Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.
Introduction
On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World
Anti-Doping Agency (WADA) had filed
an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and
former players of Essendon Football Club (Essendon)
had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using
Thymosin-Beta 4 (TB4) during the
2012 AFL season.
On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr.
Stephen Dank (Dank), a sports
scientist employed at Essendon during the relevant period, of twenty-one
charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.
This blog will solely discuss the likelihood of the
first AADT decision (the Decision)
being overturned by the CAS. It will briefly summarise the facts, discuss the
applicable rules and decision of the AADT, review similar cases involving ‘non-analytical
positive’ ADRVs relating to the use of a prohibited substance or a prohibited
method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its
appeal.
This blog will not examine the soap opera that was
the two years leading-up to the Decision. Readers seeking a comprehensive
factual background should view the excellent up-to-date timeline published by the
Australian Broadcasting Corporation. More...