Applying team sanctions for doping: what Essendon has told us about the use of evidence at CASJames Bunting
Earlier this year, the Court of Arbitration for Sport (the "CAS") issued a two-year sanction to 34 players of the Essendon Football Club.1 None of the 34 players tested positive for a Prohibited Substance, but the CAS was comfortably satisfied on the evidence before it that each of the players had received one or more injections of Thymosin Beta-4 ("TB-4", a Prohibited Substance under the World Anti-Doping Agency Code (the "WADA" Code)).
These two-year sanctions were issued to Essendon's 34 players in circumstances that appeared to justify a reduction, if not a substantial reduction, in the maximum two-year sanction for non-intentional doping violations. In particular, the case concerned a team-wide supplement regime that was administered by a team official and which the players were told was WADA-compliant.
The CAS decision has been criticized publicly on a number of grounds and an appeal has been filed with the Swiss Federal Tribunal. Some commentators have suggested that the "decision is based on a series of suppositions rather than the presentation of evidence" and "[a]t no point in the decision is direct evidence presented to confirm that the players took the banned substance thymosin beta 4 (TB-4)."2 The decision has also been criticized for allegedly adopting a "one size fits all" approach that draws conclusions based on the "evidence of six Essendon players… about the supposed substance abuse of the whole 34".3
In the view of the author, these criticisms fail to appreciate the totality of the circumstances before the CAS. The imposition of a two-year sanction on each of the 34 players was largely driven by the failure of the 34 Essendon players to testify before the CAS about their individual circumstances. Without this evidence, the CAS was not only unable to assess each athlete's involvement with, and knowledge of, the supplement program, but also reached the conclusion that the injections the players received were shrouded in secrecy.
This article examines the highly fact specific result in the Essendon Decision and concludes that this Decision will not preclude a defence based on an athlete participating in a team administered and sanctioned supplement regime (a "Team Program Defence") in future cases. This paper also comments on two other issues addressed in the Essendon Decision that are of particular interest to future cases and the development of the lex sportiva:4
- The weight, if any, that should be given to a witness statement filed with the CAS when that witness subsequently fails to appear at the hearing to adopt the statement under oath and is not subject to cross-examination.
- The application or scope of Article 57.3 of the Code of Sports-related Arbitration (the "CAS Code") in a de novo (or fresh) hearing before the CAS. Article 57.3, on its face, purports to give the CAS the discretion to exclude new evidence presented by a party if that evidence was available to, or reasonably could have been discovered by, that party before the challenge decision was rendered.
The Essendon Decision5
The Essendon Football Club (the "Essendon Club") is a professional Australian rules football club playing in the Australian Football League (the "AFL"). In November 2011, Mr. Stephen Dank was hired by the Essendon Club for the position of Sports Scientist. In that role, Mr. Dank was responsible for "the design of supplementation protocols and recovery procedures and their implementation".
In connection with this program, the vast majority of Essendon's players signed a "patient information/informed consent form" in which they consented to the administration by Mr. Dank of four substances including "Thymosin" by way of injection. The consent form stated that the proposed treatment was WADA-compliant.
There are many different types of Thymosin. One form of Thymosin is TB-4 which aids in muscle and tissue recovery and is a Prohibited Substance under the WADA Code. In contrast, Thymosin Alpha is commonly used to boost the immune system and is not a Prohibited Substance.
In what is now a complicated and sordid story, the Essendon Club self-reported concerns about its supplement program to the AFL and the Australian Sports Anti-Doping Authority ("ASADA") in September 2012. On February 5, 2013, Essendon announced a joint investigation with ASADA to look into the supplements provided to Essendon's players in 2012. The announcement of the joint investigation was made just a few days before the Australian Crime Commission released the findings of a year-long investigation concluding that criminal networks have been involved in the distribution of drugs to athletes in Australia and that the use of prohibited substances is widespread among Australian professional athletes.6
On November 14, 2014, ASADA issued infraction notices to each of Essendon's 34 players (the "Players" or, individually, the "Player"). After a number of procedural battles, the case proceeded to a hearing before the Australian Football League Anti-Doping Tribunal (the "AFL Tribunal"). On March 31, 2015, the AFL Tribunal released a decision in which it held that it was "not comfortably satisfied that any Player violated" the anti-doping rules. That decision was appealed to the CAS by WADA.
