Essendon AFL Drug Saga

CORRUPTION

“GUILTY”: JAMES HIRD AND JOBE WATSON

OR

AFL, ASADA, WADA, CAS AND PRIME MINISTER JULIA GILLARD?

Background:

1. The World Anti-Doping Agency (WADA) had to prove to the Court of Arbitration for Sport (CAS) Tribunal that it was comfortably satisfied that Jobe Watson and 33 of his teammates had been administered the alleged WADA prohibited substance Thymosin Beta-4 in 2011 or 2012 and that Thymosin and TB-500 were the same substance as Thymosin Beta-4.
   
   
2. Although the CAS found Watson and his teammates guilty, it is my contention that my website www.essendonafldrugsaga.com contains detailed irrefutable proof that the CAS decision was based on corrupt and inept action by the CAS, ASADA, AFL, Gillard Government and incomprehensibly, the Essendon board.

1. In the following analyses, the terms ‘corruption’, ‘biased’, and ‘incompetent’/’inept’ are employed strictly according to their dictionary definitions.
   
   i. Corruption: “the process by which a word or expression is changed from its original state to one regarded as erroneous or debased”.
   
   ii. Biased: “unfairly prejudiced for or against someone or something”.
   
   iii. Inept/incompetent: “showing a lack of skill or ability not done well”.

Facts proving Jobe Watson and his teammates were NOT GUILTY:

1. At clause 93 of his 15 January 2015 affidavit, ASADA’s head investigator Aaron Walker, the person tasked with providing WADA with all the evidence against each player, implied that there was no evidence that either Stephen Dank or Essendon ever took possession of any variety of Thymosin (my emphasis).
   
   
2. Walker accepted that Nima Alavi’s Como Compounding Pharmaceuticals was the only supplier of peptides to Dank and Essendon and his supply, stock, dispatch, courier and invoice records proved to ASADA that he didn’t supply Dank or Essendon with any variety of Thymosin in calendar 2011 or 2012.
   
   
3. Page 47 of ASADA’s Final Investigation Report states: “Similarly in the invoices obtained from Mr Alavi which pertain to Mr Dank (personally) Footnote 193 Refer to Alavi documents 14 – 24. There is no reference to any Thymosin having been supplied to him as a customer in the 2011 and 2012 calendar years. For completeness Mr Alavi was also required to produce his entire dispensing records as they pertained to Mr Dank as an individual footnote 195 Refer Alavi document 48-50.” Res ipsa loquitur, if you didn’t take possession of Thymosin Beta-4, you can’t administer it and Watson, and his teammates could not have been administered it. Clearly, neither Watson nor his teammates should have been charged, let alone found guilty.
   
   
4. ASADA breached Section 317 of the Crimes Act by tampering with the evidence. In the briefing documents submitted to the WADA legal team, ASADA changed the word Thymosin to Thymosin Beta-4 on 51 occasions. Res ipsa loquitur, if Thymosin were the same substance as Thymosin Beta-4 as claimed by ASADA and WADA, there would have been no need to change Thymosin to Thymosin Beta-4. As it transpires, WADA’s expert witnesses Professor Handelsman and Professor Vine testified that Thymosin and Thymosin Beta-4 were different substances. Both testified under oath that Thymosin Beta-4 contained 43 amino acids in a specific sequence and that Thymosin contained significantly fewer amino acids.
   
   
5. WADA did not prosecute the case against Watson as an individual nor prosecuted the case against each of Watson’s teammates as was required by law to find them guilty. Clearly, it was therefore impossible and unjust to find against any of the players.
   
   
6. The foregoing notwithstanding, in October 2019, ASADA CEO David Sharpe told parliament that Thymosin Beta-4 by name’s status was changed to prohibited between 10:34:17 AM and 12:59:17 PM on 4 February 2013. Sport Integrity Australia’s (SIA) Sally Cook notified me on 27 July 2020 that on 30 September 2017, SIA (the renamed ASADA) had been sent the WADA 2018 List of Prohibited Substances and Methods along with the 2018 Summary of Major Modifications and Explanatory Notes that would be effective on 1 January 2018. The Summary of Major Modifications included the statement: “Thymosin β4 was added as example of prohibited growth factors.” (my emphasis), which begs the question, why were the players charged in 2013 for using a substance that wasn’t banned by name until 2018?
   
   
7. FOI request (20-4) responses by ASADA to me also provided irrefutable proof that Dank didn’t take possession of Thymosin Beta-4 during calendar 2011 and 2012. In a successful attempt to have ASADA/SIA confirm in its own words that it had no evidence that the players were guilty of being administered Thymosin Beta-4, I made an FOI request (20-4) on 9 June 2020 for the following information:
   
   i. A delivery note that indicates that Como Compounding Pharmacy received Thymosin Beta-4 on or about 28 or 29 December 2011. Sport Integrity Australia (formerly ASADA) stated in writing on 21 August 2020 that there is no delivery note.
   
   ii. An invoice that indicates which organisation supplied the substances delivered to Como Compounding Pharmacy on 18 February 2012. SIA claimed in writing on 21 August 2020 that such an invoice didn’t exist.
   
   iii. A record of payment for the substances delivered to Como Compounding Pharmacy on 18 February 2012. Incomprehensibly, SIA claimed it was exempt, which was a lie. Clearly, if there were no invoice for the substances (see point (ii) above), Como had no one to pay. According to Como records, there was no such payment.
   
   iv. A stock record from Como Compounding Pharmacy that indicates that it stocked Thymosin Beta-4 between January 2012 and June 2012 – SIA claimed it didn’t exist.
   
   v. A dispatch record from Como Compounding that indicates that vials of Thymosin Beta-4 were delivered to Stephan Dank / Essendon FC between January 2012 and September 2012. SIA claimed it didn’t exist.
   
   vi. A record from a courier company that vials of Thymosin Beta-4 were delivered to Stephen Dank/Essendon FC between January 2012 and September 2012. SIA claimed no such document exists.
   
   vii. A record of payment by Stephen Dank or Essendon for vials of Thymosin Beta-4. SIA claimed no such document exists.

My comment: The foregoing ASADA/SIA responses to my FOI (20-4) request is irrefutable evidence that Dank never took possession of Thymosin Beta-4 and therefore, he could not have administered it to Jobe Watson and his 33 teammates.

James Hird was destroyed because a corrupt AFL needed a victim 

James Hird was appointed senior coach of Essendon Football Club in September 2010. Hird was on his own branch of the Essendon organisation structure and reported directly to Chief Executive Officer, Ian Robson.

Hird had four assistant coaches reporting to him – Mark Thompson, Brendan McCartney, Simon Goodwin and Sean Wellman.

Incomprehensibly, in what was probably a world first, the Essendon football department was on a different branch of the organisation structure from Hird’s coaching branch. The football department was run by Paul Hamilton, whose title was General Manager – Football Operations. Unbelievably, Hird had neither a direct nor broken line link to Hamilton.

Hird’s coaching department only had a broken line link to Hamilton’s football department through high-performance managers Stuart Cormack and his replacement Dean Robinson and people and development manager Danny Corcoran.

Although Hird, like Hamilton, reported directly to the chief executive, Ian Robson, he was, unlike Hamilton, not a member of the executive.

The high-performance unit formed part of the football department and Cormack and then Robinson, reportedly directly to Hamilton.

The exclusion of the coaches from the football department resulted in significant confusion and missteps. Key stakeholders, including the AFL, ASADA, Ziggy Switkowski and the media, fabricated Hird’s responsibilities and his correct communication pathways. This structural anomaly and fabrication led to catastrophic mistakes and severe damage to Hird, in understanding who was accountable for various football operations; including Robinson and Dank’s supplement programmes, and occupational, health and safety responsibilities, and disrupted effective communication with external parties.

It is impossible to determine James Hird’s legal responsibilities without understanding matrix organisations, the Essendon organisation structure and the Victorian Occupational, Health and Safety Act.

Unfortunately, despite numerous pleas to the media, no journalist was prepared to mention matrix organisations or publish the Essendon organisation structure and applicable sections to Hird in the Victorian Occupational, Health and Safety Act that I sent them on several occasions. They weren’t interested, clearly, because they couldn’t continue their unconscionable vendetta against Hird if they had published it.

Incomprehensibly, neither the AFL nor ASADA nor Ziggy Switkowski referred to the Essendon organisation chart nor Hird’s responsibilities under the Victorian OH&S Act – decisions which made their reports worthless in terms of individual responsibilities.

