Just to note the distinction between the standard of proof and the burden of proof. The standard of proof is comfortable satisfaction - more than mere probability, but less than beyond a reasonable doubt ( which applies in criminal cases).
In this instance, WADA had the burden of proof to raise a presumption that the standard of proof had been met, after which the burden of proof transfers to the defending party.
It is not necessary to apply the standard to each strand, but hard factual evidence is needed to support a presumption that the comfortable standard has been met.
McDevitt’s mumbo jumbo about the percentage elements relating to the standard of proof is rubbish. In non -analytical cases, the standard should be higher.
The strands in the cable approach involves an accumulation of evidence to support a presumption that the standard had been met and needs to include facts. Circumstantial evidence is not necessarily excluded , but needs to be benchmarked against what would be considered as reasonable behaviour or conclusions, .
In circumstances where the majority of the strands were based on circumstantial evidence ( or just plain wrong, , in regard to Dank’s previous history of TB4 use ) the percentage should have been higher, rather than lower.
The mathematical conclusions by Kim Sawyer - that the standard applied was around 20% - would be persuasive in most litigation,
Kim Sawyer’s calculation is one of the more compelling arguments that the application of the “comfortable satisfaction” evidentiary standard was flawed. With a 20% probability of guilt we must consider that this means a 80% chance that the players were not guilty.
Don’t think this has been posted as yet.
Justice for the 34 has sent a letter to Senators
Dec 23, 2017 — Justice for the 34 has sent this letter to Senators today:
Dear Senators,
I am writing to you on behalf of 8,590 petitioners to request your support for a Senate Inquiry into Sports Anti-Doping in Australia.
An inquiry is necessary for three reasons.
First, there is considerable concern internationally as to the operation of the World Anti-Doping Code. There are inquiries underway in both the UK and the US, and significant court challenges in France and Germany. These concerns were amplified in a letter in June last year by Senator John Thune, Chairman of the United States Senate Committee on Commerce, Science and Transportation (*link to Senators John Thunes’ letter is supplied below).
Secondly, the ASADA Act of 2005 needs review, not by ASADA or WADA, but by the Parliament that enabled it. As the Essendon case showed, the ASADA Act was not designed either for team sports or indigenous codes. It must be reviewed.
Finally the Essendon case, which monopolised ASADA’s resources, is a case study in regulatory failure. As Senator Back rightly identified at Senate Estimates on March 3 last year
“The proportionality is the thing that gets to me. The proportionality, I think, is grossly unjust.”
It was unjust. Regulatory failure of this magnitude must be reviewed by the Parliament, not by the newspapers.
The Essendon case should be revisited as part of a Senate Inquiry. There are three reasons why.
First, the Blackest Day in Sport press conference pre-determined an outcome for the Essendon players. They were targeted by ASADA; and when ASADA could not achieve the outcome they required before a properly constituted Australian Tribunal consisting of two ex-County Court judges and a senior barrister, they referred to a Court of Arbitration of Sport (CAS) Panel. However, relevant evidence was not submitted to the CAS.
Secondly, the ASADA investigation was compromised by breaches of confidentiality, by lack of independence from the sport’s governing body, by lack of consultation with other government agencies, and by inconsistency over the course of the investigation. The players were penalised three times for the same infraction (banned from the 2013 finals, banned from the 2015 preseason, banned for the 2016 season); and were denied the right of appeal to an Australian court.
Finally, and most importantly, there is evidence that shows the Essendon players were targeted. The evidence shows that:
(i) A program implemented at the Melbourne Football Club, similar to the Essendon program, was not subject to an ASADA investigation; no report was issued and there were no penalties. The program had similar injections as the Essendon program, the electronic communications were similar, the architect of the program was the same, but it escaped sanction. Melbourne did nothing wrong; and neither did Essendon.
(ii) The text messages relevant to the Melbourne program were not presented to CAS. The transcript of a relevant ABC 7.30 Report of April 18, 2013 relating to the Melbourne program was not presented to the CAS; yet a transcript of the ABC 7.30 Report program of May 2, 2013 relating to the Essendon program was presented to the CAS.
(iii) There has been a failure to present evidence relating to the Essendon program which clearly suggested the Essendon players being administered with a legal substance Thymomodulin (**a comparison of supplements programs is supplied below), not the banned substance Thymosin Beta 4.
(iv) In the CAS Ruling para. 105, it states that “WADA is obliged to eliminate all possibilities which could point to the Players innocence.” Neither WADA nor CAS addressed this evidence.
