CAS 2015/A/4059 World Anti-Doping Agency (WADA) v. Thomas Bellchambers et al., Australian Football League (AFL) & Australian Sports Anti-Doping Authority (ASADA)
CAS 2015/A/4059 WADA vs:
- Thomas Bellchambers
- Alex Browne
- Jake Carlisle
- Travis Colyer
- Alwyn Davey
- Luke Davis
- Cory Dell'Olio
- Ricky Dyson
- Dustin Fletcher
- Scott Gumbleton
- Kyle Hardingham
- Dyson Heppell
- Michael Hibberd
- David Hille
- Heath Hocking
- Cale Hooker
- Ben Howlett
- Micheal Hurley
- Leroy Jetta
- Brendan Lee
- Sam Lonergan
- Nathan Lovett-Murray
- Mark McVeigh
- Jake Melksham
- Angus Monfries
- David Myers
- Tayte Pears
- Patrick Ryder
- Henry Slattery
- Brent Stanton
- Ariel Steinberg
- Jobe Watson
- Australian Football League (AFL)
- Australian Sports Anti-Doping Autority (ASADA)
- Australian Football
- Doping (Thymosin Beta-4)
- Distinction between presence and use of a prohibited substance cases
- Appeal and answer complete
- CAS de novo review
- CAS scope of review
Return to training
1. There is a distinction to be made between two forms of anti-doping rule violation. The first form is the presence of a prohibited substance in an athlete’s sample; the second form is use by an athlete of a prohibited substance. Unlike the proof required to establish presence of a prohibited substance, use may also be established by other reliable means such as admissions by the athlete, witness statements, documentary evidence or other analytical information which does not otherwise satisfy all the requirements to establish presence. In a use of a prohibited substance case therefore, the absence of any adverse analytical finding does not prevent the adjudicating body from relying on any other reliable mean to establish the anti-doping rule violation.
2. The provision in Article R56 of the CAS Code purposively construed draws a distinction between reformulating an existing argument and advancing a new and distinctive argument. It is inherent in the forensic process that sometimes a party’s argument is developed and at other times discarded. There is nothing unfair to the other party in such process and to restrict a party to advancing argument in the precise way in which it was pleaded would be inimical to a just disposition of the case.
3. The de novo appeal to CAS is a cornerstone in CAS’s review of appeals, which is enunciated at Article 13.1.1 of the 2015 World Anti-Doping Code (WADC), and also complying with the obligation set forth in Article 23.2.2 of the 2015 WADC that the provisions of the WADC, subject to certain exceptions, must be implemented by the signatories of the WADC “without substantive change”. The review is de novo even if the applicable national anti-doping regulations do not so provide, as national regulations that do not reflect the provisions of the WADC, in violation of a signatory’s obligation to implement them “without substantive change”, are inapplicable. The rationale underlying CAS’s de novo review is that the issue to be determined (in a doping case) is not whether the appealed decision was justifiable, but whether an athlete has committed an anti-doping violation. In short, and as is well established in CAS jurisprudence, the right of appeal to CAS by reason of Article R57 of the CAS Code necessarily carries with it subordination to the de novo principle irrespective of any purported restrictions in the regulations of the body from which such an appeal is brought, as is vouched for by Article 182 paragraphs 1 and 2 of Swiss Private International Law Act.
4. In reviewing a case in full, a CAS panel is of course limited to the issues arising from the challenged decision, and cannot go beyond the scope of the previous litigation. However, its scope of review is not limited to consideration of the evidence that was adduced before the body that issued the challenged decision. Rather, it can extend to all evidence submitted to the CAS panel.
5. A professional player needs to train with his/her team and keep his/her fitness in order to be prepared to play once his/her suspension expire. Without the ability to train, such suspension would have an even longer impact on the player’s ability to exercise his/her profession.
The Essendon Football Club supplements controversy (commonly known as the Essendon supplements saga) is a sports controversy which began in late 2011. The Essendon Football Club, a professional Australian rules football club playing in the Australian Football League (AFL), was investigated starting in February 2013 by the Australian Sports Anti-Doping Authority (ASADA) and the World Anti-Doping Agency (WADA) over the legality of its supplements program during the 2012 AFL season and the preceding preseason.
On 31 March 2015 the Australian Football League Anti-Doping Tribunal decided to dismiss the ASADA reports about multiple anti-doping violations committed by 34 current and former player of the Australian Essendon Football Club for the administration and use of the prohibited substance Thymosin Beta-4.
Hereafter in May 2015 WADA, supported by ASADA, appealed the decision of the AFL Anti-Doping Tribunal with the Court of Arbitration for Sport (CAS).
WADA requested the CAS Panel to set aside the decision of the AFL Anti-Doping Tribunal of 31 March 2015 and to impose a 2 year period of ineligibility on the Athletes reduced by the period the Athletes already served under provisional suspension.
WADA submitted that the Essendon Sports Scientist Mr. Dank devised and implemented a team-wide supplementation program in which the Athletes received injections with the prohibited substance Thymosin beta-4 in the period from January to September 2012.
WADA argued that the Athletes cannot show lack of significant fault or negligence in committing the anti-doping rule violations because: they signed the consent forms to receive the prohibited substance; received the injections; and failed to disclose the injections on doping control forms.
Considering the statements and evidence the majority of the CAS Panel is comfortably satisfied that all Athletes violated Clause 11.2 of the 2010 AFL Anti-Doping Code and were significantly at fault in so doing; and one member of the Panel agrees with that conclusion save in the case of several players in respect of whom he is not comfortably satisfied that such use is made out.
Therefore the Court of Arbitration for Sport decides on 11 January 2016 that:
1.) The appeal filed by the World Anti-Doping Agency on 8 May 2015 is upheld.
2.) The decision rendered by the Australian Football League Anti-Doping Tribunal 31 March 2015 is set aside.
3.) The Athletes Thomas Bellchambers, Alex Browne, Jake Carlisle, Travis Colyer, Alwyn Davey, Luke Davis, Cory DelFOlio, Ricky Dyson, Dustin Fletcher, Scott Gumbleton, Kyle Hardingham, Dyson Heppell, Michael Hibberd, David Hille, Heath Hocking, Cale Hooker, Ben Howlett, Michael Hurley, Leroy Jetta, Brendan Lee, Sam Lonergan, Nathan Lovett-Murray, Mark McVeigh, Jake Melksham, Angus Monfries, David Myers, Tayte Pears, Patrick Ryder, Henry Slattery, Brent Stanton, Ariel Steinberg, Jobe Watson, Stewart Crameri, and Brent Prismall are sanctioned with a period of ineligibility of 2 years commencing as of 31 March 2015. Any period of ineligibility, whether imposed on or voluntarily accepted by the Players before the entry into force of this award, shall be credited against the total period of ineligibility to be served.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne 75% by the Players and 25% by the Australian Football League.
5.) The Athletes and AFL shall jointly contribute CHF 30,000 (thirty thousand Swiss Francs) to the World Anti-Doping Agency for its legal fees and other expenses incurred in connection with these arbitration proceedings. The Australian Sports Anti- Doping Authority shall bear its own legal costs and expenses incurred in connection with the present proceedings.
6.) All other motions or prayers for relief are dismissed.
