To secure a ‘conviction’ against 34 Essendon AFL players for using a prohibited World Anti-Doping Agency (WADA) substance, the Court of Arbitration for Sport (CAS) panel (The Hon. Jim Spigelman AC QC, Michael Beloff QC and Romano Subiotto QC) had to be comfortably satisfied that Essendon Football Club sports scientist Stephen Dank took possession of the peptide Thymosin Beta-4 and was comfortably satisfied that he administered it to each of the 34 Essendon players.
Clearly, this wasn’t possible because in his 15 January 2015 affidavit, Staffer 7 implied that there was no evidence either Stephen Dank or Essendon ever took position of Thymosin Beta-4.
Furthermore, as there wasn’t a scintilla of evidence to this effect (there were no invoices, no dispatch records, no delivery records, no goods received records, no record of payment), Jim Spigelman, a former Chief Justice of the New South Wales Supreme Court, was arguably either incompetent or not thinking clearly when he stated unambiguously that Thymosin Beta-4 was delivered to Dank.
Spigelman said (line 14, page 814 of Day 5 tribunal transcript): “I don’t think it was an issue that he [Dank] got it [the 15 vials of Thymosin Beta-4 from Como’s Vania Giordani]; it was a question of where it went.” As there was no evidence that Dank ‘got it (Thymosin Beta-4), the only logical explanation for Spigelman’s declaration is that he was using tarot cards or tea leaves.
As neither of Spigelman’s fellow panellists Michael Beloff and Romano Subiotto challenged Spigelman’s false finding, it mistakenly became ‘fact’ and helped secured the unjust ‘guilty’ verdict against the 34 players.
Although I identified scores and scores of CAS panel mistakes in a 140-page dissection of the CAS’s unjust decision, it is only necessary to provide one example to prove that it was impossible to trust the guilty verdict.
Tragically for the players, the tribunal embraced the ASADA practice of changing the word Thymosin to Thymosin Beta-4.
Unconscionably, in a decision that helped secure the ‘guilty’ verdict, the panel corruptly changed evidence by merging two texts (11 and 12 January 2012) from Dank into one text by replacing the word ‘Thymosin’ with a comma. That chicanery enabled the panel to claim Dank was ordering 20 vials of Thymosin Beta-4, when in fact he ordered 20 vials of Thymosin.
As has been proved through-out this submission, Thymosin, a permitted WADA substance, was a different substance from the WADA alleged prohibited Thymosin Beta-4.
On 11 January 2012, Shane Charter, a peptide middleman, sent Dank an SMS querying ‘which peptides do you need next?’ Dank replied: “Thymosin Beta-4 and CJC-1295.”
In response to Charter’s follow-up query about the quantities Dank required, on 12 January 2012, Dank revoked his 11 January comment by sending Charter an SMS saying: “Hi mate. Thymosin – 20 x 5ml vial.”
On 12 January 2012, Charter sent compounding pharmacist Nima Alavi an SMS stating: “Hi Mate. Thymosin – 20 x 5 ml vial. Steve’s [Dank] request.” NB In his capacity as an expert in the peptide field, Charter told the ASADA investigators he never had, never ever would, use the word ‘Thymosin’ as an alternative to the word ‘Thymosin Beta-4’.
In paragraph 134 (3) in its Arbitrary Award [the Decision], the CAS panel said: “On 11 January 2012, Mr. Charter asked Mr. Dank what peptide he needed next, to which the response was TB-4, quantity being 20 times 5ml vials, being confirmed the next day”. It is irrefutable that the comma after TB-4 was inserted to replace the word Thymosin, which corruptly changed the evidence.
As it transpires, the above texts were irrelevant because Alavi and ASADA’s Staffer 7 both claimed that there was no record of Dank being supplied with Thymosin Beta-4.
Essendon AFL Drug Saga 