," Coates told Fairfax Media. "But these are professional athletes and they are responsible for what they ingest. They have got enough advice.

They make the decision ultimately to take the substance.

"At the 2000 Sydney Games, we had a 16-year-old gymnast Andreea Raducan, who took a tablet from her team doctor for a cold and tested positive. She was stripped of her gold medal. Everyone should be well aware of the rules."

Coates said another lesson from the AFL and NRL scandals was that the club's and support staff involved had not taken enough responsibility for those scandals.

"The clubs should and the coaches and the doctors should accept a greater responsibility for what they allowed to take place," he said.

"The new rules to soon be enforced will help change that. The sports here might be saying they will no longer deal with Stephen Dank, but from January 1 the situation will be more definitive."

This to me seems to set the bar pretty high for CAS in terms of personal responsibility by athletes as to what they take and what they dont take. It certainly leaves no doubt as to what CAS views as permissible behaviour to do with Essendon and James Hird. The question though remains one of proof, with CAS settling on a "balance of probabilities" rather than the AFL Tribunal approach of "comfortable satisfaction".

I have examined the last 20 cases before CAS and all except Australian cases have been arbitrated by non nationals. There are three Australian cases in that Group and all have been Arbitrated by Australian Arbiters, two of which were by a single Arbiter, although in view of the importance of this case, and its high profile, I am advised a single Arbiter is unlikely in this case.

So who are these people?

The Hon. Justice Annabelle Claire Bennett (1950)

Judge (Australia) Eng Sydney / Australia

PhD (biochemistry - based). Judge of the Federal Court of Australia. Additional Judge of the Supreme Court of the ACT. Presidential Member of the Administrative Appeals Tribunal. Pro-Chancellor of the Australian National University. President of the Australian Academy of Forensic Sciences (2003-2005).

Mr David Harold Bloom (1948)

Barrister (Australia) Fr/Eng Sydney / Australia LL.B; LL.M, Sydney; practicing barrister; admitted to the bars of NSW, Victoria, the ACT, Queensland, Western Australia and of New York State.

Mr John Francis Boultbee (1950)

Lawyer (Australia) Fr/Eng/Deu Sydney / Australia

LL.M. Master of laws, London University; Barrister; Director of the Australian Institute of Sport; former Secretary General of the International Rowing Federation (FISA). Former Head of National Teams, Football Federation Australia. Former Director of the Australian Institute of Sport.

Mr Bruce W. Collins (1948)

Queens Counsel (Australia) Eng Sydney / Australia

Q.C.; Practising Member New South Wales Bar Association Professional Conduct Committee. Australian Olympic Appeals Consultant. New South Wales Bar Association Advisor to the Faculty of Law, University of Wollongong. Chairman New South Wales Rugby League Appeals Committee 1995-1996. Chairman Sydney Cricket Association 2001-2007; Australian Olympic Appeals Consultant Summer 2008 and Winter Olympics 2010.

Mr Brian William Collis (1943)

Chairman Australian Footbal League Tribunal (Australia) Eng Melbourne / Australia

Queens Counsel. Vice Chairman - Australian Football League Appeal Board. Chairman - Harness Racing Victoria Racing Appeals and Disciplinary Tribunal.

The Hon. Jerrold Cripps (1933)

Barrister (Australia) Eng Sydney / Australia

Queens Counsel; Chairman Australian Commercial Dispute Centre; Chairperson National Electricity Tribunal; member of the Independent Pricing Regulatory Tribunal (NSW) Panel of arbitrators; Chief Counsel, Allen Allen & Hemsley, lawyers, Australia; former judge of the NSW Court of Appeal.

The Hon. Robert J. Ellicott (1927)

Barrister (Australia) Eng Sydney / Australia

Barrister B.A.; LLB; Australian Solicitor General and Attorney General; former Judge at the Federal Court; member of the International Amateur Athletic Federation (IAAF) Panel of arbitrators. Member of the CAS ad hoc Divisions at the Commonwealth Games, Kuala Lumpur, 1998, and at the Summer Olympic Games, Sydney, 2000 and at the Winter Olympic Games, Salt Lake City, 2002.

Justice Arthur Emmett (1943)

Judge (Australia) Eng Sydney / Australia

Doctor of Laws. Queens Counsel. Judge of the Federal Court of Australia. President, Copyright Tribunal of Australia. Commissioner, Australian Law Reform Commission. Lecturer, University of Sydney Law School. Conduct Commissioner, NSW Cricket Association, 1990 to 2007.

Mr Noah David Grace (1953)

Barrister and Solicitor (Australia) Eng Melbourne / Australia

Master of laws; Queens Counsel; Barrister; Co-Chair Criminal Law Committee Law Council of Australia; Member Court of Honour, and formerly Vice-President, Maccabi World Union. Director Athletics Australia; Team Advocate Australian Olympic Team Athens 2004; Member CAS ad hoc Divisions Commonwealth Games Melbourne 2006 and Winter Olympic Games Vancouver 2010. President Athletics Australia.

