1. COURT OF ARBITRATION FOR SPORT DISASTERS

COURT OF ARBITRATION FOR SPORT (CAS) DISASTERS

The terms ‘corruption’, ‘biased’ and ‘incompetent’ / ‘inept’ have been used in the following analyses on the bases of their dictionary definitions:

i. Corruption: “the process by which a word or expression is changed from its original state to one regarded as erroneous or debased”.

ii. Biased: “unfairly prejudiced for or against someone or something”.

iii. Inept/incompetent: “showing a lack of skill or ability: not done well”.

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 not only determine that Thymosin Beta-4 by name was a prohibited WADA substance during 2011 and 2012 but also be comfortably satisfied that Essendon Football Club or 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.
As it transpires, at 10:34:17am on 4 February 2013, Thymosin Beta-4 was not listed by name as a prohibited substance on the ASADA website, nor WADA Website nor any of the other 207 national anti-doping websites.
Tragically and unlawfully, someone at ASADA, criminally changed Thymosin Beta-4’s status between 10:34:17am and 12:59:17pm on 4 February 2013 – the same day the story broke. Clearly, this was an act of sheer bastardry by an ASADA official. WADA, subsequently, listed Thymosin Beta-4 by name as a prohibited substance on 1 January 2018.
As there wasn’t a scintilla of evidence that Dank or Essendon took possession of Thymosin Beta-4 – 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 biased when he stated unambiguously that Thymosin Beta-4 was delivered to Dank. Spigelman said (line 14, page 814 of Day 5 transcript): “I don’t think it was an issue that he [Dank] got it [the 15 vials of Thymosin Beta-4 from Vania Giordani]; it was a question of where it went.”
As neither of Spigelman’s fellow panellists Michael Beloff and Romano Subiotto challenged Spigelman’s grave mistake, it mistakenly became ‘fact’ and secured the unjust ‘guilty’ verdict against the 34 players.
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. NB Thymosin, a permitted WADA substance, was a different substance from the WADA 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. As it transpired, ASADA breached Section 317 of the Crimes Act by changing the word Thymosin to Thymosin Beta-4 in the evidence on 51 occasions. Res ipsa loquitur, if Thymosin and Thymosin Beta-4 were the same substance there was no need to risk a ten-year gaol sentence for tampering with the evidence.
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, despite Dank’s request, Alavi’s extensive records proved that Dank never took possession of Thymosin of any variety – a fact confirmed by ASADA’s lead investigator.
The CAS panel corruptly planted evidence by deliberately replacing the word ‘possible’ with the absolute meaning word ‘expressly’ in an Administrative Appeals Tribunal (Case No. AATA 968) decision (31 December 2014) transcript. This enabled the CAS panel to falsely claim that the AAT president Stephen Frost ruled that Dank had administered Thymosin Beta-4 to rugby league player Sandor Earl. The panel then disingenuously drew an exceptionally long bow and used the planted Earl ‘false evidence’ as proof that Dank administered Thymosin Beta-4 to the Essendon players.
At paragraph 126 of its Arbitral Award [Decision], the CAS panel changed the meaning of a 19 April 2012 text from Dank to senior coach James Hird by omitting the first eight words from Dank’s text. This enabled the panel to make a damaging false assessment. Dank’s 19 April 2012 text said: “This afternoon’s group went very well on hyperbaric. All injections completed.” In paragraph 126, the CAS panel only quoted half of the 19 April text which changed the meaning. Viz: ‘On 19 April 2012 “All injections completed”.’ The panel deliberately omitted the first eight words of the text viz: “This afternoon’s group went very well on hyperbaric.” Those eight words indicated that Dank was texting on 19 April 2012 about Cerebrolysin which was administered at the hyperbaric chambers HyperMED. Deleting those words from Dank’s text enabled the panel to falsely claim that Dank had indicated the text was about Thymosin injections, which it falsely ruled were Thymosin Beta-4 injections.
