The pomp in circumstance: CAS rules against Essendon players

When ASADA issued infraction notices against 34 past or present Essendon footballers, the case was heard – as per World Anti-Doping Agency (WADA) protocol – by the anti-doping tribunal of the relevant sport – in this case the AFL. The members were David Jones (retired County Court judge), John Nixon (retired County Court judge) and Wayne Henwood (barrister with Owen Dixon Chambers).

They found that a case against the players could not be proven to the requisite standard of the tribunal, which is “comfortable satisfaction”.

To the surprise of many, but certainly not ASADA CEO Ben McDevitt, WADA chose to appeal the AFL tribunal finding at the Court of Arbitration for Sport (CAS). Although CAS resides in Lausanne and operates under Swiss law, for convenience this tribunal (it is a court in name only) sat in Sydney in late 2015.

From a procedural perspective, the prosecution was entitled to nominate a judge from the list of accredited CAS tribunal members, as was the defence. The prosecution selected Romano Subiatto QC (Cleary Gottlieb – Brussels and London), while the defence chose James Spigelman QC (former Chief Justice of the Supreme Court of New South Wales). As is customary, they decided on the tribunal chair, settling on Michael Belloff QC (Blackstone Chambers – London).

In essence, WADA would rely on a second tribunal to look at essentially the same body of evidence in the hope of reaching a different conclusion under the same standard of proof. There was, nonetheless, the prospect of new evidence because the case would be heard de novo (anew). This was all exceptionally important.

CAS not only hears appeals, whether from WADA or defendants, but it is effectively the final ruling on the matter. Case closed. From that perspective, the second tribunal is undoubtedly far more important than the first; a sport anti-doping tribunal carries no weight in the event of a successful CAS appeal.

Tuesday’s announcement that CAS has delivered a very different verdict to the first tribunal is, to many who have followed this three-year saga, a surprise. The reality, of course, is that in both law and sport the umpire’s decision is final; the adjudication must therefore be accepted.

What, then, were the key reasons for the CAS decision?

1. CAS concluded that, despite a lack of evidence of positive tests, Essendon sport scientist Stephen Dank did administer a banned supplement, thymosin beta-4 (TB-4). It is a naturally occurring substance in the body, particularly useful for tissue repair. WADA proscribes the exogenous supply of TB-4, arguing that its regenerative capabilities have a performance-enhancing impact.

2. The prosecution’s case rested on what it argued were reasonable assumptions: that Dank did source for TB-4 for players (rather than for his own supplements business), and that the use of TB-4 was part of Essendon’s “secretive” high-performance program.

3. CAS concluded that the covert nature of Essendon’s supplementation program gave rise to reasonable suspicion that it was contrary to the WADA code. This view was bolstered by (a) the inability of players to respond confidently to what they had been administered, and (b) the absence of Thymosin (a legal immune booster that Dank says he administered) on players’ declarations to ASADA before taking to the field.

CAS has taken a very strong view that the players (and therefore any athlete) cannot use the excuse that they were following the instructions of sport scientists or doctors. The Essendon players signed a consent form to indicate their understanding of what they were being supplied with conformed to the WADA code. But CAS did not believe this was worth the paper it was written on.

From CAS’s point of view, the players were willing accomplices in a game of deception. This latter point is in stark contrast to ASADA’s position at the AFL tribunal, where it viewed the players as pawns in a pseudo-scientific experiment.

There are many ironies in all this. One of them is that the Cronulla Sharks players who accepted a three-week penalty for peptide use have ended up in much better shape than the Essendon footballers, each of whom refused a deal with ASADA because they wanted to clear their names. They have, in the end, been buried by a circumstantial case – the strength of which will continue to be debated for years.