Mr Malcolm Holmes (1948)

Barrister (Australia) Eng Sydney / Australia

B.A., LLB Sydney University, BCL, Oxford University; appointed as the athletes advocate to the Australian Olympic Team at Atlanta in 1996. Member of the CAS ad hoc Division at the Summer Olympic Games, Athens 2004 and at the Winter Olympic Games, Turin 2006.

Mr David Ipp (1938)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of Western Australia; Commissioner of Independent Commission Against Corruption (ICAC); former barrister, solicitor in Australia and in South Africa.

Mr Mark Mangan (1974)

Attorney-at-law (Australia) Eng London / United Kingdom

Solicitor, England and Wales. Solicitor, Australia. Partner, Dechert LLP Singapore. Formerly senior associate, Freshfields Bruckhaus Deringer LLP. Acting as counsel and arbitrator in international arbitration. In-house counsel for the International Cricket Council.

Judge Henric Nicholas (1941)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of New South Wales since Feb. 2003. Barrister-at-law 1966 - 2003, appointed Queens Counsel in Oct. 1981.

Mr Hayden Opie (1953)

Solicitor, Senior Lecturer/Director of Studies (Australia) Eng Melbourne / Australia

His Honour Judge Rauf Soulio (1957)

Judge (Australia) Eng Adelaide / Australia

Judge; Supreme Court of South Australia 1981; High Court of Australia 1984; Roll of Solicitors, England and Wales 1990. Judge - District Court of South Australia (appointed 2006) - administrative, civil, commercial and criminal jurisdictions. Judge - Equal Opportunity Tribunal. Judge - Licensing Court of South Australia. 1981-1988 Solicitor. 1988-2006 Barrister. 2009-present President - Football Federation of South Australia.

The Hon. James Spigelman (1946)

Retired Judge (Australia) Eng Sydney / Australia

Arbitrator. Barrister, Australia 1980-1998, QC 1986-1998. Chief Justice, Supreme Court of New South Wales 1998-2011.

Mr Alan John Sullivan (1951)

Lawyer (Australia) Eng Sydney / Australia

Queens Counsel; Barrister; former Chairman, Australian Rugby League Judiciary Panel; Commissioner, Code of Behaviour, Australian Cricket Board.

Mr Neil John Young (1952)

Barrister-at-law (Australia) Eng Melbourne / Australia

LL.M.; Queens Counsel; Barrister; past President, Australian Bar Association; former Chairman Victoria Bar.

I have looked at last four or five CAS cases in Australia, and it seems that most are presided over by an Australian Arbiter (perhaps tyranny of distance, I dont know), whereas the last ten non Australian cases, there were no arbiters of the same nationality as the appellants.The list above is understandably dominated by the legal profession, but if they follow the CAS guidelines, no one can be chosen as an Arbiter if they have previously had anything to do with the case. This would seem to rule out Gordon Collis for instance, now Vice President of the AFL Appeals Tribunal, David Grace who has acted for both James Hird and the players association, John Boultbee, formerly 2IC at the FFA, and Alan Sullivan, the former chairman of the NRL Judiciary Panel. The remainder, are heavily connected to Olympic sports (where most disputes of this sort arise), so it could be expected their attitudes will be heavily influenced by the attitudes of those sports which as we all know generally feel aggrieved that wealthy Australian football codes seem to be getting a free ride when it comes to drugs in sport.

So what does WADA now do? Do they pursue the Essendon players (and/or Dank), believing there is sufficient evidence that the Tribunal got it wrong. By passing to WADA now, as McDevitt has done, the World body can take the matter directly to the Court of Arbitration for Sport with the appeal almost certainly to be held in Sydney. Most anti-doping cases are based on positive A and B samples, which if correctly tested are almost incontrovertible evidence of a violation. With a test for Thymosin Beta-4 said to be less than 12 months away, and all 34 Essendon footballers having had their A and B blood samples safely stored away by ASADA, ASADA have recently stated publicly that they will re-test these samples once a test becomes available.

The trouble with ASADAs case right now is that it draws on the more general provision in the AFL Anti-Doping Code (identical to the relevant section of the WADA World Anti-Doping Code) prohibiting Use or Attempted Use. For the AFL Tribunal, ASADA needed to prove the violation to the comfortable satisfaction of the Tribunal this is unhelpfully said to be a greater standard of proof than a balance of probability (>50% chance), but less than proof beyond reasonable doubt (the criminal standard of guilt).

Quite possibly, Essendons administrative and governance failings have thus far saved them, although there are provisions in the WADA code if the accused party is interpreted as indulging in criminal behavior. It is a moot point whether destruction of evidence is criminal in this case, and that also needs to be proven. The lesser standard of proof about balance of probabilities may help WADA\ASADA in this case. There was no audit trail of what was administered as part of the injections program, when, or to whom. This is why Essendon fought so hard to throw out evidence based on witness statements given to the AFL with ASADA in the room, but this same evidence may well be sufficient to convict under CAS provisions.

All now hinges on WADAs reading of the brief of evidence. But given the focus on personal responsibility, as expressed by John Fahey, and John Coates, and the lack of steps taken by Essendon players to question what was happening, and the lesser standard of proof required by CAS than the interpretation settled on by the AFL Tribunal, it is hard to see the Essendon players, and indeed the administration and coaches, getting off.