Paragraph 126 also contained additional CAS panel chicanery and bias. The panel disingenuously cherry-picked the evidence to make the case that all 34 players received the same substances but in different dosages. Incomprehensively, in paragraph 126 the panel said: “It was Mr [David] Hille’s understanding that all Players were in the same supplementation program even if the dosage might be altered for particular Players.”
Tragically for the players, the panel used Hille’s (mis)understanding to rule that Stephen Dank introduced a team-based or team-wide supplements programme at Essendon. The panel cherry-picked the evidence to reach its desired outcome. Unbelievably, the panel ignored evidence that Hille’s understanding was wrong. Businessman Serge Del Vecchio’s evidence contradicted Hille’s evidence but it was ignored by the panel. Inter alia, Del Vecchio said: “He [Dank] gave me the impression he was giving peptides to all of the Essendon players and had developed different peptide programmes for different groups of players depending on where these players were in their football development.”
During its cherry-picking, the panel also chose to ignore player Brent Stanton’s testimony. Stanton said: “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.”
Inexcusably, during its cherry-picking, the panel unconscionably accepted the following table was a ‘team-wide’ programme in which every player received the same substance, but in different dosages.
Although WADA did not submit a skerrick of evidence that the players lied when responding to questioning about what substances they had been administered, the panel unfathomably ruled that they were lying, which detrimentally affected the panel’s attitude to other favourable player evidence.
Further proof that the panel was cherry-picking Hille’s comment at the expense of the other players’ evidence was evident through the panel rejecting Nathan Lovett-Murray’s evidence. The transcript of Lovett-Murray’s interview with ASADA totalled 57 pages. Only 20 words from those 57 pages concerned Thymosin. Lovett-Murray was asked whether he was administered Thymosin and he said “No, I don’t think so.” No evidence was offered by WADA to contradict Lovett-Murray’s evidence. Incomprehensively, it appears Lovett-Murray was found guilty because it was Hille’s (mis)understanding that all 34 players were in an identical programme.
Beloff planted evidence when he said: “Again, put on one side what was in fact injected. The programme was, as it were, sold on the basis – we’ve seen all this, Mr Dank saying this is a magic way of improving tissue traumas and accelerating recovery. Now, why would that not be applicable to every player in the team? We heard from Dr Reid this morning, those of us who were not so familiar with the game, the nature of the game that it is and persons suffering in these particular ways and therefore need these particular forms of treatment. I find it at the moment difficult to understand why one should individualise this?”
Dank did not say “this is a magic way of improving tissue traumas and accelerating recovery”. Dr Reid did not say or imply that Thymosin was used for tissue traumas. Dr Reid testified that he hadn’t heard of Thymosin until February 2013. Beloff has disingenuously implied all 34 players suffered tissue traumas and would need the same treatment. That was untrue. Only a few players suffered tissue injuries. Beloff has also unconscionably overlooked the fact that Thymosin Beta-4 was never delivered to Dank, and, therefore could not have been administered to the players.
Panel chairman Beloff corruptly planted evidence by attributing quotes to Dank that he never made. Inter alia, at line 14, page 201 of the hearing transcript, Beloff said: ‘Again I don’t want to come back to this endlessly, but one has again the interview with Mr McKenzie in which he says, “I injected him with TB-4.” Beloff wasn’t telling the truth. Dank never uttered those words. It was incomprehensible and unconscionable that Beloff put – “I injected him with TB-4” – in quotation marks. Res ipsa loquitur, If Dank had used the word ‘him’, McKenzie, WADA and the CAS panel would have named the ‘him’.
Incomprehensibly, the CAS panel allowed WADA to treat the case as one in, all in. WADA should have been required to prosecute the case against each of the 34 players. WADA made no attempt to make a case against a single player.