The CAS set aside the decision of the AFL Tribunal and found that each of the Players had committed an anti-doping violation. Each Player was than issued the maximum two-year sanction for a non-intentional doping violation.
The CAS noted at the outset that the case before it was not a "presence" case under Article 2.1 of the WADA Code in which an analytical analysis (or test) established a Prohibited Substance in an athlete's system. Rather, the case against the Players was a so-called "use" case under Article 2.2 of the WADA Code in which no adverse analytical finding is recorded and the CAS relies on a combination of direct and/or circumstantial evidence to assess whether an infraction has occurred. Under Article 2.2 of the WADA Code, the burden is on WADA to establish the use of a Prohibited Substance to the comfortable satisfaction of the CAS.
The CAS applied the so-called "strands in a cable" evidentiary analysis as opposed to "links in a chain" evidentiary analysis undertaken by the AFL.7 The CAS held that, based on the totality of evidence, it was comfortably satisfied that Mr. Dank administered TB-4 to all of the Players in violation of Article 2.2 of the WADA Code. The central evidentiary findings made by the CAS in reaching this conclusion included the following:
- All of the Players received injections.
- All of the Players signed consent forms that stated they would receive a Thymosin injection once a week for six weeks and then one injection per month.
- The supplement regime administered by Mr. Dank was designed for the whole team, not any particular player.
- Thymosin injections were the "crown jewel" of the supplement regime.
- A number of text messages from Mr. Dank to Essendon's Head Coach stated "all injections completed".
- Only six Players testified before the Panel and neither that testimony, nor the notes from interviews conducted by ASADA of the other Players who did not testify before the CAS, undermined the CAS' comfortable satisfaction that each Player received at least one injection.
- The evidence established that Mr. Dank was injecting the Players with the Prohibited Substance TB-4, not some other form of Thymosin.
- Mr. Dank referred to Thymosin in text messages as being effective in soft tissue maintenance (suggesting that he was referring to and administering TB-4 and not Thymosin Alpha, which does not aid in muscle or tissue recovery).
- The consent forms signed by the Players stated that the Thymosin injections were recommended because they would "enhance the rate of recovery."
- The Players had blood tests before the administration of the injections, an exercise recommended for peptides like TB-4, but which would not be undertaken for the injection of other types of Thymosin such as Thymosin Alpha.
- The injection regime was kept secret.
- The regime was only known to a closed circle of officials within the Essendon Club and the regime was not disclosed to the Essendon team doctor.
- At least some of the Players were instructed to keep the regime secret and no Player who was subject to doping control disclosed the Thymosin injections on his doping control form.
- No records were kept within Essendon about the regime.
- Essendon had conspicuous success at the start of the 2012 season (when the regime was being administered) winning eight of the first nine games of the season.
In concluding that all of the players had received TB-4 injections, the CAS also addressed arguments raised by WADA and the Players with respect to the source of the TB-4. On this issue, the CAS noted that the evidence was equivocal but that it did not need to determine the source of the TB-4. The CAS was comfortably satisfied that Mr. Dank had access to TB-4 and, for the reasons set out above, administered it to the Players. The CAS held that there is no requirement for the source of a Prohibited Substance to be established and such a requirement would "be a significant bar to the fight against doping."8
The Viability of a Team Program Defence in Future Cases
Having concluded that each player was injected with TB-4, the CAS Panel turned to the issue of the appropriate sanction. At this stage of the case, it was incumbent on the Players to demonstrate that the two-year sanction should be reduced based on their prevailing (and presumably varying) degrees of fault or negligence. To do so, the Players (or some of them) had to first establish that they had "No Significant Fault or Negligence" as that term is defined in the WADA Code:
No Significant Fault or Negligence: The Athlete or other Person's establishing that his or her Fault or negligence, when viewed in the totality of the circumstances and taking into account the criteria for No Fault or Negligence, was not significant in relationship to the anti-doping rule violation...9
The CAS concluded that none of the Players established that they had No Significant Fault or Negligence. Of particular note, the CAS found that the supplement regime was shrouded in secrecy which raised questions about what the Players knew or should have known about the nature of the injections they were receiving. Even though the Players had access to a team doctor, and some of them had a relationship with that doctor, none of them discussed the supplement regime with him.
