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.
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
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.
“Blackest day in Australian sport”
The Decision ultimately derived from what one media
commentator dubbed the “blackest day in Australian sport” .
On 7 February 2013, the chief executives of the
five biggest Australian sports appeared beside the Federal Sports Minister, Federal
Justice Minister, and CEOs of the Australian Sports Anti-Doping Agency (ASADA), and Australian Crime Commission
(ACC) at a press conference which detailed
the findings of a twelve month inquiry into Australian professional sport. The resulting
report, “Organised Crime
and Drugs in Sport”, set
out that the ACC had identified or suspected widespread use of peptides and
hormones in Australian professional sport.
Two days prior, Essendon had requested that ASADA and the AFL
investigate whether prohibited substances had been administered to its players during
the 2012 season.
AFL disciplinary action
On 2 August 2013, the AFL received an interim report from ASADA and
eleven days later charged Essendon and four officers with engaging
“in conduct unbecoming or likely to prejudice the interests or reputation of
the Australian Football League or to bring the game of football into disrepute”.
Essendon and three of the officials were ultimately sanctioned.
The grounds for the charges make for sobering reading. The highlights appear
below (emphasis added):
With the assistance of Shane Charter (Charter),
a convicted drug dealer, Dank ordered various peptides, or the raw materials
for such peptides. The compounding of these substances was undertaken by Nima
Alavi (Alavi) at the Como
Compounding Pharmacy (Como). At least some of these substances were intended by
Dank for administration to players at the Club and were in fact administered to
players at the Club.
8 February 2012, at a meeting of players of the Club, Dank introduced four
substances that were purportedly approved for use in accordance with the
Following that meeting, 38 players at the Club signed “Patient
Information/Informed Consent” forms in relation to these four substances…
the dosages the subject of the “Patient Information/Informed Consent” forms
were administered, the playing group would receive in the order of:
more than 1,500 injections of AOD-9064 and Thymosin; and
more than 16,500 doses of Colostrum; and
more than 8,000 doses of Tribulus.
During the relevant period, the Club caused the following substances to be
administered to players at the Club:
unspecified amino acids
Thymosin Beta 4;
The use of these substances by the players was not approved by the Club’s
medical staff, with the exception of AOD-9604, which was the subject of some
sort of informal approval by Reid in February 2012.
In many instances the use of these substances failed to have proper regard to
player health and safety.
127. Proper records were not maintained by the Club
as to precisely which players received which of the substances referred to in
paragraph 124 above, in which quantities and when, during the relevant period.
AFL Anti-Doping Tribunal
On 14 November 2014, the AFL issued identical infraction notices to the 34
players alleging use of
the prohibited substance TB4 during the 2012 season in violation of Article
11.2 of the AADC. The players were provisionally suspended on the same day. The
infraction notices were issued after the players were placed on the ADRV Register
of Findings on 12 November 2014 by an independent Anti-Doping Rule Violation
Panel pursuant to the National Anti-Doping Scheme prescribed in the Australian Sports Anti-Doping Authority Act 2006.
As the alleged misconduct occurred during the 2012 AFL
season, the applicable version of the AADC was the 2010 edition. This version
was effectively a mirror of the WADA Code 2009.
As such, the standards applied universally by
sports disciplinary and anti-doping panels applied. Accordingly, AFL and/or ASADA
bore the burden of proving each ADRV to the comfortable satisfaction of the AADT,
bearing in mind the seriousness of each allegation made. Such standard of proof
was greater than a mere balance of probability, but less than beyond a
reasonable doubt. The AFL and/or ASADA were
able to establish the allegations by “any
The hearing was conducted on various dates between December
2014 and February 2015. The Decision was announced on 31 March 2015. However, its written reasons have never been made
public. As such, determining the evidence that was available has been gleaned
from numerous media reports (including this comprehensive piece by Gerard
announcements, and leaked documents. The author has also had the benefit of
discussing the matter with a number of parties close to the proceedings.
