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9 December 2015 What in the WADA is going on with the "Essendon 34"?

By Tom Johnston, Senior Associate

The Essendon Football Club is still in the news, like it or not. In Sydney this past week, the Court of Arbitration for Sport (CAS) commenced its hearing of the appeal lodged by the World Anti-Dopoing Agency (WADA) against the 34 current and former players of the Essendon Football Club (Essendon). The hearing is expected to last for up to a week, with a decision due in January 2016.

Is WADA making a high-stakes bet for what appears to be very little return? And is the court of arbitration for sport the most appropriate body to be dealing with disputes from the AFL?  And to what extent is it fulfilling its original objectives. It's a story that came to light early in 2013, and it's still going on.

This article takes a look at how we got to the current CAS hearing and the criticisms of WADA and the CAS.  The question is, when will it be game over?


History

On 5 February 2013 Essendon informed the AFL that it had concerns over a supplements program conducted at the club during the 2012 AFL season.  Both Essendon and ASADA then commenced their own internal reviews of the matter.  Over the course of the next few months, the crux of the issue came to light - that certain players were injected with banned performance enhancing substances, including thymosin beta-4, by third party consultants, including Stephen Dank. 

In early August 2013 the AFL received ASADA's interim report.  By late August 2013 the AFL had provided Essendon with its final charges and those charges were to be heard by the AFL Commission.  The AFL became, in effect, prosecutor and policeman, but that is a problem for another day.

AFL clubs are no shrinking violets – and so it was that Essendon quickly turned on the AFL and James Hird commenced proceedings against the AFL in the Supreme Court of Victoria (Hird sought, amongst other things, injunctions preventing the AFL from ruling on its own charges and having a hearing).  On 27 August 2013, after negotiations between the AFL and Essendon, Essendon was banned from the 2013 AFL finals, fined $2 million dollars and stripped of picks in the 2013 and 2014 drafts. James Hird was suspended for a year.   

Meanwhile, ASADA's investigation continued.

In early June 2014 ASADA issued show-cause notices to 34 past and present Essendon players.  A few days later, Essendon commenced proceedings in the Federal Court of Australia claiming that ASADA had exceeded its powers by issuing the show cause notices.  A few weeks later, Essendon lost its interim application to stop ASADA's investigation.  In September 2014, at the final hearing of Essendon's application, the Court ruled ASADA's investigation into Essendon's 2012 supplements program was lawful.  James Hird personally filed an appeal, which was again unsuccessful.

In November 2014 the AFL finally issued infraction notices to the 34 players for the use of the banned substance thymosin beta-4.  In December 2014 the matter was heard before the AFL anti-doping tribunal (Tribunal) in Melbourne.  Both ASADA and Essendon made detailed submissions over a number of days.  In March 2015, the Tribunal handed down its decision finding that the 34 players were not guilty.  In short, the Tribunal was not "comfortably satisfied" that the players had violated the relevant provisions of the AFL Anti-Doping Code.  The players were therefore free to play the opening round the following weekend.

The decision of the Tribunal, and the process generally, was subject to criticism, mainly regarding ASADA's evidence.  Whilst ASADA tendered some 1200 pages of evidence, it failed to establish the nature of the alleged supplement (which it claimed was thymosin beta-4) or who administered it and to whom – all necessary points in ASADA's case. 

ASADA was entitled to appeal the decision but chose not to.  ASADA publicly opted to defer any appeal right to WADA, which was entitled to ask for a rehearing of the case before the CAS.  WADA has a right of appeal to CAS under the AFL's Anti-Doping Code.

In August 2015 WADA announced that it had decided to lodge an appeal to the CAS regarding the Tribunal's decision. 

Current CAS hearing

The CAS is an independent institution based in Switzerland which provides services to facilitate the settlement of mainly international sports-related disputes through arbitration or mediation.  The CAS determines sporting disputes by producing arbitral awards which are legally binding upon parties to a 'sporting contract' (i.e. athletes and clubs/administrative bodies).  The CAS derives its ultimate jurisdiction from the dispute resolution clauses in those sporting contracts.

