WADA Appeals: It Ain't Over Yet Folks

by Lisa Albergo reporting for AFANA from Chicago

On the morning of Tuesday May 12, the Australian Rules Football world woke up to the surprising - but not totally unexpected - news that the World Anti-Doping Authority (WADA) has decided to appeal the Australian Sports Anti-Doping Authority (ASADA) verdicts in the Essendon Bombers' supplements case. The world body will take the case to the Court of Arbitration for Sport (CAS), which is based in Lausanne, Switzerland (with courts also located in Sydney and in New York). A statement released by WADA Director-General David Howman said "After a thorough examination of the evidence ... WADA has decided to lodge its independent right of appeal ... As with all pending cases, and adhering to the proper and normal respect for the integrity of the legal process, WADA will refrain from commenting further ... until a decision has been made by CAS."

A date for the new hearings has yet to be set. ASADA welcomed the decision with CEO Ben McDevitt saying they would "fully support" WADA and its appeal. Former ASADA boss Richard Ings called the move by WADA "courageous". Essentially, the appeal will be a re-hearing and examination of the evidence which ASADA gathered but with a new panel under the rules of CAS.

Statements and hasty press conferences came thick and fast from all sectors. AFL boss Gil McLachlan said he was "unfazed" and that the League had not been a party to WADA's proceedings, nor would the AFL be involved in the CAS hearings although lawyers for the respective parties can be present during the new hearings. He admitted that he did not know any details or whether WADA had uncovered new evidence. Of Essendon, he said he believed the club and players would face this new challenge stoically just as they had done throughout the ASADA investigations and hearings. He added "They've shown extraordinary resilience so far and they'll be required to have that again. This is going to be a level of distraction but I think it will be in the background."

Attorney David Galbally, who represented former high-performance manager Dean Robinson in his suit against Essendon, said the decision to appeal was extraordinary and he did not believe there could be any new evidence. Galbally also said that the AFL was within its rights to reject WADA's findings with the AFL. Speaking on a radio program, Galbally said that the AFL's stance could be 'We are not bound to follow the decisions of an outside body ruling us. We've already had this determined." He described WADA's move as a "flawed prosecution" and also took a swipe at ASADA, saying "It's a total inconsistency by Ben McDevitt in relation to the way he's going about it. It really doesn't say very much about the standards of ASADA, nor what's going to happen in the future if ASADA is going to be run like this."

According to former WADA chief Richard Ings, it could be up to three months before a hearing is even scheduled. The hearing could take two to four weeks and it may be up to three months before a decision is rendered. Ings also said that CAS would be the one to determine the sanctions. While WADA has the ASADA evidence, they could also introduce any new evidence which might exist. The statements of Shane Charter and pharmacist Nima Alavi may carry little weight without CAS' being able to question them. Unlike ASADA, which had a court request to subpoena Carter, Alavi and Stephen Dank thrown out, CAS may have subpoenas approved through the Australian courts.

Journalist Rebecca Wilson, who writes for the Sydney Daily Telegraph, said on SEN's The Run Home program that the number of cases worldwide which are before the court is the reason why it could take so long for hearing to be scheduled. Another issue is the clause "comfortably satisfied". Wilson pointed out that this finding is not a "not guilty" verdict but simply shows that the Tribunal felt there was insufficient evidence for a "guilty" finding. This will not be considered by CAS. WADA's level of "comfortably satisfied" could prove to be the difference in the appeal as they may believe there is sufficient evidence of doping offenses. For this appeal, unlike that of ASADA, the burden of proof is on the players to prove they did not offend. However, sports lawyer Paul Horvath also spoke on SEN's the Run Home and rejected Wilson's statement. He said that because the Essendon players never tested positive, the burden of proof still lies with WADA in the appeal ,unlike the recent case of St Kilda's Ahmed Saad who did test positive and therefore had the burden of proof against him. Another lawyer and media columnist Darren Kane, like Horvath, said ASADA'S case depended on circumstantial evidence. He described ASADA's case as "a dumpster full of circumstantial evidence such as emails, intercepted text messages, possibly bogus invoices, transcripts and newspaper scrapbooks" which fell "horrendously short".

Essendon chairman Paul Little said on radio that he was surprised at the appeal announcement and that he planned to meet with McLachlan for more clarity and advice. He described the situation as a "massive distraction" which needed to be resolved. He was also asked if there would be another appeal if CAS decided against the players. He replied that it would take "a brave man now to say there's no further right to appeal", but said the club would need legal advice. However, Horvath said on SEN that the WADA appeal and decision by CAS would be the end of it and that there would be no recourse for further action.

Coach James Hird said he was also shocked at WADA's request for appeal. Hird fronted the media shortly after the announcement and said he was confident that WADA's appeal would also fail. “The fact that it was a two and a half year investigation, comprehensive tribunal decision that was basically saying the players are not guilty ... they believe they've done nothing wrong, they believe they haven't taken anything illegal, we believe they haven't taken anything illegal, we believe that, the AFL Tribunal believes that." Hird continued "it will cause stress again, but we're prepared ... We believe in the players' innocence. They've been proven innocent once, and they'll be proven innocent again ... We believe we've got a good football team ... We've got to turn up and be prepared to play ... We're ready to tackle whatever comes." Captain Jobe Watson reiterated Hird's view that the players were prepared to handle the pressure, saying "after the ... verdict was received, the mindset of the players was of a possible appeal ... we were looking forward to moving on ... that's going to be delayed further ... The players have handled this before. Unfortunately, the players know how to deal with it because we've been living through it".

