1. ASADA Item 1: “At the time of the violations, Thymosin was prohibited under Category 52.5 of the Prohibited List as a “growth factor affecting muscle, tendon or ligament protein synthesis/degradation, vascularisation, energy utilization, regenerative capacity or fibre-type switching” or a substance with similar chemical structure or biological effects (see page 14 of Handelsman report).”

My comment:

1. This claim was made as a result of arguably criminal action by ASADA. Thymosin Beta-4 was not named as a prohibited substance by WADA nor by any of its 208 affiliated national anti-doping agencies by 10:34:17 AM on 4 February 2013. At 10:34:17 AM, an ASADA official checked the official ASADA log (‘Check Your Substances’) and Thymosin Beta-4 was not named as a prohibited substance. However, a check by a member of the public at 12:59:17 PM, Thymosin Beta-4 was listed as a prohibited substance. Someone at ASADA had unlawfully changed Thymosin Beta-4’s status by name in order to support its false claim the Essendon players had taken a prohibited substance.

The bottom yellow highlighted section indicates that a member of the public checked the ‘Check Your Substances’ website at 10:34:17 AM and discovered that Thymosin Beta-4 was not listed as a prohibited substance. However, at 12:59:17 it was listed as prohibited. ASADA unlawfully changed its status.

1. Ben McDevitt’s successor as CEO, David Sharpe, in response to Senate Estimates questions on notice in October 2019, admitted that the change to the status of Thymosin Beta-4 on the ‘Check Your Substances’ database was made on 4 February 2013.

1. On 6 October 2020, I made an FOI request (20-10) for a letter/email from a WADA official authorising someone from ASADA to change the status of Thymosin Beta-4 on the ‘Check Your Substances website [on 4 February 2013]. On 5 November 2020, SIA notified me that no such document exists.
2. ASADA’s claim was based on the erroneous assertion that Thymosin was the same substance as Thymosin Beta-4. ASADA didn’t have a skerrick of evidence to support that claim. In fact, to the contrary, Staffer 7 claimed in a sworn affidavit on 11 January 2015 that there was no evidence that Stephen Dank ever took possession of Thymosin Beta-4 in 2011 and 2012.
3. There is no substance called Thymosin. On 3 July 2012, ASADA’s own Science and Results Manager Dr Stephen Watt used the name ‘Thymosin’ as the generic name for the WADA permitted Thymomodulin in an email to the World Anti-Doping Agency (WADA). Watt said: “I wanted to enquire if WADA has considered the prohibited status of the drug THYMOMODULIN ALSO KNOWN AS THYMOSIN?”  (my emphasis).
4. On over 50 occasions, ASADA corruptly changed the word ‘Thymosin’ to ‘Thymosin Beta-4’ in the evidence it collected during the 2013 AFL-ASADA investigation and tabled in the subsequent tribunal hearings. Res ipsa loquitur, if Thymosin were Thymosin Beta-4, there would have been no need for ASADA to have breached the Crimes Act by tampering with the evidence.
5. In clause 93 of his 11 January 2015 affidavit, Staffer 7 said: “The key question is what was the source of the Thymosin; and when (if at all) (my emphasis) it was delivered – and in what coloured vial?” Clearly, Staffer 4’s comment “if at all” implies ASADA had no evidence that Thymosin of any variety was ever delivered to Dank or Essendon.

• At page 65, line 33 – page 66, line 13 of ASADA’s expert witness’s interview transcript, biochemist Shane Charter is taken through the alleged order of peptides. This order includes “Hexarelin, GHRP6, THRP2, CJC-1295, Melanotan 2, 10g of Thymosin and 5g of Thymosin Beta-4”. (my emphasis).ASADA ignored this irrefutable evidence that Thymosin and Thymosin Beta 4 were different substances.

1. ASADA Item 2: “On 12 January 2012, Mr Charter sent an email to Mr Alavi and Mr Dank which referred to the preparation, administration and storage of Thymosin Beta 4 (TB–500). In the email, Charter asked Dank to check that he agreed with the content of the email (“so we can make it up accordingly”) (Document 16 of Document A);”

My comment: ASADA lied. TB-500 is not a synonym for Thymosin Beta-4. TB-500 contains seven amino acids. Thymosin Beta-4 contains 43 amino acids in a specific sequence.

