Play Nice WADA v Essendon 34: Guilty, 2 Yr Susp. (backdated to Mar 2015). Affects 17 current AFL plyrs.

[alpC]

Talks about how solidarity brought down the players.


http://www.theage.com.au/afl/afl-ne...n_code=nocode&promote_channel=social_facebook

Great read, IMO they were arrogant to stick together and I think Hird encouraged them if I'm not mistaken. Then they get whacked by CAS and complain. I think they all thought they would get off with a slap on the wrist. So glad CAS stayed true to their mission.

 

[Muggs]

The new code has alot more variability in it's penalties. Not as rigid. It gives 4 years to deliberate true drug cheats using stuff like HGH, steroids etc.. but there's now more variability in the penalties for inadvertent errors, those guilty but certainly no intent to cheat. Ahmed Saad would've been treated more leniently under the new code. So there is more variability under the new code. Stimulants unlikely to get 4 years, although that can depends on circumstances too. I'm sure deliberately taking a stimulant for an Olympic final might get 4 years. Inadvertent 6-12 months. Think there may be a tougher interpretation on Teams but not sure. They spoke about it. Be interesting to see how Essendon may have gone under the new code.

This is not quite correct (close though).
In terms of reductions in penalties there has been two changes.
First is now a section under no sig fault for contaminated products, this is 0-2 years. Ahmed Saad would have been treated identically under the new code as the substance was on the label, the product was not contaminated. The only difference his 25% discount would have been based on 4 years not 2 years.
You are correct that the contaminated products clause gives more variability as it allows elimination of the penalty and a lower maximum penalty, but is very specific in its application, it's not just lack of intent, it's also not being able to reasonably know what's in the product. This would be unlikely to have any affect on this case as the players got max penalty (before back dating) for not inquiring, thus choosing not to know. Also CAS found Dank knew he was giving TB4 so again product not contaminated.

Substantial assistance in prosecuting another person can now eliminate a penalty with WADAs approval.

Some stimulants have always been treated as a specified substance, both current and previous code so no change here. They always been a substance that can get a zero max penalty.

The new WADA code makes the team penalties a minimum, gives sports admin the power to go beyond the code suggestions, not relevant to the AFL as they have not fully copied this section, they changed the word "shall" to "may" in one section, so have written themselves a loop hole not in the WADA code, giving them the option not to apply penalties.

 

[Proper Gander]

it puzzles me how quickly you forget things. Yes that discussion was had at length but it was many, many months ago that I conceded I was wrong about strict liability only being relevant in AAF scenarios, because once guilt is proven by whatever method then strict liability (the legal principle that reverses the onus of proof, as I correctly argued) then applies from that point

I never once understood your argument then or now. Strict liability is not a legal principle that reverses the burden of proof. Reverse burden of proof, where it applies, is derived from the wording of the statute itself (where it may specify a reverse burden) and applies with various defences such as diminished responsibility, intoxication etc. Strict liability only extends to removing the element of fault, which the prosecution no longer need to establish for conviction. Prosecution still have to establish all other elements.

 

[Muggs]

I never once understood your argument then or now. Strict liability is not a legal principle that reverses the burden of proof. Reverse burden of proof, where it applies, is derived from the wording of the statute itself (where it may specify a reverse burden) and applies with various defences such as diminished responsibility, intoxication etc. Strict liability only extends to removing the element of fault, which the prosecution no longer need to establish for conviction. Prosecution still have to establish all other elements.

thought strict liablity removed the element of intent.. Not necessarily fault..

 

[Gough]

James Hird reminds me of Rik in the Young Ones when they got busted without their TV license. It wasn't me, it was the other three... Man up ffs.

 

[Proper Gander]

thought strict liablity removed the element of intent.. Not necessarily fault..

Not in Australia - strict and absolute liability under Criminal Code remove fault elements, the difference being that honest and reasonable mistake of fact can be a defence in strict liability but not in absolute liability.

 

[scout]

Talks about how solidarity brought down the players.


http://www.theage.com.au/afl/afl-ne...n_code=nocode&promote_channel=social_facebook

"This notion that "we're not cheats" was a case of emotion overiding reality."

This becomes more & more obvious.

This emotive phrase, "we're not drug cheats" has been repeatedly used by Essendon but meanwhile no-one is addressing all the realities of a serious situation.