Matrix organisation structures have been embraced by organisations since the late twentieth century to leverage and recognise the professional credentials and expertise of an increasingly specialised workforce. This ensures that elite subject matter experts have the authority and responsibility commensurate with their professional credentials and are not politically buried deep within archaic ‘command and control’ structures.

In addition, professional experts are held to account to the standards and ethics of their own profession that CANNOT be eroded or ignored by the commercial or other organisational hierarchy. Doctors, lawyers (Andrew Dillon), accountants and human resource specialists, etcetera, are all sworn to codes of conduct that is core and conditional to their accreditation. Thus, no one could legally override Dr Reid on medical matters at Essendon, and no one, including Andrew Demetriou, Mike Fitzpatrick and Gillon McLachlan, could override general counsel Andrew Dillon on legal matters at the AFL.

The Essendon board and executive were at least implicitly aware of this when they created an organisation that accorded solid line reporting by specialists to their accountable manager whilst with persons and departments which they ‘served and advised’ having dotted line reporting relationships.

Solid line accountability and reporting represent authority and responsibility with rights to:

• Set policies and procedures to ensure proper compliance with standards their professions demand

• Provide the formal Quality Assurance for the provision of their professional expertise

• Hire and fire, performance manage and therefore promote and remunerate staff within their department

This meant that Hird only had authority over, and responsibility for, Mark Thompson, Brendan McCartney, Simon Goodwin and Sean Wellman.

Dotted line accountability denotes consultation, advice and provision of expert services. This meant that Hird could consult with, and seek advice from, Dean Robinson and Danny Corcoran. Despite Carowhine Wilson’s ignorant rantings, Hird had no power to admonish, let alone discipline Robinson or Corcoran or Dank or anyone in any department other than his own coaching department. 

Every organisation is subject to legal and regulatory framework that is general to all organisations. In addition, there are legal and regulatory requirements and enforcement agencies particular to specific industries such as professional sport.

The AFL commissioners and Essendon board members were obliged to ensure that the chief executive established an organisation, policies and procedures that complied with all legal and regulatory requirements. AFL general counsel Andrew Dillon was delegated responsibility and authority for designing and enforcing rules and processes to ensure compliance.

At Essendon, the line of authority for the supplementation programme was Robson, Hamilton and Robinson, with the proviso that Dr Reid could not be overruled.

No executive in a line role, as in the football and coaching departments, was expected, or indeed allowed, to establish policies, introduce procedures or intervene or ignore the application of any such rules and regulations.

Unconscionably, ASADA, tampered with the evidence (page 62 of ASADA’s interim report) in stating that: “Robinson in turn reported to Hird and Hamilton.” In making this claim, ASADA was guilty of breaching Section 317 of the Crimes Act which carried a ten-year custodial sentence. ASADA had tampered with Robson’s evidence about the reporting protocols at Essendon.  This was grounds to have the investigation aborted. This fabricated statement was a major contributor to Hird being asked to stand aside for 12 months.

As it transpires, Hird (page 62 of interim report) rejected any suggestion that he had instructed or encouraged Robinson to ‘push the edge’.

Hird: “I have an issue with people who give people illegal products and things that would harm them. My philosophy is as stated there that any product that goes to a player must not harm them, must be approved by the AFL and WADA and the player has to consent to it, and the doctors [have] the ultimate say, but – that was expressed to Dean all the time.”

In his report, Ziggy Switkowski said: “Following concerns about the program in January (2012), the Senior Coach [James Hird] reasserted the principles about the supplement program that: ‘any supplement must be WADA and ASADA compliant; it must not be harmful to players health; players must be properly informed about anything entering their bodies, and every product was to be cleared by the doctor.’”

On 28 August 2013, AFL deputy chief executive, Gillon McLachlan, said: “James [Hird] did never set out to implement a program that could have involved performance enhancing drugs or injurious drugs.” Furthermore, the AFL acknowledged in the Deed of Settlement that “Hird did not set out to implement a supplements programme that would result in players being administered WADA prohibited substances”.

Clearly, the foregoing is irrefutable proof that James Hird did not fail to fulfil his responsibilities under his job description and obligations under the Victorian OH&S Act. Consequently, he was the victim of an unjust corrupt unprecedented attack from the AFL and media.

A few of many unconscionable actions taken by the AFL against Hird.

1. At their 5 February 2013 AFL House meeting, Gill McLachlan, Elizabeth Lukin and David Evans bullied James Hird, against his firm belief, into accepting full responsibility for what happened at Essendon in 2011 and 2012.
   
   
   
2. On 11 April 2013, prior to Hird even being interviewed, the AFL commissioners pressured Evans to sack Hird for allegedly facilitating the administering of WADA prohibited substances.
   
   
   
3. On 25 June 2013, David Evans, at the AFL’s behest, asked Hird if he would accept being banned and Essendon prevented from playing in the 2013 finals-series. Unconscionably, this AFL decision was made over a month before ASADA tabled its interim report.
   
   
   
4. Just prior to the 13 August 2013, the AFL blackmailed Hird through several evil threats that should have resulted in criminal charges such as:
   
   

   i. “I would never work in the football industry again if I continued my fight [in the Supreme Court] against the AFL.

   ii. “That the AFL would make the charges against the Essendon FC and myself public if I didn’t take their deal.

   iii. “That the AFL would take the ANZAC day game away from Essendon.

   iv. “That the AFL would make Essendon play for no points in 2014 unless I took the deal.

   v. “That they would suspend the players unless we took the deal.

   vi. “That unless I took the deal, they would charge Simon Goodwin, James and Mark Thompson.”

A small collection of Andrew Dillon’s fabricated and nonsense charges:

1. Despite severe confidentiality restrictions, on 13 August 2013, AFL’s general counsel Andrew Dillon, released to the public his 34-page charge sheet against Essendon, James Hird, Danny Corcoran Dr Reid and Mark Thompson.
   
   
   
2. The charge-sheet contained 234 grounds to support his charges. Dillon, arguably, unlawfully, basically topped and tailed chunks from the ASADA Interim Report, which I believe, in contrast to Justice Middleton, was in flagrant breach of the ASADA Act. Most of the grounds had no credibility and would have been dismissed by a judge as vexatious.
   
   
   
3. Many of the grounds were so nonsensical that many people concluded that Dillon never had any intention of pursuing this charge sheet. Some people believed it was made public for PR and propaganda purposes to undermine the Essendon players (defendants) in the public’s eyes. 
   
   
   
4. Unconscionably, the grounds were untrue or were not part of the interim report, which was the brief of evidence. Some of the grounds came from the Switkowski Report but as that report was bizarrely never given to the ‘defendants’ they should never have been included in Dillon’s charge-sheet.

 

Item (Dillon) (1 (o) iv): “Players were administered substances that were prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code.”

Response: This is pure fabrication and no doubt would have influenced the public’s opinion of Essendon, Hird, Thompson and Corcoran. There is no evidence in the interim report that the players were administered prohibited substances. It was reprehensible for Dillon to make such a charge when ASADA, at that stage, was unable to do so.

Item (Dillon) (12): “In or around August 2011, the Club determined to implement a scientifically pioneering program relating to the administration of supplements to its players in preparation for, and during, the 2012 AFL Premiership Season.”

Response: There was nothing wrong in embracing a scientific programme. According to the AFL’s Adrian Anderson email on 24 April 2012, every club in the league had introduced a scientific programme, including the AFL owned Gold Coast Suns, where Stephen Dank and Dean Robinson designed the scientific programme.

Item (Dillon) (13a) “Between August 2011 and the end of 2011 the Club became aware that the program was to push to the legal limit.”

Response: This is pure fabrication. Dr Reid expressed his concern about one substance to the AFL’s medical director Dr Harcourt on 19 October 2011. Harcourt gave it the-all-clear. Furthermore, the interim report contains over 110,000 words and “push to the legal limit” is not mentioned once. The term was not in the brief of evidence. Dillon was aware that the interim report did not contain the term “push to the legal limit” and he therefore was being dishonest in incorporating the term in his grounds to support the charges.

Item (Dillon) (25a) “Thompson pushed very strongly for the appointment of Robinson, notwithstanding the fact that Thompson knew or believed that there were significant concerns about the manner in which Robinson had conducted himself.”

Response: Claiming that “Thompson knew or believed that there were significant concerns about the manner in which Robinson had conducted himself” is untrue. Thompson made no such comment. Hamilton testified that “Robinson was working with Mark [Thompson] through two premierships, so they obviously had a good relationship. Dillon’s misrepresentation is extraordinary. Dillon was factually incorrect in claiming Robinson wasn’t subjected to adequate employment checks. Robinson had worked for both Mark Thompson and Brendan McCartney and they both acted as referees. The fact that Robinson was employed by the AFL owned Gold Coast Suns was sufficient proof that he was a man of good standing. If that were not the case, the AFL would be joint defendants.

