WADA’s two American attorneys Dick Young and Brent Rychener scored own goals when they set out in the WADA Appeal Appendices obligations they had to meet to secure guilty findings against each of the 34 Essendon players. They failed on all counts.
Incomprehensively, the Court of Arbitration for Sport (CAS) panellists did not compel Young and Rychener to prosecute the case against a single player as required. Unconscionably, the inept CAS panellists allowed WADA to refer to the term “players” instead of the 34 individuals.
Young and Rychener said: “The evidence against the players may properly be described as circumstantial. WADA relies upon the documentary evidence (including contemporaneous emails and text messages) and the evidence of witnesses (by way of statement, formal interview or otherwise) to establish the case against the Players. That said, WADA accepts that there are certain ‘intermediate’ facts which must be established to the standard of comfortable satisfaction in order for the infractions to be established. This is because these facts are part of the basis upon which the case against the Players rests. In this case, these elements of the case are that”.
Item 1 (Young & Rychener): “Thymosin Beta-4 was requested by Dank and procured on his behalf”.
My Comment: This statement is false and constitutes lying under oath. There is not a single text message among the 6581 Dank text messages of Dank requesting someone procure Thymosin Beta-4 on his behalf from China. Nor is there a Dank email requesting someone procure Thymosin Beta-4 on his behalf from China. After receiving a message from Shane Charter on 11 January 2012, Dank expressed interest in having Thymosin Beta-4 compounded. However, he withdrew this request the next day, clarifying that he wanted Thymosin, a different substance. During the investigation ASADA/WADA created a table that contained text messages. The document contained 750 pages. The document contained 16,835 texts. Thymosin Beta-4 was mentioned three times. Dank used the term once on 11 January 2012. He recanted the next day.
Item (Young & Rychener) 2: “Thymosin Beta-4 was obtained by Mr Alavi, compounded, and provided to Dank”.
My Comment: This was a lie, Young, and Rychener perjured themselves. They both had access to the evidence and knew or should have known that leading ASADA investigator Aaron Walker acknowledge at clause 93 of his 15 January 2015 affidavit that there was no evidence that Dank ever took possession of Thymosin Beta-4.
There is no evidence that Dank ever received Thymosin Beta-4. There were only two alleged deliveries, one on 28 December 2011 and allegedly one on 18 February 2012, from China to Como Compounding Pharmacy (Alavi) of raw material labelled ‘Thymosin’. According to Alavi, because the initial batch from 28 December 2011 was not assessed, he is unaware of what it contained. Rychener and Young falsely asserted that the batch from 18 February 2012 was delivered. Neither Dank nor Essendon picked them and Como Compounding Pharmaceutical’s stock and delivery records prove they were never delivered.
Rychener said (page 813 of the CAS Hearing transcript): “Right. So, the question is, was he injecting players from those brown vials after May 11 when they were delivered. Based on contemporaneous records, we know Dank received vials of Thymosin Beta-4 from Como in January and May.”
Rychener perjured himself once again. by claiming that “Based on contemporaneous records, we know Dank received vials of Thymosin Beta-4 from Como in January and May.” No such records exist – whether contemporaneous or those created years later.
Young also perjured himself when he lied (page 810, lines 41 to 43 of the CAS hearing transcript) when he said: “One ofthe emails that the two players referred to about Thymomodulin was in June after the delivery of the 15 vials from Vania [Giordani].” Como Compounding Pharmaceutical’s stock and delivery records prove the 15 vials were never delivered to Dank or Essendon.
Tragically for the players, in possibly his most costly mistake on the ‘bench,’ CAS panellist James Spigelman, a former Chief Justice of the Supreme Court of New South Wales said: “I don’t think it was an issue that he got it; it was a question of where it went.” (page 814, lines 14 & 15). There was not a skerrick of evidence indicating that Dank “go it.” Spigelman’s horrendous mistake was beyond comprehension and enabled CAS to find the players guilty.
