DAVID HOWMAN: 20 MAY 2015
Director General World Anti-Doping Agency
Re: WADA v 34 Essendon Football Club Players.
I am certain the 34 Essendon AFL players are not guilty. I believe the players have suffered more mental anguish than any other group of sports people I can recall. Given the lack of evidence, I think it is sheer bastardry and unbelievable stupidity, WADA appealing the decision of the AFL Tribunal.
WADA has two insurmountable problems, insufficient evidence and corrupt evidence.
Insufficient Evidence:
1. WADA can’t prove Thymosin Beta-4 was ordered by Essendon sports scientist Stephen Dank. Although ASADA included many text and email exchanges between Shane Charter and Stephen Dank in its report, none was a request to order anything.
2. WADA can’t prove the Chinese manufacturer sent Thymosin Beta-4 to the Melbourne compounding pharmacist Nima Alavi.
3. WADA can’t prove Alavi supplied Thymosin Beta-4 to Essendon FC.
4. WADA can’t prove Dank administered Thymosin Beta-4 to one Essendon player, let alone prove that he administered players 1, 2, 3, 4, 5, 6, … 34.
5. My understanding is you are relying upon Shane Charter, who never saw what was sent from China; who never saw what arrived in Australia; who never saw what was supplied to Essendon; and, never saw a single Essendon player administered anything. The fact that he not only lied during his interview with ASADA but that he would incriminate himself of criminal behaviour if he testified, makes him useless to WADA.
6. The newspapers suggest WADA is also relying upon Nima Alavi. His knowledge is on a par with Charter’s. He is on the record claiming he received a package from China labelled “Thymosin”. Alavi didn’t have the substance tested. In a detailed interview, he told the journalist it could have been Thymosin Alpha, or Thymomodulin, or Thymosin Beta-4, or an unknown substance. If Alavi didn’t know, neither could WADA or the CAS members know what the substance was.
7. Even ASADA chief executive Ben McDevitt is on the record saying no one will ever know if Thymosin Beta-4 was administered to the Essendon players. He believes it was but says there will never be any proof. Which begs the question, why is WADA trying to do the impossible?
8. It doesn’t matter what Charter claims he ordered or who he claims he ordered for. Knowing what was delivered to Australia is the first hurdle WADA has to jump and it can’t even do that.
9. Interestingly, Dank testified under oath before the Australian Crime Commission (ACC) in May and November 2012. As over three years has elapsed and as the ACC hasn’t charged Dank with perjury, I assume his ACC testimony trumps alleged comments by Dank to newspaper journalists who have never produced their original notes.
10. Just as important is that Dank was interviewed a couple of weeks ago on television by Australia’s top broadcaster for the last 25 years, Alan Jones, and former Queensland Premier Peter Beattie. They asked Dank 71 questions. Dank denied using TB-4.
11. Amazingly, in the ASADA report, and at the tribunal hearing, ASADA shamefully claimed Thymosin was Thymosin Beta-4. Unconscionably, ASADA changed the word Thymosin to Thymosin Beta-4 on 51 occasions in its submissions. Clearly, that begs the question: If Thymosin were Thymosin Beta-4, why risk a ten-year gaol sentence for tampering with the evidence?
Corrupt Evidence:
To win at the CAS, your advocate will have to do something that hasn’t been done for 2000 years. He will have to turn water into wine. But such a miracle would inevitably be overturned when either a judicial inquiry or a court rules, that the ASADA / AFL investigation was corrupted from day-one.
1. The Federal Government corrupted the investigation by attending meetings with ASADA and the AFL and by issuing instructions to ASADA. I believe the Gillard Government, AFL officials and ASADA conspired with ASADA to defraud Essendon of $2 million+.
2. ASADA had a statutory obligation to operate independently of government.
3. There was substantial, inappropriate, corrupt, behind the scenes involvement in the ASADA – AFL investigation by senior Gillard government figures, including staff from the office of the Prime Minister. Documents released by the Middleton Federal Court hearing in August 2014 show the extent of dealings between the AFL, ASADA and the government in brokering a deal not to suspend Essendon players but to punish Essendon support staff and Essendon.
4. Detailed notes taken by ASADA chief executive Aurora Andruska and her sworn affidavit catalogue the political pressure placed on ASADA by Gillard government figures to produce a quick outcome in the investigation to suit the needs of the Gillard Government and commercial considerations of the AFL. The government and the AFL were both determined to spare Essendon players while punishing club officials, and fining and dumping Essendon from the 2013 finals.
5. Andruska revealed that the AFL began discussing possible outcomes and sanctions as early as February 2013. The investigation commenced on 1 February 2013 and Stage 1 concluded on 31 July 2013. Stage 2 finished in February 2014. When the AFL began discussing possible outcomes with the government and ASADA not a single witness had been interviewed.
6. Former Prime Minister, Julia Gillard, pressured ASADA to bring a quick resolution to the Essendon supplements saga. ASADA chief executive, Aurora Andruska, detailed a meeting she had in Canberra on 9 February 2013. The meeting was attended by Eren Perdikogiannis (ASADA), Paul Simonsson (ASADA), Darren Mullaly (ASADA), Trevor Burgess (ASADA); then AFL deputy CEO Gillon McLachlan and AFL integrity manager Brett Clothier; Essendon president David Evans and Essendon CEO Ian Robson; and Richard Eccles deputy secretary of the Department of Prime Minister & Cabinet. Andruska noted that “PM wants it to end” because of “the criticism of gov”. She noted McLachlan said there would be “sanctions against Essendon if any wrong-doing was found and the AFL would hold individuals accountable”.
7 On 13 February 2013, Richard Eccles, deputy secretary of the Department of Prime Minister and Cabinet, informed ASADA lawyers in writing that he had told AFL deputy chief executive Gillon McLachlan that if the anti-doping body took a view that a player took a banned substance but was not at fault, “the AFL Tribunal would view things in a certain light, and it is as locked in as it can be”.
8. The deal was part of a conspiracy between the Gillard government, ASADA, and the AFL. This deal was unconscionable and arguably each of the parties was guilty of fraud because they all hoped to benefit from it. The AFL benefited to the tune of $2 million dollars.
9. It was illegal for Prime Minister Gillard to interfere with a statutory body.
10. The deal was made before the first witness had been interviewed.
11. McLachlan corrupted the investigation by interfering with the investigation.
12. The AFL’s integrity manager corrupted the investigation by giving evidence, evidence, which ASADA knew couldn’t be true.
13. The deal between the government, ASADA and the AFL meant that the players would be exonerated and only a select few support staff would be penalised.
14. As it transpires, only three support staff were punished. Inexcusably, none was responsible for the supplement program. According to the law, 25 officials had more responsibility than these three support staff.
15. No Essendon board member was punished.
16. No AFL commissioner was punished.
17. On 4 April 2013 a meeting was held at Evans’s office. Andruska, Simonsson, Nolan, McLachlan, Paul Little (EFC), Clothier, Evans and Liz Lukin attended. Nolan provided some information about the substances that may have been taken by the players.
18. Andruska said Richard Eccles deputy secretary department of Prime Minister and Cabinet had been at several meetings involving the AFL, ASADA, the ACC and the government.
19. Questioned by Essendon’s QC, Neal Young, about a meeting on 24 May 2013, involving AFL chief executive Andrew Demetriou, AFL integrity chief Brett Clothier, then Sports Minister Kate Lundy and Miss Lundy’s media adviser, Chris Owens, Andruska agreed it was “unusual” for her or him to be at a meeting with the minister and the head of a sports organisation.
20. Revealing the level of political involvement in the ASADA and AFL’s joint investigation of Essendon, former ASADA chief executive Aurora Andruska recounted to the Middleton Federal Court former sports minister Kate Lundy’s determination to strike a deal to punish Essendon.
21. Andruska testified that “By June 2013, ASADA was coming under pressure from the relevant Commonwealth Minister, Kate Lundy to reach some form of conclusion, or ‘an outcome’ from the investigation”.
22. On 4 June 2013, Andruska and M/s Perdikogiannis of ASADA spoke to M/s Glenys Beauchamp, deputy secretary, Department of Sport. The handwritten notes recorded by Ms Perdikogiannis record the following: “9am conversation with M/s Glenys Beauchamp [Secretary, Department of Regional Australia, Local Government, Arts and Sport] with AA [Aurora Andruska]. Clear instructions from Min [Minister Lundy]. Min [Lundy] – her colleagues at her, accusing her of hampering chances of re-election – you need an outcome. Heightened levels of anxiety by AA [Aurora Andruska], and Elen gets emotional as well”. Big business sponsors, Australia’s reputation, etc. Min [Lundy] has put it on Glenys etc
23. Andruska said the minister was demanding no players be sacked. According to court documents Andruska’s notes of that 4 June meeting said: “Lundy: needs something – [a] deal with AFL; support staff sacked; points [taken] off [Essendon]; players off.
24. Everything requested by the minister came to fruition.
25. Andruska told the court that at one meeting, David Lording, a corporate and government communications consultant brought in to advise ASADA, said Senator Lundy needed a deal with the AFL and ASADA to relieve political angst created by her decision, along with then Justice Minister Jason Clare, to invite sports chiefs to attend a 7 February release of the ACC report.
26. Andruska was asked to explain why, given ASADA’s statutory obligation to operate independent of government, Gillard government officials were routinely present during meetings and telephone hook-ups throughout the investigation.
27. Justice John Middleton asked Andruska whether it was unusual for her to be at a meeting with the Minister, her press adviser and the head of a sporting body. “Yes, it was,” she said.
28. The court was told that Richard Eccles, a Department of Prime Minister and Cabinet deputy secretary responsible for sport, had a “persisting involvement” in the investigation from January 2013, when he attended a briefing with the ACC about operation Aperio, a year-long investigation into the use of peptides at sporting clubs and links to organised crime.
29. On 5 June 2013, ASADA’s lead investigator, John Nolan, expressed concern that Andruska was serving the “political agenda of others”.
30. ASADA deputy chief executive Trevor Burgess told the Federal Court he received a briefing on 13 June 2013 from Richard Eccles, a deputy secretary within the Department of Prime Minister and Cabinet, about an AFL plan to take action against the club staff and suspend Hird for at least six months …
31. On 26 June 2013, Andruska spoke to McLachlan. She noted McLachlan’s comments as follows: Take points off Essendon; We need all the detail to get through that; Problematic if not full report; Get outcome we need; Take bits out that might compromise what we need [my emphasis]. ASADA capitulated and accommodated McLachlan’s demands. This was only the tip of the iceberg. It is impossible for WADA or the CAS to be comfortable with the veracity of the evidence collected by ASADA.
32. Andruska attended a further meeting with the AFL on 24 July 2013. Demetriou, Dillon and Clothier were there. Demetriou did not want any redactions in the report. Demetriou stated that “two or three things cannot afford to be made public [my emphasis]. Andruska noted that Demetriou further stated: On track for 17 August; Deal with club before finals; Allows one month to deal with club; I can deal with individuals; Charge Essendon in 2 – 3 weeks; AFL Commission know the matter; Decision cannot be appealed. At this stage the investigation hadn’t be completed. Essendon hadn’t been given the evidence against it. Essendon hadn’t been given a hearing. Demetriou was on the jury to hear the case. And yet he has already decided the penalties. Demetriou was in a position to do this because of the conspiracy with ASADA and the government.
33. On 15 July 2013, ASADA lead investigator John Nolan asked AFL investigator, Abraham Haddad, to prepare an injections table “based on assumptions and a formula”. When given the result Nolan said: “Not really what we are looking for. Fourteen out of 58 persons at EFC remember injections being referred to as Amino Acids. If we add the multi vitamin aspect then it is a little more convincing.” To summarise, Nolan was mortified the players had received too few injections to cause concern and was prepared to xxxxxx the evidence. In light of this, it would be unconscionable of you to rely upon any evidence collected by ASADA.
34. On 11 August 2013, The Age newspaper’s Walkley winning journalist Caroline Wilson said: “It has not been a happy few days for the AFL, ASADA and the departed Gillard government. That a government was so concerned about the look of the process – and ASADA so incompetent in its willingness to make deals – should be a matter of concern to a sport loving nation.”
35. ASADA fabricated responses to ‘Admitted use of Substances by Players’. During the player interviews, the players were asked what substances they were administered. Some players could recall the names of the substances, but others couldn’t. It appears those players who couldn’t recollect the names of the substances were then given the specific names of the substances and asked if they could recall being administered with them. Despite this very questionable prompting, a number of players were still not certain whether they had been administered the named substance. ASADA collated the responses and produced a table titled, ‘Admitted use of substances by Players and Officials’
36. In creating the table in the manner they did, ASADA destroyed the integrity of the investigation. Inexplicably, ASADA translated the following responses as a player admitting to having been administered the specific substance:
“I did not use AOD-9604”;
• “I did not use”;
• “I’m not 100% sure”;
• “it’s a familiar name”;
• “may have been”;
• “not sure”;
• “it could have been that or it could have been”;
• “ringing a bell”;
• “couldn’t be exact if I was”;
• “I’ve definitely heard the word”;
• “that’s one of the reasons I didn’t take it as on the sticker it said ‘For medical research purposes only’”;
• “more than likely”;
• “couldn’t recall”.
• “Receiving one in the bum” or “a bit more painful” were recorded as a yes for Cerebrolysin even though the players never mentioned the word Cerebrolysin. In some instances, when a player couldn’t even be prompted, ASADA decided for itself that it was “more than likely”. These “more than likely” assessments by ASADA were recorded as the players having admitted to being administered the substance:
Examples of the distortion of the evidence to record admissions by the players:
i. Yyyyyyyy is asked about Thymosin, “Oh, I’m not sure. It’s just a very familiar name to me. Yeah, I’m not sure if I did or not, but.” In the table this response is recorded as ‘yes’ in the Thymosin column.
ii. xxxxxxx is unsure if he took Tribulus, “I am not 100% sure.” This response by xxxxxx is recorded as ‘yes’ in the Tribulus column.
iii. xxxxxx recalls receiving cream from xxxxxx that he did not use, “I could see the amount of cream in there with the blue lid or – I think it might have been blue tack on top. Although xxxxxxxx also says he did not use AOD-9604 cream ASADA recorded him with a ‘yes’ in the AOD-9604 cream column.
37. ASADA gave the AFL integrity manager access to all the evidence and then unbelievably accepted an email from him as evidence. Inexplicably, he was not questioned about his evidence nor were those ‘nailed’ by his evidence given a chance to refute his untrue allegations. Although his evidence was incorrect, and ASADA knew it was untrue, ASADA amazingly accepted it as the truth. Unconscionably, ASADA and the AFL used his untrue statement against Essendon and it cost the club about $3 million. NB The $3 million includes the $2 million fine and the cost of paying the wrongly suspended coach’s $1 million salary.
38. Although the ASADA Act is very strict in defining what tasks ASADA can undertake, ASADA allowed itself to be manipulated by the AFL and broadened its investigation to cover subjects that were never envisaged by the Act
39. ASADA and WADA have already got their pound of flesh. The players have been punished and suffered more than any other athlete in history. Millions of words have been written about the evils of taking drugs. ASADA / WADA have received tens of millions of dollars free advertising about anti-doping. WADA runs the risk of all non-Olympic sports in Australia withdrawing from WADA control. WADA runs the risk of destroying its credibility in Australia, which begs the question, why? It can’t be just to give the players a few games suspension. Surely, you are not doing it to try and save McDevitt? He is beyond saving.
Bruce Francis