Item (Dillon) (53): “On 10 January 2012, the Club was billed by Como for 14 vials of Hexarelin at a cost of $4,200.”

Response: There wasn’t even an allegation, let alone any evidence that Hexarelin was administered to the Essendon players. ASADA included a table labelled ‘Admitted use of substances by players’ in the interim report. Although 29+ entries were fabricated by ASADA, ASADA did not register one player admitting having been administered Hexarelin.

Item (Dillon) (62): “On 18 January 2012, the Club was billed by Como for seven vials of Hexarelin and 26 vials of “peptide Thymosin” at a combined cost of $9,860.”

Response: Dillon was guilty of withholding vital information about ‘peptide Thymosin’. Dillon should have declared in this point that the transaction was later reversed (debit to credit) before being removed from the invoice altogether.

Item (Dillon) (72): “The Thymosin referred to on the “Patient Information/Informed Consent” forms and administered to the players was Thymosin Beta-4 which is prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code (the relevant facts in relation to this allegation are set out in Annexure A to this Notice of Charge).”

Response: This is an outrageous, deceitful statement, and highlights the prejudice of ASADA, the AFL and Dillon. There was no evidence that Thymosin was Thymosin Beta-4. There was no evidence that the players were administered Thymosin Beta-4. Thymosin Beta-4 has 43 amino acids in a specific sequence. Thymosin was never tested so it was outrageous for Dillon to claim Thymosin was a synonym for Thymosin Beta-4. In the subsequent hearings, ASADA/WADA’s expert witnesses, Professors Handelsman and Vine both testified that Thymosin and Thymosin Beta-4 were different substances.

Item (Dillon) (74): “If Hird or any person at the Club had conducted any adequate inquiries in relation to the four substances referred to on the ‘Patient Information/Informed Consent’ forms they would have discovered that Thymosin Beta-4 and AOD-9604 are both peptides.”

Response: This is an unbelievable deceitful lie by Dillon. Thymosin Beta-4 wasn’t listed on the Patient Information/Informed Consent forms and Dillon knew it wasn’t.

Item (Dillon) (74c): “Hird was aware that he had advocated to Robinson and Dank that they devise and implement a supplements program that was to push the legal limit but not to cross the line.”

Response: This is pure fabrication. Dillon was guilty of making another untrue statement. Far from being aware, Hird denied he gave such instructions. A substance is either prohibited or permitted. There is no such thing as a category called “close to the limit”. Dillon has based his charges on information contained in ASADA’s brief of evidence, the interim report. The interim report contains over 110,000 words, some of which included quotes from the hopelessly flawed Switkowski report. The term “push the legal limit” was not used once in the interim report. Furthermore, it is staggering that an officer of the court believes operating within the legal limit is a ‘crime’. Presumably, Dillon doesn’t believe someone travelling at 59 kph in a 60 kph zone is guilty because it is close to the limit? Why then did he accuse Essendon of a ‘crime’?

Item (Dillon) (88): “Patient A used the services of Alavi’s Como Compounding Pharmacy to fill Willcourt’s scripts. In respect of his Amino Acid treatment, Patient ‘A’ personally bought two large (500ml) vials of Amino Acid over the counter at a local chemist in Mexico without a prescription.”

Response: This is pure fabrication. The substance was not bought over the counter in Mexico. The substance was purchased in El Paso, which is in the United States of America. The last time El Paso was in Mexico was when Jim Bowie, Colonel Travers and Davy Crockett were defeated at the Alamo in 1836. It was returned to the USA in 1846. The Mexican fabrication was created by the ASADA interviewers to scare the Essendon players and to turn against Hird, Robinson and Dank. The story was leaked to the media, which denigrated Essendon over the Mexican link. The substance was called Amino-Lite, a permitted substance.

Item (Dillon) (107): “Hird was, or ought to have been, aware that Dank’s office was not secure, was disorganised and lacked the appropriate standards of organisation, cleanliness and hygiene that should reasonably have existed if it was to be used as the location for the administration of injections.”

Response: It was unfair for Dillon to make this allegation. Evidence was given by one person that on one day, Dank’s office was not up to ‘standard’. That person didn’t define what was the appropriate standard and in which ways Dank’s office didn’t meet those standards. ASADA / Dillon had no proof it wasn’t up to standard every other day. ASADA offered no evidence that Dank’s office didn’t have a lock on the door. Neither ASADA nor Dillon offered evidence of what constituted an organised, clean and hygienic office. Nor did they offer any proof that Dank’s office didn’t meet those standards. Clearly, Hird wasn’t a janitor who was required to check the cleanliness of each office. As the AFL and Essendon were joint employers of the players, the AFL had a responsibility to provide a safe workplace. It failed to do so. The Victorian WorkSafe Authority should have investigated the AFL commissioners and Essendon board members.

Item (Dillon) Annexure A (27): “In late May 2012 Dank discovered that the Thymosin he had been providing the players (Thymosin Beta-4) was in fact prohibited.”

Response: According to Como Compounding Pharmaceutical records – supply, stock, distribution and invoices – there was no evidence that Thymosin of any variety was ever supplied to Dank or Essendon. Furthermore, Thymosin is not a synonym for Thymosin Beta-4. The term “Dank discovered that the Thymosin he had been providing the players (Thymosin Beta-4) was in fact prohibited” was another blatant Dillon lie. ASADA illegally changed the status of Thymosin Beta-4 by name on its website between 10:34:17 AM and 12:59:17 PM on 4 February 2013. As it transpires, WADA and the other 207 national anti-doping authorities changed Thymosin Beta-4 status by name on 1 January 2018. The charge sheet caused substantial damage to Essendon, Hird, Dr Reid, Thompson and Corcoran. Members of the public opined that all [234] grounds couldn’t be wrong. Dillon subsequently reduced the grounds to support his charge against Essendon from 234 to 17. But the damage had been done. Dillon had fabricated his case against Hird and Hird had been denied procedural fairness. Hird was blackmailed by the AFL through callous unconscionable threats if he didn’t drop his Supreme Court action against the AFL.

Allegation 1 of 17 in Dillon’s amended charge sheet: “Established a program relating to the administration of supplements to its players in preparation for, and during, the 2012 AFL premiership season (the Program.”

Response: This was nonsense. Every AFL club had a programme relating to the administration of supplements. Ironically, Dank and Robinson implemented a very similar programme at the AFL owned Gold Coast Suns in 2011, as they did at Essendon in 2012. To have any meaning, the AFL had to produce evidence that the programme included supplements that were WADA prohibited. It failed to do so. As it transpires, Robinson testified that while employed by the Suns, he administered a prohibited substance.  Incomprehensibly, neither the AFL nor ASADA charged the player nor Robinson nor the Suns.

Allegation 2: “Engaged in practices that exposed players to potential risks to their health and safety as well as the potential risk of using substances that were prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code.”

Response: As head of the football department, Paul Hamilton was responsible for the supplement’s program – a fact confirmed in Hamilton’s 2 February 2012 email to staff which stated that anything to do with the supplement’s programme had to come across his desk. Clearly, as Hird wasn’t a member of the football department, he wasn’t responsible for the supplement’s programme.

Allegation 3: “Disregarded standard practices involving the human resources department when employing Dean Robinson and Stephen Dank at EFC.”

Response: This was factually incorrect. It is ludicrous to suggest how the recruitment process was undertaken at Essendon constituted conduct unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute (as defined in Rule 1.6). The ASADA Act did not empower ASADA to investigate human resource practices. Clause 4.1 of the AFL’s anti-doping code stated, “Under the ASADA Act and the NAD Scheme established under that Act, ASADA has the legislative authority to investigate possible violations of the anti-doping rules under the ASADA Act and the NAD Scheme for Players and Officials under the jurisdiction of the AFL”.

Allegation 4: “Failed to conduct routine, systematic pre-employment checks in respect of Dean Robinson and Stephen Dank.”