• ASADA Item 3: “On 26 November 2011, Charter travelled to Shanghai, China to obtain substances for Mr Dank, which in turn would be compounded by Nima Alavi (Document 13 of Document A).”

My comment:

1. ASADA’s claim that Charter returned to Australia with Thymosin Beta-4 is untrue.
2. Mr Charter did not return to Melbourne from China on 2 December 2011 with the raw material for the peptide Thymosin Beta-4. Mr Charter was subjected to a 100 per cent baggage and body search by Customs (Enforcement Ops Team 2). The Customs Report (see below) included everything Charter had in his possession, which included seven Musashi Protein bars and Humane Growth Hormone (HGH) vials.  It did not record Mr Charter declaring the peptide, Thymosin Beta-4. Thymosin Beta-4 is not a human growth hormone.

iii. Res ipsa loquitur, as Mr Charter did not bring Thymosin Beta-4 into Australia on 2 December 2011, he couldn’t have delivered/supplied Mr Alavi with Thymosin Beta-4.
iv. Clearly, if Charter didn’t import the substances, Mr Alavi did not compound the Thymosin Beta-4
v. Mr Alavi did not supply Mr Dank with Thymosin Beta-4

150. ASADA Item 4: “The 34 players who are the subject of the possible violations have the following things in common. They all signed a player consent form for the use of a substance called ‘Thymosin’. Those injections were administered to them by Stephen Dank in his office at the Essendon Football Club premises.”
     
     My comment: The fact that there is no such substance as Thymosin notwithstanding, this is a disingenuous misrepresentation.
     
     i. ASADA has implied that all 34 players who signed a consent form to be administered Thymosin were administered Thymosin in Stephen Dank’s office. Clearly, signing a consent form in February doesn’t automatically mean it was supplied let alone administered. As it transpired, Staffer 7 claimed in his 11 January 2015 affidavit that Dank never took possession of Thymosin of any variety.
     ii. Staffer 7 acknowledged at clause 209 of his statement he authored for compounding pharmacist Nima Alavi that: “Within these invoices there is no reference to Thymosin of any kind being supplied to Mr Dank as a patient in the 2011 or 2012 calendar years.” As there is no evidence that Dank or Essendon took possession of Thymosin of any variety in 2011 or 2012, they could not have been administered it, irrespective of consenting to be administered Thymosin (and not Thymosin Beta-4) in early February 2012.
151. ASADA Item 5: “In each of the 34 cases, it is alleged that the player used Thymosin Beta 4 as part of their participation in an injection regime orchestrated by Stephen Dank and carried out in his office at the Essendon Football Club.”
      
     My comment: This was a disingenuous misrepresentation
     
     i. By claiming it was an “injection regime”, ASADA was incorrectly implying that it was a team-based programme in which all 34 players were administered the same substances.
     ii. ASADA disingenuously claimed that if a player consented to being administered Thymosin, he was administered a different substance Thymosin Beta-4. ASADA made this illogical ruling despite a Player testifying that: “And then he [Dank] sort of just went through the four supplements that we could possibly take. ‘You won’t be taking them all (my emphasis). It will be down to needs or how you’re feeling.’ And he will be doing regular blood tests to see your blood levels.”

iii. On 1 June 2014, the Herald Sun’s Michael Warner quoted ASADA chief executive Ben McDevitt saying: “In fairness to each of the people who have been the subject of inquiries – some of whom are players and some of whom are support staff – is that each needs to be considered individually and in their own right.”
iv. ASADA was required to make its case against each of the 34 players. Legally, ASADA was not able to treat the matter as one in, all in. ASADA made no attempt at the ADRVP to prosecute the case against each player.

152. ASADA Item 6: “We say that the type of Thymosin that was administered to players could only have been Thymosin Beta-4, and not another type of Thymosin, or Thymomodulin (which we understand to be a type of Thymosin).”
     
