Few arbitration decisions have had the wide-reaching consequences as the decision of the International Court of Arbitration of Sport (CAS) to suspend 34 current and former Essendon players. Even more surprising is how little genuine analysis has been undertaken of the decision.
There are several aspects of the majority CAS finding (the decision wasn’t unanimous for all the 34 players) that are troubling.
First, the crux of WADA’s circumstantial case (which was largely accepted by the CAS) was that Essendon sports scientist Stephen Dank had a history of using the prohibited TB-4, Dank was employed by Essendon, Dank engaged Shane Charter to source TB-4, the TB-4 was delivered to a Como-based chemist called Nima Alavi and the players subsequently received injections from Dank (the evidence that Dank purchased TB-4, based on his communications, is strong). While it is tempting to simply put the pieces of the puzzle together and conclude that illicit substances were taken, that is not how judicial proceedings are meant to work. That is because the prosecution is required to prove their case, and defendants are supposed to be innocent until proven guilty. (It would have been a very different situation if the players had tested positive to the illicit substances).
In a normal court proceeding, the respondent or defendant is entitled to cross-examine witnesses. This allows a judge or jury to place specific weight on the evidence being submitted (especially when that evidence is “hearsay”, or in non-legal terms, “second-hand evidence”). The CAS heard testimony from Dank, Charter or Alavi, but despite noting that those three persons had been “tainted with criminality” the panel seemed to rely heavily on their usually non-admissible hearsay evidence.
The CAS also relied on were an interview between Dank and Nick McKenzie of Fairfax in April 2013 in which Dank allegedly admitted to using TB-4 on Essendon players — however, that claim was later retracted. Given Dank was never examined, the veracity of that claim must be questioned. Another key point on which CAS relied was the claims by some players that Dank was not present at “away” matches; this was later proved to be false. Other than potentially harming the credibility of the player(s) in question, the weight given to such evidence would be minimal as to whether they injected banned substances.
The CAS then noted that while the players stated that the injections undertaken by Dank had no beneficial effect, CAS found that “Essendon had conspicuous success at the start of the 2012 season, winning eight of nine games before being destablised by injuries”. In short, the CAS appeared to say that Essendon won a lot of games in early 2012, so they must have been doping.
For a legal body to draw such a conclusion is perplexing. Moreover, the comment makes little sense given the major use of TB-4 is to aid recovery — if Essendon suffered a spate of injuries, then it seems that if TB-4 was taken, it didn’t appear to be effective (CAS itself noted that the purpose of TB-4 is to “heal tissue and speed recovery”). Interestingly, Essendon also won seven of their first games in 2013, achieving similar “conspicuous success”, well after the injections program had ended.
Another element of WADA’s case was that the players signed consent forms for the injection of Thymosin. Thymosin itself is not necessarily a prohibited substance — there are 27 known versions of that class of compound — Essendon claimed that players had been given Thymomodulin, a form of Thymosin that is not banned. Thymosin Beta 4 (or TB-4), a form of Thymosin, while not specifically illegal at the time of Essendon’s injection program, has since been expressly banned by WADA. The consent forms also noted that “all components … are in compliance with current WADA anti-doping guidelines”. It is difficult to assess any guilt from the signing of the consent forms.
There was also another challenge for WADA: the case involved a team, rather than an individual athlete That means even if WADA were able to prove that one or several of the Essendon players injected a banned substance, that doesn’t mean every single player was also guilty by implication. Moreover, only a small subset of seven players actually gave evidence before CAS. The CAS ruling noted that (1) Dank sent a text message that said “all injections…completed”; (2) Dank sent four random messages to specific players regarding injections; (3) Dank was incentivised to inject all players to get the best possible results; and (4) the players kept no records and had difficulty recollecting events. This finding seems to me a significant stretch of legal reasoning, in the same sense that someone lurking around a crime scene who later denies their presence isn’t necessarily a criminal. It may be suspicious, but it’s not proof of guilt.
Arguably most critical was the lack of a reliable positive sample. WADA’s key submission justifying their appeal was that the German Sport University in Cologne lab uncovered a positive drug test that had been previously missed (the AFL, concerned about the possible use of peptides in 2011 and 2012, had samples sent to Germany and tested). While the tests initially returned no positive tests for banned substances, WADA had the samples re-tested, and one of the 34 players allegedly tested positive for TB-4.
Medical experts representing the players (successfully) argued that the single positive test for TB-4 could have been caused by physical injury, or the injection of plasma platelets. WADA’s expert, David Handelsman, who claimed that the single positive result was “suspicious”, was discredited by CAS on the basis that he held a view that “the use of prohibited substances was endemic in the AFL”.
Given the single positive result (which also means 33 of the 34 players returned completely clean samples), even WADA conceded in its closing submissions to CAS that the “panel could not decide the case adverse to the players on the basis of the new material”. In short, the alleged positive test that was trumpeted by WADA as being key evidence justifying the appeal was discredited even by WADA itself.
Despite the evidence submitted consisting of hearsay, the key participants not cross-examined and the major piece of new evidence (the alleged positive sample) being discredited, the CAS deemed all 34 players, many of whom never gave evidence and none of whom ever returned a positive sample, to be collectively guilty of doping.
The decision, while strange, is perhaps somewhat unsurprising given the background of Michael Beloff, the president of the CAS panel. Beloff has been an outspoken critic of performance-enhancing drugs, saying:
“The use of drugs violates all such notions of equality: the drug taker starts with an unfair advantage. Success becomes the product of the test tube, not the training track. The interests of innocent athletes need protection by punishment of the guilty.”
There is little doubt that the program undertaken by Essendon represented a gross breach of governance, and the fact that Essendon have not been able to confirm what was actually injected into the players remains reprehensible. However, Essendon has been sanctioned by the AFL, and virtually all those responsible have been rightfully punished and are no longer working within the AFL.
That however had nothing to do with the WADA’s case and the decision of the CAS. The cost to the players involved, their families and all AFL supporters as a result of the questionable decision is significant.
*Adam Schwab is a former lawyer and company director