- Jun 28, 2013
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Well no surprise it's a collective if it's effectively a union (AFLPA) organising representation
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AFLW 2024 - Round 6 - Chat, game threads, injury lists, team lineups and more.
Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability
- Thread starter Malifice
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Muggs
Premiership Player
Does seem like the EFC group pressured the port group not to jump ship.
Suspect a few are now regretting not doing so and taking a deal when available.
- Jun 28, 2013
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Slightly ironic given that the group/mob mentality landed them in the hot water to begin with (arguably). You would think "breaking ranks" would have made sense at some point in their journey
Muggs
Premiership Player
Maybe but having pretty much everyone tell them we don't think you personally did anything wrong would have helped group cohesion.
If one of their lawyers sat them down one by one and said the club is at fault, but you have been negligent in not checking the substance yourself, not filling out the forms, not checking with the doc, so while not "at fault" strict liability means you could still cop a full whack I suspect some would have.
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- Jun 28, 2013
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Yeah well the legal team ought to get a bit of scrutiny if we are to complain about delay.
P Little certainly has form with protracted litigation. Seem to recall a lot of cases at Uni involving Toll holdings
Which is what the players' lawyers put forward at the AFL Tribunal, in painting a disparaging picture of the Chinese manufacturing plant. It's in China, they can't be trusted.
To which the CAS responded by pointing out that GL Biochem had recently been bought by an American company, which wouldn't have happened if they were shonky.
- Jun 28, 2013
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The old yellow peril angle. Noice
- Dec 5, 2012
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Does all of this make the banned players contracts void?
The legal team contains some very smart operators. I have no doubt they would have run the best defence they were able to put together in the circumstances. The fact that it ended up as an entirely negative defence says alot in my opinion.
Its kind of defence 101 that the first thing you look for is an alternative innocent explanation. See Domaszewicz and Colin Lovitt QC's pigs head defence for a spectacular example where this type of approach probably got a guilty bloke off the hook. I believe it is the preferred defence where you are facing an entirely circumstantial case because now the prosecution not only has to prove all the elements of its own case, they also have to disprove the alternative innocent explanation as well.
I reckon the players' lawyers would have spent a good deal of time at first trying to establish this kind of defence. They certainly wouldn't have just sat on their hands all those months thinking they could just run a negative defence and waltz to victory.
They would have been trying to uncover anything they could that suggested a substance was taken other than TB4. Looking for evidence it was either TA1 or Thymomodulin or any other legal substance. I have no doubt they would have interviewed each of the players individually, asked if any of them could testify to what they took, would have approached Dank, Robinson, Charters, Alavi, Hird - anyone involved who might be able to give positive evidence that the substance was something other than TB4.
In the end, it appears that they were unable to uncover even a single shred of evidence that credibly supported an alternative innocent explanation, hence running with the say nothing and make them prove it defence. Not surprisingly this type of defence is often the last resort of the guilty because innocent people tend to be able to put a plausible alternative because, y'know, they are actually innocent and objective reality tends to leave traces of its occurrence.
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Which begs the question why didn't players accept a plea early on. But I know that you can advise until your blue in the face and clients might not listen. Similar to my defence of Reid re AOD - we don't know what he was actually advising the players in confidence
Its a very good question, I reckon the players lawyers (in particular the barristers who usually take a more pragmatic approach to these things than the solicitors who tend to be more emotionally and perhaps financially invested) would have been strongly pushing for a deal if there was really an offer on the table of missing only 3 or so weeks as reported. Either the players or other vested interests were not prepared to deal. Who knows though - the say nothing defence succeeded at the AFL Tribunal so it wasn't entirely without merits, if WADA hadn't of got involved then the strategy would have been an unmitigated success.
ChrisKaias
Team Captain
- Aug 11, 2014
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I think players truly felt they did nothing wrong and wouldn't cop a plea which would mean accepting guilt in their eyes. The problem with this is that ADRVs are absolute liability, they really had to be sure that Dank did nothing wrong. I don't know that they ever had any good basis for relying on that.
- Jun 28, 2013
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Wonder what their advice was on no significant fault.
I know what I think. I've always said that if they were told it was Thymosin and that the intended benefits were benefits that could not be achieved by any other form of Thymosin they were effectively told they were using TB4 and, as such, they were NOT mislead or "duped" with respect to "fact" - they were merely mislead as to the legal status of the substance. Therefore no defence
CAS agreed (sound of myself patting my own back.....)
Consent forms with thymosin on it.