Response: Even if Essendon’s pre-employment checks were different from those demanded by the AFL, which they weren’t, it is outrageous to suggest that it was conduct unbecoming or likely to prejudice the interests or reputation of the AFL or to bring the game of football into disrepute. The statement was also factually incorrect. Robinson worked for Essendon assistant coach, Mark Thompson, at Geelong for four years before moving to the AFL owned, Gold Coast Suns. Thompson and Robinson won two premierships together at Geelong. Thompson was the principal referee for Robinson because he worked with Robinson longer than anyone else and he knew better than anyone else in the world of Robinson’s capabilities. Essendon assistant coach, Brendan McCartney, also worked with Robinson at Geelong in a different capacity from Thompson and was able to bring another perspective to the table. McCartney acted as a second referee for Robinson and was very supportive of his appointment. As the AFL has never been in the ‘dock’ over its employment practices at the Gold Coast Suns, Essendon also assumed that the AFL had conducted routine, systematic pre-employment checks before employing Robinson at the Gold Coast Suns. As Robinson was still employed by the Gold Coast Suns, Essendon believed he must still have been a man of good standing. Dank was also employed at the AFL owned Gold Coast Suns. Essendon assumed that the AFL had conducted routine, systematic pre-employment checks before employing Dank. Dank reported directly to Robinson at the Gold Coast Suns and Robinson was very satisfied with his work and character. Essendon was entitled to use Robinson as its principal referee and the earlier actions of the AFL in employing Dank as its second referee. Robinson also claimed he checked Dank’s character with former Manly Rugby League coach Des Hasler. As it transpires, the AFL registered Dank to work at Essendon. Presumably, the AFL conducted routine, systematic pre-employment checks in respect of Stephen Dank before it registered Dank to work at Essendon!

Allegation 5: “Failed to ensure that persons with the necessary integrity, reputation, qualifications and training were engaged by the Club to implement the program.”

Response: This allegation was based on information collected by ASADA’s investigators. As the investigators did not know what a matrix organisation was, let alone knew how to interpret the information, they obviously had no qualifications to investigate human resource matters. Consequently, all grounds on human resources should have been inadmissible. Essendon assumed the qualifications and training that were required were the same as when the AFL employed Robinson and Dank at the Gold Coast Suns. The only difference was they had 12 months more experience, which Essendon interpreted as a good thing. Dr Switkowski disagreed with the AFL and Dillon. In his report, Switkowski said: “Both the head of the [High] Performance Unit [Dean Robinson] and the sports scientist [Stephen Dank] appeared to have credible qualifications in the sports science field and long periods of relevant experience in elite sport.” Dillon had no grounds for claiming Robinson and Dank didn’t have the necessary “qualifications and training to implement the program”. Robinson stayed with Gold Coast Sun’s Brownlow medallist, Gary Ablett, who vouched for his integrity in several media interviews.

Allegation 6: “Failed to ensure that those implementing the Program were adequately supervised.”
 
Response: Clause 12 of the Standard Playing Contract says, “The parties to this contract [AFL/Essendon/Player] shall use their best endeavours in relation to any matter or thing directly within their control, to bring about compliance with all the provisions of this contract.” Res ipsa loquitur, that this clause means that the AFL commissioners, which included the current Governor General Sam Mostyn, and Essendon board should have been prosecuted for not providing a safe workplace. Furthermore, one of the provisions of the contract was Clause 7.3 which said, ‘The AFL Club shall provide a playing, training and working environment which is, so far as is practicable, free of any risk to health, safety and the welfare of the player. Without limitation, the AFL Club shall carry out its obligations under the applicable Occupational, Health and Safety Act or its equivalent.’ So far as was practicable, Essendon used their best endeavours. When Mark Thompson became aware that Dank had breached the protocols, he gave Dank a severe dressing down. When Hird and Thompson learnt that Dank kept a substance in an unlocked fridge in his office, they went separately to his office and demanded he got rid of it. Essendon subsequently banned all injections and when Thompson heard that Dank had given an injection to some players, Thompson chastised Dank. In football parlance, Thompson gave Dank “an almighty spray”.

Additionally, in July / August 2012, Essendon conducted a review led by chief executive, Ian Robson, into its soft tissue injuries. Football department head, Paul Hamilton, delivered the key findings. Under the heading of ‘STOP’ were the following entries:

• [Stop] going for magic cures – Supplementation that is not medically based. Concerns with Tribulus and Creatine. IV injections. Players need to understand there is no easy solutions … We have also higher gastric upsets with intake of supplements

• [Stop] Injection mentality.

• Although Paul Hamilton was head of the football department and ultimately responsible for the supplementation program, Dr Reid was at the hub. Everything was supposed to go through him. The AFL’s decision to exonerate Dr Reid was an admission by the AFL that Essendon fulfilled its ‘best endeavours’ responsibilities. As an aside, although Robson led the review into the use of supplements at Essendon, in his interview with ASADA, he denied knowing anything about the supplements’ programme.

 

The AFL failed to do anything, despite key officials, Andrew Demetriou, Adrian Anderson, Gillon McLachlan, Dr Peter Harcourt and Brett Clothier being aware of suspected breaches at Essendon in 2011. If these key officials had responded, as they were required to under Clause 12 of the AFL’s anti-doping code, to the following incidents, the whole saga would not have occurred:

AFL integrity manager, Brett Clothier, allegedly told Hamilton, Hird and Corcoran, at their 5 August 2011 meeting, that peptides were banned and warned him not to use them. As Clothier was responsible for maintaining the integrity of the competition, he should have immediately investigated Essendon to ensure it was complying with the AFL’s Anti-Doping rules and the Victorian OH&S laws. He then should have conducted periodic audits to ensure Essendon was complying with his alleged warning. He also should have written to AFL general manager – football operations, Adrian Anderson, and to Essendon chief executive, Ian Robson, and informed them that he had issued a warning to Hamilton, Hird and Corcoran. If Clothier had done his job the whole saga would not have occurred.

On 19 October 2011, 74 days after Clothier’s meeting with Hamilton, Corcoran and Hird, Dr Bruce Reid phoned the AFL’s medical director, Dr Peter Harcourt, and told him that Dean Robinson had given the Essendon players Tribulus without his permission. Marginalising Dr Reid was a possible breach of the AFL’s Anti-Doping Code, and Dr Harcourt was required to report the possible breach immediately. Clause 4.6 of the AFL’s Anti-Doping Code says: “Where reasonable and as soon as the AFL becomes aware that a possible Anti-Doping Rule Violation may have occurred, the AFL will immediately advise ASADA of the possible violation. The AFL will provide ASADA with all information pertaining to the possible Ant-Doping Rule Violation.” Dr Harcourt failed to report the matter to ASADA. Like Clothier, if Dr Harcourt had fulfilled his responsibilities, the whole saga may not have occurred. Under Clause 8.1 (d) and (e) Dr Harcourt was also required to:

• ‘Investigate the facts and circumstances surrounding any actual or alleged Anti-Doping Rule Violation or any actual or alleged breach of this Code

• Report to the AFL General Manager – Football Operations on circumstances known to or suspected by him to amount to a breach of this Code or any practice concerning the use of drugs in Australian Football.’

 

Inexplicably, the AFL failed to do anything, despite its obligation under clause 4.6 of the AFL’s anti-doping code to report it to ASADA.

Andrew Demetriou was aware of Essendon’s interest in supplements in 2011, and aware that its doctor was marginalised by its sports scientist. He was quoted on 12 April 2013 saying, “he had erred early last year in not acting more strongly on his fears sports scientists were overruling club doctors”. Demetriou told Mike Sheahan in his 27 September 2013 interview that “We sought of had an inkling. I was privy to some information and (was) hearing things and certain things were happening Mike. At a couple of clubs, we were having doctors being marginalised. There were just things happening and it was part of an unhealthy, and oh, it was just an awkward trend which we didn’t like, and I regret that we didn’t do something earlier. This was a misleading and disgraceful admission. “I regret we didn’t do something earlier” implies that the AFL did something. That is factually incorrect. The AFL failed its governance obligations in that it didn’t fulfil its duty of care obligations to the Essendon players. Demetriou clearly acknowledged that he didn’t fulfil his responsibilities and was accepting some blame for what happened at Essendon.

Gillon McLachlan believed that the AFL could have acted which would have prevented the whole saga. McLachlan accepted some responsibility on behalf of the AFL for the saga when he told SEN radio on 28 August 2013:

• “The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011”

• “The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.”

• “I don’t think that we can shirk it in every instance, I’m happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldn’t be in this situation.”

• “People need to take various forms of accountability and I’ll take that.

 

Clause 7.4 of the AFL’s Anti-Doping Code states: ‘Before the commencement of the AFL Competition in each year each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last Match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer of writing of all substances and medications he subsequently takes or uses during the AFL Competition in that year. Each Club Medical Officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the Club.’ If Essendon were supposed to ensure that those implementing the program were adequately supervised, the AFL surely had a responsibility to ascertain whether the clubs were fulfilling their responsibilities. If the AFL had conducted a simple audit at Essendon (and the other clubs) to ascertain whether it had fulfilled its obligations under Clause 7.4, it would have become aware of the potential problem 12 months before it did. 

