find the latest legal job
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Legal Inhouse / Lawyer / Company Secretary
Category: Other | Location: Brisbane QLD 4000
· Fantastic Company · Potential to be Part Time / Flexible Work Pattern
View details
Infrastructure Lawyer/SA
Category: Construction Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Global elite law firm · Dedicated Infrastructure team
View details
Stakes are high in Essendon doping saga

Stakes are high in Essendon doping saga

Tim-Fuller

The latest development in the Essendon Football Club supplements controversy carries significant implications for all concerned, Tim Fuller writes.

Today the Court of Arbitration for Sport (CAS) has convened in Sydney for the World Anti-Doping Agency (WADA) appeal of the Australian Football League (AFL) ruling in March involving 34 current or former Essendon players.

The AFL Tribunal was not “comfortably satisfied” that any player had breached 11.2 of the AFL Anti-Doping Code. The Tribunal was required to consider whether Essendon players had allegedly used a prohibited substance (namely, Thymosin Beta-4). Readers may recall that Essendon players were allegedly injected with Thymosin Beta-4 by sports scientist Stephen Dank.

In contrast, Mr Dank was later handed a lifetime ban by the AFL Tribunal after being found guilty of 10 breaches of the AFL Anti-Doping Code (Mr Dank is appealing that decision). Mr Dank was cleared of a further 24 charges, which included some of the most serious violations. 

Following the decision, WADA as the world governing authority for anti-doping policy exercised their right to appeal the AFL Tribunal decision. The hearing started today and is expected to last between five to seven days.

In the CAS jurisdiction, this is equivalent to a cricket test – it is the long form of the game in comparison to the majority of CAS hearings that are swift and expedient. The hearing will be a de novo hearing – providing the CAS with the flexibility to hear new evidence, review previous evidence and to have various options at its disposal with the decision making (including referring the matter back down to the AFL for a second go!).      

This is where the appeal gets a little interesting. In essence, WADA will only succeed if new evidence involving the Essendon players is produced. This may prove to be slightly problematic. Neither the World Anti-Doping Code (WADC) nor the CAS Code confers an express power on WADA for witnesses to appear at the appeal by way of subpoena. However, this cannot be ruled entirely out and this aspect may form a crucial part of WADA’s appeal process.    

WADA will be desperate to have key witnesses appear. Among others, the prime candidates are the people that sourced supplements from China, which may have included Thymosin Beta 4, and the compounding pharmacist that mixed such supplements that were ultimately provided to Essendon as a club – that allegedly were injected into the Essendon players. Remember – WADA is required to prove to the “comfortable satisfaction” that this is what occurred (the standard of proof is generally regarded as being between the civil and criminal standards of proof in this country).

It is hard to see how WADA is going to prevail in this appeal unless key witnesses appear and further evidence is attained. One thing is certain – this hearing is the end of the road for the Essendon drugs scandal. The CAS operates as an independent arbitrator in sports-related disputes and for both parties to proceed to the CAS there must be agreement that any decision of the CAS is final and binding. Whatever the outcome, the respective parties must abide by the umpire’s decision.

Undoubtedly, this appeal carries significant implications for all concerned, but the author suggests more so for the anti-doping authorities WADA and Australian Sports Anti-Doping Authority (ASADA).

Firstly, it is indisputable that the role that ASADA played in this episode was not one of their finest digs. The credibility of ASADA and the role of government in framing and supporting anti-doping policy in Australia have been seriously called into question. Undoubtedly, the anti-doping policy framework in Australia is in need of a major overhaul following the “blackest day in Australian sport” announcement. Secondly, the recent revelation of the state-sponsored doping scheme in Russia has shocked the sporting world (not easy to do after Lance Armstrong).

With doping in sport on the rise and the infiltration of organised crime into sport, the stakes are very high for WADA as it attempts to level the playing field and preserve the integrity of sport.    

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Tim Fuller is a sports lawyer with Mills Oakley in Brisbane and a former NRL player.


Stakes are high in Essendon doping saga
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Nov 24 2017
Demand lifts in 2017/18 for short-term finance to cover crises
Promoted by NWC Finance. The first five months of the 2017-18 financial year have seen unpreceden...
LCA welcomes religious freedom panel
Nov 24 2017
LCA welcomes religious freedom panel
The Law Council of Australia says the establishment of a panel which will examine the human right to...
Law Society launched a new website, legal politics and lawmaking
Nov 24 2017
Law Society launches project to engage young Aussies
The Law Society of NSW has launched a new website to engage young Australians in legal politics and ...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...