Once CAS pronounces on the players, then the coaches and administration will follow if what happens in cycling is any guide.

[Wolfmother 182]

The fact that the AFL did not pre planning for an outcome which had EFC players suspended leaving it to the last minute for nab cup etc

That and the fact the verdict was given two days before the start of the season which washed any again away with round one suggests the afl knew what they were doing the whole time

[Whispering_Jack 30,641]

I know a number of you have expressed, both here and privately by email to me, doubts about my contention that WADA will get Essendon and Hird in the end. I thought it might be useful if I set out a bit more of what I know and why I am confident of an eventual fair outcome now that we are at the point of decision by WADA to refer the Essendon case to CAS.

Excellent post Dees2014.

My take on the situation is that WADA is duty bound to appeal in order to preserve the integrity of its Code and to underpin the world-wide system of catching drug cheats. What has happened in Australia has been nothing short of shameful from start to end and in particular, I can't reconcile how the AFL Tribunal let off the 34 players and yet still found a way to be comfortably satisfied as to Danks' guilt on charges that were not related to the 34. It sounds all too convenient and I'm simply not convinced by the reasoning behind it all which lacks consistency.

One minor point - Neil Young is another on the panel who would be ruled ineligible because of his involvement in legal proceedings on the saga.

[Dr John Dee 1,057]

...

"I can understand the players' relief. From the club's point of view, if they feel jubilant today then my advice is that they should re-read Ziggy Switkowski's report and then examine their own behaviour in this whole process. It has left a lot to be desired."

Soon after ASADA launched a joint investigation with the AFL into Essendon, in February 2013, then-Bomber chairman David Evans commissioned former Telstra boss Switkowski to review the club's supplements program.

The most infamous line from the damning report was Switkowski's finding of "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".

Plenty to digest there '2014 and thanks for pulling it all together like that.

I notice that the standard Hird-mentality line on Switkowski's findings is now to dismiss them on the basis that Ziggy also said he wasn't qualified to comment on the specifics of supplements programmes, which apparently then makes him unqualified to draw any conclusions about the administration of such programmes ... not that he has any track record on administrative issues or anything like that.

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

[Lucifers Hero 40,361]

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

This may already be happening. I heard an interview with Mark Robertson (yes, I know he isn't the sharpest tool in the shed) where he was asked "what happens if a future TB4 test shows the players did use it". Instead of ranting and raving as only he can, he said rather quietly, 'well yes, well, we will face that when the time comes"

Not dismissive at all. I noted the 'royal we' and noted the 'when' it happens. Slips of the tongue maybe? But on the other hand me thinks he knows it was TB4. And, 'they' are also thinking a TB4 test will be found.

Of course, this proves nothing. Just hope Dees2014 is right and the TB4 tests are just a few months away.

Edited May 1, 2015 by Lucifer's Hero

[chookrat 4,268]

Plenty to digest there '2014 and thanks for pulling it all together like that.

I notice that the standard Hird-mentality line on Switkowski's findings is now to dismiss them on the basis that Ziggy also said he wasn't qualified to comment on the specifics of supplements programmes, which apparently then makes him unqualified to draw any conclusions about the administration of such programmes ... not that he has any track record on administrative issues or anything like that.

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

It is an interesting case. If WADA does pursue this via CAS and the players are found guilty only to find that a few months later when a test is available for TB4 that there is no trace of banned substances in the players blood samples it would be an awkward situation for all involved. Many including myself find the EFC's behaviour to be disgraceful but ultimately ASADA and WADA exist to ensure sports are clean of PED's not to govern how clubs are ran.

Personally I think the EFC players took banned substances - otherwise why wouldn't they have produced records and compelled Dank to provide evidence. McDevitt's strong worded statement when deciding not to appeal indicates the same.

[Chris 2,892]

Dees 2014. Where did you get the info about the burden of proof? All I have read has said it is the same as the AFL, being comfortably satisfied. This was clarified during the French case. It was also outlined by the social litigator that CAS was bound by comfortable satisfaction. There could be a different ready of comfortable satisfaction though. What they must apply is the briginshaw test which essentially makes the burden of proof higher the greater the consequences, making comfortable satisfaction sum what of a sliding scale.

It is felt by many that the AFL tribunal, by design of the AFL, applied the strongest burden of proof they could within this scale and that they were verging on beyond reasonable doubt.

For mine the appeal of WADA doesn't rest solely on the burden of proof but is far more to do with their ability to subpeona witnesses through the Supreme Court. Would the outcome change with the key witnesses talking on the stand?

[djr 1,597]

I know a number of you have expressed, both here and privately by email to me, doubts about my contention that WADA will get Essendon and Hird in the end. I thought it might be useful if I set out a bit more of what I know and why I am confident of an eventual fair outcome now that we are at the point of decision by WADA to refer the Essendon case to CAS.

First, lets explore what WADA attitude might be in the Essendon case. The unofficial spokesperson for WADA in Australia (and a member of its inner circle) is its former global President, and ex NSW Premier John Fahey. After the AFL Tribunal decision was handed down, he had this to say in an interview in The Age in Melbourne.