The finding that the injections were kept secret by the Players was particularly important to the CAS' assessment of whether the players subjectively bore No Significant Fault or Negligence. The CAS held "that there would be no reason to cast a veil of secrecy over something that was known positively to be lawful and innocent."10
In support of its finding that the injections were kept secret, the CAS also noted that none of the Players who were subjected to a doping control test during the relevant period disclosed Thymosin injections on their doping control form. The CAS' reliance on the Players omission in this regard is interesting because numerous cases treat such an omission as a relatively minor issue.11 On the facts of this case, however, the CAS concluded that the failure was illustrative of more than mere forgetfulness on the part of some of the Players. The CAS commented that the failure of the Players to disclose the injections on the doping control form "sprang from a single source, namely a group decision by the Players on the direction of Mr. Dank and Mr. Robinson, to keep secret the nature [of this] new regime."12
It is also notable that while the CAS has been criticized for extrapolating the evidence of six players to the entire Essendon team, 28 players elected not to testify before the CAS. The specific circumstances of each athlete are highly relevant to a determination of whether an athlete bears No Significant Fault or Negligence and, if so, establishing what sanction would be proportionate to the athlete's degree of fault. Presumably, the absence of individual testimony establishing the specific facts and circumstances of each Player limited the CAS' assessment of each Player's individual degree of fault.
For the reasons above, the conclusion in the Essendon case was highly fact-specific and should not be construed as a general bar to a defence based on a team-administered supplement regime. In a different case, it is entirely open to the CAS to find that an athlete who participated in a team‑wide supplement regime bears No Significant Fault or Negligence and should receive a substantially reduced sanction. Whether such a finding will be made will turn on the specific facts of each athlete on the team, including whether the athlete was told that the regime was WADA-compliant, what questions that athlete asked about the program, whether the athlete reasonably relied on the advice and direction of duly qualified team professionals, the level of knowledge and sophistication of the athlete, and whether the athlete was open and transparent about the supplement regime.
The Refusal of Central Witnesses to Testify
At the centre of the Essendon case is Mr. Dank who designed the supplement program and administered the TB-4 injections to the Players. Mr. Dank refused to testify before the CAS, leaving the CAS with only a signed but unsworn witness statement. The Players forcefully objected to the CAS putting any weight on Mr. Dank's witness statement, arguing that Mr. Dank was not available to swear to his testimony or be cross-examined.
For trial lawyers, judges and CAS arbitrators, this is a serious issue. While the significance of cross-examination varies to some degree across different legal systems, its importance within common law systems was astutely articulated by the Supreme Court of Canada 35 years ago when cross-examination was described as the "procedural substructure upon which the common law itself has been built."13
The CAS proceeded on the evidence before it and admitted the witness statement of Mr. Dank even though he failed to appear at the hearing and was not subject to cross-examination. Recognizing the frailties of that evidence, the CAS focused primarily on contemporaneous electronic communications in making its factual determinations. These types of electronic records or documents are properly admissible as "Exhibits" under the CAS Code and their admissibility is generally consistent with practices adopted by other international arbitral bodies as well as domestic courts.14
The situation before the CAS in the Essendon case raises a complicated evidentiary issue. The CAS does not have the power to directly compel a witness to testify. In order to compel testimony, the CAS must request judicial assistance from the court where the witness is domiciled. This is a complicated and expensive process and may not be effective, either because the domestic courts where the witness resides will not issue an order compelling the witness to testify or because the witness is a rogue or bad actor who will simply disregard such an order.