It was agreed by the parties that the case against each
player had two limbs:
the 2012 AFL season, the player used (through injections) TB4; and
was a prohibited substance on the relevant WADA Prohibited List.
As a threshold issue, the AADT was comfortably
satisfied that TB4 was a prohibited substance within the category of substances
set out in s2 of the 2012 WADA Prohibited List:
pharmacological substance which is not addressed by any of the subsequent
sections of the list and with no current approval by any governmental
regulatory health authority for human therapeutic use”.
Thus, the case turned on the ability of ASADA to
discharge its burden of proof relating to the first limb. This limb was broken
down into three elements, agreed by the parties, which formed the basis of the
was procured from sources in China;
was obtained by Alavi, compounded and provided to Dank in his capacity as Sports Scientist at Essendon; and
administered TB4 to each player.
This was essentially the same conduct, described
above, for which Essendon and its four officials were sanctioned.
Charter, Alavi and Dank all refused to appear at
the hearing, and ASADA failed in a last-ditch application to the Victorian
Supreme Court to compel Charter and Alavi to appear pursuant to the Commercial Arbitration Act 2011. As
such, ASADA’s case was wholly circumstantial, and relied, in a large part, on
testimony and documents provided to it by Charter and Alavi during its
investigation, and statements made by Dank in the media.
The AADT thus had an unenviable task in determining
the probative value of the evidence provided by key witnesses without having
the benefit of observing them under examination and cross-examination. As such,
the AADT held (emphasis added):
considered all the evidence relating to the credibility and reliability of Mr
Alavi, Mr Charter and Mr Dank … the
Tribunal finds that the credibility of each of these principal participants is
at a low ebb and each man in acting as he did in his own way and for his own
motive saw a golden opportunity to “feather his own nest.” Their lack of
credibility is reflected when their reliability is called into question and the
Tribunal is satisfied that on a number of important issues their evidence on
those issues was not only unreliable but also … dishonest.”
In the absence of reliable direct evidence to
establish that the players had used TB4, the decision of the AADT ultimately
turned on these adverse credibility findings.
In relation to the first element, ASADA led
(predominantly) documentary evidence to demonstrate that two shipments of
substances (in December 2011 and February 2012) were procured from China, both
of which included TB4, and were provided to Alavi. A substance in the second
shipment was tested in May 2012 at a laboratory connected to the University of
Melbourne, and the results proved the substance was TB4. As such, the substance
that was purported to be TB4 in both shipments, as a result of the test
results, was TB4.
After a thorough examination of the evidence and
arguments of the players, and in particular, the fact that the majority of
evidence had been obtained from dishonest witnesses, the AADT held that the
first shipment had occurred, but that the second shipment had not. However, the
AADT still considered the veracity of the test results, and whether they gave
rise to the position that TB4 was procured in the first shipment. Faced with
contrasting expert reports, which gave margin for error in the test results, the
AADT ultimately held that “it is possible
it was [TB4], but the Tribunal is not
comfortably satisfied that it was”.
In relation to the second element, the AADT was not
comfortably satisfied that TB4 was compounded or provided to Dank. As a result
of its findings relating to the first and second elements, the AADT did not “consider it necessary to consider the third
element…as it is dependent upon the first and second elements…being established
and neither has been established to the comfortable satisfaction of the
Accordingly, the AADT was not comfortably satisfied
that the first limb required to prove the ADRV was made out, and exonerated
each player of their charge.
Non-analytical positive “use”
The Decision is a classic non-analytical positive
“use” case. In this class of cases, as
no adverse analytical finding is recorded, the relevant anti-doping
organisation must rely on a combination of direct and/or circumstantial
evidence in order to discharge its burden of proving use of a prohibited
substance or method.