AFLPA CEO Paul Marsh was also disappointed, pointing out the two years of uncertainty the players had to deal with and the further stress it could cause as well as the disruption to their careers. Adelaide's Patrick Dangerfield, who is an AFLPA board member, also believes in the players' innocence and speculated on the possibility of new evidence but, like everyone else, is disappointed at all being brought up again.

The day after the WADA announcement was made, it was revealed that one piece of evidence which Essendon had and gave to ASADA was a spreadsheet which recorded that the players were given the legal substance Thymomodulin. James Hird was interviewed on the television show AFL 360 and was asked about the spreadsheet. He claimed to have seen it and said it was given to then CEO Ian Robson who, in turn, gave it to ASADA. Robson was also interviewed but would not be drawn into an extensive declaration of what specific documents were or were not given to ASADA due to the fact that he resigned his position shortly after the whole saga began. He did say that all documents Essendon had were turned over. Le Grand questioned the validity of the spreadsheet, saying "the spreadsheet ... lacks credibility ... The lawyers of the players decided ... that there’s not much weight they can put on it ... it’s not really going to convince anyone.”

WHAT THE MEDIA SAID
Some commentators have suggested that WADA is using their right to appeal as a way of buying Time to further develop ASADA’s case. Another lawyer called WADA's appeal "a witch hunt".

MARK ROBINSON, Chief Sports Writer for the Herald Sun and presenter on AFL 360
Robinson echoed the sentiments of others, saying the appeal would cause more trauma for the club and players. He was not surprised that WADA decided to launch an appeal but said it is a disgrace. Robinson, who also has a spot on SEN's The Run Home alongside former Demon David Schwarz said on the program “This whole episode could hijack four years of footy and players’ careers ... You feel for the players, they were just getting over it?” Robinson expressed his frustration that trying to prove whether or not the players were given the banned Thymosin Beta-4 had taken so long and took another swipe at Essendon's culpability, saying “When you go all the way back to the start, why did Essendon employ Stephen Dank and Dean Robinson? Why didn’t Essendon have better governance ... why did the AFL want a joint investigation?" He was also scathing regarding the investigations, which have previously come under heavy criticism. “There have been so many mistakes ... this is a disgrace that we are at this point.” He believes ASADA could have handled the hearings better and because of the events at the AFL hearing WADA is basically "looking at this saying they don’t trust anything ... The AFL likes to have control of everything ... They’ve got no control on this ... the players will suffer most ... They (WADA) may have a different level of comfortable satisfaction ... It will cause this football club to go through another eight months of turmoil".

TIM WATSON, SEN Morning Glory presenter
Watson, father to Essendon Captain Jobe Watson, has returned as a presenter on SEN's Morning Glory where he said that that although a WADA appeal was a possibility, it still came as a shock. He is also of the opinion that it "it would take something extraordinary for CAS to overturn the unanimous ... verdict ... reached by the AFL anti-doping tribunal". He said of WADA, “Maybe they are believing that the AFL tribunal didn’t do their job correctly". Watson added that he always believed that ASADA did not have enough evidence. "The loophole ... for ASADA and WADA is they don’t have to prove beyond reasonable doubt ... There was enormous pressure by other sports in this country for ASADA to do what they did ... Maybe it’s just a matter of pressure from around the world that this doesn’t get swept under the rug."

PATRICK SMITH, highly respected journalist for The Australian newspaper
The part-time contributor on SEN's Hungry For Sport with Kevin Bartlett said “It’s important that we see this to the very end, it’s a massive story, the biggest story in Australian sport, it’s important we get to the conclusion ... I’d be staggered if these players were found guilty that they’d be suspended, after three years, that would be a real injustice.”

CHIP LE GRAND, Journalist for the Australian
Le Grand also questioned the AFL Tribunal's "level of comfortable satisfaction" saying, "the main question mark was that whether or not the AFL tribunal had put the right weight on this notion of comfortable satisfaction ... In terms of the evidence it’s hard to see where they’ve gone wrong… but WADA might think they (ASADA) were too strict in interpreting what comfortable satisfaction means.”

JON RALPH, Herald Sun journalist and part-time contributor on SEN's Hungry For Sport
Ralph wrote that ASADA had failed to prove their case and that now "the innocent victims ... the players, are being dragged back to hell". He believes that the key people who could shed more light on the whole affair - Steven Dank, pharmacist Nima Alavi and Shane Charter - are refusing to talk because they have something to hide. Alavi and Charter, who already has previous convictions and was arrested several months ago for attempting to bring unauthorized drugs into Australia, have again indicated they would refuse to appear as witnesses unless forced to do so. Ralph said, "Stephen Dank says he’s innocent, he says that he handed over those documents ... I think ... those medical spreadsheets were hugely incomplete and showed that he basically bungled the implementation of these injections ... He has got something to hide.”

KEVIN BARTLETT, Host of SEN's Hungry For Sport
KB has a brief spot called "That's My Take" on SEN in which he states his opinion on topics. Like most of the football community, he wants the truth and wants Dank, Alavi and Charter to come forward. "Why didn’t Stephen Dank, Nima Alavi and Shane Charter be interviewed or give evidence to ASADA & the AFL tribunal? Why won’t they tell us what they know? What have they got to hide? Why are they scared to come out and tell their story? A story they say would clear Essendon, the players and the game. I think the football and sporting world wants to hear them talk. Let’s hope that is soon. That's my take."

Source: afl.com.au, sen.com.au (audio and print), AFL 360 audio replay on SEN, theage.com.au, heraldsun.com.au, theguardian.com, portadelaidefc.com.au, Inside Football, AFL Record Season Guides, author notes