Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

[Lance Uppercut]

They didnt instigate the case, were offered to join the proceedings and declined. There is no way the Federal court appeals by EFC and Hird can be held against them in my view.

Yesterdays CAS decision said it was the players that appealed, and this was one of the reasons the case was delayed. Ergo this counted against them for any reduction in sentence (although they still reduced the sentence for other reasons).

That's a mistake of fact by CAS, and in an Australian court, would make the decision appealable. It only goes to the question of sentence however, not the question of culpability.

Its not a biggie, but an appeal here could get a few months shaved off possibly.

Thats if the appeal court can hear an appeal based on a mistake of fact (Common law like Australia countries generally can). Beats me about Swiss courts. There was some commentary about an appeal only being allowed if there was a 'manifestly unjust' result (which I am taking on face value). You could argue that a decision based on a mistake of fact creates just such a result.

I was eyeing off 12 months myself personally, due to reductions for substantial delays (and possibly substantial assistance) coming into play. The decision was the correct one IMO. I dont think the players can be held responsible for what EFC did in threatening ASADA (forcing ASADA to call in a Federal court judge to review the SC notices and evidence before issuing them) nor can they be held responsible for EFC or Hirds appeal.

I was initially of the view that they might be able to have availed themselves of substantial assistance reduction, but then I read yesterdays transcript (which shed light on their complicity and obfuscation during the process) and I recant that position in light of that evidence.

The AFL dont want an appeal either. Their preferred position is for the players to take their medicine and to prop up the Bombers this year, and then finally the whole thing will be behind them. They'll likely mediate any financial settlement between the affected players (and Players association) and the EFC, and throw a carrot or two on the table to encounrage the players to move on.

it's not the only baffling thing IMO.

I have been having this discussion elsewhere, but I really feel like there was a reversal of the onus of proof.

I can't get my head around these sections:

and

To me, that says the onus of proof is on the players to prove they didn't receive injections not on the prosecution to prove they did and I can't understand that. I also can't understand why they apparently lost the right to be treated as an individual athlete.

The above excerpts, the conclusions drawn from those texts about "all" injections are absurd in my opinion; in that they may mean that but you certainly can't state with certainty it wasn't "all scheduled" injections or something else.

But then, clearly, what would I know.

 

[Lance Uppercut]

Where is the proof he gave it to other clients?

How do you prove a negative? How would you prove a negative?

In the absence of evidence to the contrary, Essendon received the TB4 and not other clients.

see, that to me is a leap of faith that isn't justified. The onus of proof shouldn't be on the players I wouldn't have thought

 

[beta_condition]

see, that to me is a leap of faith that isn't justified. The onus of proof shouldn't be on the players I wouldn't have thought

Wouldn't be a problem if the paper work didn't disappear

 

[threesixpio]

it's not the only baffling thing IMO.

I have been having this discussion elsewhere, but I really feel like there was a reversal of the onus of proof.

I can't get my head around these sections:

and

To me, that says the onus of proof is on the players to prove they didn't receive injections not on the prosecution to prove they did and I can't understand that. I also can't understand why they apparently lost the right to be treated as an individual athlete.

The above excerpts, the conclusions drawn from those texts about "all" injections are absurd in my opinion; in that they may mean that but you certainly can't state with certainty it wasn't "all scheduled" injections or something else.

But then, clearly, what would I know.

I don't necessarily completely agree with Lance but I think this aspect is more than worthy of sensible discussion and Lance deserves a considered response.

At least one CAS member agrees with this re "use" for all of the players and the social litigator sees this as the weakest aspect of the decision

I have already pmd Lance but my preliminary view is that the other CAS members believed there was enough evidence to suggest that the players needed to suggest a plausible alternative explanation rather than this being a reversal of onus of proof.

PS: Remember that Lance has been amazingly measured through all this and deserves a heap of respect on this board in my view

 

[Cronos]

it's not the only baffling thing IMO.

I have been having this discussion elsewhere, but I really feel like there was a reversal of the onus of proof.

I can't get my head around these sections:

and

To me, that says the onus of proof is on the players to prove they didn't receive injections not on the prosecution to prove they did and I can't understand that. I also can't understand why they apparently lost the right to be treated as an individual athlete.

