Following the March 2015 decision of the AFL Anti-Doping Tribunal (AFL Tribunal) that 34 current and former players of the Essendon Football Club (Essendon FC) did not breach the AFL Anti-Doping Code, the World Anti-Doping Agency (WADA) has filed an appeal in the Court of Arbitration for Sport (CAS).
In summary, WADA has exercised its independent right of appeal in relation to the AFL Tribunal's determination that it was not "comfortably satisfied" that any player was administered the prohibited substance Thymosin Beta-4 while playing for Essendon FC between January 2012 and September 2012. In making this decision, the AFL Tribunal ruled that the Australian Sports Anti-Doping Authority (ASADA) had failed to establish that any Essendon FC player had committed an Anti-Doping Rule Violation (ADRV) by using or attempting to use the prohibited substance Thymosin Beta-4 (forbidden by both the AFL Anti-Doping Code and World Anti-Doping Code (WADA Code)).
In appealing the AFL Tribunal's determination WADA has requested that CAS issue a finding that the players have committed an ADRV and impose an "appropriate sanction".
Court of Arbitration for Sport: The process
WADA's appeal will be heard in the Appeals Arbitration Division of CAS. While CAS' seat is located in Lausanne, Switzerland, it has a decentralised office in Sydney. Recent media reports suggest that while WADA has requested that CAS convene the appeal in Switzerland, a decision as to where CAS sits will only be made once a panel has been appointed by CAS and all relevant parties have made submissions. We think it is likely that the Essendon FC players will request that the appeal be heard in Sydney.
The appellate process is governed by the CAS Code. Following the filing of a Statement of Appeal by WADA, the process is as follows:
- WADA will file an Appeal Brief stating the facts and legal arguments giving rise to its appeal, together with all exhibits and specifications of other evidence upon which it intends to rely.
- CAS will communicate the Statement of Appeal to the Essendon FC players and will send a copy of the Statement of Appeal and Appeal Brief to the AFL Tribunal, for its information.
- Unless a sole arbitrator is appointed, a panel of three arbitrators will hear WADA's appeal (Panel). Each Panel member must be independent and must not have played any role in the case. Each party has the right to nominate one arbitrator, and the President of the Panel will be selected by the President of the Appeals Arbitration Division.
- Once the Panel is formed, the President of the Panel will issue directions in relation to the appeal hearing date, the examination of the parties, witnesses and experts, and the hearing of oral arguments.
- The Essendon FC players must then submit an Answer stating their defence to WADA's appeal, together with all exhibits and specifications of other evidence upon which they intend to rely.
- WADA will need to establish to the "comfortable satisfaction" of the Panel that an ADRV was committed by the Essendon FC players, bearing in mind the seriousness of the allegation which is made. The applicable standard of proof is greater than the usual civil standard (on the balance of probabilities) but less than the usual criminal standard (beyond reasonable doubt) that applies to cases before Australian courts. To be "comfortably satisfied" of a fact, the fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.
- The CAS hearing will be de novo - that is, the hearing will start afresh and the entire case against the Essendon FC players will be reheard. Several important implications flow from this, including that:
- Neither party is constrained by any requirement to establish that an error was made by the AFL Tribunal in reaching its March 2015 decision; and
- Both WADA and the Essendon FC players will be permitted to introduce new evidence to support their case. This is examined in more detail below.
- The Panel will have full power to review the facts and the law relevant to the matters before it on the appeal. A decision will be made on the basis of the regulations of the body concerned by the appeal, which is likely to be the AFL Anti-Doping Code, with Australian law applying subsidiarily.
- The Panel may issue a new decision which will replace the decision of the AFL Tribunal, or annul the original decision and refer the case back to the AFL Tribunal for a rehearing.
- The appeal will take place behind closed doors, unless the parties agree otherwise.
A critical issue for both WADA and the Essendon FC players is whether any new evidence will be adduced before CAS.
Such new evidence may be documentary in nature - though this is unlikely - or in the form of new witnesses who did not give evidence in the AFL Tribunal hearing. However, key witnesses, including support staff employed by Essendon FC during the relevant period as well as the Club itself, are reportedly unlikely to be willing to assist WADA in its appeal.
A crucial issue facing WADA is whether it has the power to compel these individuals to give evidence at the appeal. Neither the WADA Code nor the CAS Code confers an express power on WADA to compel witnesses by way of subpoena. In addition, a recent decision of the Victorian Supreme Court1, in which it was held that ASADA did not have power to compel witnesses to appear at the AFL Tribunal hearing, may be applicable to the same effect in the appeal hearing before CAS. However, the possibility of WADA having the power to issue subpoenas to witnesses to give evidence in the appeal cannot yet be conclusively excluded.
The Essendon FC players and WADA must also be cognisant that, although fresh evidence can be presented at the appeal, the Panel has discretion to exclude that evidence if it was available to the parties, or could reasonably have been discovered by them, before the AFL Tribunal's decision was handed down.
Decision and subsequent avenues of appeal
CAS' decision on the appeal may be made by a majority of the Panel, or by the President alone in the absence of a majority.
Should either party wish to appeal the Panel's decision there is a right of recourse to the Swiss Federal Tribunal on limited grounds including lack of jurisdiction, violation of procedural rules (for example, the right to a fair hearing) and public policy considerations.
Essendon FC and other stakeholders have left no doubt about their disappointment that the 'supplements saga' is not yet over for the 34 players and the AFL more generally.
However, doping is – as the WADA Code acknowledges – fundamentally contrary to the spirit of sport. Those concerned with protecting the intrinsic value of sport in Australia and promoting respect for legal process will welcome further forensic examination of what transpired at Essendon FC in 2011 and 2012.
1ASADA v 34 Players and One Support Person  VSC 635
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