Former WADA boss says Essendon should not feel exonerated by drug ruling Date March 31, 2015 The Age by Samantha Lane Sports Writer

Former WADA president John Fahey says Essendon should not feel exonerated by the ASADA ruling.

If Essendon feels exonerated by a favourable ruling for its players, it should re-read the scathing assessment published about its experimental 2012 regimen, according to former World Anti-Doping Authority president John Fahey.

As Australian Sports Anti-Doping Authority boss Ben McDevitt lambasted Essendon's injection program as "absolutely and utterly disgraceful" on Tuesday despite an anti-doping tribunal ruling that did not find banned drug use Fahey's criticism of the AFL club was that the protracted saga could have been handled much better.

"Essendon's behaviour though this was almost un-Australian," Fahey, who was WADA chief from 2007 to 2013, said.

"To effectively shoot the messenger, and prevent a proper examination of what everybody knows occurred and everybody knows that what occurred was, to say the least, strange if not a breach of anti-doping rules.

"It is still extraordinarily strange that players could be given thousands of needles, off site.

"Every attempt was made to prevent an independent tribunal examining all the facts. That has cost literally millions of dollars and put the future sporting careers of many young footballers in jeopardy. It should have been dealt with long ago, and that is the tragedy of the whole case that it wasn't allowed to proceed in a reasonable time to a proper conclusion.

"I can understand the players' relief. From the club's point of view, if they feel jubilant today then my advice is that they should re-read Ziggy Switkowski's report and then examine their own behaviour in this whole process. It has left a lot to be desired."

Soon after ASADA launched a joint investigation with the AFL into Essendon, in February 2013, then-Bomber chairman David Evans commissioned former Telstra boss Switkowski to review the club's supplements program.

The most infamous line from the damning report was Switkowski's finding of "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".

Fahey has been consistently scathing of the move last year by Essendon, and its coach James Hird, to take their grievances with elements of the process to the Federal Court.

"Clearly the case was taken to prevent the [AFL anti-doping tribunal] inquiry occurring, They sought injunctions to prevent any information gathered by ASADA being used for purposes of examining anti-doping rule violations. They sought injunctions through the Federal Court and then Hird appealed the original decision.

"There were four judges that had to look at it in a proper court of law before the inquiry could proceed to conduct the examination of evidence, which it has done in the last couple of months."

Fahey was unprepared to forecast whether ASADA or the world authority on sports anti-doping would appeal Tuesday's decision.

"They [WADA] look at all decisions ... and they'll satisfy themselves one way or the other relating to the proper application of the (WADA) code"

I dont think Fahey could have been any more specific about WADAs intentions here, without actually saying the world body is about to act.

With the announcement yesterday that Ben McDevitt, boss of ASADA, is in Montreal now, a week or so before the announcement whether WADA will appeal the AFL Tribunal decision, this situation is clearly coming to a head.

There now seems a high likelihood the appeal will be launched in the near future, at least that is what my contacts are telling me, although in all honesty no-one, except the inner circle, actually knows as yet. The institution itself though seems in no doubt an appeal will be launched is my information, and in all likelihood McDevitt is in Montreal on a range of sports doping matters, amongst which is planning for the Essendon appeal.

ASADA boss Ben McDevitt to meet with WADA bosses in Montreal

Lets assume there is a case launched appealing the AFL Tribunal ruling. Where to from here? Lets first explore what CAS is. On CASs website, the following information is given about appeals to CAS which I think clarifies a lot of questions on here over the last 12 months or so:

What is the Court of Arbitration for Sport?

The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for servic­es in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the­ specific needs of the sports world.

The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS).

The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year.

What is the function of the CAS?

The CAS has the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgements of ordinary ­courts.

What kinds of dispute can be submitted to the CAS?

Any disputes directly or indirectly linked to sport may be submitted to the CAS.

These may be disputes of a commercial nature (e.g. a sponsorship contract), or of a disciplinary nature following a decision by a sports organisation (e.g. a doping case).

Who can refer a case to the CAS?

Any individual or legal entity with capacity to act may have recourse to the services of the CAS. These include athletes, clubs, sports federations, organisers of sports events, sponsors or television companies.

What are the CAS procedures?

For disputes resulting from decisions taken by the internal bodies of sports organisations, the appeals arbitration procedure is applicable.

How does one set the arbitration in motion?

The party wishing to submit a dispute to the CAS must send the CAS Court Office a request for arbitration (ordinary procedure) or a statement of appeal (appeals procedure), the contents of which are specified by the Code of Sports-related Arbitration.

In the case of the appeals procedure, a party may lodge an appeal only if it has exhausted all the internal remedies of the sports organisation concerned.­

How are the arbitrators chosen?

Generally speaking, the arbitration is submitted to a panel of three arbitrators. Under the appeals procedure, each party chooses an arbitrator, and the president of the panel is selected by the President of the Appeals Arbitration Division. If the parties agree, or if the CAS deems this appropriate, a sole arbitrator may be appointed, depending on the nature and importance of the case. The arbitrators must be independent, that is to say have no particular connection with any of the parties, and must not have played any role in the case in question.­

How does CAS arbitration procedure work?

Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the CAS. After any additional exchange of statements of case, the parties are summoned to a hearing to be heard, produce evidence and argue their case. The final award is communicated to the parties some weeks later, unless it is pronounced the same day (under the appeals procedure).­

How long does CAS arbitration last?

For the appeals procedure, an award must be pronounced within three months after the transfer of the file to the Panel. In urgent cases and upon request, the CAS may, within a very short time, order interim measures or suspend the execution of a decision appealed against.­

What is the scope of an award pronounced by the CAS?

An award pronounced by the CAS is final and binding on the parties from the moment it is communicated. It may in particular be enforced in accordance with the New York Convention on the recognition and enforcement of arbitral awards, which more than 125 countries have signed.­

Is it possible to appeal against a CAS award?

Judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.­­­

CAS has their courts in the world in Switzerland, New York and Sydney perhaps putting paid to those of you who do not believe Australia is a superpower not only in sports but also Sport Governance. The President of the Board of CAS is also Australian, John Coates (vice President of the IOC, and President of the AOC).

For those of you who have doubts about the attitude of CAS to doping cases, let me quote none other than John Coates himself from this Age report in 2013 Australian Olympic Committee chief John Coates has expressed some sympathy for ASADA as the anti-doping body comes under fire from the AFL players for its laborious investigation into the 2012 Essendon drugs program.

Australia's most senior Olympic official reinforced his view that all athletes remained responsible for the substances they ingested whether or not they intended to cheat.

"I can understand this view from the big team sports and from what we've seen from Cronulla and Essendon that the clubs needed to show a greater duty of care to their athletes," Coates told Fairfax Media. "But these are professional athletes and they are responsible for what they ingest. They have got enough advice.

They make the decision ultimately to take the substance.

"At the 2000 Sydney Games, we had a 16-year-old gymnast Andreea Raducan, who took a tablet from her team doctor for a cold and tested positive. She was stripped of her gold medal. Everyone should be well aware of the rules."

Coates said another lesson from the AFL and NRL scandals was that the club's and support staff involved had not taken enough responsibility for those scandals.

"The clubs should and the coaches and the doctors should accept a greater responsibility for what they allowed to take place," he said.

"The new rules to soon be enforced will help change that. The sports here might be saying they will no longer deal with Stephen Dank, but from January 1 the situation will be more definitive."

This to me seems to set the bar pretty high for CAS in terms of personal responsibility by athletes as to what they take and what they dont take. It certainly leaves no doubt as to what CAS views as permissible behaviour to do with Essendon and James Hird. The question though remains one of proof, with CAS settling on a "balance of probabilities" rather than the AFL Tribunal approach of "comfortable satisfaction".

I have examined the last 20 cases before CAS and all except Australian cases have been arbitrated by non nationals. There are three Australian cases in that Group and all have been Arbitrated by Australian Arbiters, two of which were by a single Arbiter, although in view of the importance of this case, and its high profile, I am advised a single Arbiter is unlikely in this case.

So who are these people?

The Hon. Justice Annabelle Claire Bennett (1950)

Judge (Australia) Eng Sydney / Australia

PhD (biochemistry - based). Judge of the Federal Court of Australia. Additional Judge of the Supreme Court of the ACT. Presidential Member of the Administrative Appeals Tribunal. Pro-Chancellor of the Australian National University. President of the Australian Academy of Forensic Sciences (2003-2005).

Mr David Harold Bloom (1948)

Barrister (Australia) Fr/Eng Sydney / Australia LL.B; LL.M, Sydney; practicing barrister; admitted to the bars of NSW, Victoria, the ACT, Queensland, Western Australia and of New York State.

Mr John Francis Boultbee (1950)

Lawyer (Australia) Fr/Eng/Deu Sydney / Australia

LL.M. Master of laws, London University; Barrister; Director of the Australian Institute of Sport; former Secretary General of the International Rowing Federation (FISA). Former Head of National Teams, Football Federation Australia. Former Director of the Australian Institute of Sport.

Mr Bruce W. Collins (1948)

Queens Counsel (Australia) Eng Sydney / Australia

Q.C.; Practising Member New South Wales Bar Association Professional Conduct Committee. Australian Olympic Appeals Consultant. New South Wales Bar Association Advisor to the Faculty of Law, University of Wollongong. Chairman New South Wales Rugby League Appeals Committee 1995-1996. Chairman Sydney Cricket Association 2001-2007; Australian Olympic Appeals Consultant Summer 2008 and Winter Olympics 2010.

Mr Brian William Collis (1943)

Chairman Australian Footbal League Tribunal (Australia) Eng Melbourne / Australia

Queens Counsel. Vice Chairman - Australian Football League Appeal Board. Chairman - Harness Racing Victoria Racing Appeals and Disciplinary Tribunal.

