CAS referred to the Dank matters in its cable strands decision (nearly called it a judgment). Not denying Middleton’s decision was a setback, but also not convinced that winning there would have been the end of the matter.
BOCK.
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Yaco seriously! Your assumption is that with no joint investigation the AFL is unable to use its contractual powers to collect information from the players. Suggesting they would stand idly by is fanciful crap.
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Except Dustin Fletcher who had No injections and got a jar of ointment which was unopened and unused. He was still banned.
Edited. The article I read was incorrect. Fletch apparently did have injections but didn’t use the ointment.,
For real? Where does this info come from?
I read it somewhere and I remember he did an interview with his wife present and she confirmed the jar was never opened.
“Fletch”, p 214: "“The first alarm bell rang when the frequency of the injections started to increase…Over the course of a season I would have between 30 and 50 needles.”
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It seems for all athletes globally the core problem is the contract - and in particular the wide ranging terms of the contract - forced on them by the sports federation.
In the Pechstein case, it was acknowledged that the contract was forced on her, but the forced contract was not accepted by the European Court of Human Rights as a reason to nullify a CAS decision.
This issue of an imbalance in power is being debated in European circles, but back here the monopoly power of the AFL in dictating the terms of the contract has not created a ripple. On the contrary, the Federal Court indirectly confirmed this power.
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It’s common-sense that with only an ASADA investigation players would follow legal advice and remain silent during interviews - The AFL can do do whatever it wants with its contractual powers but it would have no influence on an ASADA only investigation.
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Just to try to explain this another way. Without the ability to conduct a joint investigation, ASADA investigators cannot force a player to answer any questions. The High Court has found that a statutory body cannot use another one to do its work for it i.e. use a body that has powers it doesn’t to get information. It is therefore pertinent to ask, given ASADA used a private corporations’ powers to get information that it legally couldn’t, if this decision had been made four years ago, would ASADA have continued the investigation. Personally, given the tenuous nature of their “evidence”, without the information the AFL provided, I doubt ASADA would have continued.
While they did and still do have an information sharing agreement with the AFL, that is different from being able to have one of your investigators in the room with an athlete, able to ask multiple follow up questions. While the athlete doesn’t have to answer the ASADA investigator, all that has to happen is the AFL investigator parrots the follow up questions forcing the player to answer because they are bound by their AFL contract. Just like that, ASADA have the information that they may not have gotten without the ability to compel an athlete to answer. It is highly simplistic to say they would have got the information anyway. By simply reading statements from a transcript, which obviously conveys no emotional nuances, and by not witnessing body language i.e. was the player being evasive with his response or was he relaxed and confident, ASADA may not have asked the right follow up questions or taken obvious lies at face value.
Lets have an example.
AFL: Did you use TB4?
Player: What is TB4?
AFL: A performance enhancing drug know as Thymosin!
Player: Dank told some of us that we would get given Thymomodulin. That sounds a bit like Thymosin. Is it that what you mean.
AFL: Yes!
Player: Nah, never had any of that, only vitamin injections.
AFL: So you had injections then?
Player: Yeah for vitamins.
AFL: Thank you.
Compared to
AFL: Did you use TB4?
Player: (Looks at ground, looks at lawyer, looks back at ground, coughs in back of throat, glances nervously at watch, shuffles feet, mumbles to self) What is TB4?
AFL: A performance enhancing drug know as Thymosin!
Player: (Swallows noisily, coughs again, plays with fingers, inspects finger nails, chews on one nail, looks at lawyer, shakes head, looks back at lawyer, looks at watch, looks at lawyer) Dank told some of us that we would get given Thymomodulin. That sounds a bit like Thymosin. Is it that what you mean.
AFL: Yes!
Player: (Player wipes brow, shuffles feet, scratches nose, looks at lawyer, nods at lawyer, looks at watch, shuffles feet again, moves about in chair, refuses to make eye contact with investigator) Nah, never had any of that, only vitamin injections.