The CAS is currently holding a re-hearing of this matter as opposed to an appeal.  Therefore, the current hearing is a completely new hearing in which WADA will effectively prosecute and the players will defend all over again.  There is no requirement for either party to establish that an error was made by the Tribunal and both parties will be allowed to introduce new evidence to support their case (noting however, that any evidence that was available for the previous hearing and which was not tendered then is unlikely to be allowed).  In simple terms, WADA has just stepped into the old shoes worn by ASADA before the Tribunal - but one hopes, for WADA's sake, with better evidence or a different approach this time around. As to what such new evidence may be, no one is quite sure.  There is, however, speculation that WADA may present and re-examine some of the scientific testing in a different light.

The CAS may ultimately hand down a new decision which will replace the decision of the Tribunal, or annul that decision and refer the case back to the Tribunal for a rehearing.

We will provide further details and analysis on the outcome of the CAS hearing once a decision is handed down.

Criticisms of WADA and CAS

A general criticism of the CAS is that it often pursues its own process at the expense of the 'rule of law', which demands that due process, fairness and consistency override arbitrary and inconsistent decision making.  The very fact that the CAS is a private arbitral institution and not a 'proper' state Court feeds into this criticism.  In the past few years there have been an increasing number of appeals from CAS decisions to the Swiss Federal Tribunal (which is the only public Court with jurisdiction to hear appeals) on such grounds as lack of jurisdiction or violation of procedural fairness. 

With this in mind, if you were an Essendon player who has been investigated by ASADA, issued with a show-cause notice, investigated some more, issued with an infraction notice, provided evidence, attended a hearing and then cleared of any wrongdoing – it would not comfort you to know that your fate now rests with a completely new private body, on potentially new evidence and with your only recourse on appeal to a Court in Switzerland. 

The CAS has also been criticised for straying from its original objectives.  At the recent Australia New Zealand Sports Law Association annual conference in Melbourne, the Director General of WADA, David Howman, criticised the CAS for failing to uphold its original principles (without referring directly to the Essendon matter, which he openly refused to discuss).  
Howman claimed at the conference that the CAS was established on three clear principles: accessibility for athletes; non-expensive access for athletes; and timely justice.  Howman claimed that none of the original CAS principles were being followed as we were now seeing CAS hearings taking years and at great cost for those involved. 

These criticisms of the CAS are not new.

However, in what must be galling for the CAS and Essendon, it is WADA, rather than CAS, that has drawn this matter out further by appealing.  And WADA has done so in circumstance where:

  • ASADA, a well-resourced Australian Federal Government body, conducted a thorough investigation into the matter (which even included Court applications to compel witnesses to provide evidence);

  • ASADA presented an extremely detailed brief to the Tribunal;

  • the Tribunal was not satisfied that any of the players were guilty; and

  • the matter has been going for over two years at significant cost.

WADA will certainly not want for trying.  But, as is the case for many regulatory bodies, WADA cannot afford to recklessly pursue matters in an "any means to an end" manner.  It would appear that WADA is not short of targets or easy victories in the current global sporting environment.

In the next few months, we will have an outcome (subject to any appeal to the Swiss Court).  Should WADA succeed, it may be a pyrrhic victory with very little actual effect – the conduct subject of the allegations occurred more than three years ago and the players have already missed games as a result of previous provisional suspensions.  There is speculation that any suspension as a result of the CAS hearing will be backdated and the players will be running out for Round 1 of the 2016 AFL season. 

At this stage, it appears that WADA has made a high-stakes bet for what appears to be very little return.  And, irrespective of the decision, questions will continue to remain over whether CAS is the most appropriate body to be dealing with disputes of this nature and to what extent it is fulfilling its original objectives.


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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