Text messages between Dank and Hird referring to thymosin
Injections to players with exact frequency for those of TB4
Dank's admission he gave TB4 to the players
6 player admissions at ASADA that they got thymosin
Molecular weight for TB4 when compounded was 99% accurate
Don't know about you but that looks like a lot of "comfortable satisfaction" there.
- Oct 20, 2014
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Sorry, fair enough. I really should of read the whole of the findings properly!
I heard one of the EFC peeps say yesterday, may have been T.Watson, that no deal was actually ever presented.
Dunno what to make of that, whether just semantics(probably) or not.
But was also interesting to hear McDevitt saying no discounts was the right decision. Which also points to no deal being actually offered.
Once again, dunno. Maybe there was just a lot of manouvering going on.
It's possible the evidence WADA presented was accepted to the Panel's comfortable satisfaction that they were guilty. Once that occurred then the players had to then demonstrate as to why that shouldn't be the case. Without records that would've been impossible. The onus of proof is still with WADA but at some point the players do need to be able to refute the argument. They couldn't. This is all my opinion of course.
Wonder if some players would've done better going as individual rather than a whole team. Dunno.
- Jul 22, 2013
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There may be more to it - but. For a large part of the timeline, certainly including the period where there was the possibility of cutting a deal, the players were being advised by the lawyers representing Essendon football club. And it was pretty obvious that the Club had no intention of admitting ANYTHING. Instead, they took the Paul Little eye gouging knacker kicking approach to problem solving.
The legal advice setup was a massive conflict of interest. And amazingly the AFLPA openly played along with it.
It was only ever Caro saying there was a deal, then a few select posters on here ran with it.
There was never any deal, McDevitt explained how the process works is all.
gutsroy
Brownlow Medallist
Apologies in advance if already dealt with, but my understanding:
The was I read it, even if the players had more energetically opposed it, the panel would always have been prepared to accept the 'cable strand' analogy once WADA tabled it, think there is actually a preference stated for its application in (141)? It's covered in (110 - 112) as well for anyone interested:
The players initially made no objection, believing that any case made not based on links in chain was destined to fail to establish an ADRV to the requisite level of satisfaction. They changed tack in closing statements and contended that WADA should not be permitted to change its argument in this way (110), but the panel considered that WADA’s argument itself remained the same, it was just presented in a different way (111) and thus permissible.
The panel rejected the players' submission, not only because it was inconsistent with their earlier position, but because it was unsound and because the panel shouldn't be constrained from reviewing the case de novo, based on all available evidence (112 (1) and (3)). So even if the players had contested it earlier, they couldn't have stuffed the genie back in the bottle(?)
gutsroy
Brownlow Medallist
One interesting aspect (might have been brought up by others already, if so, sorry for repeating) which I don't think has gotten much coverage - but maybe was already known from the earlier tribunal hearing, I can't recall - was:
Prof. Handelsman (scientific expert for WADA regarding analytical evidence introduced) considered that the use of prohibited substances was endemic in the AFL in 2012. The award indicates there is no concrete evidence for this, but it's interesting, given that Hird, e.g., seemed convinced of that, too. (See 148)
Prof. Handelsman (scientific expert for WADA regarding analytical evidence introduced) considered that the use of prohibited substances was endemic in the AFL in 2012. The award indicates there is no concrete evidence for this, but it's interesting, given that Hird, e.g., seemed convinced of that, too. (See 148)
in addition to analysing the essendon player he also analysed 50 odd other players and had control sample of around 120 non athletes analysed.
my guess is he probably found markers across the afl players that illicit suspicion.
gutsroy
Brownlow Medallist
Not proclaiming any particular insight, but if anyone is interested in a condensed version of the award, I tried to summarize it for myself out of interest, might be of use to someone not wanting to read through the whole thing but interested in knowing where to go to look for specific aspects. If not, please ignore:
Burden of Proof / Standard of Evidence (105): The panel did not accept that ‘strong evidence’, commensurate with the ‘serious claims’ made, was required, nor that WADA was obliged to ‘eliminate all possibilities’ which could point to the players innocence. That is, the panel did not consider that there was a requirement beyond comfortable satisfaction. (Comfortable satisfaction further dealt with in 107, 108)
Evidentiary Basis (106): Circumstantial evidence (as per ASADA submission) and analytical evidence (new)
Links in Chain vs Cable Strands (109-112): WADA accepted that certain ‘intermediate’ facts (i.e. links in chain) would need to be established to comfortable satisfaction in the appeal brief (109):
1. TB-4 requested by Dank and prepared on his behalf;
2. TB-4 obtained by Alavi, compounded and provided to Dank;
3. Dank administered TB-4 to players;
4. TB-4 is a prohibited substance.
But preferred the cable strand analogy by the time of the hearing. The players initially made no objection, believing that any case made not based on links in chain was destined to fail to establish an ADRV to the requisite level of satisfaction. They changed tack in closing statements and contended that WADA should not be permitted to change its argument in this way (110), but the panel considered that WADA’s argument itself remained the same, it was just presented in a different way (111) and thus permissible.