The Hon. Jerrold Cripps (1933)

Barrister (Australia) Eng Sydney / Australia

Queens Counsel; Chairman Australian Commercial Dispute Centre; Chairperson National Electricity Tribunal; member of the Independent Pricing Regulatory Tribunal (NSW) Panel of arbitrators; Chief Counsel, Allen Allen & Hemsley, lawyers, Australia; former judge of the NSW Court of Appeal.

The Hon. Robert J. Ellicott (1927)

Barrister (Australia) Eng Sydney / Australia

Barrister B.A.; LLB; Australian Solicitor General and Attorney General; former Judge at the Federal Court; member of the International Amateur Athletic Federation (IAAF) Panel of arbitrators. Member of the CAS ad hoc Divisions at the Commonwealth Games, Kuala Lumpur, 1998, and at the Summer Olympic Games, Sydney, 2000 and at the Winter Olympic Games, Salt Lake City, 2002.

Justice Arthur Emmett (1943)

Judge (Australia) Eng Sydney / Australia

Doctor of Laws. Queens Counsel. Judge of the Federal Court of Australia. President, Copyright Tribunal of Australia. Commissioner, Australian Law Reform Commission. Lecturer, University of Sydney Law School. Conduct Commissioner, NSW Cricket Association, 1990 to 2007.

Mr Noah David Grace (1953)

Barrister and Solicitor (Australia) Eng Melbourne / Australia

Master of laws; Queens Counsel; Barrister; Co-Chair Criminal Law Committee Law Council of Australia; Member Court of Honour, and formerly Vice-President, Maccabi World Union. Director Athletics Australia; Team Advocate Australian Olympic Team Athens 2004; Member CAS ad hoc Divisions Commonwealth Games Melbourne 2006 and Winter Olympic Games Vancouver 2010. President Athletics Australia.

Mr Malcolm Holmes (1948)

Barrister (Australia) Eng Sydney / Australia

B.A., LLB Sydney University, BCL, Oxford University; appointed as the athletes advocate to the Australian Olympic Team at Atlanta in 1996. Member of the CAS ad hoc Division at the Summer Olympic Games, Athens 2004 and at the Winter Olympic Games, Turin 2006.

Mr David Ipp (1938)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of Western Australia; Commissioner of Independent Commission Against Corruption (ICAC); former barrister, solicitor in Australia and in South Africa.

Mr Mark Mangan (1974)

Attorney-at-law (Australia) Eng London / United Kingdom

Solicitor, England and Wales. Solicitor, Australia. Partner, Dechert LLP Singapore. Formerly senior associate, Freshfields Bruckhaus Deringer LLP. Acting as counsel and arbitrator in international arbitration. In-house counsel for the International Cricket Council.

Judge Henric Nicholas (1941)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of New South Wales since Feb. 2003. Barrister-at-law 1966 - 2003, appointed Queens Counsel in Oct. 1981.

Mr Hayden Opie (1953)

Solicitor, Senior Lecturer/Director of Studies (Australia) Eng Melbourne / Australia

His Honour Judge Rauf Soulio (1957)

Judge (Australia) Eng Adelaide / Australia

Judge; Supreme Court of South Australia 1981; High Court of Australia 1984; Roll of Solicitors, England and Wales 1990. Judge - District Court of South Australia (appointed 2006) - administrative, civil, commercial and criminal jurisdictions. Judge - Equal Opportunity Tribunal. Judge - Licensing Court of South Australia. 1981-1988 Solicitor. 1988-2006 Barrister. 2009-present President - Football Federation of South Australia.

The Hon. James Spigelman (1946)

Retired Judge (Australia) Eng Sydney / Australia

Arbitrator. Barrister, Australia 1980-1998, QC 1986-1998. Chief Justice, Supreme Court of New South Wales 1998-2011.

Mr Alan John Sullivan (1951)

Lawyer (Australia) Eng Sydney / Australia

Queens Counsel; Barrister; former Chairman, Australian Rugby League Judiciary Panel; Commissioner, Code of Behaviour, Australian Cricket Board.

Mr Neil John Young (1952)

Barrister-at-law (Australia) Eng Melbourne / Australia

LL.M.; Queens Counsel; Barrister; past President, Australian Bar Association; former Chairman Victoria Bar.

I have looked at last four or five CAS cases in Australia, and it seems that most are presided over by an Australian Arbiter (perhaps tyranny of distance, I dont know), whereas the last ten non Australian cases, there were no arbiters of the same nationality as the appellants.The list above is understandably dominated by the legal profession, but if they follow the CAS guidelines, no one can be chosen as an Arbiter if they have previously had anything to do with the case. This would seem to rule out Gordon Collis for instance, now Vice President of the AFL Appeals Tribunal, David Grace who has acted for both James Hird and the players association, John Boultbee, formerly 2IC at the FFA, and Alan Sullivan, the former chairman of the NRL Judiciary Panel. The remainder, are heavily connected to Olympic sports (where most disputes of this sort arise), so it could be expected their attitudes will be heavily influenced by the attitudes of those sports which as we all know generally feel aggrieved that wealthy Australian football codes seem to be getting a free ride when it comes to drugs in sport.