Prior to the implementation of the WADA Code, sports
arbitration panels embryonically decided to apply a ‘comfortable satisfaction’
standard of proof; less than the criminal standard of proof beyond a reasonable
doubt but more than the ordinary civil standard of proof on the balance of
This standard was preferred due to sports
disciplinary cases not being criminal in nature, but rather, a private law of
association type. This principle has been
consistently upheld and was espoused as such by the Swiss Federal Tribunal: “the duty of proof and assessment of evidence
[are] problems which cannot be regulated, in private law cases, on the basis of
concepts specific to criminal law”.
However, precisely where this standard falls
between the criminal and civil standards is unclear.
That anti-doping cases are presented in a quasi-criminal manner suggests they
should be closer to the latter, but the private nature of sports disciplinary
cases suggests that the lesser standard is more appropriate.
This distinction is significantly important to WADA
overturning the Decision. In its press release after receiving the Statement
of Appeal, the CAS recorded
that “WADA requests that the CAS
issue a new decision based on an appropriate burden of proof and evidentiary
standards”. As such, it is clear that WADA considers that the
standard of proof applied by the AADT was too high when considering the
However, an analysis of a number of prior decisions
suggests that the standard of proof in this class of cases has always been close
to the criminal standard. The jurisprudence suggests that Panels rely solely on
direct and incontrovertible testimonial, documentary, and scientific evidence to
sanction individuals for “use” violations.
pre WADA Code cases
In French, it was alleged that
French used prohibited substances after the discovery of a bucket of used
syringes, needles containing traces of a prohibited substance, and a supplement
whose label stated that it contained a prohibited substance, inside his room at
his athlete residence. The CAS, however, was not comfortably satisfied as there
was “no direct evidence that Mr. French
had used the material in the sense that no-one saw him use it and he has
consistently denied use”. Furthermore,
that the label stated the name of the prohibited substance was not sufficient
to prove that the supplement actually contained the prohibited substance.
In A., B., C.,
D., E. v IOC,
five simultaneously-decided cases, the CAS held that admissions of
undertaking or performing blood transfusions, coupled with the discovery of
instruments and chemicals necessary for blood-doping in their residence during
the 2002 Winter Olympics, was sufficient evidence to sanction four individuals
for using a prohibited method. In the absence of direct evidence against Mr. E,
the only of the five whom argued that “he
had nothing to do with the paraphernalia found in the chalet and that he did
not perform any type of autologous or other blood manipulation while he was at
the 2002 Winter Games”, the
Panel issued a warning only.
In Collins, a case deriving
from the BALCO scandal, the United States Anti-Doping Agency (USADA) relied on a cache of emails where
Collins admitted to using prohibited substances (both EPO and the hybrid testosterone
“cream” developed by BALCO), as
well as test results of independent blood and urine tests arranged by BALCO. Following
expert testimony, the Panel found beyond a reasonable doubt (as was required by
the relevant IAAF Rules) that her blood samples demonstrated EPO use in 2002
and 2003 and that her urine
samples demonstrated “a pattern of
testosterone and epitestosterone levels that can only be explained by the
illegal use of BALCO’s cream”.
post WADA Code cases
In Gaines and Montgomery, two further
BALCO cases heard simultaneously, following argument on the appropriate
standard, the Panels stated: (emphasis
perspective, and in view of the nature and gravity of the allegations at issue
in these proceedings, there is no
practical distinction between the standards of proof advocated by USADA and the
Respondents. It makes little, if indeed any, difference whether a “beyond
reasonable doubt” or “comfortable satisfaction” standard is applied to
determine the claims against the Respondents. This will become all the more
manifest in due course, when the Panel renders its awards on the merits of the
USADA’s claims. Either way, USADA bears
the burden of proving, by strong evidence commensurate with the serious claims
it makes, that the Respondents committed the doping offences in question”.
Similar to Collins,
the USADA relied on a multitude of testimonial, documentary and scientific
evidence to allege use of a prohibited substance. However, the Panel ultimately
decided that admissions about their use of the infamous “Cream” developed by
BALCO to their ex-teammate Kelli White, was “sufficient in and out of itself” to comfortably satisfy themselves of
the athletes’ guilt.