The panel rejected the players' submission, not only because it was inconsistent with their earlier position, but because it was unsound and because the panel shouldn't be constrained from reviewing the case de novo, based on all available evidence (112 (1) and (3)).
Ultimate basis for decision (113): Evaluation of all relevant and credible evidence and considering if, considered cumulatively, the test of comfortable satisfaction was met.
De novo Hearing (114): Within scope of original, challenged decision acceptable in any case (several reasons given, incl. that the right of appeal necessarily carries with it its subordination of the de novo principle.)
Admission of Scientific Evidence: Acceptable as WADA was not a party to the AFL Tribunal proceedings (i.e. could not present it there) and was not presenting it in bad faith, and the evidence could help determine if an ADRV was committed (116).
Written Statements (117 – 119) Panel’s acceptance of higher caution / lower weight to be placed on written statements of key witnesses not present.
AFL Tribunal Reasoning: Panel not obliged to follow AFL Tribunal’s reasoning, given reformulation of case (strands vs links) and that the AFL Tribunal did not consider 3. above (Did Dank administer TB-4 to players?) as it considered 1. and 2. insufficiently demonstrated. Panel chose 3. as its starting point.
Cable Strands Reviewed (120-124):
· Dank had (in all probability) administered TB-4 in the past (Sandor Earl, references to soft tissue maintenance effects, request(s) to Charters for TB-4);
· All players admitted to receiving injections by Dank;
· All players signed a consent for including ‘Thymosin’ injections (listing dosage matching TB-4, recovery benefits);
· 6 of 32 players indicated Dank had identified injections as ‘thymosin’, 2 (Crameri + Prismall(?)) indicated having seen ‘thymosin’ on vials injected.
· Dank’s admission of TB-4 use in Age interview and attempts to access TB-4 but not using it in this context as a ‘sports guru’ to aid recovery incongruous.
· Various concealments / attempts to downplay nature of injections by Dank and players, omission in doping control forms, to Dr. Reid etc.)
· Interesting inversion of conclusion of AFL Tribunal regarding lack of dispensation records: AFL Tribunal considered ASADA’s case insufficiently substantiated as a result, panel considered it suggestive of the desire to conceal the program.
All Players or Some ?(125 – 130) Panel rejected the argument that evidence of use of thymosin (TB-4) by individual players was not established:
· Regime was not conceived by Dank for any individual player but for whole team.
· Thymosin central – specifically highlighted by Dank as cornerstone of regime, no evidence to suggest that he would then withhold it from any individuals. Reference to David Hille’s understanding, e.g., that all players were in the same program (although some differences in dosage possible, as observed).
· The players themselves kept no record, were unable to provide precise information about number / timing of injections and were vague on their contents (as media reports had highlighted, e.g. TB-4 as a supplement of interest prior to the interviews)
· Panel stressed that all that was required was comfortable satisfaction that all players, on at least one occasion, had been administered TB-4.
TB-4 vs other Thymosin / Supply Chain (131 – 143):
· Regardless of source (GL Biochem / elsewhere, given TB-4 also commercially available in Australia, e.g.), the substance compounded at Bio21 was TB-4 in view of experts (97-99% probability, sufficient in view of panel)
· Dank indicated he would be using that compounded ‘thymosin’ in the ‘AOD study’ (Essendon). There are also references to a Qatar project around the time of the January injections, but no evidence of activity (vs Essendon with consent forms, ‘thymosin AOD study’, brown ‘thymosin’ vials and injections)
· The panel didn’t dismiss the possibility that some TB-4 was routed to Qatar / elsewhere, but didn’t accept this meant no TB-4 made its way to Essendon
Scientific Evidence (144 – 151)
· Ultimately not necessary if the circumstantial evidence presented was considered sufficient.
· ‘Player A’ sample analyzed by Prof. Thevis against reference group (54 other AFL players from 2012 season + 122+ German sports uni students). Elevated levels in Player A sample accepted by panel, but unable to be ascertained to requisite level of satisfaction whether the elevated levels were the result of exogenous or endogenous TB-4. Basic precis: Not enough evidence either way.