Despite each player receiving a different mix of injections rather than the same injections, the panel disingenuously claimed that if a player received an injection, it was a Thymosin Beta-4 injection. It was illogical to claim that if a player had an injection from a range of seven different substances – Melatonin; Melanotan II; Cerebrolysin; Amino-Lite; AOD-9604; Traumeel and vitamin boosts – it must have been a Thymosin Beta-4 injection. Bearing in mind that there was no evidence Dank ever took possession of Thymosin Beta-4, such a ruling indicated that the panel lacked credibility and was either biased, and/or incompetent.
The players were legally entitled to expect that none of the panellists had any preconceived views of their guilt. Unconscionably, the evidence indicates players were most likely the tragic victims of a preconceived determination. Just prior to Player ‘A’ being called to give evidence, head panellist Michael Beloff said: “… yes, though I’d be prepared to lay (indistinct) on what the answer’s likely to be.” In my view, and I suspect in the view of the rest of the world, Beloff had decided before Player ‘A’ gave evidence that Player ‘A’ was going to deny being administered Thymosin and could not be believed. Beloff was implying Player ‘A’ was a drug cheat. As the panel unconscionably adopted a one in, all in, approach, Beloff’s implied preconceived guilt finding against Player ‘A’ contributed to the other 33 players being unjustly found guilty.
The players were legally entitled to expect that the panellists knew the WADA rules for filling out a doping control form in 2011 and 2012. The panellists incomprehensively claimed that it was compulsory for the players to declare every substance consumed within seven days of a doping control test and were biased against the players for not making such declarations. The panellists were ignorant. It wasn’t compulsory to declare any substance on the doping control form. Section 9 of the ‘ASADA Athlete Testing Guide’ in 2012 stated: “Consider (my emphasis) declaring any substance used in the last seven days.” It became compulsory in 2015. The panellists’ unforgivable incompetence had catastrophic consequences for the players. The panel concluded that the players colluded not to comply with the ‘compulsory’ declaration requirements, and therefore, they were basically dishonest and none of their evidence could be trusted. Misjudging the players’ honesty based on the panel’s incompetence was unforgivable.
As it was a de novo hearing, the players were legally entitled to expect that none of the panellists would rubber-stamp WADA’s belief that metaphorically speaking Dank was a bank robber and rogue, and therefore, he had no compunction about using banned substances, which meant the panel could conclude that the players were guilty. Although the panel thought Dank was a liar, it embraced comments by Dank that supported ‘convictions’ but ignored comments by him that supported ‘not guilty’ findings.
The players were legally entitled to expect that none of the panellists had any preconceived views on whether they would accept information given in interviews from known liars and forgers who refused to testify under oath and who refused to appear before the hearing. Even WADA acknowledged that three of its key witnesses, forged documents that were submitted as evidence.
Incomprehensively, panellist Subiotto decided before the hearing that he would accept evidence from those who refused to appear before the hearing. Subiotto’s exchange with the players’ lawyer Neil Clelland QC during the hearing showed Subiotto’s preconceived position: Subiotto said: “I think the panel should be able to decide whether or not – what weight to put on the material, and I think in that context your task is to show to us why that material is unreliable in anyway, or says something different from what WADA’s saying. Rather than discussing all this stuff about excluding – we’re not going to exclude this evidence.” (my emphasis)
Clelland responded: “Aren’t you?”

Subiotto said: “No.”

Worse still, when caught out, Subiotto responded with a fork tongue and pretended that he hadn’t made up his mind before the hearing to accept such evidence.
Amazingly, at page 181, line 5 of the CAS hearing transcript, CAS panellist James Spigelman said: “A liar can give credible evidence, can’t he?” Spigelman was clearly implying that the panel would cherry-pick the evidence of the liars and forgers who weren’t available for cross-examination.
It was incomprehensible that the panel, with CAS Secretary-General Matthieu Reeb sitting alongside them during the hearing, defied CAS rule 44.2 from Despina Mavromati and Reeb’s book, ‘The Code of the Court of Arbitration for Sport’. At paragraph 28 on page 334, CAS rule 44.2 said: “The parties are responsible for the presence of the witnesses and experts at the hearing. If any witness or expert is absent, any witness statement or expert’s opinion related to this person is normally removed from the file and the panel doesn’t consider such evidence.” (my emphasis) The panel defied CAS rule 44.2 and accepted written interview ‘evidence’ from WADA’s key witnesses, Nima Alavi, Aaron Walker, Nick McKenzie and Richard Baker. The panel’s decision to accept such mythical statements without them being cross-examined discredited the entire proceedings.
In an extraordinary decision, the panel allowed WADA to change the case set out in its Appeal Brief. In its Appeal Brief, WADA said it was running a ‘Links in the Chain’ defence. That meant that if one link was broken, WADA’s case failed. The players prepared their defence on WADA running the Links in the Chain defence. Incomprehensively, in his opening address, WADA’s American lawyer Richard Young said he was running a ‘Strands in the Cable’ defence, which meant that not all strands had to be valid.
The players’ lawyers objected to the switch in strategy made by WADA on the morning of the first day of the hearing. Neil Clelland QC said: “The characterisation that is being, we would say, adopted very late in the piece by WADA this morning, the way it puts its case as sticks or strands, is quite different to (sic) the way it was put in their appeal brief and the appendices to their appeal brief. We came to respond to a case which, we think for very good reason, acknowledged that this was clearly a links in the chain case. When one understands what the nature of the substance in questioni s, and its very specific constitution, it is understandable that it has to be a links in the chain case.” Astonishingly, the panel said it would rule on the change later. To WADA’s huge advantage, the panel never did.
The panel incomprehensibly accepted WADA mistakenly placing significant influence in its case that TB-500 was the same substance as Thymosin Beta-4, despite the fact that one of WADA’s witnesses Professor Handelsman stating that they were different substances.
The dosage and frequency listed by WADA and accepted by CAS was for TB-500. As TB-500 was a completely different substance from Thymosin Beta-4, the CAS panel made an unforgivable terminal mistake in ruling that the frequency protocols for TB-500 were the same as the frequency protocols for Thymosin Beta-4. As it transpired, the frequency protocols for administering Thymosin Beta-4 were never tabled.
Seven players were crossed-examined at the hearing under oath. None gave any evidence that could lead the panel to be comfortably satisfied that they or the other players were administered Thymosin Beta-4.
In the most illogical statement imaginable, Spigelman said: “Mr Prismall was injected for about eight weeks [with an unknown substance] while he was only training and not playing … that would suggest, would it not, that whatever was being done, was being done to everyone.” On its own, Spigelman’s comment was illogical and wrong. In simple terms Spigelman was disingenuously saying that if one injured player was administered [an unknown] substance, the other 33 players, whether injured or not, were administered the same substance. The illogical comment aside, Spigelman conveniently overlooked Brent Stanton stating that Dank said: “And then he [Dank] sort of just went through the four supplements that we could possibly take.‘You won’t be taking them all. It will be down to needs or how you’re feeling.’”Serge Del Vecchio said: “He [Dank] gave me the impression he was giving peptides to all of the Essendon players and had developed different peptide programmes for different groups of players depending on where these players were in their football development.”
Subiotto appeared to rubber-stamp many WADA claims irrespective of their merit. The players, Alavi, WADA key witness Professor Handelsman, Professor Boyd and other witnesses questioned the reliability of substances emanating from China. Subiotto disingenuously believed that the GL Biochem substances must have been up to world standards because the company was acquired shortly after by an American company. Subiotto’s inference was that no American company would buy a company selling sub-standard products. It was incomprehensible that a QC thought an acquisition was evidence of the quality of an untested substance. Embarrassingly for Subiotto, the American company went into receivership shortly after the acquisition.
The players were legally entitled to expect that the panel would not make unsubstantiated ignorant damaging judgements of the type made over Dank’s desire for the players to be excused from interviews on Essendon’s internal TV channel, ‘The Hanger’, prior to the Anzac Day match. Beloff rubber-stamped WADA attorney Brent Rychener’s implied claim that Dank was acting sinisterly because he “wanted a free run without anybody looking over his shoulder”. Dank administered the substances in his office so it was disingenuous for Rychener and Beloff to imply that Dank was being sinister in stating that didn’t want the TV cameras catching him administering substances to the players. The cameras never had access to his office.
The players were entitled to expect that the panellists wouldn’t judge something they had no knowledge. Panellist Romano Subiotto knew nothing about the elements involved in winning AFL matches. For example, he was ignorant about the effect on the result of a match by players dropping out of games due to injuries to Essendon players and its opposition. He was unaware of the effect the senior coach and forward coach and centre coach and back coach had before the match and during the match on winning games. Despite his ignorance, Subiotto believed that Essendon won a number of matches in early 2012 because the players were all administered Thymosin Beta-4. Up until the bye (first 11 matches) most of the teams Essendon had beaten were no-hoppers – North Melbourne who finished 8^th at the end of the season; Port Adelaide 14^th; Gold Coast 17^th; Carlton 10^th; Brisbane 11^th; West Coast 5^th; Richmond 12^th; Greater Western Sydney 18^th.
Subiotto made unjustifiable false statements. At page line 43, page 104 of the CAS hearing transcript, Subiotto said: “If that was Dank saying no TB-4, it’s interesting that Del Vecchio is telling Shane Charter this guy has got confused about it.” Del Vecchio never mentioned TB-4 to Dank or Charter. Furthermore, Thymosin Beta-4 was not listed by name as a prohibited substance by WADA until 1 January 2018, so Del Vecchio could not have known its status. Clearly, Subiotto was wrong and had no right to make such a damaging allegation about TB-4.
The players were legally entitled to expect that the panel was conscientious enough and smart enough to identify that WADA had inserted the extremely damaging words ‘Mr Earl’ into Dank’s 2 August 2011 text to Dean Robinson. The 2 August 2011 text that the panel saw didn’t contain the words ‘Mr Earl’. The text referred to a patient who was utilising Thymosin post-surgically in one shoulder and prophylactically in the other shoulder. Prophylactically means a preventative measure. In the text, Dank was stating that he used Thymosin in one shoulder that had been reconstructed and he used Thymosin in the other shoulder. Dank could not have been referring to Earl as claimed by WADA and the panel because he had both shoulders reconstructed before 2 August 2011.
The players were legally entitled to expect that the panellists wouldn’t omit or ignore evidence when making an adverse decision against the players. In the 23 August 2011 text, the panel unconscionably implied that Thymosin was the generic name for Thymosin Beta-4. The CAS panel failed to mention, and take into account, that Kogarah compounding pharmacist Maged Sedrak “introduced Dank to the beneficial properties of Thymosin Beta” in mid-August 2011. Sedrak told the ASADA investigator that there were many varieties of Thymosin Beta and that he never used Thymosin Beta-4. Consequently, the CAS panel unconscionably misrepresented the evidence by implying Dank was referring to Thymosin Beta-4.
The panel rubber-stamped WADA false claim that Serge Del Vecchio warned Dank that Thymosin Beta-4 was a banned substance. Del Vecchio never mentioned Thymosin Beta-4 to Dank. Furthermore, as Thymosin Beta-4 was never listed by name by WADA as a prohibited substance until 1 January 2018, neither Del Vecchio nor anyone else could have known Thymosin Beta-4 was a prohibited substance.
The panel misrepresented Essendon Dr De Morton’s evidence by implying that Dank tested the players’ bloods for Thymosin Beta-4. The CAS panel was biased, arguably corrupt, and factually wrong to claim that the blood tests “were recommended for peptides like Thymosin Beta-4”.
The panel lied by claiming that several players said that Dank didn’t attend away matches. No player made such a claim.
The panel was either incompetent or biased when identifying the alleged strands in the cable. None of the 16 strands identified by the panel had any validity. NB Evidence that each of the 16 strands was destroyed is contained in a discrete 20-page supporting document.