The above excerpts, the conclusions drawn from those texts about "all" injections are absurd in my opinion; in that they may mean that but you certainly can't state with certainty it wasn't "all scheduled" injections or something else.

But then, clearly, what would I know.

Looks like CAS were comfortably satisfied they had identified a waterfowl in the Anatidae family.

 

[Chameleon75]

I don't necessarily completely agree with Lance but I think this aspect is more than worthy of sensible discussion and Lance deserves a considered response.

At least one CAS member agrees with this re "use" for all of the players and the social litigator sees this as the weakest aspect of the decision

I have already pmd Lance but my preliminary view is that the other CAS members believed there was enough evidence to suggest that the players needed to suggest a plausible alternative explanation rather than this being a reversal of onus of proof.

PS: Remember that Lance has been amazingly measured through all this and deserves a heap of respect on this board in my view

don't think its reverse onus, I read it as they drew an inference from the other strands.

 

[Armchair Critic]

see, that to me is a leap of faith that isn't justified. The onus of proof shouldn't be on the players I wouldn't have thought

I honestly think the needle in the arm is the easiest part to prove and WADA were never going to have issues proving that if it got to that stage.

The signing of the consent forms for Thymosin and admitting receiving injections after signing the forms was always going to be enough to prove that step IMO

 

[Lance Uppercut]

don't think its reverse onus, I read it as they drew an inference from the other strands.

that's one hell of an inference, and some serious implications as a result.

To my mind it still puts the onus on the player to prove innocence and I don't understand that myself. We assert there was a program, prove you weren't a party or you're guilty.

The implications from the text messages are bizarre to say the least. How can they assert that "all the injections" = "all the players" for instance? Sure it might, but it might also mean "all the scheduled injections".

 

[Oneiros]

that's one hell of an inference, and some serious implications as a result.

To my mind it still puts the onus on the player to prove innocence and I don't understand that myself. We assert there was a program, prove you weren't a party or you're guilty.

The implications from the text messages are bizarre to say the least. How can they assert that "all the injections" = "all the players" for instance? Sure it might, but it might also mean "all the scheduled injections".

I don't know if this has been linked elsewhere, but I think this is the Social Litigator article O'Rourke is referring to: http://sociallitigator.com/2016/01/...wada-said-strands-in-a-cable-which-was-right/

There's a lot of material in there that touches on what you are asking, and explains why the approaches differed between the two hearings.

 

[Lance Uppercut]

I honestly think the needle in the arm is the easiest part to prove and WADA were never going to have issues proving that if it got to that stage.

The signing of the consent forms for Thymosin and admitting receiving injections after signing the forms was always going to be enough to prove that step IMO

was there any consideration given to whether there was enough to cover all players? I'll have to have a closer look.

I don't know, I have no issue with the players being found guilty, I can appreciate the weight of evidence against them, but assertions like the text one I mentioned above; or that we assert it was a team wide program so everyone got it regardless of anything else; and we can't prove the tb4 went to EFC but it probably did and even if it didn't you can probably buy tb4 in Australia anyway so that's enough.

I can understand the opinion that the AFL applied to high a burden of proof but to my mind CAS have gone too far the other way, but again, what would I know, it's probably just sour grapes

 

[threesixpio]

don't think its reverse onus, I read it as they drew an inference from the other strands.

So do I.

However, I think the discussion shouldn't just be limited to reverse onus. It should extend to whether the evidence for team wide use was "enough" - that is did it have sufficient probative value?

 

[Lance Uppercut]

I don't know if this has been linked elsewhere, but I think this is the Social Litigator article O'Rourke is referring to: http://sociallitigator.com/2016/01/...wada-said-strands-in-a-cable-which-was-right/

There's a lot of material in there that touches on what you are asking, and explains why the approaches differed between the two hearings.

yeah I've read it of course, it forms part of the opinion I've developed. I don't know, when the decision came out I thought yep, fair enough, I can understand that. But the more I read about how they actually came to that opinion the more it baffles me.

 

[TerryWallet]

that's one hell of an inference, and some serious implications as a result.

To my mind it still puts the onus on the player to prove innocence and I don't understand that myself. We assert there was a program, prove you weren't a party or you're guilty.