In Hamilton, the Panel cited
the discussion of the appropriate standard referred to in Gaines and Montgomery but
did not explicitly apply it. After
upholding the reliability and validity of the homologous transfusion test of
Hamilton’s blood samples, the Panel relied upon these test results to be comfortably
satisfied that Hamilton had used a prohibited method. A
similar approach was undertaken by the Panel in Pechstein to find that %retics
peaks in her blood sample of February 2009 were abnormal and that accordingly
she had used a prohibited method.
In the Cyprus case,
WADA and FIFA appealed a decision of the Cyprus Football Association (CFA). Prior to a number of league
matches, a club coach administered two pills (which he had independently
sourced) to the starting line-up, claiming them to be caffeine pills and/or
vitamins. Two players subsequently
recorded an adverse analytical finding for a prohibited substance, while five
others who did not test positive admitted to investigators that they had also
used the pills. Only the two players and the coach were sanctioned by the CFA.
WADA alleged that the CFA had erroneously failed to sanction the five players.
The Panel was not comfortably satisfied of this conclusion:
The Panel notes, in fact, that there is no evidence that the actual pills
individually used by each of the Other Players contained a prohibited
substance. Indeed some players took the pills, were subsequently tested and
there was no adverse analytical finding.
clear cut evidence was brought to show that…the pills administered…were “plain
steroids” and not “caffeine pills” contaminated by steroids”.
The most famous case in this class, albeit never
reviewed by an arbitration panel, was Armstrong.
The USADA relied on witness testimony which provided direct evidence of
Armstrong using prohibited substances or prohibited methods during the 1999,
2000, 2002, 2003, 2004, and 2005 Tour de France races. The USADA also utilised financial
records linking Armstrong to the disgraced sports doctor, Dr. Michele Ferrari,
as well as undertaking retesting of old samples which purportedly demonstrated
EPO use at the 1999 Tour de France, and provided a “compelling argument consistent with blood doping” at the 2010 Tour
Two overriding conclusions can be drawn.
The first is that there is no definitive answer to
the question of what evidence shall be presented to prove a non-positive
analytical “use” case. As
stated by the Panels in Gaines and Montgomery:
offences can be proved by a variety of means; and this is nowhere more true
than in “non-analytical positive” cases such as the present”.
The second is that the standard of proof is
significantly closer to the criminal than the civil standard. Indeed, in Gaines and Montgomery, the Panels could draw no distinction between beyond a
reasonable doubt and comfortable satisfaction, taking into account the allegations
raised and the sanctions requested. This elevated standard becomes clear in
those matters which relied solely upon circumstantial as opposed to direct
In French and
the Cyprus case, the Panels held that
admissions could be relied upon only where there was unambiguous evidence that
the substance used either was or contained a prohibited substance. Thus, a
label on supplement packaging which lists a prohibited substance as an
ingredient, or the ingestion of a pill taken from the same batch as one ingested
by a teammate who subsequently tests positive, are not enough on their own to comfortably
satisfy a Panel that a used substance was a prohibited substance.
Effectively, the cases require the party bearing
the evidentiary burden to prove that the used substance or method was without
doubt the substance or method alleged; in other words, the highest possible
standard of ‘comfortable satisfaction’. Even in Pechstein, where the Panel emphatically rejected the Appellant’s request
to apply a higher than normal standard of proof and stated that it would apply
the “normal comfortable satisfaction
standard”, the Panel still blurred
the lines between the two after systematically reviewing and rejecting each of
the Appellant’s argument, leaving little doubt in its own mind that the use of
a prohibited method was the only possible reason for the blood abnormalities.