Item (Young & Rychener) 3: “Dank administered Thymosin Beta-4 to the players”
My Comment: The 34 player interviews indicate that no player had heard of Thymosin Beta-4, let alone admitted to being injected with Thymosin Beta-4; Dank denied ever administering Thymosin Beta-4 to an Essendon player; there is no evidence that Thymosin Beta-4 was ever delivered to Dank; on 11 April 2013 Age journalist Nick McKenzie stated that Dank administered Thymosin to some Essendon players. On 5 July 2013, McKenzie changed his story and replaced ‘Thymosin’ with ‘Thymosin Beta-4’.
Item (Young & Rychener) 4: “Thymosin Beta-4 is a prohibited substance.”
My Comment: To comprehend the magnitude of the injustice done to the Essendon players, one must understand how a substance becomes a prohibited substance. At the start of each year, WADA’s Prohibited List Expert Group (PLEG) asks each country’s affiliated anti-doping authority to recommend substances that should be added to the existing Prohibited List. Invariably, those recommendations are based on false or exaggerated manufacturer’s claims on websites about wonder drugs that are designed to sell products to the masses.
The Prohibited List Expert Group then forwards its recommendations to WADA’s Health Medical and Research committee (HMR) for consideration. The HMR committee then forwards its recommendations to the WADA Foundation board. WADA finalises and releases the Prohibited List by 1 October each year. The updated list goes into effect on 1 January the following year.
At the beginning of 2011, Thymosin Beta-4 was not included on the list of banned substances by WADA, ASADA, or any of the 208 anti-doping agency websites worldwide. No anti-doping authority recommended the PLEG place Thymosin Beta-4 on the Prohibited List. The PLEG did not recommend that the HMR place Thymosin Beta-4 on the Prohibited List. The HMR did not recommend WADA place Thymosin Beta-4 on the Prohibited List. Thymosin Beta-4 was not added to the updated Prohibited List on either October 1, 2011, or January 1, 2012.
According to page 67 of the audit logs from the ‘Check your Substances’ document, before 4 February 2013, athletes searching for “Thymosin Beta 4” either did not receive a “Banned in Sport” response or were given such a response for unrelated substances like Tamosin and Tamoxen 20. ASADA internally verified this at 10:34:17 am on February 4, 2013.
Following the timeline of the log, ASADA, in a duplicitous action to convict the Essendon players, then updated the database when the media broke the story on 4 February 2013 and added a “Banned in Sport” status to Thymosin Beta-4. The entry from 12:59:17pm on that date provides evidence of this. The search term “Thymosin” was updated at the same time. Alternative search terms such as “TB500” and “TB4” provided no response as to their status throughout the period.
The evidence shows that ASADA CEO Ben McDevitt gave Parliament inaccurate details during a Community Affairs Legislation Committee Estimates hearing on March 3, 2016. He claimed Thymosin Beta-4 appeared as a banned substance on the ASADA website, but this information was incorrect. David Sharpe, who became CEO after McDevitt, told the Senate in October 2019 that ASADA updated Thymosin Beta-4’s status on February 4, 2013. It is hard to imagine that a government institution had ever acted more cowardly and criminally than those involved in the illegal change to Thymosin Beta-4’s status.
Although it is irrelevant because neither Dank nor Essendon took possession of Thymosin Beta-4, the 34 players could not have gone to the website maintained by ASADA and checked for “Thymosin Beta-4” or any other variant and found the appropriate answer.
FOI responses indicate that multiple Australian Football athletes accessed the “Check your substances” website during 2012. Thymosin Beta-4 did not appear as a prohibited substance on the WADA website until 2018. Interestingly, Health Authorities (equivalent of our Therapeutical Goods Authority (TGA) in Poland, France, Italy, Germany, and Argentina approved Thymosin Beta-4 for use in other products.
Incomprehensively, the WADA code states that an athlete cannot challenge the status of a prohibited substance. During the Essendon saga, evidence shows that ASADA classified Thymosin Beta-4 as a banned substance on 4 February 2013, to reinforce the Australian Crimes Commission’s assertion that Essendon players had received a prohibited substance.