AFL: So you had injections then?
Player: (Looks at lawyer, nods head, scratches back of hand, scratches head and neck) Yeah for vitamins.
AFL: Thank you.
See how much you can miss in a straight transcript. That is invaluable to a quality investigator for follow up. How do you frame follow up questions with no context to how that answer was given? We see this all the time on this site. The written word can’t convey sarcasm or humour, nervousness or confidence of and by itself, people need to read the body language queues to understand the context.
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How hollow was Gil’s undertaking to Hird Thompson and Corcoran that their agreement to the suspensions and fines would save the players!
In compelling the players to front ASADA he sealed their fate.
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Obviously the article I read in the Sun was incorrect. The interview was only about a jar of ointment.
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That part about giving up on supplements was similar to something on p213:
“…you would sit down with the club’s nutritionist and figure out what supplements you needed. Often I would take them for a few weeks but if they weren’t doing anything for me, I’d stop using them. I’d usually neglect to tell the nutritionist this news, just to keep her off my back.”
Later he reflects on how he doesn’t think Dank’s programme assisted him anyway.
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At that stage nobody even knew what TB4 was…including ASADA let alone whether it was a PED. That came latet after ASADA realised that AOD 9604 was approved by themselves for use therefore making themselves look like idiots…which they clearly were.
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Legal advice provided to me in 2014 from a leading Sports Lawyer based in Canberra was that the players best and most efficient way of addressing the problem they were facing was to challenge the player contract. The contract could be shown to be illegal under Australian Industrial and Contract Law and under the Universal Declaration of Human Rights.
The AFL players are only concerned with one thing; making the grade. All the other stuff is unimportant to them and is left to their managers, footy club personnel and that bastion of integrity and independence, the AFLPA. As long as the AFLPA are subservient to their Master then the players will always be dumped if a matter arises that in any way challenges the interests of the AFL.
If the NSP ever gets a run then it will provide ASADA with the power to question any athlete even if in answering those questions the athlete could incriminate himself.
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On another matter dear to my heart I was provided a reference by a fellow Blitzer which details a comprehensive study carried out by two eminent Dutch medical scientists which exposes the sham that is the WADA Banned List. The two researchers carried out a full and comprehensive literature search for research projects, published papers in prestigious journals, reports, clinical studies etc. looking at all of the 23 classes of substances that make up the WADA Banned List. Of these 23 classes only 5 provided any real evidence of performance enhancement and these were in the metrics of strength and sprint performance. Interestingly there were no classes that showed any evidence of endurance performance.
Endurance performance was believed to be the main attribute of EPO but clinical studies carried out on actual high level cyclists did not support the theory that an increase in oxygen carrying capacity stimulated by injection of EPO did not translate into any performance gains when cyclists were tested over tour de France stages including time trials and mountain climbs.
The Paper does mention TB4 and states there have been no studies carried out relating to its PE capabilities.
I did carry out a similar search of WADA studies and investigations subcontracted out to Universities and other research facilities in early 2016. There were two of any consequence. One related to studies on the structure and some in vitro studies looking to establish a test procedure. The problem they had was that they didn’t know what the normal range of the endogenous peptide was in the body.
It was dropped into Section 2.5 of the Banned List under “other growth factors” based on nothing else but perception. In 2018 TB4 was added to the Banned List as an identifiable substance.
McDevitt LIED.
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Still going
As are you
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Great post.
Interesting that the people who interviewed the players face to face did not think they were guilty:
“In the investigator’s final report, lead author Aaron Walker recommends against charging the players. Aside from the difficulty in proving the case, he questions the public interest in pursuing a bunch of footballers who were lied to…” (Le Grand, Chip. The Straight Dope: The inside story of sport’s biggest drug scandal (Kindle Locations 3855-3856).
It was the CAS panel who relied largely on transcripts who found them guilty.
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and yet the federal court didn’t !!