Allegation 7: “Failed to devise or implement adequate systems or processes to ensure that some substances provided to and used by players were safe and were compliant with the AFL Anti-Doping Code and the World Anti-Doping Code.”

Response: The AFL did not identify any substance that was administered to the players which was not safe. The AFL did not identify any substance that was administered to the players which wasn’t compliant with the AFL Anti-Doping Code and the World Anti-Doping Code. Dank and Robinson had used all the substances with their previous clubs, including the AFL owned Gold Coast Suns. In their expert opinion, all substances that they administered were safe. All substances, including general household pills such as Aspirin, Noten, Lipitor, Caltrate et al, have side effects for some people, but are still deemed to be safe.

Allegation 8: “Failed to have proper regard to player health and safety, including failing to ensure that some substances had no potentially negative effects on players.”

Response: The AFL didn’t identify any substances that potentially had negative effects on players. The AFL didn’t identify any behaviour by Dank and Robinson that indicated they didn’t have proper regard for the players’ health and safety. The interim report did not identify any negative effects suffered by the players other than normal side effects associated with substances, including household substances such as Aspirin.

Allegation 9: “Failed to identify and record the source from which some substances used by players were obtained.”

Response: This was a false allegation. Although Hamilton or Robinson may not have created a spreadsheet containing this information, the finance department obviously had invoices and statements from the supplier that contained this information.

Allegation 10: “Failed to adequately monitor and record the use of some substances.”

Response: This allegation was not Hird’s responsibility. As head of the football department, it was Hamilton’s responsibility. Ironically, clause 7.4 of the AFL code stated that the beginning of the season, every player at every club had to lodge a document with their club doctor of every substance taken in the previous 12 months. As transpires no club complied and incomprehensibly, the AFL never checked with a single club to check with compliance.

Allegation 11: “Failed to audit or monitor some substances held on the premises of EFC.”

Response: There is no evidence in the interim report supporting this allegation. Dank and Robinson oversaw the programme and they knew which substances were held on the premises. Furthermore, every substance that was bought for use at Essendon was invoiced by the supplier. Clearly, although there may not have been a spreadsheet, the finance department was aware of which substances had been purchased.

Allegation 12: Failed to implement a system for recording and storing some substances held on the premises of EFC;

Response: This was virtually the same allegation as allegation11.

Allegation 13: “Failed to meaningfully inform players of some substances the subject of the Program and obtain their informed consent to the administration of some of the substances.”

Response: Clause 5.3 (c) of the AFL Anti-Doping Code states, ‘It is the obligation of each Person to whom this Code applies to inform himself of all substances and methods prohibited under this Code. It is not a defence to any claim that a Person has breached this Code for that Person to contend:

i. ignorance that a substance or method is prohibited.

ii. an honest and reasonable, but mistaken, belief that a substance or method is not prohibited under this Code.

 

The OH&S Act notwithstanding, this clause clearly states that the onus was on the players to demand that they be informed. Dank informed the media that each player was told what substance he was being administered and each player consented to being administered it. If there were a failure it was shared by the AFLPA and AFL, both of whom have responsibility to educate the players only to be administered WADA permitted substances.

Allegation 14: “Failed to take appropriate and adequate action when it became aware of facts that suggested that unsatisfactory and potentially risky practices were occurring in relation to the administration of supplements.

Response: It’s impossible to imagine a more hypocritical comment. Andrew Demetriou was aware of Essendon’s interest in supplements in 2011, and aware that its doctor was marginalised by its sports scientist. He was quoted on 12 April 2013 saying, “he had erred early last year in not acting more strongly on his fears sports scientists were overruling club doctors”. Demetriou told Mike Sheahan in his 27 September 2013 interview that “We sought of had an inkling. I was privy to some information and (was) hearing things and certain things were happening Mike. At a couple of clubs, we were having doctors being marginalised. There were just things happening and it was part of an unhealthy, and oh, it was just an awkward trend which we didn’t like, and I regret that we didn’t do something earlier.

Gillon McLachlan believed that the AFL could have acted which would have prevented the whole saga. McLachlan accepted some responsibility on behalf of the AFL for the saga when he told SEN radio on 28 August 2013:

• “The AFL dropped the ball by not monitoring the Essendon supplement program after advising coach James Hird to steer clear of using peptides in August 2011

• “The fact potentially though that we weren’t out there regularly monitoring is potentially a failing of the AFL.”

• “I don’t think that we can shirk it in every instance, I’m happy to take that on the chin in the sense that if we had gone out there every month and monitored it, then maybe we wouldn’t be in this situation.”

• “People need to take various forms of accountability and I’ll take that.

 

Inexplicably, the AFL failed to do anything, despite its obligation under clause 4.6 of the AFL’s anti-doping code to report it to ASADA.

Allegation 15: “Permitted a culture at EFC of frequent, uninformed and unregulated use of the injection of supplements.”

Response: The AFL did not quantify how frequently even one player was administered substances, let alone how frequently all 44 were administered substances. The AFL did not identify one substance about which the players weren’t informed. The AFL did not define what ‘unregulated’ meant. The interim report did not identify the legal frequency for one substance to be administered, let alone the legal frequency for each of the substances administered to the players. The interim report did not identify one substance administered to one player which was more than the WADA code permitted. ASADA made no attempt to make a case that injecting players was in breach of any laws or codes.

Allegation 16: “EFC failed to ensure it adequately protected the health, welfare and safety of the players; there was a risk that Essendon players could have been administered substances prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code and any such risk is an unacceptable risk.”

Response: This has been answered in numerous points above. The AFL hasn’t identified the substances that it alleges the players were administered, which it alleges were prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code. There is no evidence in the interim report that the players were administered prohibited substances.

Allegation 17: “EFC is unable now to determine whether players were administered some substances prohibited by the AFL Anti-Doping Code and the World Anti-Doping Code.”

Response: The AFL has not even identified one WADA prohibited substances that was administered to the players, so this statement is irrelevant.

Conclusion:

Two components provide irrefutable proof that James Hird was arguably the victim of the most callous attacks by a governing body in Australian sporting history:

1. None of the charges and allegations in Andrew Dillon’s 34-page charge sheet and 17 allegations’ charge sheet applied to Hird. Inter alia, although the AFL registered Dean Robinson and Stephen Dank to work at the AFL owned Gold Coast Suns and at Essendon, it punished Hird for being one of six people who supported Robinson and Dank’s employment at Essendon.
   
   
   
2. When Hird initiated proceedings in the Supreme Court because of his perceived horrendous treatment of him by the AFL, the AFL responded with the evillest imaginable BLACKMAIL affecting 34 players and hundreds and thousands of innocent Essendon supporters. Viz: The AFL made the following threats to Hird:
   
   i. “I would never work in the football industry again if I continued my fight [in the Supreme Court] against the AFL.
   
   ii. “That the AFL would make the charges against the Essendon FC and myself public if I didn’t take their deal.
   
   iii. “That the AFL would take the ANZAC day game away from Essendon.
   
   iv. “That the AFL would make Essendon play for no points in 2014 unless I took the deal.
   
   v. “That they would suspend the players unless we took the deal.
   
   vi. “That unless I took the deal, they would charge Simon Goodwin, James and Mark Thompson.”

Res ipsa loquitur, initiating abominations and villainy of this magnitude is irrefutable proof that Hird was innocent of all the charges. Furthermore, it is evidence of how desperate the AFL, its commissioners and its senior executives were for Hird to withdraw his Supreme Court proceedings.

Facts proving that the AFL, ASADA, WADA, CAS and the Gillard Government were inept and corrupt:

AFL:

Possible Criminal Charges

A former Supreme Court judge (QC), who I hadn’t met, contacted me after reading my work on his friend’s Facebook page. He was particularly concerned that the AFL had acted unlawfully during the saga to convict James Hird, Mark Thompson, Danny Corcoran, Jobe Watson and 33 of his teammates.

He visited me at my home and sent me the following analysis and opinion.

1. The AFL conspired with ASADA, Essendon and the Federal government on 9 February 2013 to fix the result of their investigation before the first witness was interviewed.

(A POSSIBLE CRIMINAL CONSPIRACY)

 2. The Essendon board endorsed the agreement reached by the AFL, ASADA and the Gillard government.

(A POSSIBLE CRIMINAL CONSPIRACY)

3. The action of AFL Chief Executive Andrew Demetriou continually implying in the media that Essendon and James Hird were guilty.