To meet this standard, the cases articulate that
only direct evidence should be adduced. This includes: admitting to using a proven
prohibited substance or prohibited method; scientific evidence of which no
credible explanation other than the use of a prohibited substance or prohibited
method is possible; scientific evidence which demonstrates that a substance
used is a prohibited substance; witness observations of use; and witness
testimony of direct admissions.
One further conclusion can be drawn: WADA, on the
basis of its current evidence, is unlikely to overturn the Decision. The inherited
ASADA case was wholly circumstantial. It did not contain direct,
incontrovertible evidence from any of the classes seen in the previous cases.
Its key witnesses chose not to testify, nor could they be compelled under
Australian law, and nor is it likely that they can be compelled under Swiss law
to attend at the CAS. As
such, WADA’s prospects of success hinge upon its ability to adduce new and
direct evidence of the use of TB4 by the players.
Will R57.3 of the CAS Code prevent WADA from adducing
new and direct evidence?
R57 of the CAS Code provides that a Panel in the
appeal arbitration division has “full
power to review the facts and the law”. Appeals are heard de novo and any procedural fairness
issues deriving from the first-instance are thus automatically cured. This interpretation
has been upheld in numerous Awards and the Swiss Federal Tribunal.
R57.3 of the CAS Code, introduced in 2013, provides
one limitation: “[t]he Panel has the
discretion to exclude evidence presented by the parties if it was available to
them or could reasonably have been discovered by them before the challenged
decision was rendered”. This is consistent with Swiss procedural law in
that a document can only be adduced, at an appellate hearing, if it did not
exist at the time of the first instance hearing or hearings or was not in the
possession of the appellant at the time.
According to Rigozzi et al, in appeals against
decisions rendered by sports-governing bodies, the scope of R57.3 should extend
only to those cases “where the adducing
of pre-existing evidence amounts to abusive or otherwise unacceptable
procedural conduct by a party”.
Mavromatis characterises de novo review as “not only
desirable, but also necessary for a number of reasons, to the extent that the
previous instance is not an independent arbitral tribunal but the internal body
of a sports federation”.
As such, R57.3 should be interpreted “as
not to circumvent the core principle of the Panel’s full power of review”.
In two recent Awards, the Panels held that this
discretion should be exercised with caution, in situations where a party may
have engaged in abusive procedural behaviour or in any other circumstances
where the Panel might, in its discretion, consider it either unfair or
inappropriate to admit new evidence.
In SC FC Sportul Studentesc SA, the Sole
Arbitrator excluded the principal evidence supporting the appeal as he was not
provided any satisfactory explanation why it could not be submitted or adduced
during the two sports-governing body proceedings.
Hence, it is only in rare cases that the CAS limits
its power of full review. Thus, as long as new evidence adduced by WADA is
neither abusive nor can be construed as unacceptable procedural conduct, it is
highly unlikely to be excluded. Levy has suggested that such exclusions may give
rise to an appeal to the Swiss Federal Tribunal due to the denial of the right
to be heard. In any event, WADA was
not a party at first instance, so it remains questionable whether R57.3 may even
be utilised by the players.
The biggest soap opera in the history of Australian
sport will come to a conclusion some time prior to the 2016 AFL season. At the
time of publishing, the CAS has recently announced the hearing timeline.
Media reports have recently suggested that WADA ordered retesting of samples obtained from the
players in 2011-2012, resulting in two samples demonstrating abnormally high
levels of TB4. As
set out above, the previous cases suggest that only this type of direct
evidence will be able to convince a Panel to the requisite standard. The
challenge for WADA, given the length of the ASADA investigation, is to find it.
An independent report commissioned by Essendon published in May 2013, graphically described its
supplements programme as “a pharmacologically experimental environment never
adequately controlled or challenged or documented within the Club in the period
under review”. It is not disputed
that the players must ultimately take full responsibility for each substance
that presents in their body.