It's like they believe they'll magically come out the other end with a fairytale ending & Goddard will get his Hollywood movie.

 

[stewie dew]

good read

 

[Muggs]

Not in Australia - strict and absolute liability under Criminal Code remove fault elements, the difference being that honest and reasonable mistake of fact can be a defence in strict liability but not in absolute liability.

So the WADA code should treated as absolute liability, Chris Kasishas suggests this before to me.

 

[Proper Gander]

So the WADA code should treated as absolute liability, Chris Kasishas suggests this before to me.

Not necessarily. WADA relies on the regulators of each participating country for SO and providing advice etc. in the event that a government regulator advised that it is fine to take say TB4, I think this would be acceptable as honest and reasonable mistake of fact. Mistake of fact is a narrow defence, and it's most common use in Australia is for misinformation from Govt body. I suspect this is why the CAS emphasised the failure to use helplines, Internet search and the secrecy displayed by the players to explain why honest and reasonable mistake was ruled out.

 

[Percel]

Not necessarily. WADA relies on the regulators of each participating country for SO and providing advice etc. in the event that a government regulator advised that it is fine to take say TB4, I think this would be acceptable as honest and reasonable mistake of fact. Mistake of fact is a narrow defence, and it's most common use in Australia is for misinformation from Govt body. I suspect this is why the CAS emphasised the failure to use helplines, Internet search and the secrecy displayed by the players to explain why honest and reasonable mistake was ruled out.

Why are you being so sensible?

Boooooooooooooo

 

[Proper Gander]

Why are you being so sensible?

Boooooooooooooo

OK

"Wat"

Proper Gander hath quoth...

 

[Muggs]

Not necessarily. WADA relies on the regulators of each participating country for SO and providing advice etc. in the event that a government regulator advised that it is fine to take say AOD9064, I think this would be acceptable as honest and reasonable mistake of fact. Mistake of fact is a narrow defence, and it's most common use in Australia is for misinformation from Govt body. I suspect this is why the CAS emphasised the failure to use helplines, Internet search and the secrecy displayed by the players to explain why honest and reasonable mistake was ruled out.

Edited your statement to fit my opinion on something..

 

[Proper Gander]

Edited your statement to fit my opinion on something..

I think that too. Would explain a lot (and rid us of a 50 page thread on the matter at the same time)

 

[ChrisKaias]

Not necessarily. WADA relies on the regulators of each participating country for SO and providing advice etc. in the event that a government regulator advised that it is fine to take say TB4, I think this would be acceptable as honest and reasonable mistake of fact. Mistake of fact is a narrow defence, and it's most common use in Australia is for misinformation from Govt body. I suspect this is why the CAS emphasised the failure to use helplines, Internet search and the secrecy displayed by the players to explain why honest and reasonable mistake was ruled out.

IMO it's absolute liability and a mistake by the authorities would just get you a full no fault discount. Of course if the end result is going to be no penalty it's very possible/likely in certain cases they don't proceed with a prosecution.

But let's say ASADA wrongly advised on the status of a substance (maybe an IT error wrongly listed a banned substance as ok) and they tested positive to it - in that scenario there would be an ADRV as it's absolute liability in the way we understand it in Australia but a possible full no fault defence.

 

[Lance Uppercut]

I never once understood your argument then or now. Strict liability is not a legal principle that reverses the burden of proof. Reverse burden of proof, where it applies, is derived from the wording of the statute itself (where it may specify a reverse burden) and applies with various defences such as diminished responsibility, intoxication etc. Strict liability only extends to removing the element of fault, which the prosecution no longer need to establish for conviction. Prosecution still have to establish all other elements.

from WADA:

1. What is strict liability? Up
The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.



Once you are detected with a substance in your body you are assumed guilty. There is no other element needed to be established. The athlete is then guilty of an adrv unless they can explain why they shouldn't be. So the onus of proof is most certainly reveresed in this situation

 

[Frank Grimes]

Dons assess next steps

The legal team representing the players is continuing to review the Court of Arbitration for Sport’s findings, before deciding upon a potential appeal.

“The players have been taking briefings from their legal representatives,” Campbell said.

“Lawyers are looking extremely closely at the decision before determining the next steps.

“There is obviously a lot of frustration around the outcome and the reasoning and that’s something the lawyers will be speaking about with the players.”

