Applying team sanctions for doping: what Essendon has told us about the use of evidence at CAS

Earlier this year, the Court of Arbitration for Sport (the "CAS") issued a two-year sanction to 34 players of the Essendon Football Club.¹ None of the 34 players tested positive for a Prohibited Substance, but the CAS was comfortably satisfied on the evidence before it that each of the players had received one or more injections of Thymosin Beta-4 ("TB-4", a Prohibited Substance under the World Anti-Doping Agency Code (the "WADA" Code)).

These two-year sanctions were issued to Essendon's 34 players in circumstances that appeared to justify a reduction, if not a substantial reduction, in the maximum two-year sanction for non-intentional doping violations. In particular, the case concerned a team-wide supplement regime that was administered by a team official and which the players were told was WADA-compliant.

The CAS decision has been criticized publicly on a number of grounds and an appeal has been filed with the Swiss Federal Tribunal. Some commentators have suggested that the "decision is based on a series of suppositions rather than the presentation of evidence" and "[a]t no point in the decision is direct evidence presented to confirm that the players took the banned substance thymosin beta 4 (TB-4)."² The decision has also been criticized for allegedly adopting a "one size fits all" approach that draws conclusions based on the "evidence of six Essendon players… about the supposed substance abuse of the whole 34".³

In the view of the author, these criticisms fail to appreciate the totality of the circumstances before the CAS. The imposition of a two-year sanction on each of the 34 players was largely driven by the failure of the 34 Essendon players to testify before the CAS about their individual circumstances. Without this evidence, the CAS was not only unable to assess each athlete's involvement with, and knowledge of, the supplement program, but also reached the conclusion that the injections the players received were shrouded in secrecy.

This article examines the highly fact specific result in the Essendon Decision and concludes that this Decision will not preclude a defence based on an athlete participating in a team administered and sanctioned supplement regime (a "Team Program Defence") in future cases. This paper also comments on two other issues addressed in the Essendon Decision that are of particular interest to future cases and the development of the lex sportiva:⁴

1. The weight, if any, that should be given to a witness statement filed with the CAS when that witness subsequently fails to appear at the hearing to adopt the statement under oath and is not subject to cross-examination.
2. The application or scope of Article 57.3 of the Code of Sports-related Arbitration (the "CAS Code") in a de novo (or fresh) hearing before the CAS. Article 57.3, on its face, purports to give the CAS the discretion to exclude new evidence presented by a party if that evidence was available to, or reasonably could have been discovered by, that party before the challenge decision was rendered.

The Essendon Decision⁵

The Essendon Football Club (the "Essendon Club") is a professional Australian rules football club playing in the Australian Football League (the "AFL"). In November 2011, Mr. Stephen Dank was hired by the Essendon Club for the position of Sports Scientist. In that role, Mr. Dank was responsible for "the design of supplementation protocols and recovery procedures and their implementation".

In connection with this program, the vast majority of Essendon's players signed a "patient information/informed consent form" in which they consented to the administration by Mr. Dank of four substances including "Thymosin" by way of injection. The consent form stated that the proposed treatment was WADA-compliant.

There are many different types of Thymosin. One form of Thymosin is TB-4 which aids in muscle and tissue recovery and is a Prohibited Substance under the WADA Code. In contrast, Thymosin Alpha is commonly used to boost the immune system and is not a Prohibited Substance.

In what is now a complicated and sordid story, the Essendon Club self-reported concerns about its supplement program to the AFL and the Australian Sports Anti-Doping Authority ("ASADA") in September 2012. On February 5, 2013, Essendon announced a joint investigation with ASADA to look into the supplements provided to Essendon's players in 2012. The announcement of the joint investigation was made just a few days before the Australian Crime Commission released the findings of a year-long investigation concluding that criminal networks have been involved in the distribution of drugs to athletes in Australia and that the use of prohibited substances is widespread among Australian professional athletes.⁶

On November 14, 2014, ASADA issued infraction notices to each of Essendon's 34 players (the "Players" or, individually, the "Player"). After a number of procedural battles, the case proceeded to a hearing before the Australian Football League Anti-Doping Tribunal (the "AFL Tribunal"). On March 31, 2015, the AFL Tribunal released a decision in which it held that it was "not comfortably satisfied that any Player violated" the anti-doping rules. That decision was appealed to the CAS by WADA.

The CAS set aside the decision of the AFL Tribunal and found that each of the Players had committed an anti-doping violation. Each Player was than issued the maximum two-year sanction for a non-intentional doping violation.

The CAS noted at the outset that the case before it was not a "presence" case under Article 2.1 of the WADA Code in which an analytical analysis (or test) established a Prohibited Substance in an athlete's system. Rather, the case against the Players was a so-called "use" case under Article 2.2 of the WADA Code in which no adverse analytical finding is recorded and the CAS relies on a combination of direct and/or circumstantial evidence to assess whether an infraction has occurred. Under Article 2.2 of the WADA Code, the burden is on WADA to establish the use of a Prohibited Substance to the comfortable satisfaction of the CAS.

The CAS applied the so-called "strands in a cable" evidentiary analysis as opposed to "links in a chain" evidentiary analysis undertaken by the AFL.⁷ The CAS held that, based on the totality of evidence, it was comfortably satisfied that Mr. Dank administered TB-4 to all of the Players in violation of Article 2.2 of the WADA Code. The central evidentiary findings made by the CAS in reaching this conclusion included the following: