Press conference ASADA CEO on CAS decision on Essendon players
13 January 2016
The following is a transcript of the press conference given by ASADA CEO Ben McDevitt on the Court of Arbitration for Sport decision regarding the 34 current and former Essendon players. The press conference took place at 1:30 PM on Tuesday 12 January 2016.
Well, good afternoon everybody and thank you for attending. As you're aware, the Court of Arbitration for Sport has handed down its decision in relation to the 34 current and former Essendon players. The panel was comfortably satisfied that the players had used the prohibited substance Thymocin Beta-4 during the 2012 season. As sanctions, the panel handed down a two-year ban to each of the 34 players. I will talk more on the sanctions a little later.
But first I'd like to acknowledge the CAS panel itself. This has been the most complex anti-doping case in Australia's history and their independence, consideration and expertise on this matter has been absolutely invaluable. I would like to also start by saying that today's verdict or decision doesn't bring me any particular joy. There are no winners when a team of professional athletes sign on to a program of secret injections of a prohibited substance. ASADA celebrates honest, fair competition, clean sport and our education and engagement teams work very, very hard to prevent doping. I much prefer to put my efforts into target hardening sports than having to conduct investigations into doping allegations.
But when people act outside of the rules, we will take action and I am very pleased that ASADA pursued this case to the end. As I have said before, I strongly believe that had we not pursued this case, we would have been in gross dereliction of our duty as the national regulator for anti-doping in this country. Our job includes the investigation of possible doping violations and an effective and ethical regulator doesn't just take the easy cases. We don't just pursue the cases where there is a positive test, for example, and this was one of the more difficult cases to pursue. As you all know, there was no positive test involved in this investigation. But when we have evidence, we've got to pursue it, we've got to implement the framework and we've got to do our job without fear or without favour. Regardless of actually how long it might take to see it resolved. Let's not forget that Australia's ability to compete in international sport relies on our commitment to clean sport and we need to fiercely guard that reputation that we have as one of the finest sporting nations on the planet. Sweeping a case under the carpet because it's too complex or too difficult is not an option and never will be. This case had to be pursued until the truth was revealed.
In my view, this entire episode has chronicled the most devastating case of self-inflicted injury by a sporting club in Australia's history. And this self-inflicted injury began with a decision to embark upon an injections program designed to give this sporting club a competitive edge against its rivals. In fact, that wasn't the outcome that was achieved. In fact, it has resulted in enormous financial costs for the club, untold damage to its reputation and to the reputation of the sport itself and, as yet, largely unknown mental and physical effects for those who were participants in the injections program. The toll for Essendon has certainly been enormous. And I hope that Essendon is able to regain its former status as one of the most iconic sporting clubs in this nation. And I can say that ASADA stands ready to work with Essendon and to work with the AFL, as we do, to assist to target-harden the environment and make the environment across the AFL and across their clubs even more hostile to doping than it is right now.
And I might add that a lot of work has been done by Gillon McLachlan and the AFL in terms of introduction of measures such as no-injections regimes, no-injections programs, declaration of all supplements, background checking of potential employees coming into the club and so on and so on. I'm sure people will ask me do I feel for the players? Yes, I do. I feel for them quite strongly on a couple of fronts. One is that the length of time that this has involved. I think it's gone on for too long. And there are multiple reasons for why this has gone on for three-plus years. And some of those are reasons that are beyond the control of any particular party involved. You know we've had a lot of appeals, we have some extended processes, our framework, I believe, is rather convoluted, I think it is cumbersome and I agree with the ex-former Federal Court judge who reviewed our framework that it is delay-prone. So, on that front, I feel for the players.
I'm strongly of the view that we as a collective need to be able to streamline the timeframes involved between notification of an alleged violation or receipt of information about an alleged violation and its final resolution. I am more than happy to work to the best of my ability to assist in doing that. So that's one front on which I feel for the players. The second front I feel for them is in relation to their awareness about the decisions that they made in the lead-up to the 2012 season. They made conscious decisions, very conscious decisions. But they obviously never paid due regard to the enormous possible ramifications and consequences of those decisions that they made when they signed on to a program involving injections of those substances. They never considered probably the impact it would have on their own playing futures, on their own personal reputations as players, on the reputation of the club that they played for, on the reputation of the code and, in particular, on the possible mental and physical implications and ramifications that this may have for them in the future. I also feel for their fans who must feel so badly let down. My final point before I come to the details of WADA's case is just to recap on some of the events that led us to where we are now in 2016.