Regulation requires regulators to act without fear or favour, not to target. In the Essendon case, ASADA does not appear to have applied a consistent set of regulatory standards which would have allowed athletes to prove their innocence. This is a most serious matter. It can only be addressed by an open Parliamentary inquiry which allows all parties to be presented, including sporting bodies, athletes and regulators. It is in the national interest.
Yours sincerely
Philip Nelson
on behalf of over 8,590 petitioners.
- Senator John Thune, Chairman of the United States Senate Committee on Commerce, Science and Transportation.
Thank you for your support.
For further information, contact Justice of the 34 via their Facebook page.
Re the bolded text - the member of CAS were certainly not stupid or “hopelessly incompetent”. They achieved exactly the outcome they desired in spite a large amount of evidence that should have exonerated the players.
If we do manage to get a Senate inquiry, what makes us think this it will not be railroaded and corrupted like everything else in the saga?
WADA // IOC how can anyone take these kants seriously re protecting the health of athletes
Really interesting discussions going on in the UK regarding the pursuit of medals and funding at the expense of the athlete.
Never a truer word spoken. That is what’s its all about.
Its kind of like a war without weapons.
Harcourt is too busy getting himself elected to WADA committees and chairing one of them.
Yes the good doctor loves his work at WADA. Well and truly has his head in the IOC trough. It is worthy of repeating that Harcourt, along with that other bastion of integrity, David Handelsman sat on the very same “experts panel” who decided, after careful consideration of all the scientific evidence, that meldonium should be placed on the WADA banned list come January 1st 2016.
It just beggers belief that these two eminent Australian scientific minds, along with 15 other similarly qualified international medical and scientific experts on the same panel could take nine months of investigation into the performance enhancing impact of meldonium without even considering the pharmacokinetic data on meldonium. And to their embarrassment to find 200+ athletes tested positive to the drug in January 2016.
This is just one example of the lack of true scientific rigor applied by WADA in dealing with any substances suspected of being PE, let alone the performance of their “accredited” testing labs, and the integrity of their administration.
Again the victims are the athletes. And how do our gutless politicians respond - with apathy and ambivalence.
Simply because this is worth repeating.
with the amount of resistance to having one I am inclined to agree with you anything if it is not conducted with the utmost integrity will just be a rehash of the rubbish we have already been dished up …the only verdict I have any faith in is the original one that cleared them & as this was never addressed properly or appealed against the rest is just window dressing to get the desired out come as will be any royal commission or senate inquiry where perjury is off the table
None of the arguments stack up, not one of them.
Having found it insufficiently proven that Thymosin Beta 4 was compounded for Dank, and insufficiently proven that Dank procured Thymosin Beta 4, The CAS then decided Thymosin Beta 4 not only (magically) existed, but it was administered by Dank to the players.
Huh?
The CAS were comfortably satisfied that Thymosin Beta 4 existed and was administered to the players because Thymosin Beta 4 was mentioned in two random text messages between Charters and Dank (despite no mention/link to Essendon or players and being from dubious characters) and the players failing to record the said Thymosin Beta 4 on the DCFs within a 7 day period, despite ASADA having no idea when the said Thymosin Beta 4 was to have been administered so they could never ascertain whether it was within the 7 days or not.
There was minimal accumulation of other evidence indicating the players were guilty; all of which was circumstantial and/or unsubstantiated anyway. The CAS guilty argument was not a strong one at all.
One could argue there was a greater accumulation of direct and provable evidence indicating the players were innocent, which we know was all ignored/not presented. The Players lawyers should hang their heads in shame.
Nevertheless, we will continue to push for an independent review in 2018.
Did the last unimelb event make its way on the net?
Not yet.
Plenty of good material to draw on here.
CAS also remains “comfortably satisfied” that Dank was is not guilty of doping Essendon players with TB-4 as they have let his “not guilty” verdict stand.
Unbelievable hypocrisy and no one in officialdom seems to care that the records actually show the the E34 are guilty of taking TB-4 from Dank and he is not guilty of giving them TB-4.
That’s right; but it not about the truth, it’s all about the optics
THIS.
Could never understand the logic behind this situation.
Just a question, could the accuracy of the “accredited testing labs of WADA” has their work ever been beyond reproach of being discredited on their results? Or is it a case of changing the labels on the bottles?
It tells you more than ever they got the only result they wanted and that was that. They were happy after that. Ping the players was the objective.