(A POSSIBLE BREACH OF THEIR RIGHT TO PROCEDURAL FAIRNESS)

4. The AFL briefed the proposed jury (the AFL Commissioners) on the evidence before the investigation was completed.

(A POSSIBLE SUBORNING OF DECISION MAKERS AND INTERFERING WITH THE PROCESS OF JUSTICE)

5. The AFL informed the ‘jury’ before the investigation was completed that the Essendon Football Club, James Hird, Danny Corcoran and Mark Thompson were guilty.

(A POSSIBLE SUBORNING OF DECISION MAKERS, INTERFERING WITH THE PROCESS OF JUSTICE AND PERVERTING THE COURSE OF JUSTICE)

6. The AFL informed the ‘jury’ before the investigation was completed what some of the penalties would be.

(A POSSIBLE PERVERTING THE COURSE OF JUSTICE)

7. The AFL bullied and blackmailed the Essendon Football Club, James Hird, Danny Corcoran and Mark Thompson to accept the penalties before charges were laid.

(A POSSIBLE CRIMINAL DURESS TO PERVERT THE COURSE OF JUSTICE)

8. The Essendon board agreed to the fraud to mitigate the threat of more severe penalties.

(A POSSIBLE CRIMINAL CONSPIRACY)

9. The AFL condoned ASADA changing evidence – inter alia, ASADA tampered with the evidence by changing Thymosin to Thymosin Beta-4 on 51 occasions; omitted evidence; and fabricated evidence to help the AFL create a case against Essendon, Hird, Corcoran and Thompson.

(A POSSIBLE PERVERTING THE COURSE OF JUSTICE AND PERJURY)

10. The AFL denied Hird procedural fairness by wanting him stood aside as coach before he was even interviewed.

(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE)

11. At the AFL’s behest, on 25 June 2013, David Evans asked James Hird if he would agree to be suspended and Essendon be banned from playing in the finals-series.

(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE)

12. On separate occasions, deputy AFL chief executive Gillon McLachlan (26 June 2013) and Andrew Demetriou (24 July 2013) asked ASADA chief executive Ms Aurora Andruska to omit information from the interim report. Those omissions may have contributed to the AFL being able to defraud Essendon of $2 million.

(A POSSIBLE INTERFERING IN THE COURSE OF JUSTICE AND CONSPIRACY TO PERVERT THE COURSE OF JUSTICE)

13. The AFL asked ASADA to include things in the interim report to prove guilt. This contributed to the AFL defrauding Essendon of $2 million.

(A POSSIBLE CONSPIRACY AND PERJURY)

14. The AFL condoned ASADA’s investigator John Nolan attempting to ‘doctor’ (inflate) the Essendon injection figures on 15 July 2013, to build the case against Essendon.

(A POSSIBLE ATTEMPTED FORGERY AND CONSPIRACY)

AFL breaches of WADA/ASADA codes and miscellaneous corruption

1. The WADA/ASADA Code included a clause that said if a non-medical doctor (such as Stephen Dank) had previously supplied a member of the public (such as a crippled eighty-year-old with a banned WADA substance), that person (Dank) was prohibited from working with a WADA affiliated organisation (AFL) or athlete.
   
   
2. Clearly, the AFL breached the WADA Code by employing Stephen Dank at the Gold Coast Suns prior to him joining Essendon. Furthermore, the AFL breached the code by registering Dank to work at Essendon. Res ipsa loquitur, if the AFL hadn’t breached the code, the whole Essendon Saga would not have occurred. Incomprehensively, the AFL unjustly penalised James Hird, Mark Thompson and Danny Corcoran for doing what it had done, employing Dank.
   
   
3. The AFL’s general counsel Andrew Dillon failed to ensure the AFL acted within the codes.
   
   
4. I have two emails that prove Andrew Demetriou spread a highly defamatory, horrific fake rumour.
   
   
5. The AFL jeopardised the health and lives of the Essendon players by not warning them that they may have been taking dangerous life-threatening supplements.
   
   
6. The AFL/ASADA never developed proper Terms of Reference for the investigations.
   
   
7. The AFL indulged in what most people would call “Match Fixing” on 9 February 2013 when it agreed on the result of the investigation four days before the first witness was interviewed. Match fixing in cricket results in gaol. Match fixing in tennis has resulted in a twenty-year ban. In 1984, John Gillepsie and horse trainer Hayden Haitana served prison time and were suspended for life for attempting to fix a race at Eagle Farm by substituting Bold Personality for Fine Cotton.
   
   
8. The AFL defrauded Essendon members by pre-selling seats to the 2013 finals-series in which Essendon was certain to qualify but it had already decided to ban Essendon from playing in the finals.
   
   
9. The AFL denied Essendon, Hird, Thompson and Corcoran procedural fairness.
   
   
10. The AFL breached its own OH&S responsibilities but reprehensibly fined Essendon $2 million for the identical offence.
    
    
11. The AFL conspired with ASADA, Gillard Government and the Essendon board on 9 February 2013 to breach the WADC no fault clause.
    
    
12. The AFL corrupted the evidence.
    
    
13. The AFL Commissioners were in breach of directors’ responsibilities.
    
    
14. The AFL bullied and blackmailed ASADA.
    
    
15. The AFL bullied and blackmailed Essendon into accepting guilty findings and punishment. Although, by August 2013, the AFL had no evidence of wrongdoing by the players, it threatened to suspend them if James Hird didn’t abandon his Supreme Court case against it, and take the penalty that it had offered him.
    
    
16. The AFL was guilty of lying to conceal their unlawful activities.
    
    
17. The AFL failed to fulfil its responsibilities, and therefore, should itself have been investigated. As the subject of an investigation, it could not and should not have been an investigator, and therefore, ASADA could not have used the AFL’s powers to force players to give evidence. This was an illegal use of AFL powers to compel the players to give evidence and in a way that ensured that in breach of ASADA protocols, it would be made public.
    
    
18. Improper use of AFL powers to compel production of evidence: Prior to the commencement of the amendments to the ASADA Act on 1 August 2013, ASADA did not have powers to compel persons to attend interviews or to produce documents as part of an investigation.  In contrast, as part of the AFL Player Rules and the AFL Regulations, the AFL at all relevant times had such powers in respect of AFL club players and personnel. 
    
    
19. Although in the Federal Court Justice Middleton ruled that it was within the law for ASADA to have relied upon the AFL’s powers to gather evidence in carrying out the investigation, AFL players should not be investigated differently from other sportspeople by ASADA in any material respect.  By relying upon evidence that ASADA itself did not have the power to gather, this is precisely what took place. And the AFL is to blame for initiating it.
    
    
20. The joint investigation enabled ASADA to gain access to documents the Act said it wasn’t entitled. For example, ASADA gained access to 98,000 SMS texts and emails. Given that there were more leaks from the investigation than from the G’s men’s toilets on a hot Boxing Day Ashes Test, it is frightening what personal information the investigators acquired and passed onto mates from those SMSs and emails.
    
    
21. The irony of the joint investigation is the ASADA investigators castigated Essendon for allegedly pushing the boundaries, but the AFL allowed ASADA to push beyond the boundary to gain access to documents the Act prevented it from having.
    
    
22. As it transpires the joint investigation was a façade. It was fraudulent behaviour which enabled ASADA to circumnavigate the law. As an example of the façade, the Interim Report was written solely by ASADA staff and included 277 questions asked by ASADA and only four asked by AFL investigators. One of those questions asked by the AFL representative was a deliberate ploy to shift the blame from the General Manager – Football Operations, Paul Hamilton to Hird by altering his reporting responsibilities. The AFL stated on several occasions that they were assisting ASADA. Assisting is substantially different from running a joint investigation with ASADA.
    
    
23. Subterfuge / Misrepresentation: According to ASADA, “The investigation has sought to establish whether players and support persons from Essendon Football Club used substances or engaged in methods prohibited by the World Anti-Doping Authority (WADA) and the AFL’s Anti-Doping Code.” If this were the only objective there was no reason for the AFL to be involved in a joint investigation because ASADA had the expertise to investigate possible drug violations.
    
    
24. The ASADA Act is very strict in defining what tasks it can undertake. Clause 4.1 of the AFL Anti-Doping Code states “Under the ASADA Act and the NAD Scheme established under that Act, ASADA has the legislative authority to ‘investigate possible violations of the anti-doping rules under the ASADA Act and the NAD Scheme for Players and Officials under the jurisdiction of the AFL’”.
    
    
25. ASADA allowed itself to be manipulated by the AFL and broadened its investigation to not only cover subjects that were never envisaged by the Act but subjects that were outside ASADA’s area of expertise.  Without informing anyone, and without even acknowledging it in its Interim Report, ASADA and the AFL widened the investigation to ascertain:
    
    • Whether Essendon breached its duty of care to provide a safe workplace for its players.
    