Everybody I think is familiar with the report released by the Australian Crime Commission in February of 2013, summarised an investigation which had found widespread use of peptides and hormones by professional athletes in Australia including officials from a club administering a variety of substances via injections and IV drips. Three months later, you will recall Essendon released their own independent review conducted by Ziggy Switkowski which reported a disturbing picture of a farm pharmacologically experimental environment never adequately controlled or documented within the club. Another three months later, Essendon was fined $2 million by the AFL for permitting a culture of frequent, uninformed and unregulated use of the injection of substances. And as I've said before, I strongly applaud the AFL for the very strong action they took in relation to governance failures at Essendon. Last year, the AFL Anti-Doping Tribunal cleared the 34 current and former players but found a deplorable failure to keep comprehensive records and an unquestioning reliance on the sports scientist. Only a few weeks ago, you would be aware Essendon pleaded guilty to WorkSafe Victoria charges in relation to failing to provide a safe working environment without risks to health.
So, that's a recap and it brings us to where we are now with the outcome of the appeal by WADA. As you are aware, ASADA originally took this case before the AFL Anti-Doping Tribunal and that tribunal was not satisfied by the evidence put before it. As I said last year, I believe the tribunal got it wrong. But the appeal process open to ASADA was cumbersome. We had no direct right of appeal to the Court of Arbitration for Sport without first having the case heard in the AFL Anti-Doping Appeals Tribunal. This would have drawn out this matter for at least another year and I believe the outcome would not have changed. With the knowledge that WADA had an interest in the case, I decided that ASADA would forego its appeal opportunity in order to speed up the time before the case was potentially heard before an experienced and independent Court of Arbitration for Sport panel. WADA subsequently did choose to exercise their independent right of appeal to CAS and they did that following their own internal reviews of which I think there were two of the case files which we had provided to WADA.
ASADA fully supported the decision by WADA to appeal these matters. WADA's reasons for appealing were twofold: Firstly, they believed that the AFL anti-doping tribunal had set the bar for comfortable satisfaction too high and, secondly, they believed that the decision set a dangerous precedent for anti-doping cases where there was not a positive blood or urine test. Why did both WADA and ASADA think that? The reason is because the AFL Tribunal accepted that Stephen Dank made plans to use Thymosin Beta-4 as part of Essendon's injection program. Despite this - sorry, they also accepted the players had consented to being injected with Thymosin and that injections had occurred. Despite this, they were not comfortably concerned or satisfied that the injections actually contained Thymosin Beta-4 because there were no adequate records kept and because Essendon failed to carry out lab analysis of the substances.
This level of satisfaction, this requirement, would make it almost impossible for any anti-doping agency to pursue a case that did not involve a positive test in blood or urine. In the lead-up to the CAS appeal hearing, some media outlets reported that WADA had new evidence to bring to the hearing, including a test for Thymosin Beta-4 however, despite an attempt to develop such a test, there is still no reliable way to detect artificial Thymosin Beta-4. This means that other than the substitution of one scientific expert, WADA's case was built on the same evidence presented to ASADA- by ASADA to the AFL Tribunal. In fact, the case presented by WADA was actually put together by WADA and ASADA lawyers working together using the evidence which had previously been collected by ASADA. So, no, it was not a more compelling case and the Court of Arbitration for Sport acknowledged that their decision was based on the same evidence presented earlier by ASADA. They placed no reliance on any new scientific evidence. The key difference which led to a very different outcome was in relation to the proper application of the burden of proof. And that burden, as you know, is comfortable satisfaction in accordance with the World Anti-Doping Code. To be blunt, the AFL Tribunal simply got it wrong.