The implications from the text messages are bizarre to say the least. How can they assert that "all the injections" = "all the players" for instance? Sure it might, but it might also mean "all the scheduled injections".

They didn't assert there was a program. They were comfortably satisfied by all the strands of evidence that there was a program.

That is the Doping standard.

 

[Lance Uppercut]

They didn't assert there was a program. They were comfortably satisfied by all the strands of evidence that there was a program.

That is the Doping standard.

same diff.

 

[threesixpio]

was there any consideration given to whether there was enough to cover all players? I'll have to have a closer look.

I don't know, I have no issue with the players being found guilty, I can appreciate the weight of evidence against them, but assertions like the text one I mentioned above; or that we assert it was a team wide program so everyone got it regardless of anything else; and we can't prove the tb4 went to EFC but it probably did and even if it didn't you can probably buy tb4 in Australia anyway so that's enough.

I can understand the opinion that the AFL applied to high a burden of proof but to my mind CAS have gone too far the other way, but again, what would I know, it's probably just sour grapes

Not sour grapes - again worthy of discussion.

Sour grapes is suggesting that you can't rely on foreigners to get it right ......

 

[threesixpio]

same diff.

No. WADA asserted and CAS was comfortably satisfied that this assertion was correct

 

[Muggs]

that's one hell of an inference, and some serious implications as a result.

To my mind it still puts the onus on the player to prove innocence and I don't understand that myself. We assert there was a program, prove you weren't a party or you're guilty. ".

Think you might be reading a bit much into this Lance, think that paragraph 130 is a nod to the fact that those two players had different representation and ran a slightly different case to the other 32, and nothing in that different presentation/case cast further doubt in the mind of the panel that they should be treated differently.

In saying that not sure there is much practical difference between casting doubt on a case and proving your innocence.

Basically I see it as WADA doing enough to prove to the level comfortable satisfaction in the majority of the panel that all 34 were involved and should be treated the same, no one player was able to present evidence to cast doubt on why this was not the case.

 

[jc12]

does anyone have a link to the CAS document of the final descion?

 

[Oneiros]

So do I.

However, I think the discussion shouldn't just be limited to reverse onus. It should extend to whether the evidence for team wide use was "enough" - that is was it probative enough?

It sounds to me that the panel reached the stage where they said, "This is sufficiently convincing circumstantial evidence that without something strong to the contrary we will accept it."

Or, given we now have multiple potential vectors available to Dank for the provisioning of Tb4, plus the AAT's confirmed use of Tb4 in a similar case against Dank, then the casting of doubt upon any particular vector no longer breaks the connection to the rest of the case. It can be shown that he had access to Tb4, thus the specific sourcing no longer weighs heavily in the decision as a crucial intermediary fact.

Once we reach that point, we find ourselves looking at a regime where 34 players consented to use of a substance we are now accepting was Thymosin-B4. Further, text messages and testimony show that an injection regime resulted. At this stage they have shown enough to comfortably satisfy the panel that Dank had possession of, intended to use, and, barring leaps of logic, proceeded to use, Tb4.

At that point, it makes sense that the defence would then have to present strong countervailing evidence for any player to prove that for whatever reason they were different to the other players in not receiving this course of supplements that they had consented to.

So I don't think it is accurate to say that they reversed the onus from the outset, but rather that they reached a point where the "cable" was established as sound, and the defence was left in a position where they needed to cut the cable as a whole (whether for the team as a whole, or for an individual to divide them from the rest of the 34's fate). They could no longer simply eliminate a Tb4 vector and watch the "chain" break as had happened at the ASADA hearing. I suspect that at this stage it would have required Stephen Dank coming from the clouds with spreadsheets in hand, showing an alternative supplement regimes with documentation as to why this other Thymosin formulation would have produced the desired effects he had been shown to tout in text message. When they could not produce evidence or argument to cut the cable of circumstances, the panel ruled against them.

So the key points are that the new analytical evidence, the conclusions of another Dank doping case, and the new approach stopped certain points of contention being make-or-break intermediary links, which made establishing the circumstantial case easier, and put pressure on the defence to disprove it, rather than simply sitting back. This is not a case of the onus being reversed at the outset, but rather that the CAS eventually hit the point where WADA had established their scenario (to comfortable satisfaction) and something needed to be done to knock it down.

