Essendon doping ban: sports lawyer Paul Horvath takes in-depth look at CAS ruling
SPORTS law expert Paul Horvath takes an in-depth look at the CAS ruling that has banned 34 past and present Essendon players for 12 months.
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SPORTS law expert Paul Horvath takes an in-depth look at the Court of Arbitration for Sport’s ruling that has banned 34 past and present Essendon players for 12 months.
In one of the most dramatic days in Australian sport, the World Anti-Doping Agency’s appeal of the AFL’s anti-doping tribunals not guilty verdict was upheld, plunging the AFL world into controversy.
THE RULING
THE Court of Arbitration for Sport found 34 current and past Essendon players guilty of taking substances banned under the World Anti-Doping Code.
The players have been banned for two years, the maximum available under the AFL’s Anti-Doping Code that applied in 2012.
It was open for the CAS to reduce the penalty to either a 12-month maximum if they found the players bore no significant fault or negligence, or to no suspension at all if it found there was no fault or negligence.
It found that neither of these defences — each of which requires exceptional circumstances — applied.
The player suspensions will end by November even though the suspensions are for a period of two years, because the CAS backdated the suspensions, as they have power to do.
The suspensions start on March 31, 2015. Periods of approximately four months at the start of 2015 when the players accepted provisional suspensions were also taken into account.
The decision also refers to when the Essendon players can return to training with the club. Usually, a player can start training with his club two months before the ban is due to expire, as occurred with St Kilda’s Ahmed Saad.
However, the decision sets out the rule under the AFL and WADA codes that allows a player to return to training when they have only a quarter of their suspension left to run.
This would allow players to return to training with the club and at club premises in May. However, that is a decision for the AFL.
HOW DID CAS SEE THE CASE SO DIFFERENTLY TO THE AFL TRIBUNAL?
Three QCs who have experience in sports cases decided this case. Their job was to decide whether they were “comfortably satisfied” that Essendon players had been injected with the banned substance, Thymosin Beta-4.
The comfortable satisfaction test sits between the lower civil standard in court cases of a finding “on the balance of probabilities” and the highest standard known to law of “beyond reasonable doubt”.
It is unclear exactly what it means, so it is up to the court or tribunal to make that decision.
It would appear that CAS came to a different view of what comfortable satisfaction was compared to the AFL’s Anti-Doping Tribunal.
This happens in court hearings all the time. That is why we have a right of appeal.
It would appear that the case before CAS was run differently, especially by WADA.
Richard Young represented WADA. He wrote the World Anti-Doping Code and was the key prosecutor in landmark anti-doping prosecutions of Lance Armstrong and Floyd Landis, among others.
He called some new evidence, as he was entitled. As an appeal, the case is heard de novo, or as if from the start.
The CAS was the last level of appeal. Technically, there could be an appeal on limited grounds to the Swiss Federal Tribunal, but that is unlikely.
WAS THE PENALTY HARSH?
The Anti-Doping Code that applied in 2012 when the offences were found to have been committed provided for maximum penalties of two years suspension.
The maximum since January 2015 is four years.
The players argued that the no significant fault or no fault or negligence defences should apply. As both of these defences were rejected, the two-year minimum could not be reduced.
However, under the rules, the CAS can backdate the suspensions, which they did, meaning players serve about 14 months.
The other 10 months is a reduction of time to allow for other penalties suffered by players: delay in issuing of infraction notices; the complex and delayed legal hearings; the three years of media scrutiny and stress players have been subject to; promises of a maximum one-year ban; and removal from 2013 finals.
There is also the question of a reduction of the penalty to six months for co-operation and providing assistance in the prosecution of anti-doping cases.
No discount was given for this, as it was also not given to Cronulla players who pleaded guilty to similar doping violations and received backdated 12-month suspensions which meant for most missing around three home-and-away games.
However, the Cronulla players pleaded guilty, at a relatively early stage, which saved ASADA and WADA time and expense in running long and complex cases and appeals.
A plea of guilty is also said to show remorse.
However, the issue for the Essendon players was always having no concrete evidence about what they had been injected with, and therefore not knowing whether in fact they had breached the AFL’s Anti-Doping Code.
Nonetheless, CAS found that as the players contested many parts of their case, they were not entitled to a reduction for remorse, co-operation or acknowledgment of wrongdoing.
The Cronulla players also felt they had done nothing wrong, but they accepted a definite and reduced penalty to account for the risk.
Essendon players relied on the advice of the experts within the club — medical, physiotherapy, sports science — as to what they should and shouldn’t take, and signed forms acknowledging that they were not taking substances banned by WADA.
It is therefore surprising that this did not lead to a reduction of penalty on the basis that they reasonably relied on the advice of club-employed experts before taking substances, and where in employment law an employee is required to obey lawful and reasonable directions of his or her employer.
The penalty is on the heavy side, however, there are many similar penalties that can be found in CAS doping cases.
WHERE TO NOW
Former Essendon player Hal Hunter has a Victorian Supreme Court case running against the AFL and Essendon arising from the supplements program.
Some of the 34 players found guilty will no doubt seek further legal advice regarding potentially recovering income this year that may be lost due to the suspensions, and future income as well as for personal injury.
Some players involved in the Cronulla supplements program have commenced legal action against Cronulla and others.
Players, however, were injected with different substances to the Essendon players, and did not sign waiver forms, as Essendon players did, and have different legal claims.
Paul Horvath is principal of SportsLawyer and a member of the Sports Law Committee of the Law Institute of Victoria
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