     My comment: ASADA was dishonest and disingenuous in making this claim. ASADA had no evidence to support its claim.
     
     i. ASADA was aware that no substance imported from China by compounding pharmacist Nima Alavi was ever tested
     ii. ASADA was aware that there was no evidence that Dank ever took possession of Thymosin of any variety in 2011 and 2012.
153. ASADA Item 7: “Our evidence in this matter comes from range of sources, including: The mobile telephone down load of (which was disseminated by the Australian Crime Commission to ASADA under section 59AA of the Australian Crime Commission Act 2002); Evidence from interviews with Essendon players and support personnel; Evidence from interviews (as well as documentary evidence) from third parties not covered by the AFL’s contractual regime. These interviews were conducted on either a voluntary basis Redacted or pursuant to a disclosure notice issued by the ASADA CEO.
     
     My comment: The vast majority of ASADA’s comment was untrue
     
     i. ASADA was required by law to make its case against each player in his own right. ASADA made no such attempt
     ii. ASADA did not acquire any evidence against a single player from a mobile phone download; nor from a player interview; nor from documentary evidence that he was administered Thymosin Beta-4.
     iii. There is no evidence that Dank ever took possession of Thymosin Beta-4 from Shane Charter. In his discussions with the ASADA investigator, Charter said “he had no knowledge of the Essendon supplementation programme and that he never supplied peptides of any kind to Dank after he commenced work at Essendon.”
154. ASADA Item 8: “On 23 August 2011 (REDACTED), Mr Dank sent him [Robinson] a further text message saying, ‘Don’t forget how important Thymosin is. This is going to be our vital cornerstone next year. It is the ultimate assembly regulatory protein and biological modifier.’”
     
     My comment: ASADA wasn’t telling the truth.
     
     i. ASADA was implying that Dank was referring to Thymosin Beta-4. Thymosin Beta-4 allegedly repairs muscle tears. It is not an immune booster. Thymosin Alpha 1 and Thymomodulin are immune boosters and are assembly regulatory protein and biological modifiers. ASADA had no evidence that Dank was referring to Essendon. It overcame that problem by criminally changing the evidence by inserting the words “at Essendon”. (source Final Investigation Report page 28, third last line).
155. ASADA Item 9: (ASADA: page 5; dot point 1: “Mr Charter and Mr Dank met again on 13 September 2011 (REDACTED). At the same meeting, Dank also told Charter that he needed Thymosin Beta-4.”
     
     My comment: This is disingenuous, misleading cherry-picking by ASADA. It implies that Dank never distinguished between Thymosin and Thymosin Beta-4.|
     
     i. During an interview with 3AW’s Ross Stevenson and John Sylvester biochemist Charter said: “Dank did ask for a range of peptides including Thymosin and Thymosin Beta-4.”
     ii. At page 6, line 17, Charter said “I believe, he [Stephen Dank] understood there was Thymosin or Thymosin Alpha or Thymomodulin – whatever you want to call it and there was another version, Thymosin Beta-4, because at some time he placed an order with two of those products.”
     iii. Charter’s comments provide irrefutable proof that he, in his capacity as a biochemist, knew Thymosin was not Thymosin Beta-4. Charter was also believed that Dank knew that Thymosin was the generic name for Thymosin Alpha 1 or Thymomodulin and that it was a different product from Thymosin Beta-4. Unlike Beta thymosins, to which it is genetically and chemically unrelated, Thymosin Alpha 1 is produced as a 28 amino acid fragment from two longer 113-amino acid precursor, prothymosin gm. It has been found to enhance cell-mediated immunity in humans. Thymosin Beta-4 is a 43 amino acid peptide.
     iv. Chinese substance supplier Mr Xu’s sent a quote to Shane Charter on 16 December 2011. Mr Xu’s table included both Thymosin and Thymosin Beta-4 among the peptides it (G L Biochem) could supply. The two substances are listed with distinct prices – 11,350 renminbi per gram of Thymosin and 9470 RMB per gram of Thymosin Beta-4
156. ASADA Item 10: “On 31 October 2014, The Australian published an article by Chip Le Grand quoting Mr Xu as saying, ‘The Thymosin we synthesis (sic) and supply always refers to Thymosin Beta-4.’”
     