In circumstances such as these, the CAS may find itself on the horns of a dilemma. On the one hand, potentially permitting athletes to avoid doping infractions because central witnesses involved in the administration of prohibited substances refuse to testify is an unpalatable result that could undermine the fight against doping. On the other hand, it is deeply troubling for an adjudicative body to give any weight to a witness statement that contains central and seriously contested evidence if that witness fails to adopt that evidence under oath and be subjected to cross-examination. Indeed, placing any weight on a witness statement when the witness is not subjected to cross-examination is a dangerous practice that could easily lead to a misapprehension of the evidence. This is especially so in cases where the documentary record (i.e., contemporaneous emails and text messages) is non-existent or minimal.
The International Bar Association Rules on the Taking of Evidence in International Arbitration (the "IBA Rules") illustrate that, barring exceptional circumstances, a witness statement filed in respect of a witness who fails to appear at a hearing should be disregarded. In particular, Rule 4.7 of the IBA Rules reads as follows:
4.7: If a witness whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that Evidentiary Hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise.
Although the IBA Rules are not binding, it has been persuasively suggested that these rules serve as useful guidance to CAS arbitrators. The IBA Rules were specifically drafted for taking evidence in international arbitration and, under Swiss international arbitration law, are "perceived to codify the state of the law regarding evidence and are considered to operate as a sort of handbook for arbitrators when they have to decide procedural questions for which the applicable arbitration rules do not contain any provision".15
The above competing principles make one thing clear: There is no easy answer as to how the CAS should address situations like those faced by the panel in Essendon where third party witnesses with central evidence refuse to testify. The appropriate approach will vary from case to case.
The author suggests, as a general rule, that the party seeking to illicit testimony from the third party witness seek an order from the CAS to request judicial assistance from the applicable domestic court to compel the witness to testify. If the domestic court refuses to compel the witness to testify or the summonsed witness otherwise fails to attend, the witness statement should be disregarded in accordance with the IBA Rules. While the CAS should not consider the witness statement, it can and should consider contemporaneous documents and possibly hearsay evidence from other witnesses (although the CAS must be careful to assess the reliability of the hearsay evidence and the weight to be afforded to it).16 In addition, the CAS may make use of the adverse inference provisions of the IBA Rules that provide, in relevant part, as follows:
9.6: If a Party fails without satisfactory explanation to make available any other relevant evidence, including testimony, sought by one Party to which the Party to whom the request was addressed has not objected in due time or fails to make available any evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral Tribunal may infer that such evidence would be adverse to the interests of that Party.
The WADA Code expressly provides for the CAS to draw an adverse inference from an athlete's refusal to testify17 and the lex sportive (sports law) also confirms that the CAS may draw such an evidentiary inference.18 While the CAS Code is silent on the issue, there is no principled reason why an adverse inference could not also be drawn from the failure of a party to call evidence at the hearing from other witnesses under their control. This could include, for example technicians from the laboratory that conducted the doping control test at issue.
In summary, where a central third party witness is recalcitrant and does not attend at the hearing, the CAS may be able to look to at least the following sources of evidence to address that evidentiary gap:
- contemporaneous documentary evidence;
- reliable hearsay evidence; and
- direct evidence from the athlete(s) charged with the infraction or adverse inferences drawn from the refusal of the athlete(s) to testify.
The Scope of Article 57.3 of the CAS Code
In the Essendon case, the CAS considered and applied paragraph three of Article 57 of the CAS Code. This paragraph was added to the CAS Code in 2013 and reads as follows:
The Panel has 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.
On its face, Article 57.3 provides a broad discretion for the CAS to exclude evidence that was or reasonably could have been available to a party in the hearing from which an appeal is made to the CAS. A provision of this nature is common in the rules of appellate bodies, but somewhat out of place in the context of CAS hearings because cases proceed before the CAS de novo (i.e., as if the hearing is at first instance). The interplay between Article 57.3 and the de novo nature of CAS hearings, therefore, raises questions about the proper scope and applicability of Article 57.3.