So what does WADA now do? Do they pursue the Essendon players (and/or Dank), believing there is sufficient evidence that the Tribunal got it wrong. By passing to WADA now, as McDevitt has done, the World body can take the matter directly to the Court of Arbitration for Sport with the appeal almost certainly to be held in Sydney. Most anti-doping cases are based on positive A and B samples, which if correctly tested are almost incontrovertible evidence of a violation. With a test for Thymosin Beta-4 said to be less than 12 months away, and all 34 Essendon footballers having had their A and B blood samples safely stored away by ASADA, ASADA have recently stated publicly that they will re-test these samples once a test becomes available.

The trouble with ASADAs case right now is that it draws on the more general provision in the AFL Anti-Doping Code (identical to the relevant section of the WADA World Anti-Doping Code) prohibiting Use or Attempted Use. For the AFL Tribunal, ASADA needed to prove the violation to the comfortable satisfaction of the Tribunal this is unhelpfully said to be a greater standard of proof than a balance of probability (>50% chance), but less than proof beyond reasonable doubt (the criminal standard of guilt).

Quite possibly, Essendons administrative and governance failings have thus far saved them, although there are provisions in the WADA code if the accused party is interpreted as indulging in criminal behavior. It is a moot point whether destruction of evidence is criminal in this case, and that also needs to be proven. The lesser standard of proof about balance of probabilities may help WADA\ASADA in this case. There was no audit trail of what was administered as part of the injections program, when, or to whom. This is why Essendon fought so hard to throw out evidence based on witness statements given to the AFL with ASADA in the room, but this same evidence may well be sufficient to convict under CAS provisions.

All now hinges on WADAs reading of the brief of evidence. But given the focus on personal responsibility, as expressed by John Fahey, and John Coates, and the lack of steps taken by Essendon players to question what was happening, and the lesser standard of proof required by CAS than the interpretation settled on by the AFL Tribunal, it is hard to see the Essendon players, and indeed the administration and coaches, getting off.

Once CAS pronounces on the players, then the coaches and administration will follow if what happens in cycling is any guide.

just wondering how safe our future coach is.

[Lucifers Hero 40,361]

just wondering how safe our future coach is.

I would imagine he is fine. There were reports last year that our board grilled him on his role and he was totally honest. Also, AFL was consulted and OK'd it. And, would think some 'out' clauses would be in his contract, just in case.

One never knows, but he would be down the totem pole of who WADA is after.

Don't think there is any reason to worry about losing Goodwin.

[sue 9,142]

It is an interesting case. If WADA does pursue this via CAS and the players are found guilty only to find that a few months later when a test is available for TB4 that there is no trace of banned substances in the players blood samples it would be an awkward situation for all involved. Many including myself find the EFC's behaviour to be disgraceful but ultimately ASADA and WADA exist to ensure sports are clean of PED's not to govern how clubs are ran.

Personally I think the EFC players took banned substances - otherwise why wouldn't they have produced records and compelled Dank to provide evidence. McDevitt's strong worded statement when deciding not to appeal indicates the same.

Interesting point about the risk to WADA of making a guilty finding before a drug test is available. But I think WADA might take the risk given your bolded remark above etc. It could take care to present its decision wrapped in words which would allow it to escape too much embarrassment if it turned out wrong (especially if the test isn't 100% accurate etc).

Of course no matter how they hedged their ultimately wrong decision, that wouldn't wash with Essendon supporters and our media and our pollies would be quick to join the national outrage. But that may have little effect on WADAs reputation more broadly, nor even with our athletes. So WADA may not be too worried about the risk.

(Do they have to be worried about being sued by individuals erroneously convicted? - normal judges don't)

[faultydet 7,619]

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

No way Dr.

A negative test wouldn't change the fact that they "attempted" to use the stuff. Still illegal, and worth the full 2 year ban.

A positive test would simply provide the proof that most of us crave, so the smug essendrug supporters, and the media sellouts would finally have to shut their stupid traps, while we gloat and celebrate a demise that should have come 1 year ago

[daisycutter 29,738]

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

the problem with tb4 tests is that there isn't one and talks of one being available (shortly) should be taken very cautiously. we are constantly bombarded by (pre)announcements of imminent medical breakthroughs that just don't eventuate

even if a test becomes available there is no evidence i know of (specially as no test exists) that tb4 would even be traceable in the samples after 3 or 4 (or 5?) years, such that a negative would not prove anything but would be jumped on by the messiah cult of hird as ultimate "proof" of his purity.

[Dr John Dee 1,057]

No way Dr.

A negative test wouldn't change the fact that they "attempted" to use the stuff. Still illegal, and worth the full 2 year ban.

A positive test would simply provide the proof that most of us crave, so the smug essendrug supporters, and the media sellouts would finally have to shut their stupid traps, while we gloat and celebrate a demise that should have come 1 year ago

I understand that, faulty. The whole issue of 'attempting' seems to have been swept under the carpet for the time being and an appeal to CAS might dig it out again to the embarrassment of many.

My speculation is merely a form of wondering about how confident WADA are in the development of a TB4 test and how confident they are about the existing evidence/'comfortable satisfaction' question. At the moment, since WADA knows much more than all of us, I don't think declarations of what will or won't happen can be made with any real assurance.