     My comment: ASADA was cherry-picking and being dishonest through omission.
     
     i. Mr Xu was not telling the truth and ASADA was aware of it. In Xu’s 16 December 2011 email to Shane Charter, Mr Xu included a table that listed the company’s quoted prices for the order. Mr Xu’s table included both Thymosin and Thymosin Beta-4 among the peptides it can supply. The two substances are listed with distinct prices – 11,350 renminbi per gram of Thymosin and 9470 RMB per gram of Thymosin Beta-4
     ii. Chip Le Grand’s article in The Australian (7 November 2014 refutes ASADA’s claim viz: ‘ASADA’s star witness in its case against 34 current and former Essendon footballers has contradicted claims by a Chinese biochemical supplier about the substances at the centre of the doping scandal. ‘Shane Charter … has produced documents showing he discussed two forms of Thymosin with Shanghai-based company GL Biochem. ‘In a 16 December email detailing the company’s quoted prices for the order, Mr Xu includes a table that lists Thymosin and Thymosin Beta-4 among the peptides it can supply. The two substances are listed with distinct prices – 11,350 renminbi per gram of Thymosin and 9470 RMB per gram of Thymosin Beta-4. ‘ASADA alleges two batches of the peptide were compounded by Toorak pharmacist Nima Alavi and administered by Mr Dank. ‘He [Mr Charter] will support the evidence of Mr Alavi, who told ASADA that peptides imported from China are unreliable and must always be tested to determine their chemical make-up.’
157. ASADA Item 11: “Between 11 January 2012 and 18 January 2012, a series of text messages were exchanged between Charter and Alavi, and Dank and Alavi, and Charter and Alavi – the only Thymosin referred to in these messages is Thymosin Beta 4 (Clause 97 and 98 of Document A).”
     
     My comment: ASADA’s claim was untrue. I have read all 6581 texts ASADA had access to from Mr Dank and only one, dated 11 January 2012, contained the word Thymosin Beta-4. When asked the next day about the quantities required, Mr Dank said Thymosin 20 x 5ml. As it transpired, ASADA admitted that neither Dank nor Essendon took possession of any variety of Thymosin in 2011 or 2012.
     
158. ASADA Item 12: “An email exchange between 24 January 2012 and 17 February 2012 indicates that Nima Alavi sent Thymosin Beta 4 to Eagle Analytica l Services to be tested – you may recall from your consideration of the Dank matter that the Eagle staff member emailed Alavi to ask him what Thymosin Beta 4 was, and he responded by sending her a link to the Peptide Labs website, to the page “how to use TB 500” (Document 21 and Document 22 of Document A).”
     
     My comment: ASADA was dishonest through omission, lies and fabrication.
     
     i. The initial email was sent by Nima Alavi to Eagle Analytical Services on 20 January 2012. (Source clause 147 of the CEO Recommendation Show Cause Pack). See ticked items on Como Compounding Pharmacy’s submission form to Eagle on 1/20/2011.
     ii. Alavi requested a quote for testing a substance he thought was Thymosin, not Thymosin Beta-4. (Source Page 31 of Staffer 7’s Final Investigation Report). Alavi said: “After making the first batch of Thymosin and Hexarelin I had enquired with Eagle pharmaceuticals to test Thymosin and Hexarelin.”
     iii. Alavi sent an email to Eagle’s Carissa Camarillo at 4:10 pm on Monday 6 February 2012 saying: “Hexarelin, CJC and Thymosin are all peptides.
     iv. Alavi sent an email to ASADA’s Staffer 4 at 3:24 pm clarifying comments in his interview. Alavi said: “After making up the first batch of Thymosin and Hexarelin I had enquired with Eagle pharmaceuticals to test Thymosin and Hexarelin.”
     v. ASADA lied in claiming that TB-500 was the identical substance to Thymosin Beta-4. It is not the same. TB-500 contains 7 amino acids. Thymosin Beta-4 contains 43 amino acids.

159. ASADA Item 13: “REDACTED Mr Alavi also compiled a Peptide Manual. REDACTED The section in the Peptide Manual about Thymosin is only about Thymosin Beta-4 (Document 23 of Document A).
     
     My comment: This was a disingenuous, dishonest attempt to mislead the ADRVP that the manual was created for Dank/Essendon.
     
     i. ASADA asked compounding pharmacist Nima Alavi about the Peptide Manual at his interview. At page 205, line 22 Alavi said: “I put together this peptide sort of manual so that doctors could read it because there’s just not enough information out there. I didn’t write any of it. I just compiled it. So, I went online and read some stuff that made sense and I put it together – yeah. This is it. This was supposed to go to doctors at the Anti-Aging Conference (my emphasis) that wanted a bit of information about these peptides and dosages and frequencies and things like that.”
     