The Players argued before the CAS that Article 57.3 precluded the CAS from admitting scientific evidence that was not presented before the AFL Tribunal because that evidence "was or could have been available" to ASADA in the hearing below. The CAS rejected this argument and admitted the evidence. In doing so, the CAS reaffirmed what is now well-established in commentary on the CAS Code as well as in prior CAS jurisprudence:
The CAS will exercise its discretion under Article 57.3 sparingly and only in circumstances where the new evidence is submitted in an abusive manner or in bad faith.
In this regard, in the article the 2011, 2012 and 2013 Revisions to the Code of Sports-related Arbitration, the author comments that Article 57.3 of the CAS Code only applies when "the adducing of pre-existing evidence amounts to abusive or otherwise unacceptable procedural conduct by a party."19 Similarly, a number of CAS awards have limited the applicability of Article 57.3 to situations where a party has engaged in abusive procedural behaviour or where it was otherwise unfair or inappropriate to admit the new evidence.20
In the Essendon Decision, the CAS noted that it detected no evidence of bad faith or abuse in the submission of the scientific evidence. The CAS Panel also made the following comments in admitting the scientific evidence under Article 57:
Article R57 of the Code allows the Panel to decline to admit otherwise relevant evidence on those grounds. However, it should be noted that WADA was not a party to the proceedings below. More importantly, an exception to the admissibility of otherwise relevant evidence should in principle be narrowly construed. As was said in Reeb and Mavromati op. cit., "The rationale of Article R57 paragraph 3 is to avoid evidence submitted in an abusive way and/or retained by the parties in bad faith in order to bring it for the first time before CAS'' (p. 520). The Panel could detect no abuse or bad faith on WADA's part. Indeed, since WADA had not been a party to the hearing before the AFL Tribunal, it had itself no opportunity to advance any evidence until the occasion of the present hearing. Moreover, the Panel considers that presumptively it should have access to all relevant evidence in order that the decision it reaches should be soundly based and reflect the justice of the case, since, as stated, the heart of a CAS appeal is whether an athlete has committed an anti-doping violation (see para. 114 above). No unfairness to the Players' results since they had adequate time to respond to the scientific evidence and indeed did so with a range of expert evidence of their own.21
The above paragraph again confirms that Article 57.3 is limited to circumstances where the party submitting the new evidence is acting abusively or in bad faith. In addition, the CAS has now established that Article 57.3 has no application to a party (in this case WADA) who was not a party to the proceeding below. Finally, the CAS has clarified that where no unfairness will result, relevant evidence should be admitted so as to ensure that its decision is sound and just. This final comment may be applied in future cases to admit relevant evidence regardless of whether that evidence was available in the proceeding below provided that admitting the evidence will not be procedurally unfair to the other party.
The Essendon Decision turned on the specific facts before the CAS and does not preclude a Team Program Defence being available to athletes in the future in appropriate circumstances. The Essendon Decision also confirms the limited scope of Article 57.3 and, perhaps most importantly, provides an opportunity to consider how the CAS should handle witness statements from central witnesses who fail to testify before it. This is a complex issue that must be managed carefully to ensure that the parties are treated fairly and that the CAS does not risk being misled by unreliable evidence.
The author would like to extend sincere thanks to Carlos Sayao (an exceptionally talented young lawyer) for his comments on earlier drafts of this paper.
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- Tags: AFL Anti-Doping Tribunal | Anti-Doping | Australia | Australia Rules Football | Australian Anti-Doping Authority (ASADA) | Australian Crime Commission | Australian Football League (AFL) | Court of Arbitration for Sport (CAS) | International Bar Association Rules on the Taking of Evidence in International Arbitration (IBA Rules) | Swiss Federal Tribunal | World Anti-Doping Agency (WADA) | World Anti-Doping Code (WADC)
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About the Author
Jim Bunting is a partner in the litigation group of Davies Ward Phillips & Vineberg LLP. He has extensive experience in sports-related disputes. Jim has acted for athletes, coaches and agents in a variety of different matters, including contractual claims, doping infractions, carding disputes, gender equity complaints, team selection appeals and disciplinary appeals.