What in the WADA is going on with the ​“Essendon 34”?

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.