· Interesting aside: Prof. Handelsman (for WADA) considers that the use of prohibited substances was endemic in the AFL in 2012. (The award indicates that there is no concrete evidence for this.)
No Fault (155):
· All players had received anti-doping education.
· No player appears to have utilized WADA (or any other) hotline
· No player appears to have conducted internet searches or made any other enquiries re its properties
· No player asked the club doctor for advice prior to signing consent forms.
Player Arguments for Mitigation (156-158):
· Assumption of the club doctor's knowledge of the program was inadequate and no steps were taken to confirm the assumption, although it would have been easy.
· The consent forms should have been the trigger for enquiries about, e.g., thymosin, rather than an excuse for not making them.
· Reliance on senior clubs figures with no medical training was unsound.
· Youth and inexperience were rejected, no player was a minor, all had received anti-doping education.
Disclosure of Substances Used (159-163):
· Under AFL Anti-Doping Code, players obligated to make full disclosure of any substances used.
· No player tested in 2012 disclosed thymosin injections in Doping Control Forms (DCFs)
· Various reasons given for that (thinking it was only necessary to declare those taken in last few days, e.g.) appeared to be a calculated attempt to retrospectively justify non-disclosure.
· Players also did not declare other supplements / pills provided by Dank prior to games.
Panel's View (164):
· No reason for veil of secrecy for a lawful and innocent activity.
· Non-disclosure in DCFs cannot be equated with secrecy surrounding team tactics etc., no parallel.
· Players took insufficient care with regard to the nature of the regime (esp. given it was like 'being on a cliff and going right to the end but not going over it'.
Edit: Cleaned up typos, added 'No Fault' and subsequent sections.
Burden of Proof / Standard of Evidence (105): The panel did not accept that ‘strong evidence’, commensurate with the ‘serious claims’ made, was required, nor that WADA was obliged to ‘eliminate all possibilities’ which could point to the players innocence. That is, the panel did not consider that there was a requirement beyond comfortable satisfaction. (Comfortable satisfaction further dealt with in 107, 108)
Evidentiary Basis (106): Circumstantial evidence (as per ASADA submission) and analytical evidence (new)
Links in Chain vs Cable Strands (109-112): WADA accepted that certain ‘intermediate’ facts (i.e. links in chain) would need to be established to comfortable satisfaction in the appeal brief (109):
1. TB-4 requested by Dank and prepared on his behalf;
2. TB-4 obtained by Alavi, compounded and provided to Dank;
3. Dank administered TB-4 to players;
4. TB-4 is a prohibited substance.
But preferred the cable strand analogy by the time of the hearing. The players initially made no objection, believing that any case made not based on links in chain was destined to fail to establish an ADRV to the requisite level of satisfaction. They changed tack in closing statements and contended that WADA should not be permitted to change its argument in this way (110), but the panel considered that WADA’s argument itself remained the same, it was just presented in a different way (111) and thus permissible.
The panel rejected the players' submission, not only because it was inconsistent with their earlier position, but because it was unsound and because the panel shouldn't be constrained from reviewing the case de novo, based on all available evidence (112 (1) and (3)).
Ultimate basis for decision (113): Evaluation of all relevant and credible evidence and considering if, considered cumulatively, the test of comfortable satisfaction was met.
De novo Hearing (114): Within scope of original, challenged decision acceptable in any case (several reasons given, incl. that the right of appeal necessarily carries with it its subordination of the de novo principle.)
Admission of Scientific Evidence: Acceptable as WADA was not a party to the AFL Tribunal proceedings (i.e. could not present it there) and was not presenting it in bad faith, and the evidence could help determine if an ADRV was committed (116).
Written Statements (117 – 119) Panel’s acceptance of higher caution / lower weight to be placed on written statements of key witnesses not present.
AFL Tribunal Reasoning: Panel not obliged to follow AFL Tribunal’s reasoning, given reformulation of case (strands vs links) and that the AFL Tribunal did not consider 3. above (Did Dank administer TB-4 to players?) as it considered 1. and 2. insufficiently demonstrated. Panel chose 3. as its starting point.
Cable Strands Reviewed (120-124):
· Dank had (in all probability) administered TB-4 in the past (Sandor Earl, references to soft tissue maintenance effects, request(s) to Charters for TB-4);
· All players admitted to receiving injections by Dank;
· All players signed a consent for including ‘Thymosin’ injections (listing dosage matching TB-4, recovery benefits);
· 6 of 32 players indicated Dank had identified injections as ‘thymosin’, 2 (Crameri + Prismall(?)) indicated having seen ‘thymosin’ on vials injected.