Now that the CAS decision is final, I can share some facts of the case, some which have previously been confidential. Broadly, there was clear evidence that members of the club implemented a program designed to make Essendon players bigger and stronger and able to recover more quickly to gain an advantage over their opposition. In the words of Stephen Dank; Thymosin was the vital cornerstone of that program. I will offer a brief summary of some of the evidence that led to that conclusion, though bear in mind there are over 10,000 pages of evidence tendered as exhibits during the hearing. Firstly, Essendon's sports scientist Stephen Dank was shown to have used Thymosin Beta-4 on other athletes prior to his arrival at Essendon. There were over 100 text messages that unveiled a plan to source Thymosin Beta-4 for the purpose of doping the Essendon team. The players signed consent forms agreeing to Thymosin injections and each received a number of injections. Six players reported being told they were being injected with Thymosin. Two players reported seeing vials marked with the word Thymosin in the sports scientist's fridge. Two players sent text messages discussing their Thymosin injections with Stephen Dank. Scientific analysis of a substance compounded by the pharmacist for Essendon showed that the substance was no other kind of Thymosin other than Thymosin Beta-4 with a 97 to 99 per cent accuracy. So, to be frank, the defence raised that this was a good Thymosin or Thymomodulin or something else was frankly dismissed as rubbish. This evidence, all of which was collected by ASADA, proved that the players had been injected with Thymosin Beta-4. At this point, CAS then considered the sanctions. The panel did not find the players to be at no significant fault or negligence. In fact, in their words the players' lack of curiosity is fatal to the success of this particular plea. Some of the facts they considered were: Firstly, all of the players had had anti-doping education. As such, they were all well aware they are personally responsible for personally responsible for any substances that enter their body.
The players were told by team officials that this program would push the edge and was close to the line in terms of legality. They made no inquiries via ASADA, via WADA or Internet searches as to what Thymosin was. ASADA conducted 30 testing missions at Essendon during the time in question between February and September 2012, 30 testing missions. Each time players subjected to tests were asked the standard questions by our doping control officers which were to declare any substances that they had taken, be it Panadol, Ibuprofen, protein powder, but in 30 tests- in 30 approaches only one player declared a supplement injection and declared that was for vitamin B. They also hid the injections from their team doctor who testified that no player had ever asked about any of the substances.
Finally, let's not talk about children or minors. These are not minors or children. These are adults. They are adults, professional athletes. At the end of the day, 34 players signed on to receive four substances. Yes, they were told the injection program was WADA compliant, but they adopted a head in the sand approach in contravention of their anti-doping education. They agreed to keep it a secret. They failed to declare the injections to doping control officers, they accepted that they were walking close to the line, and they deliberately kept it from the team doctor. This culture of concealment is supported by the club's apparent lack of any credible documentation. This was a secret program and the players were not just innocent bystanders.
At best, the players did not ask the questions or the people that they should have. At worst, they were complicit in a culture of secrecy and concealment. Many believe that the sanctions that Essendon received as a club for governance issues should be sufficient. As I said, I commend the AFL for the strong action they took against the club as a whole for poor governance. But that did not mean that the cases against the individual players could be dropped and should not be pursued.
Athletes around Australia are told time and time again that they are responsible for what goes into their bodies. That premise - personal responsibility - is actually the cornerstone of not only the Australian anti-doping code but the world anti-doping code. And you simply cannot shift that personal responsibility to any support person or any other person full stop. It remains fully and squarely with the athlete. To not pursue the Essendon players would have been an injustice to all clean athletes, who do the right thing and take their anti-doping responsibility seriously.
Let's not forget - the players had a choice. One player said no, and that player is free to play this season. I will wrap up shortly but firstly I would like to address the fact this case has taken almost three years. In anti-doping cases of this sort of size and complexity, this is not unusual. The Lance Armstrong case took two years. The Balko case took three years. And we are here in 2016 not because of decisions made by ASADA or anybody else in 2013, 2014 or 2015. We are here because of decisions made by the club and the players in 2012. Of course, there are lessons to be learned from this case, and we will continue to review what took place. The inability of either the AFL Tribunal or the Court of Arbitration for Sport to be able to compel witnesses to testify is one area which is an ongoing concern to me. But there are other outcomes to take from this.
This case has been a watershed for Australian anti-doping. It has consumed the media, ASADA, Essendon and the AFL for the better part of three years. But if there is something good to come out of this, it is that Australia has come out stronger in terms of its anti-doping resilience and capabilities. Awareness has increased. Education has increased significantly. Sports policies have improved significantly. Anti-doping and values-based decision making are actually now part of the national schools curriculum. Given it has occurred in front of an international backdrop of doping scandals, it shows that Australia - and that ASADA - is fully committed to pursuing anti-doping violations.
Our clean athletes should take immense comfort knowing that ASADA is in their corner and willing and able to catch dopers. At the same time, I hope this case serves as a warning to any other athletes who may be considering doping or who are offered secret substances. ASADA has one of the best anti-doping education programs in the world, and we will continue to engage with athletes and sports to ensure they are aware of their anti-doping responsibilities. Once more, I thank CAS for their expertise in this matter. I thank WADA, and I thank the hard working officers at ASADA, both past and present, who have persevered against much adversity to bring this case to its rightful conclusion.
It has taken a long time, but the result is the exposure of the worst case of team-based doping that this country has ever seen. Why did ASADA pursue this case despite constant attacks and calls to drop the matter, to move on and say nothing to see here? Because at the end of the day, there's always a choice between the easy thing to do and the right thing to do, and you don't just walk away from something because some people simply think it's too hard or it's just taking too long.
Thanks very much, I'm happy to take a few questions.
QUESTION: Mr McDevitt, ASADA copped significant criticism when the AFL Tribunal did clear the Essendon players. Do you feel vindicated today?
BEN MCDEVITT: I made it quite clear that I felt when the AFL Tribunal decision was issued, that - and I think I said at the press conference after that, that my sense was an appeal was a live option, and my sense was that this particular journey was far from complete. I have nothing to say in a disparaging way about the integrity of the persons who sit on the AFL anti-doping tribunal. I believe they are all people of great personal integrity. They made a decision which I believe was incorrect, and which I believe needed to be challenged.
Beyond talking about this particular case and that particular tribunal, I hold a very strong philosophical view that sports, any sports, in matters such as this should not police themselves. I believe that it puts the sport in an incredibly unenviable position whereby there is an inherent opportunity for potential conflict of interest for a sport at the one time to be responsible for promoting the sport and policing the sport. That's my personal philosophical view and I think you'll find that there are a number of inquiries which support that and which make recommendations, and you look internationally now and you'll see there have been a number of pushes for sports to be placed in a position where they assist with governance, they assist with identifying and dealing with allegations of this type, but that we need truly independent review and arbitration.
QUESTION: I read some strong criticism about the players. Are you satisfied with the 12 month ban effectively or do you think maybe lifetime bans should have been considered for some of them, and should Jobe Watson lose his Brownlow Medal out of this?
BEN MCDEVITT: Well I think the first point is just to dispel a myth that seems to be out there generally, and that is one that ASADA actually determines penalties. ASADA doesn't actually determine penalties. Penalties are actually determined by the sports themselves, unless a matter goes beyond the sport, such as in this case to the Court of Arbitration for Sport, where they actually determine the penalty. Do I think that lifetime bans should apply here? No, I don't, and the world anti-doping code does not contemplate that sort of penalty for this form of violation by an athlete.
It does, for example, contemplate that form of penalty for the sort of activities alleged to have been undertaken by Mr Stephen Dank, and as you can see there, he has been given a lifetime ban, although I hasten to add that that is subject of appeal. In relation to Jobe Watson's Brownlow Medal, it's not up to me to voice any view on that. That's entirely a matter for the AFL.
QUESTION: The Players Association, even after this decision said they don't have a great deal of faith in the WADA regime and that ASADA was part of that. You talk about moving on and working with the AFL to go on from this; how does criticism like that, even after CASA's decision, where does that put ASADA?
BEN MCDEVITT: Look, I have found Gill McLachlan and the AFL and their integrity team good to work with in terms of adherence to the code, the world anti-doping code. It's not a perfect code. It's in its third iteration, it takes a long time for submissions - and hundreds of submissions are received from sporting bodies and governments and everything else in each iteration of the code. You know, it's fair to say that I think it's always going to be a work in progress. But I defy anybody to say that it's not suited to team-based sport, because there's lots and lots of Olympic sports which are team-based sports. I do think that it's appropriate; I think what you've seen here is a system that, though it's protracted, has reached the right conclusion, and ultimately we are now at the end of the journey. I think the right outcomes have been released. The Players Association are entitled to express their view. We will continue to do what we can as an effective and ethical regulator that works within the framework.
I don't have any bias against any individual sport, team or athlete. We have 85 sports in this country which are subject to the anti-doping framework. I think I've said previously that in the last 12 months in the order of 50 athletes from ten different sports have been subjected to sanctions under that regime. I think it's reasonably effective. But as I said earlier, I do think we can work to streamline the processes from alleged violation to their conclusion.
QUESTION: The bulk of these players are from- are still playing with Essendon. Some have moved on to other clubs now. Do you think it's fair these other clubs now have been punished because of the actions of the Essendon Football Club, in that they now can't use those players, some of them who are key players for them?
BEN MCDEVITT: Well, I mean look, that's a matter I guess for the clubs and the AFL. My only point would be that I think right through this matter, through the last three years, everything's been very transparent, very visible, and the media have - there's been very comprehensive coverage, so I would assume that in any transaction of movement of a player, all parties would have probably been aware that there were some events that were possibly still unfolding.
QUESTION: Is ASADA resourced and funded well enough to meet public expectations?
BEN MCDEVITT: That's a good question, you'll never see a CEO of any government agency say that they could do with less resources. That would be my first point. We have shifted our focus quite considerably over the last 18 months or so, away from being an agency which is test centric in terms of collection of blood and urine - not that that's not still a very important tool in an anti-doping agency's armoury - across to more effort into investigations and intelligence, so that our testing program is then much more targeted, so that we are testing for the right substance, the right athlete at the right time. And so I think to that extent, we've got the balance about right, but of course I wouldn't say no to any more resources, if they came to be offered to us.
QUESTION: Are you confident that the AFL will remain a signatory and not go down the road of American baseball or NFL and not be a signatory to WADA?
BEN MCDEVITT: Well in all of the discussion that I have had with Gill McLachlan, this has come up on a couple of occasions, and Gill's always expressed to me a commitment to clean sport and to the AFL maintaining its position within the WADA and ASADA anti-doping framework. That doesn't mean that Gill, as with other sports administrators, might not want to try to influence the framework and its direction, and that's fair and reasonable and there are opportunities for that. But Gill's shown a real preparedness to work with us and to keep target hardening their sport, which is what we want to do.
QUESTION: When this story broke it was labelled the blackest day in Australian sport - do you agree with that assessment? And secondly, there were suggestions that there were links to organised crime in terms of some of the provisions of the prohibited substances. What's your view on that link now?
BEN MCDEVITT: My personal view is that the term blackest day in sport was, you know, sort of not helpful, and hasn't been helpful in any way throughout this. I believe- my personal view is that the release of the report and the manner of the report, and the manner in which it was released was ill-conceived and ill-timed, and I believe it placed this agency, ASADA, in an extraordinarily difficult position, where it had to commence investigations where clubs were named within 24 hours, and where it then had to go about collecting evidence under the glare of a media spotlight. That is not the way - that's totally opposite to the way that an anti-doping organisation would not work- would work.
In relation to the report itself, I think that there was - whilst I think what you've got is a message and then a message delivery system - I've just said my view about the message delivery system - I think the message itself, the report itself, the Aperio report has a lot of integrity. I think you've seen that through - you know, we have now had multiple violations proved in two different sporting codes. As I've said, we've had over 50- around 50 athletes sanctioned across ten different sports in the last 12 months. We've had significant surges in the seizures of peptides and steroids at the border in the last 12 months, significant increases in those seizures.
We have had significant increases of arrests for steroids. We've had an absolute surge of young people engaging in peptide use and performance enhancing and image enhancing substances. Not all for performance enhancement, and quite often seems to be the case that it's more about image enhancement. But at the end of the day I think where we are now has shown that there were definite elements of fact and truth lying within the intelligence in that report.
QUESTION: The Health Minister Sussan Ley has come out with a statement today claiming the- which refers to the previous Labor Government in that blackest day in sport, and the media treatment of that report at the time, and blames the previous government for prolonging or dragging out this investigation. What do you have to say about that?
BEN MCDEVITT: Well it's not for me to get involved in politics. My comment was - and is - that I do believe that the release was ill-conceived and ill-timed in terms of ASADA, the agency - and don't forget this was 18 months before I got to ASADA - but I think it obviously placed ASADA in an extraordinarily difficult position in terms of it being then able to actually do its job, and determine whether or not some of the things that were being spoken about had a factual basis behind them.
QUESTION: Do you think it dragged out the investigation though, the political handling of that?
BEN MCDEVITT: Look, there were multiple reasons I think why the actual investigation took as long as it did, and don't forget, you know, one of those - and a number of these reasons have been accepted by the Court of Arbitration for Sport, and in the- and by the NRL Tribunal in relation to the Cronulla matters. It did take time, for example, for ASADA to be able to - for the passage of legislation to go through Parliament so that ASADA could be armed with the sort of powers that it needed to conduct this sort of investigation. And that's just one example.
QUESTION: What about James Hird's role in all of this? What do you think about him, he's a legend of the game, what do think- how do you think football will view him now?
BEN MCDEVITT: Well I don't- I mean, that's up to the spectators, the fans, the AFL, and the club, as to how - you know, the history books will portray James Hird. Thanks very much.