[Dees2014 2,377]

Plenty to digest there '2014 and thanks for pulling it all together like that.

I notice that the standard Hird-mentality line on Switkowski's findings is now to dismiss them on the basis that Ziggy also said he wasn't qualified to comment on the specifics of supplements programmes, which apparently then makes him unqualified to draw any conclusions about the administration of such programmes ... not that he has any track record on administrative issues or anything like that.

I wonder, though, in terms of where WADA goes now, whether it might be really tempting to sit back and wait for the TB4 test rather than entertaining long and potentially difficult legal arguments about evidence that isn't necessarily there. Only WADA will know the likelihoods and Jack may be right that the integrity of the Code needs to be pursued no matter what. But it would be interesting to watch the drug cheats twisting and turning in the wind, waiting for an outcome that no amount of legal manoeuvring and no amount of spin will change.

I think for WADA in many ways the process is as important as the outcome. I think ASADA and WADA have been cleverly strategic in the way they have gone about this, all the time keeping subtle pressure on the Hird forces, but being strictly ethical and methodical in the steps they are taking. The interview with John Fahey was by no means his only one, and they seem to emerge at critical times along the way. Ditto Coates. They know they are up against an extremely sophisticated unit in Hird's PR machine and they seem to be more than matching them. Part of this is to show progress continually so I think to wait for the beta 4 test which is by no means certain to be ready within 12 months would be a major concession which I am sure they would not be prepared to concede. In their view they are duty bound to enforce the law no matter what and to withdraw would be an abrogation of that

McDevitt's strategic withdrawal and handing it to WADA was another clever play, as was the way his trip to Montreal was announced. It is a ruthless game of chess on a giant board.

Edited May 2, 2015 by Dees2014

[Dr John Dee 1,057]

the problem with tb4 tests is that there isn't one and talks of one being available (shortly) should be taken very cautiously. we are constantly bombarded by (pre)announcements of imminent medical breakthroughs that just don't eventuate

even if a test becomes available there is no evidence i know of (specially as no test exists) that tb4 would even be traceable in the samples after 3 or 4 (or 5?) years, such that a negative would not prove anything but would be jumped on by the messiah cult of hird as ultimate "proof" of his purity.

You may be right, Daisy, but I thought there was some suggestion that blood samples already exist, so it wouldn't necessarily be a matter of testing 3-5 years after the event.

As for all those medical breakthroughs that don't eventuate, often it's the case that they do eventuate but only after rigorous testing has occurred and when everyone has forgotten the original hoopla ... of course it's that sort of testing that people like Dank don't necessarily believe in.

[deefrag 277]

I think for WADA in many ways the process is as important as the outcome. I think ASADA and WADA have been cleverly strategic in the way they have gone about this, all the time keeping subtle pressure on the Hird forces, but being strictly ethical and methodical in the steps they are taking. The interview with John Fahey was by no means his only one, and they seem to emerge at critical times along the way. Ditto Coates. They know they are up against an extremely sophisticated unit in Hird's PR machine and they seem to be more than matching them

McDevitt's strategic withdrawal and handing it to WADA was another clever play, as was the way his trip to Montreal was announced. It is a wonderful game of chess on a giant board.

Oh for some clarity . . .

This article (orig from The Australian) seems to suggest one of two possibilities: there was no TB4 at Essendon and us haters have egg on face . . or Dank lied to the ACC and will likely go to prison!!

Also . . has Dank been given immunity from criminal proceeding because he has provided information to the ACC that implicates "people" in more serious matters than just pushing PEDs??

THE sports scientist at the centre of the Essendon supplements scandal has given sworn evidence that he provided players with a permitted Thymosin peptide and not the banned substance alleged by the Australian Sports Anti-Doping Authority.

The Australian has learned that Stephen Dank, when questioned at length by Australian Crime Commission investigators in May 2012, testified that he administered Essendon players with Thymomodulin, an immunity booster safely given to infants, and not Thymosin Beta 4, a substance banned in sport.

The testimony, which Dank provided after being advised that his evidence could not be used in any criminal or anti-doping proceedings against him, is the only sworn evidence he has given about the substances he used at Essendon. Dank has refused to be interviewed by ASADA.

http://www.reddit.com/r/AFL/comments/28u9r2/dank_has_given_sworn_evidence_that_he_provided/

[daisycutter 29,738]

You may be right, Daisy, but I thought there was some suggestion that blood samples already exist, so it wouldn't necessarily be a matter of testing 3-5 years after the event.

As for all those medical breakthroughs that don't eventuate, often it's the case that they do eventuate but only after rigorous testing has occurred and when everyone has forgotten the original hoopla ... of course it's that sort of testing that people like Dank don't necessarily believe in.

yes, i understood that some blood samples were taken in 2012(?) and originally sent overseas for testing

they could have been very close to the time of tb4 injecting or maybe months later

there is also the possibility that 4 year old tb4 in a blood sample could have deteriorated/chemically altered

these are just possibilities, that's all

obviously if there is an imminent test available and it is +ve it would seem to be a lay down misere