Continued...

http://www.essendonfc.com.au/news/2016-01-15/dons-assess-next-steps

If the players decide to appeal, what would the time line be? For a memory WADA appealed about mid May last year and we finally heard the result last week (early Jan). That is approximately 7-8 months. If the appeal takes that long again then that means if the players appeal (and are successful) it would be around late July or early August before they play again. The footy season would be almost over anyway.

 

[Dragz]

Part 2 of the Hird denials are out.

I don't even know where to start... it's worse than part 1 I think...

It's far more important that James finds out how and what the AFL knew than what the players were injected with!

 

[ChrisKaias]

from WADA:

1. What is strict liability? Up
The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.



Once you are detected with a substance in your body you are assumed guilty. There is no other element needed to be established. The athlete is then guilty of an adrv unless they can explain why they shouldn't be. So the onus of proof is most certainly reveresed in this situation

It's really absolute liability. Once you're detected with a substance in your body you ARE guilty of a presence offence. The onus is still on the ADO to prove the case and that the tests were valid but in the absence of contrary evidence that won't be in doubt. That doesn't shift the burden though.

Length of penalty and amount of fault is a separate issue to strict liability

 

[KM00]

from WADA:

1. What is strict liability? Up
The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.



Once you are detected with a substance in your body you are assumed guilty. There is no other element needed to be established. The athlete is then guilty of an adrv unless they can explain why they shouldn't be. So the onus of proof is most certainly reveresed in this situation

we have been through this

Its not 'Assumed to be guilty"

if you are found to have PED's in your system, it is EVIDENCE that you are guilty of a 'presence" charge. It is an offence to have PED's present in your bloodstream, and a +ve test is evidence that you indeed are guilty of that. It is putting into the act that this evidence meets the standard to find the athlete guilty.

You can still argue your innocence. You can argue that the test is incorrect, that the chain of custody wasnt followed, that your sample was contaminated etc. If the National Anti Doping Agency finds the sample is correct (hence a B Sample) and regulations such as collection, transport, storage, chain of custody was followed ... then the +ve sample is all the evidence required to find an athlete guilty.

It is NOT a reversal of burden of proof. It is not an assumption of guilt. It is evidence that meets the standard of proof required.

 

[jenny61_99]

So the WADA code should treated as absolute liability, Chris Kasishas suggests this before to me.

Chris Kaias? Man, and I thought I spelt it wrong!

 

[Tiges1229]

If the players decide to appeal, what would the time line be? For a memory WADA appealed about mid May last year and we finally heard the result last week (early Jan). That is approximately 7-8 months. If the appeal takes that long again then that means if the players appeal (and are successful) it would be around late July or early August before they play again. The footy season would be almost over anyway.

I think they could keep playing while they are waiting for the appeal to take place ? I could be wrong though . If this is the case and they are allowed to play while waiting for the appeal it would suit players like Watson/Stanton as this may of been there last year playing anyway.

 

[Muggs]

Chris Kaias? Man, and I thought I spelt it wrong!

Went by his name on here.....

 

[Proper Gander]

from WADA:

1. What is strict liability? Up
The principle of strict liability is applied in situations where urine/blood samples collected from an athlete have produced adverse analytical results.

It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.



Once you are detected with a substance in your body you are assumed guilty. There is no other element needed to be established. The athlete is then guilty of an adrv unless they can explain why they shouldn't be. So the onus of proof is most certainly reveresed in this situation

Yeah - I get you. But this is no different from a general principle of strict liability - it's just reminding an athlete that in a presence case the actus reus is regarded as proven once this occurs. Essentially establishes that once A & B samples are a positive for a drug, and the testing procedure was WADA compliant, there is no requirement to have regard to any further evidence disputing the positive test for a banned substance.

I see what you meant now - I think it's more a difference in construction rather than opinion as such.

 

[Frank Grimes]

I think they could keep playing while they are waiting for the appeal to take place ? I could be wrong though . If this is the case and they are allowed to play while waiting for the appeal it would suit players like Watson/Stanton as this may of been there last year playing anyway.

If that is the case (I don't think it is, but I'm not ruling the possibility out because I have no idea to be honest), then they probably should do it even if the players think they have no chance of it being successful.

I might be wrong, but I have a vague memory that if the initial ASADA tribunal found them guilty, then they would have had to serve out any suspension until it was heard by WADA if the player wanted to appeal. I would have thought it would be the same in this situation.