160. ASADA Item 14: “On and 29 February 2012, the Essendon Football Club received invoices from the Como Compounding Pharmacy. These invoices listed a number of prohibited substances, including “Peptide Thymosin” (Document 17 of Document A).”
     
     My comment: ASADA was being disingenuous and dishonest.
     
     i. ASADA implied that ‘Peptide Thymosin’ was a prohibited substance. As it was never tested, no one knows what it was.
     ii. ASADA implied that Dank administered the alleged prohibited Peptide Thymosin to each of the 34 Essendon players.
     iii. The true picture of ‘Peptide Thymosin’ was captured in clause 34 of Annexure A of the AFL’s 34-page ‘Charges and Grounds for Charges document. It said: “The only invoice relates to ‘Peptide Thymosin’ – but Como Compounding Pharmacy subsequently reversed that transaction (debit to credit) before removing the invoice altogether. To date, no other supplier of Thymosin to Essendon Football Club has been identified.” NB ASADA subsequently, unambiguously, stated that no one else supplied Essendon with peptides.
     iv. Inter alia, the AFL Anti-Doping Tribunal after an 18-day hearing found Dank ‘not guilty of administering or attempting to administer Thymosin β4 to various Essendon players, and ruled that he had not assisted, nor encouraged, nor abetted, nor covered up administration of the peptide’. The verdict was not appealed by WADA, so Dank remains not guilty of the charges.
     
161. ASADA Item 15: “REDACTED a backdated document from Mr Alavi (signed on 27 June 2012 but backdated to 27 February 2012) attesting to the status of “Thymomodulin” (Document 25 of Document A). Dank had sent the document to Alavi on 26 June 2012, and followed it up the following day (see SMS-es at Clause 135 of Document A). It appears that Alavi emailed the document on 27 June 2012, approximately 90 minutes after his text message.”
     
     My comment: ASADA’s claim that the document was back-dated is not true and was based on misrepresentation and manipulation.
     
     i. In an attempt to turn Alavi against Dank and looking for support from him for its own narrative, Staffer 4 and Staffer 5 told Alavi that Dank sent him an email with the approval note attached late at night, then next morning ‘raced down to Como, got into your mail system somehow, forged it [Alavi’s signature], scanned it, and sent it back [to himself].”
     ii. The approval note was first sent by Dank to Alavi on 27 February 2012. During a ‘house-keeping’ session in June 2012, Dank noticed that Alavi had not returned the approval note that he had sent him on 27 February 2012. Dank then sent the same document to Alavi that he had sent on 27 February 2012.
     iii. Back-dating a document implies changing the date on which it was first sent. Dank did not change the date.
     
162. ASADA Item 16: “REDACTED and an article in Cycling News about a support person for the Omega-Pharma¬ Lotto tea m who had a package of a substance labelled Thymosin Beta 4 intercepted by Belgian Customs (Document 27 of Document A).”
     
     My comment:
     
     i. The package was not labelled Thymosin Beta-4 as claimed by ASADA The package was labelled TB-500. TB-500 contains seven amino acids. Thymosin Beta-4 contains 43 amino acids in a specific sequence.
     ii. The former Belgian cyclist Wim Vans Evenant ordered three vials of TB-500 from the TB500.com website in America, On 15 June 2011, three vials labelled TB-500 arrived at a Belgian airport by normal post.
     iii. TB-500 was not on any Belgian imported permitted list.
     iv. Mr Evenant was charged by the Belgian police He appeared in court on 26 June 2012. When the content of the vials was tested, it was discovered that it was different from what was on the labels. Evenant had been duped. The charge of importing a WADA prohibited substance was dismissed.
     
163. ASADA Item 17: “Dank made admissions to Nick McKenzie of the Age that Thymosin Beta-4 was part of his programme at Essendon (as published in The Age on 5 May 2013) (Document 28 of Document A).”
     