However, at the same time, the
gross inadequacies in the governance at Essendon during the period – failures
in documentation and record keeping, lack of (proper) informed consent for the
players, uncertainty in the supplements administrated, and the creation of an
unsafe work environment, among others – for which the club was already heavily
sanctioned and which gave rise to the investigation in the first place, ironically
appears to be the main obstacle preventing WADA from discharging its burden of
 AFL Anti-Doping
Code (2010 Edition), Article 15.1.
 AFL Anti-Doping
Code (2010 Edition), Article 15.1.
v 34 Players and One Support Person
 VSC 635.
 See e.g.
Richard H McLaren, An Overview of
Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16
Marq. Sports L. Rev. 193 (2006).
 See e.g. N., J., Y., W. v Federation Internationale
de Natation CAS 98/208.
 SFT, 5P83/1999,
Straubel, Enhancing the Performance of
the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better,
36 Loy. U. Chi. L. J. 1203 (2005), at 1270.
 Mark French
vs Australian Sports Commission and Cycling Australia, CAS 2004/A/651.
 French at 58.
 French at 51.
 A., B., C., D. & E. v International
Olympic Committee, CAS
2002/A/389, 390, 391, 392, 393.
 A., B., C., D. & E. v IOC at 53.
 A., B., C., D. & E. v IOC at 53.
 United States Anti-Doping Agency vs Michelle Collins, AAA No. 30 190 00658
 Collins at 1.3, 4.1, 4.2, 4.3, 4.4.
 Collins at 1.3, 4.11 – 4.24.
 Collins at 4.16.
 Collins at 4.17.
 United States Anti-Doping Agency vs Chryste
Gaines, CAS 2004/O/649.
 United States Anti-Doping Agency vs Tim
Montgomery, CAS 2004/O/645
 Gaines at 36, Montgomery at 36.
 Gaines at 52, Montgomery at 50.
Tyler Hamilton vs United States Anti-Doping Agency
and Union Cycliste International, CAS 2005/A/884.
 Hamilton at 47.
 Hamilton at 91.
 Claudia Pechstein vs International Skating
Union, CAS 2009/A/1912.
 World Anti-Doping Agency and Federazione
International de Football Association v Cyprus Football Association, Carlos
Marques, Leonel Medeiros, Edward Eranosian, Angelos Efthymiou, Yiannis
Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos, CAS
& FIFA v CFA et al at 14.
& FIFA v CFA et al at 198-200.
 United States Anti-Doping Agency vs Lance
Armstrong, Reasoned decision of the USADA on disqualification and
eligibility (10 October 2012).
 McLaren at 212.
 Gaines at 45, Montgomery at 45.
 Pechstein at 123-126.
 See this piece
for an excellent analysis of the operation of the powers of compulsion within
the Swiss Public International Law Act vis-à-vis Australian law: <
 see FC Sion v Federation
Internationale de Football Association & Al-Ahly Sporting Club, CAS
2009/A/1880; E v Federation
Internationale de Football Association, CAS 2009/A/1881; Eintracht Braunschweig GmbH & Co. KG a. A. v.
Olympiakos FC CAS 2012/A/2836; SFT 4A_386/2010
 Article 317 of
the Swiss Civil Procedure Code.
 Antonio Rigozzi
/Erika Hassler / Brianna Quin, The 2011,
2012 and 2013 revisions to the Code of Sports-related Arbitration, in:
Jusletter 3 juin 2013, at 14.
Mavromatis, The Panel’s Right to Exclude
Evidence Based on Article R57 Para. 3 CAS Code: a Limit to CAS’ Full Power of
Review, in CAS Bulletin 1/2014, at 56.
 Mavromatis at
 See Zamalek Sporting Club vs Accra Hearts of Oak
Sporting Club, CAS 2014/A/3518; MFK
Dubnica v FC Parma, CAS 2014/A/3486.
 SC FC Sportul Studentesc SA v Romanian
Football Federation & several players, CAS 2013/A/3286-3294.
 SC FC Sportul Studentesc SA at 66-70.
 Roy Levy, The new CAS rules – what you need to know, at