· Dank’s admission of TB-4 use in Age interview and attempts to access TB-4 but not using it in this context as a ‘sports guru’ to aid recovery incongruous.
· Various concealments / attempts to downplay nature of injections by Dank and players, omission in doping control forms, to Dr. Reid etc.)
· Interesting inversion of conclusion of AFL Tribunal regarding lack of dispensation records: AFL Tribunal considered ASADA’s case insufficiently substantiated as a result, panel considered it suggestive of the desire to conceal the program.
All Players or Some ?(125 – 130) Panel rejected the argument that evidence of use of thymosin (TB-4) by individual players was not established:
· Regime was not conceived by Dank for any individual player but for whole team.
· Thymosin central – specifically highlighted by Dank as cornerstone of regime, no evidence to suggest that he would then withhold it from any individuals. Reference to David Hille’s understanding, e.g., that all players were in the same program (although some differences in dosage possible, as observed).
· The players themselves kept no record, were unable to provide precise information about number / timing of injections and were vague on their contents (as media reports had highlighted, e.g. TB-4 as a supplement of interest prior to the interviews)
· Panel stressed that all that was required was comfortable satisfaction that all players, on at least one occasion, had been administered TB-4.
TB-4 vs other Thymosin / Supply Chain (131 – 143):
· Regardless of source (GL Biochem / elsewhere, given TB-4 also commercially available in Australia, e.g.), the substance compounded at Bio21 was TB-4 in view of experts (97-99% probability, sufficient in view of panel)
· Dank indicated he would be using that compounded ‘thymosin’ in the ‘AOD study’ (Essendon). There are also references to a Qatar project around the time of the January injections, but no evidence of activity (vs Essendon with consent forms, ‘thymosin AOD study’, brown ‘thymosin’ vials and injections)
· The panel didn’t dismiss the possibility that some TB-4 was routed to Qatar / elsewhere, but didn’t accept this meant no TB-4 made its way to Essendon
Scientific Evidence (144 – 151)
· Ultimately not necessary if the circumstantial evidence presented was considered sufficient.
· ‘Player A’ sample analyzed by Prof. Thevis against reference group (54 other AFL players from 2012 season + 122+ German sports uni students). Elevated levels in Player A sample accepted by panel, but unable to be ascertained to requisite level of satisfaction whether the elevated levels were the result of exogenous or endogenous TB-4. Basic precis: Not enough evidence either way.
· Interesting aside: Prof. Handelsman (for WADA) considers that the use of prohibited substances was endemic in the AFL in 2012. (The award indicates that there is no concrete evidence for this.)
No Fault (155):
· All players had received anti-doping education.
· No player appears to have utilized WADA (or any other) hotline
· No player appears to have conducted internet searches or made any other enquiries re its properties
· No player asked the club doctor for advice prior to signing consent forms.
Player Arguments for Mitigation (156-158):
· Assumption of the club doctor's knowledge of the program was inadequate and no steps were taken to confirm the assumption, although it would have been easy.
· The consent forms should have been the trigger for enquiries about, e.g., thymosin, rather than an excuse for not making them.
· Reliance on senior clubs figures with no medical training was unsound.
· Youth and inexperience were rejected, no player was a minor, all had received anti-doping education.
Disclosure of Substances Used (159-163):
· Under AFL Anti-Doping Code, players obligated to make full disclosure of any substances used.
· No player tested in 2012 disclosed thymosin injections in Doping Control Forms (DCFs)
· Various reasons given for that (thinking it was only necessary to declare those taken in last few days, e.g.) appeared to be a calculated attempt to retrospectively justify non-disclosure.
· Players also did not declare other supplements / pills provided by Dank prior to games.
Panel's View (164):
· No reason for veil of secrecy for a lawful and innocent activity.
· Non-disclosure in DCFs cannot be equated with secrecy surrounding team tactics etc., no parallel.
· Players took insufficient care with regard to the nature of the regime (esp. given it was like 'being on a cliff and going right to the end but not going over it'.
Edit: Cleaned up typos, added 'No Fault' and subsequent sections.
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Its a point I made myself about dealing with circumstantial evidence.
Plenty of case law exists that reinforces the need to treat all of the evidence as a coherent whole as individual pieces often can be dismissed but only in isolation. I did express doubts earlier that experienced judges would set a very high standard of the evidence while dismissing some as not being sufficient and then excluding consideration of the rest. Such an approach in the County Court would not have survived appeal to a higher court on just those grounds
gutsroy
Brownlow Medallist
That sounds reasonable to me, unfortunately it isn't discussed in depth in the award. It would be interesting to learn more about.