 

[Lance Uppercut]

No. WADA asserted and CAS was comfortably satisfied that this assertion was correct

yeah I understand, that's not what I'm saying, I'm saying it's the same diff in that the program is established to exist, and then as a result individual players are assumed to be guilty. On the basis of things like "it doesn't make sense he wouldn't do it for all players" (really?) or "text messages said 'all the injections' therefore that means all the players" (what?!)

 

[Proper Gander]

Sounds a bit crazy - but does anyone know if you can appeal a CAS decision on the basis of new evidence that clearly and compellingly overturns the decision?

I was just thinking about Dank and his famous bull dust re having evidence that will clear players (presumably contemporaneous evidence that thymomodulin was the substance used), so by initiating civil action, could not EFC seek this "information" via disclosure?

Or perhaps EFC believe players were given TB4

 

[Lance Uppercut]

It sounds to me that the panel reached the stage where they said, "This is sufficiently convincing circumstantial evidence that without something strong to the contrary we will accept it."

Or, given we now have multiple potential vectors available to Dank for the provisioning of Tb4, plus the AAT's confirmed use of Tb4 in a similar case against Dank, then the casting of doubt upon any particular vector no longer breaks the connection to the rest of the case. It can be shown that he had access to Tb4, thus the specific sourcing no longer weighs heavily in the decision as a crucial intermediary fact.

Once we reach that point, we find ourselves looking at a regime where 34 players consented to use of a substance we are now accepting was Thymosin-B4. Further, text messages and testimony show that an injection regime resulted. At this stage they have shown enough to comfortably satisfy the panel that Dank had possession of, intended to use, and, barring leaps of logic, proceeded to use, Tb4.

At that point, it makes sense that the defence would then have to present strong countervailing evidence for any player to prove that for whatever reason they were different to the other players in not receiving this course of supplements that they had consented to.

So I don't think it is accurate to say that they reversed the onus from the outset, but rather that they reached a point where the "cable" was established as sound, and the defence was left in a position where they needed to cut the cable as a whole (whether for the team as a whole, or for an individual to divide them from the rest of the 34's fate). They could no longer simply eliminate a Tb4 vector and watch the "chain" break as had happened at the ASADA hearing. I suspect that at this stage it would have required Stephen Dank coming from the clouds with spreadsheets in hand, showing an alternative supplement regimes with documentation as to why this other Thymosin formulation would have produced the desired effects he had been shown to tout in text message. When they could not produce evidence or argument to cut the cable of circumstances, the panel ruled against them.

So the key points are that the new analytical evidence, the conclusions of another Dank doping case, and the new approach stopped certain points of contention being make-or-break intermediary links, which made establishing the circumstantial case easier, and put pressure on the defence to disprove it, rather than simply sitting back. This is not a case of the onus being reversed at the outset, but rather that the CAS eventually hit the point where WADA had established their scenario (to comfortable satisfaction) and something needed to be done to knock it down.

that's a great summation, I guess it just comes down to the old chestnut of at what level should comfortable satisfaction be established. You think it's reasonable that they can say that there are multiple places he could have got it, without proving he did; and that he used it before so he used it this time; I think that's unreasonable - it does exactly what wada accused the afl of doing in the opposite direction for mine. But hey, opinions are like assholes

 

[Laphroaig]

was there any consideration given to whether there was enough to cover all players? I'll have to have a closer look.

I don't know, I have no issue with the players being found guilty, I can appreciate the weight of evidence against them, but assertions like the text one I mentioned above; or that we assert it was a team wide program so everyone got it regardless of anything else; and we can't prove the tb4 went to EFC but it probably did and even if it didn't you can probably buy tb4 in Australia anyway so that's enough.

I can understand the opinion that the AFL applied to high a burden of proof but to my mind CAS have gone too far the other way, but again, what would I know, it's probably just sour grapes

Maybe the bolded part is a good illustration.

The CAS was satisfied that EFC was buying TB4.
THe CAS was satisfied that the Thymosin on the consent forms was TB4.
THe CAS was satisified that the players received injections as stated on the consent forms.