     My comment: There was no such McKenzie article on 5 May 2013.
     
     i. Possibly, ASADA was referring to the Age’s 5 July 2013 article, in which McKenzie was allegedly one of four authors.
     ii. ASADA was disingenuous and dishonest in using Nick McKenzie’s 5 July 2013 article in making the false claim that Thymosin Beta-4 was part of his [Dank’s] programme at Essendon
     iii. Nick McKenzie interviewed Stephen Dank by phone on 1 April 2013. A column written by McKenzie based solely on Dank’s interview appeared in the Age 11 April 2013. It was a substantial article of 1269 words. The word ‘Thymosin’ was used only twice, with the first mention more than a third of the way in (word 481), and the second time two thirds in (word 927). McKenzie didn’t ask Dank what he used. He asked Dank: ‘Why thymosin peptides were given to players as an immune system booster when there is debate about their effectiveness’. The word ‘Thymosin Beta-4’ was never mentioned in the 11 April 2013 article.
     iv. However, incomprehensively, in the 5 July article, McKenzie and his fellow authors replaced the word ‘Thymosin’ with ‘Thymosin Beta-4’ and dropped any reference to ‘immune system booster’.
     v. It is grossly improper that ASADA referred to McKenzie’s 5 July article rather than the more contemporaneous article of 11 April, or at least refer to it as an incomprehensible inconsistency in McKenzie’s reporting.
     vi. As it transpires, ASADA did not disclose the crucial 11 April 2013 article in the various hearings, which breached its statutory obligations and all semblance of procedural fairness. ASADA was required to table all exculpatory evidence.
     vii. ASADA could not claim ignorance because on 10 April 2013, Staffer 5 sent an email to ASADA staffer Helen Thorne that she forwarded to other ASADA staffers. Mr Staffer 5 wrote: “Can you advise Aurora [ASADA CEO Aurora Andruska] that the article [by Neil McKenzie about Dank] will appear in tomorrow’s Age – not Saturday as was forecast. There is probably a need for Aurora to have a press release in her back pocket.” ASADA was clearly aware of the more contemporaneous article on 11 April.
     viii. If Dank really had admitted to McKenzie in the interview to administering the allegedly prohibited substance Thymosin Beta-4, the latter’s 11 April 2013 article would have been sensational. The journalist surely would not have left the fact out. Given the contemporaneous 11 April article, McKenzie’s 5 July article provides no credence whatsoever to the claim that Dank used Thymosin Beta-4 at Essendon. Consequently, ASADA was being dishonest in referring to it at the ADRVP meeting on 3 November 2014.
     ix. My FOI request for a copy of the tape recording made by McKenzie was refused by ASADA.
     x. Stephen Dank claimed that he had always used the term Thymosin as the generic name for Thymomodulin or Thymosin Alpha 1. He, and others who were interviewed by ASADA, such as Shane Charter (ASADA’s bio chemist witness) and Sydney compounding pharmacist Maged Sedrak, also claimed that they were unaware of anyone in the pharmaceutical industry ever using the term ‘Thymosin’ as a synonym for Thymosin Beta-4.
     xi. Res ipsa loquitur, irrespective of what Dank told McKenzie, it was irrelevant because Staffer 7 claimed in his 11 January 2015 affidavit that there was no evidence Dank received Thymosin Beta-4 in 2011 and 2012.
     
164. ASADA Item 18: “ASADA has not uncovered any contemporaneous document or text message that link references to the substance ‘Thymosin’ to the substance ‘Thymosin Alpha’.”
     
     My comment: ASADA wasn’t telling the truth.
     
     i. On 3 July 2012, ASADA’s own Science and Results Manager Dr Stephen Watt used ‘Thymosin’ as the generic name for the WADA permitted Thymomodulin in an email to WADA. Dr Watt said: “I wanted to enquire if WADA has considered the prohibited status of the drug THYMOMODULIN ALSO KNOWN AS THYMOSIN’? (my emphasis).
     ii. Nothing could be clearer. The top science guru at ASADA agreed with Dank that Thymosin was also known as Thymomodulin.
     iii. If the players had contacted ASADA during 2012, as the CAS panel claimed they should have, and asked about the status of Thymosin, ASADA would have told them that Thymosin was the generic name for Thymomodulin and that it wasn’t banned.
     iv. During his interview with ASADA, Charter told ASADA that no expert would ever use the name Thymosin when referring to Thymosin Beta-4.