    • Who was responsible if indeed Essendon had failed to provide a safe workplace for its players.
    
    • Whether Essendon disregarded standard practices involving its human resource department when employing [Dean] Robinson and [Stephen] Dank.
    
    
26. At no stage did ASADA or the AFL acknowledge the additional objectives of its investigation, although a large part of the Interim Report is devoted to them. In agreeing to operate outside its charter, and in agreeing to investigate who was responsible if Essendon had failed to provide a safe workplace, ASADA inadvertently, created the opportunity to expose the previously protected Essendon board and the AFL for major failures.
    
    
27. The Victorian Occupational, Health & Safety Act proclaimed that the AFL and Essendon board, in their capacity as joint employers of the players, were most responsible for providing a safe workplace at Essendon. The AFL’s two agreements with Essendon, the bi-lateral agreement to play in the competition, and the tripartite agreement between the AFL, Essendon and each player, required it do everything possible to ensure Essendon provided a safe workplace. Ironically, widening the investigation by stealth exposed huge responsibilities for the AFL, which it failed to fulfil.
    
    
28. The AFL had an unacceptable conflict of interest the moment ASADA agreed to widen the investigation to ascertain whether Essendon provided a safe workplace and who was responsible. As it was impossible to assess Essendon’s degree of responsibility, without assessing the AFL’s responsibilities, even Stevie Wonder could see it was essential that the investigation was completely independent of the AFL. Any investigation that involved the AFL as investigators meant that there would be a conflict of interest, which would not only deny Essendon procedural fairness (natural justice) but would compromise the integrity of the investigation. Most importantly, ASADA could not have used the AFL’s powers to force players to give evidence. This was an improper use of AFL powers to compel production of evidence.
    
    
29. The AFL commissioners had onerous statutory obligations under the Corporations Act. Simply put, the AFL had similar occupational, health and safety, and duty of care responsibilities, to each player at Essendon as the Essendon board. AFL chief executive, Andrew Demetriou, acknowledged this when he said: The AFL has a duty to all its stakeholders that we look after our players.’ Sadly, Demetriou did nothing but denigrate the players each week on radio.
    
    
30. There is no doubt the AFL failed to meet those OH&S and duty of care responsibilities, but with respect to determining whether there was a conflict of interest in having a joint investigation with ASADA, it is irrelevant. For a conflict of interest to exist, all the AFL needed was to have OH&S and duty of care responsibilities to Essendon and its players.
    
    
31. To determine the extent of Essendon’s alleged governance and OH&S failures, and to ascertain whether there were any mitigating circumstances which would reduce penalties, the AFL should have been investigated along with Essendon and its officials. Participating in a joint investigation with ASADA, not only enabled AFL officials to avoid being questioned, but made it impossible to ascertain whether the AFL was culpable. Inexplicably, at no stage were the AFL’s governance and OH&S obligations scrutinised by ASADA or Ziggy Switkowski, nor was its compliance.
    
    
32. Demetriou, AFL deputy chief executive, Gillon McLachlan, former general manager – football operations, Adrian Anderson, general counsel Andrew Dillon, integrity manager, Brett Clothier and medical officer, Dr Peter Harcourt, should have been compelled to give evidence to help ascertain whether they did everything possible to not only protect the integrity of the competition, but whether they did everything possible to ensure the AFL and Essendon fulfilled its duty of care to the players.
    
    
33. Inexplicably, ASADA allowed AFL Integrity Manager, Brett Clothier, to perform the dual roles of witness and investigator, which posed an unacceptable conflict of interest. Unconscionably, Clothier was given access to the evidence before submitting his evidence.
    
    
34. Inexcusably, AFL media officer, James Tonkin, was given access to the evidence from the investigation and used it in public statements to exonerate Demetriou and denigrate Hird. This was a conflict of interest, and it compromised the integrity of the investigation.
    
    
35. The joint investigation gave the AFL access to all witness statements which enabled it to leak with the ferocity that caused Noah to build an ark. Participating in the joint investigation also put the AFL in a position where it could steer the investigation away from itself as well as influencing the timing of the release of the report and the contents of the report. It also gave the AFL an opportunity to defend Essendon football department manager, Paul Hamilton, and deceitfully shift the blame to James Hird and Mark Thompson.
    
    
36. One of the key incidents that highlighted the conflict of interest was the dispute (lies) over whether Demetriou tipped off Essendon chairman David Evans that the Australian Crime Commission was about to expose Essendon for having breached the AFL’s anti-doping code.
    
    
37. Demetriou and Evans denied that he did. Hird claimed that he did. ASADA didn’t even bother to question the other witnesses, Danny Corcoran, Dr Reid and Ian Robson, which was indicative of its bias. Once, AFL Chairman, Mike Fitzpatrick, learnt that Demetriou’s and Hird’s honesty was in dispute, he should have withdrawn the AFL from the joint investigation because of the conflict of interest.
    
    
38. Failed to monitor compliance with Clause 7.4: Clause 7.4 states, “before the commencement of the AFL Competition each year, each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer in writing of all substances and medications he subsequently takes or uses during the AFL competition in that year. Each club medical officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the club.”
    
    
39. If each club, including Essendon, complied with this rule, and if the AFL weren’t too lazy or too apathetic to ensure compliance with this rule, it is most unlikely there would ever be an anti-doping problem. Dr Reid obviously failed to fulfil his responsibilities. His immediate superiors, high-performance coach, Dean Robinson, general manager – football operations, Paul Hamilton, and chief executive, Ian Robson, also failed to fulfil their responsibilities. AFL chief executive Andrew Demetriou failed to fulfil his responsibilities by not having procedures in place to ensure compliance with this most crucial anti-doping clause. Undoubtedly, the most culpable was AFL integrity manager, Brett Clothier, who it appears didn’t monitor compliance by any club. 

ASADA:

ASADA’s case for charging the players was based falsely upon:

1. Thymosin Beta-4 was a prohibited WADA substance in 2011 and 2012.
   
   
2. Thymosin was the same substance as Thymosin Beta-4.
   
   
3. TB-500 was the same substance as Thymosin Beta-4.
   
   
4. Either Essendon sports scientist Stephen Dank or Essendon Football Club took possession of Thymosin Beta-4.
   
   
5. Thymosin Beta-4 was administered by Stephen Dank to 34 Essendon players.

 

FOI Request

1. In a successful attempt to have ASADA/SIA confirm in its own words that it had no evidence that the players were guilty of being administered Thymosin Beta-4, I made an FOI request (20-4) on 9 June 2020 for the following information:
   
   i. A delivery note that indicates that Como Compounding Pharmacy received Thymosin Beta-4 on or about 28 or 29 December 2011. Sport Integrity Australia (SIA) previously named ASADA claimed in writing on 21 August 2020 that such a delivery note didn’t exist.
   
   ii. An invoice that indicates which organisation supplied the substances delivered to Como Compounding Pharmacy on 18 February 2012. SIA claimed in writing on 21 August 2020 that such an invoice didn’t exist.
   
   iii. A record of payment for the substances delivered to Como Compounding Pharmacy on 18 February 2012. Incomprehensibly, SIA claimed it was exempt, which was a lie. Clearly, if there were no invoice for the substances (see point (ii) above), Como had no one to pay. According to Como records, there was no such payment.
   
   iv. A stock record from Como Compounding Pharmacy that indicates that it stocked Thymosin Beta-4 between January 2012 and June 2012 – SIA claimed it didn’t exist.
   
   v. A dispatch record from Como Compounding that indicates that vials of Thymosin Beta-4 were delivered to Stephan Dank / Essendon FC between January 2012 and September 2012. SIA claimed it didn’t exist.
   
   vi. A record from a courier company that vials of Thymosin Beta-4 were delivered to Stephen Dank/Essendon FC between January 2012 and September 2012. SIA claimed no such document exists.
   
   vii. A record of payment by Stephen Dank or Essendon for vials of Thymosin Beta-4. SIA claimed no such document exists.
   
   My comment: The foregoing ASADA/SIA responses to my FOI (20-4) request is irrefutable evidence that Dank never took possession of Thymosin Beta-4 and therefore, he could not have administered it to Jobe Watson and his 33 teammates.
   
   
2. As the substances administered to the Essendon players were never analysed, it was impossible to ascertain what they were administered, and consequently, the matter should never have been pursued by ASADA after 4 March 2014.
   