That's about the ball game. There is no requirement to "prove" how many injections or account for every drop.

I think it was in the sociallitigator article - something along the lines that it is quite possible that every single item of evidence in a circumstantial case may have unanswerable questions around it. But that the weight of the evidence as a whole still prevails.

It's happened a lot on this board (both sides) where people have assumed that an unanswered question invalidates the entire subject. It has certainly been vehemently argued that the inability to account for enough TB4 for every dose in the program means TB4 use can not be demonstrated.

I admit to being somewhat surprised by elements of the CAS findings myself. Reading between the lines - or maybe just reading the lines - it seems clear that the panel formed the opinion that the players were more than a little bit untruthful. And perhaps weighted their consideration of some aspects of the evidence accordingly.

 

[TerryWallet]

It sounds to me that the panel reached the stage where they said, "This is sufficiently convincing circumstantial evidence that without something strong to the contrary we will accept it."

Or, given we now have multiple potential vectors available to Dank for the provisioning of Tb4, plus the AAT's confirmed use of Tb4 in a similar case against Dank, then the casting of doubt upon any particular vector no longer breaks the connection to the rest of the case. It can be shown that he had access to Tb4, thus the specific sourcing no longer weighs heavily in the decision as a crucial intermediary fact.

Once we reach that point, we find ourselves looking at a regime where 34 players consented to use of a substance we are now accepting was Thymosin-B4. Further, text messages and testimony show that an injection regime resulted. At this stage they have shown enough to comfortably satisfy the panel that Dank had possession of, intended to use, and, barring leaps of logic, proceeded to use, Tb4.

At that point, it makes sense that the defence would then have to present strong countervailing evidence for any player to prove that for whatever reason they were different to the other players in not receiving this course of supplements that they had consented to.

So I don't think it is accurate to say that they reversed the onus from the outset, but rather that they reached a point where the "cable" was established as sound, and the defence was left in a position where they needed to cut the cable as a whole (whether for the team as a whole, or for an individual to divide them from the rest of the 34's fate). They could no longer simply eliminate a Tb4 vector and watch the "chain" break as had happened at the ASADA hearing. I suspect that at this stage it would have required Stephen Dank coming from the clouds with spreadsheets in hand, showing an alternative supplement regimes with documentation as to why this other Thymosin formulation would have produced the desired effects he had been shown to tout in text message. When they could not produce evidence or argument to cut the cable of circumstances, the panel ruled against them.

So the key points are that the new analytical evidence, the conclusions of another Dank doping case, and the new approach stopped certain points of contention being make-or-break intermediary links, which made establishing the circumstantial case easier, and put pressure on the defence to disprove it, rather than simply sitting back. This is not a case of the onus being reversed at the outset, but rather that the CAS eventually hit the point where WADA had established their scenario (to comfortable satisfaction) and something needed to be done to knock it down.

Very well put.

I think Natalie Hickey would approve of the depth of explanation.

 

[Chameleon75]

that's one hell of an inference, and some serious implications as a result.

To my mind it still puts the onus on the player to prove innocence and I don't understand that myself. We assert there was a program, prove you weren't a party or you're guilty.

The implications from the text messages are bizarre to say the least. How can they assert that "all the injections" = "all the players" for instance? Sure it might, but it might also mean "all the scheduled injections".

I dont think they have to establish all the injections, only one constitutes a doping offence.

they were satisfied that tb4 was part of the program, now you might not agree, but for arguments sake lets accept that.

danks correspondence spoke of tb4 being the cornerstone, if your satisfied of that then you can infer that at least some of the injections are tb4 as its the foundation the program was built on. consent forms tie the players to the program.

I suspect that the divergence on the panel might have been on lines that they were satisfied thymosin was tb4 and was part of the program and admission of thymosin was enough (think they used a precedent to infer this, could be wrong), but split on players that might have only admitted to injections.

anyway im not a lawyer, so I don't want dig myself into a deeper hole.

So do I.

However, I think the discussion shouldn't just be limited to reverse onus. It should extend to whether the evidence for team wide use was "enough" - that is did it have sufficient probative value?