bing181

Selections all working out - so far.

Not sure if this has been mentioned, the Social Litigator comments on the decision/appeal. Interesting read for anyone interested: A question of proof: might an ASADA appeal have legs? "Consider this: Those teammates who testified to taking a banned substance (c.f. participating in a banned practice such as blood doping) could not know that the substance they took was EPO. Instead, they thought it was. Now consider this: Evidence which to USADA was so compelling it was overwhelming, might fail to satisfy the AFL Tribunal, according to its reasons published to date. So too, whilst this evidence met the standard of beyond reasonable doubt (the highest criminal standard) for USADA, for the AFL Tribunal, such evidence might not even reach the lesser comfortable satisfaction test."

Exactly. Which is why programs like the Blood Passport scheme have been introduced, but also why cases without positive tests can be difficult to prove - as we've just seen.

1. No they wouldn't. You can't be proved to have used or intended to use if there's no reliable evidence that it was a banned substance. There was the case of the Belgian cyclist who was caught importing what he thought was a banned PED. But the case was dismissed when it was analysed and found to be harmless. If you can't establish that a product is or contains a banned substance, there's no case - as happened here. 2. You're surprised? 3. It wasn't proved, which is why they weren't found guilty.

That's not how it works. To be found guilty of use or intending to use, you don't need to know that what you intend to use contains a banned substance. The players got off because the tribunal weren't convinced that the "TB4" they were injected with was actually TB4.

Bob, the only reason Brayshaw didn't get picked in the earlier NAB games was because of concussion (and fears of concussion).

That's not how it works. There's a presumption of innocence until your case is decided. At that stage, you can't be "not guilty", because there hasn't been a ruling on your guilt. Subsequently, once there has been a ruling, you're proved to be either guilty or not guilty. You aren't proved innocent. Or, as sharper minds than mine have put it ... "The presumption of innocence is actually a misnomer. It is not considered evidence of the defendant's innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence." The players have been found not guilty. They haven't been found innocent. (FWIW, I accept that they're not guilty. I also accept the tribunal's verdict.)

Woah ... Hang on a minute: Wade Lees attempted to use "a product". He didn't intend to use a banned substance. Identical to the players. They intended to use "a product" (whatever they were being injected with). They didn't intend to use a banned substance. In both cases, ASADA's position was that the product was or contained a banned substance. Only difference was that in the Lees' case, ASADA had the product and could verify the constituents. Also, getting into a really narrow definition of intent here that just doesn't apply in terms of the WADA code - this is very different from a criminal court and a case for attempted armed robbery or attempted GBH. If you turn up to Dank's office at the appointed time to be injected with something that unbeknown to you is illegal, that's intent (you stepped into the office, intending to be injected). But even if you don't make it to that appointment because your car breaks down on the way, that's also intent (because you intended to have that injection). If ASADA intercept Dank's car as he drove into the Essendon car park with an Esky full of TB4 and a diary full of appointments with players for injections, that's intent (on the part of both the players and Dank.) If you place an on-line order for TB4 or CJC (http://www.maximpeptide.com/peptides/) but your shipment gets lost in the post, that's intent. If you place an on-line order for "GoFast" that is advertised as containing no illegal substances, but which ASADA stop at the border and discover is shot through with banned amphetamines, that's also intent. You don't have to intend to take a banned substance. You just have to intend to carry out a course of action that would result in banned products entering your system - knowingly or not. Though also not sure of its relevance here because the Essendon players did have injections, it's not just an intention to have those injections. Thus, there was no charge for attempted use because they actually used - unlike Wade Lees. No-one disputes the fact that the players were injected (with something). Perhaps I'm missing something, but not sure why this is posing a problem for people.

Waiver forms mention Thymosin, not Thymomodlin. There is no such substance as Thymodilin. Even "Thymosin" is ambiguous as it could cover a range of substances, though the Tribunal accepted it wasn't Thymosin Alpha 1.

Perhaps, but one of the issues with the Essendon game, especially in the last quarter, is that we didn't have (enough) leaders to take it upon themselves stand up, stem the tide and turn the game around. Grimes was/is one of those.

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.

Should just add as well ... not only gutsy selections, but two of those must know that they need to perform or else, as both Dawes and Vince would be automatic selections for next week you would think.

Wow. Sends a huge message to the players and supporters. Gutsy, even brutal selections. Fantastic to see the selectors doing what they want the players to do: put themselves on the line. Kent, JKH, Brayshaw, VDB even Toumpas and an underdone Howe over some of the fringe players we've become used to as fixtures, is a bold commitment to the future. Notable omissions are not just Grimes, but Gawn and especially given Dawes' suspension, Pedersen.

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.

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).

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.

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".

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, 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."

Not at all. Wade Lees says hi. Ignorance/not knowing is not a defence.

Not quite right. Lees attempted to import a supplement - but he didn't know it contained a banned substance. It's not like he went to Peptides-R-Us.com and ordered a vial of TB4.

- It would appear that ASADA had enough, but didn't have enough accepted or given enough weight. A subtle difference, but in many people's eyes, an important one. - TB500 is just a "commercial" version of TB-4. Same substance ... or is supposed to be (which is once again, where the argument becomes about "proof" and lack of ...).

I'm not sure WADA will weigh in on this, even though CAS is a separate court. If the evidence to join all those dots just isn't solid enough now, hard to see how it would be in the future. Hope I'm wrong.

A day on, and still feel somewhat empty in response to the decision. Some great points/posts above. We do not have clarity, and we do not have closure, though I accept that the tribunal was bound to come to the decision they did, given the difficulty with Charter and Alavi's evidence. Suspect that the AFL's greatest impact on the next revision of the WADA code will not be adjustments for team sports, but a rewrite where not being able to produce records of what you've been injected with will become a doping offence.

How any Essendon supporter could think that this is an ideal outcome is beyond me. Less than ideal result, especially as the Tribunal rejected the "they were injected with legal Thymosin" argument. As someone else commented, would have been better that they'd been found guilty and got a slap on the wrist punishment than what we have now. This does not bring closure.