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n the March 2015 edition of Touchline, Andrew Ray, solicitor
with DLA Piper in Melbourne, discussed the various legal
proceedings relating to the investigation of the Essendon
Football Club by ASADA (Australian Spor ts Anti -Doping
Authority) and the AFL. Since then, WADA (World Anti-
Doping Agency) has appealed the ruling of the Tribunal (AFL
Anti-Doping Tribunal) that it was ‘not comfortably satisf ied’
that 34 former and current Essendon players contravened
Rule 11.2 of the AFL Anti-Doping Code by using a prohibited
substance, Thymosin Beta 4. Whilst the Tribunal condemned
various aspects of Essendon’s ‘supplements program’, it was
unable to determine what substance(s) had been injected into
the players.
Unsatisf ied by the outcome, ASADA referred the matter
to WADA, which appealed the Tribunal ’s decision to the
CAS (Court of Arbitration for Sport) and requested that
an ‘appropriate sanction’ be imposed on the players (the
maximum ban is 2 years). Whilst the CAS hearing will be
based on the same Code and standard of proof as the Tribunal
hearing, it will be heard ‘de novo’ and the parties are entitled
to rely on new evidence and witnesses. That said, WADA is
unable to compel key witnesses to give evidence (notably
Stephen Dank, who devised the supplements program, Shane
Charter, who allegedly imported the banned substance, and
Nima Alavi, who allegedly compounded the substance). A
similar restriction on ASADA weighed heavily in the Tribunal
proceeding.
The CAS Panel members are James Spigelman QC (Essendon’s
selection), Romano Subiotto (WADA’s selection) and Michael
J Belof f QC. Neil Clelland QC represents the 34 players and
US attorney Richard Young represents WADA. The CAS may
issue a new decision or refer the case back to the Tribunal
for rehearing. The parties have a right of recourse to the
Swiss Federal Tribunal on limited grounds including lack of
jurisdiction, violation of procedural rules and public policy
considerations.
Whilst the CAS hearing is scheduled to take place in Sydney
later this year, WADA has requested that the hearing be
stayed pending resolution of the appeal proceeding between
Stephen Dank (who has received a lifetime ban) and ASADA
in the AFL Appeals Board. With this matter unlikely to be
resolved prior to commencement of pre-season training,
the cloud surrounding each players’ future is darkening.
Whilst Essendon deserved to be reprimanded as a result
of signif icant governance failures, it was f ined $2,000,000,
stripped of draf t picks and its head coach for 12 months, and
was expelled from the 2013 f inals series. Essendon’s on-f ield
per formance is deteriorating and it may have dif f iculty
retaining quality out-of-contract players and luring free
agents to join the player ranks. Essendon’s ‘ faithful ’ also
appear to be dwindling, recently recording its smallest ever
home-crowd at Etihad Stadium. The possibility remains
of numerous players being banned and Essendon is also
faced with the prospects of a prosecution by the Victorian
WorkCover Authority and civil action by various personnel
and players. With the wake of this saga likely to surge on for
some time, how much ‘blood’ must be shed by Essendon and
its players prior to paying their full penance?
LEGAL
FOCUS
A
SAGA
CONTINUES
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TOUCHLINE
ISSUE 21 | AUGUST 2015