CAS panel finds “strands in the cable” sufficiently strong to overturn the AFL Anti-Doping Tribunal’s decision

World Anti-Doping Agency v Thomas Bellchambers et al., Australian Football League, Australian Sports Anti-Doping Authority CAS 2015/A/4059

In this decision, the CAS used the ‘strands in the cable’ approach to the analysis of the circumstantial evidence before it, the majority concluding that it was comfortably satisfied that all players violated clause 11.2 of the 2010 AFL Anti-Doping Code

Charges were brought by ASADA and the AFL against 34 Essendon players (“the players”) for breaches of the AFL Anti-Doping Code (“the AFL Code”) relating to the alleged use, by means of injection, of Thymosin Beta-4 (“TB-4”) a prohibited substance . On 31 March 2015 The Australian Football League Anti-Doping Tribunal (“AFL Tribunal”) dismissed those charges. The World Anti-Doping Authority (“WADA”) appealed to the Court of Arbitration for Sport (“CAS”).

WADA’s case was that in 2012 Mr. Dank, a sports scientist employed by Essendon in 2011, devised and implemented a team-wide program in which the players received injections of TB-4 and each of the players used TB-4.

The Players argued that the evidence relied on by WADA did not allow the panel to be comfortably satisfied of all essential limbs in WADA’s case including that the substance injected by Mr Dank was actually TB-4 or that any substance purporting to be TB-4 was administered to any identified player on any particular occasion.

The majority of the panel held that it was comfortably satisfied that all players violated Clause 11.2 of the 2010 AFL Code. One member of the panel disagreed with that conclusion in respect of several players.

In coming to its conclusion, the panel addressed three areas of evidence:

1. circumstantial evidence constituting the ‘strands in the cable’ supporting WADA’s case;
2. evidence linking the source of TB-4 to its destination; and
3. scientific evidence before the panel that was not before the AFL Tribunal.

Circumstantial evidence – the strands in the cable

The panel preferred the ‘strands in the cable’ approach to the analysis of the circumstantial evidence to the ‘links in the chain’ approach, which had been relied on by ASADA at the AFL Tribunal. It considered its task was to evaluate all relevant and credible items of evidence and to ask itself whether, considered cumulatively, they satisfied the test of comfortable satisfaction.

The “strands in the cable” included:

• Evidence linking Mr Dank to the use of ‘Thymosin’ on the players.
• References to ‘Thymosin’ were references to TB-4 because the efficacy of the program, enhancing recovery, depended on the properties of TB-4. TB-4 is an accepted aid to recovery and repair of tissue, whereas the non-prohibited form of Thymosin is used to boost the immune system.
• All players used TB-4 because Mr Dank’s regime was designed for the whole team, to heal damaged tissue and to speed recovery, and not for any particular player. Mr Dank “would have” applied it to any player as it would have benefitted any of the players.
• Text messages referred to “all…injections completed” and “all injections completed for the week”, supporting the inference that this was a program in operation for all the players certainly in the early part of the season.
• The behaviour of the circle of officials within the club privy to Mr Dank’s regime ensured that the club doctor, Dr Reid was not made aware of the regime.
• The conduct of the players in keeping Dr Reid “out of the loop” and “failing to record the injections on the doping control forms” justified the inference that the players were instructed to keep the program secret. “This was at its lowest, consistent with an appreciation of its controversial nature”.
• The failure by Essendon to keep records was, in the panel’s view, suggestive of a desire to shroud the regime in a “veil of secrecy”.

The panel acknowledged that some evidence suggested that Mr Dank was patchy in his commitment to the program. However, it did not consider that the evidence undermined the panel’s comfortable satisfaction that all of the players on at least one occasion were injected with TB-4.

Evidence linking the source of TB-4 to the players

WADA sought to trace and evidence the sequence of events showing:

• the sourcing of TB-4 by Mr Charter
• Its delivery to Mr Alavi for compounding
• the receipt of it by Mr Dank
• the administration of it by Mr Dank to the players.

The panel considered that it was not necessary to resolve the issue as to whether this had been proven by WADA as it found that the other strands in the cable were sufficiently strong to prove the case against the players.

On the ‘strands in the cable’ analysis, the issue was whether there was sufficient evidence that Mr Dank administered TB-4 to the players. The panel determined that it was not an essential link or strand that the source of the product used be identified.

Scientific evidence before the panel that was not before the AFL Tribunal

By the time it closed its case, WADA accepted that the panel could not decide the case adverse to the players on the basis of the new scientific evidence. Neither the statistics nor the science could, in the panel’s view, inculpate any of the players.

Other issues

Jurisdiction

The players contended that under the 2010 AFL Code applicable at the time of the alleged infractions, an appeal was restricted and could not be a hearing de novo. The panel rejected that contention finding that “…the 2015 AFL Anti-Doping Code applies to the procedural aspects of this appeal.” and conducted the hearing as a hearing de novo. It is understood this now forms the ground of appeal to the Civil Courts in Switzerland.

Sanction

A sanction of 2 years’ ineligibility was imposed.

In summary, the panel returned to its observation that there would be no reason to cast a veil of secrecy over something – “that was known positively to be lawful and innocent” and that “in a desire to gain every competitive advantage available, the players were insufficiently careful as to the nature of the regime to which they were subjected.”

Balancing the submissions as to delay, the panel was prepared to backdate the period of ineligibility to start from 31 March 2015 (the date of the AFL Tribunal decision) with the result that no player will be disqualified for the 2017 season.