   
3. As ASADA didn’t prove, or even attempt to prove, that Thymosin and TB-500 were the same substances as Thymosin Beta-4; and didn’t offer any evidence that either Stephen Dank or Essendon took possession of Thymosin Beta-4; and as it didn’t prosecute the case against each individual player; it had no case against the players and the whole saga should have ended on 4 March 2014 with the tabling of Aaron Walker’s ASADA’s Final Investigation Report.
   
   
4. The 25 March 2014 edition of the Herald Sun newspaper included quotes from a speech AFL chief medical officer Dr Peter Harcourt gave in Switzerland. The Herald Sun stated: “Harcourt wrote that despite an enormous amount of evidence collected, there was insufficient detail to prove ‘the precise nature of, and doses of, substances that were given to each athlete’.” (my emphasis)
   
   
5. Irrefutable proof that Thymosin was not the same substance as Thymosin Beta-4 came through a quote for the cost of substances to Shane Charter from Chinese substance supplier Mr Vincent Xu on 16 December 2011. Mr Xu’s table included both Thymosin and Thymosin Beta-4 among the peptides it (GL Biochem) could supply. The two substances are listed with distinct prices – 11,350 renminbi per gram of Thymosin and 9470 RMB per gram of Thymosin Beta-4. Consequently, it was unconscionable for ASADA and WADA to claim that Thymosin and Thymosin Beta-4 were the same substance.
   
   
6. Incomprehensively, ASADA made a disingenuous response to my FOI request (16-15) for “documents tabled by [ASADA lawyers] Perdikogiannis/Fitton, that prove Thymosin was Thymosin Beta-4.” At 4.47pm on 15 July 2016, ASADA lawyer Pat Dale said: “’Proved’ is a subjective term. Documents that prove something to one person may not necessarily do so for another.” In this instance, Dale was talking nonsense. The substances contained either the same number of amino acids or they didn’t. There was no room for a subjective view.
   
   
7. It is irrefutable that TB-500 contains seven amino acids and therefore it is not the same substance as Thymosin Beta-4 because it contains 43 amino acids in a specific sequence. During the Court of Arbitration for Sport (CAS) hearing, WADA’s key witness Professor Handelsman testified that TB-500 and Thymosin Beta-4 were different products. (Source: CAS transcript, day 2, page 189, line 38). Another expert witness, Dr Vine, supported Professor Handelsman’s view when he told the CAS panel (page 293 of transcript) that “they’re different molecules, one is 43 amino acids, the other is many fewer… This is a popular misconception in the advertising literature, that the two things are synonymous and they are simply different chemicals entirely”. (my emphasis). Clearly, it was wrong, sinister and corrupt for ASADA or anyone else to attribute the protocols for TB-500 to Thymosin Beta-4.
   
   
8. As the ‘policeman’ and guardian of the rules, ASADA kept the content of each substance in its database and therefore was aware that TB-500 and Thymosin Beta-4 contained a different number of amino acids, and consequently, were not the same substances.
   
   
9. It is irrefutable that ASADA breached Section 317 of the Crimes Act on over 50 occasions by unlawfully replacing the word Thymosin with the word Thymosin Beta-4 in the evidence. (see clauses 165 to 223). My dictionary defines corruption as “the process by which a word or expression is changed from its original state to one regarded as erroneous or debased”.
   
   
10. Section 317 of the Crimes Act concerns ‘Tampering with Evidence’. It states:
    
    i. A person who, with intent to mislead any judicial tribunal in any judicial proceedings
    
    ii. Suppresses, conceals, destroys, alters or falsifies anything knowing that it is or maybe required as evidence in any judicial proceeding or
    
    iii. Fabricates false evidence
    
    iv. Knowingly makes use of fabricated false evidence,
    1. 1.  
    1. 1.  
    1. 1.  
    1. 1.  

    Is liable to imprisonment for 10 years.

11. ASADA resorted to tabling a forged certificate analysis document to make its false case that Alavi imported Thymosin Beta-4 from China. Alavi’s statement authored by ASADA’s lead investigator Aaron Walker stated: “A copy of the certificate of analysis in relation to the Thymosin Beta-4 is annexed to this statement and marked ‘NAM-10’.”

    My comment: Under the heading, Day 2 forged documents, at pages 173-176, the players’ QC Mr Clelland said: ”We have been trying to take the panel to some material which shows the dangers, if not the folly, of placing reliance on a number of witnesses … in relation to documents created by them, documents which on their face one would look and, as I say, have an initial reaction which would be, well, that looks like a document that one could trust and, on further investigation we say they are agreed by everybody to be a forgery (my emphasis) or there’s something else unreliable … Mr Alavi told the Australian in that newspaper article that he thought that he was having words put into his mouth by WADA and ASADA and that they were trying to trap him into saying that it was Thymosin Beta-4, even though, to quote him: ‘he made it very clear repeatedly he didn’t know what it was.’

    Fabrication: The act of inventing false information in order to deceive someone or the false information itself:

    In his interview with Hal Hunter (page 42, line 36), ASADA’s Aaron Walker falsely claimed that the players were administered a possible harmful drug that was purchased in Mexico. Walker said: “Now, this patient in terms of pursuing some experimental treatments travelled to Mexico and he purchased a large quantity of amino acids from a chemist in Mexico over the counter. He has brought those amino acids back to Australia for use in injecting into himself. He gave those amino acids to Mal Hooper because they wanted to show Stephen Dank. So, at the time that you were injected with amino acids, if we move on the assumption, it’s the same amino acids, you were injected with amino acid that belonged to a patient that was purchased in Mexico. But more importantly, as we have come to this investigation, we have realised there are some practices gone on that from our perspective has serious health concerns… but for me it’s alarming.”

    My comment: It’s hard to imagine more reprehensible behaviour by a senior government executive. Walker was supposed to be collecting information, not distributing false information that scared the players by implying that they could suffer serious health problems because of being administered a substance from Mexico. The claim was factually incorrect. The substance was bought in El Paso USA and not Mexico.
    
    

1. ASADA’s John Nolan made an outrageous false claim (page 258, line 47 of his 29 November 2013 interview with Alavi) that Stephen Dank broke into Nimi Alav’s Como Compounding Pharmaceutical’s premises late at night and forged Alav’s signature on a document. Nolan said: “Now, the only possible scenario for me from my perspective would be that Steve Dank has raced down to Como, got into your email system somehow, forged it, scanned it and sent it back.”
   
   My comment: Nolan’s unsubstantiated claims were highly defamatory and corrupt. Nolan hadn’t a skerrick of evidence to support his claim that Stephen Dank was guilty of break and entering and forgery. This was not only an extraordinary unconscionable example of fabricating evidence but also an example of leading the witness. Nolan was testifying in his own investigation with several lies.
   
   Nolan: “And the other issue which we think triggered him, too, was that Amina Cowry sent him an email with an attachment where a cyclist [Wim Vans Evenant] over in, I think Belgium – I’m just relying on memory – but had just been banned for the use of TB-500, the very substance Charter’s brought in. He [Dank]was stressing because he knew that there was TB-500 that they’d supplied the players in the first instance.”
   
   My comment: Nolan was lying and leading the witness by opining not only that Dank “knew that it was TB-500” but also what he thought triggered Dank.
   
   Wim Vans Evenant was charged with importing TB-500 into Belgium, but when the vials labelled TB-500 were analysed, they weren’t TB-500. Wim Vans Evenant was not banned for using TB-500. Additionally, there was never even a suggestion by anybody that Shane Charter and Alavi brought TB-500 into Australia
   
   
2. ASADA implied that Dank’s alleged involvement in Alavi’s Peptide Manual was because of his alleged interest in Thymosin Beta-4. Walker: “Mr Alavi also compiled a Peptide Manual. The section in the Peptide Manual about Thymosin is only about Thymosin Beta-4 (Document 23 of Document A).”
   
   My comment: Alavi’s 29 November 2013 interview with Walker and Nolan (page 205) proved that the manual had nothing to do with Dank: Alavi said: “It’s not my peptide manual. I’ve just put some stuff together. The reason why I put it together was for that conference, but I put it together a month or so before the conference, so, I was emailing it to doctors that were interested and I was handing it out to doctors that I would go and visit. So, it was — it was circulating people — and that’s just off — that’s just off the internet what you found … yeah.”
   
   My comment: This was a disingenuous, dishonest attempt to imply that Alavi created the manual at Dank’s request. ASADA mislead the ADRVP at the 3 November 2014 meeting by implying that the manual was created for Dank/Essendon. Such a claim was reprehensible because Alavi had told Walker and Nolan during their interview (page 205, line 22) that “I put together this peptide sort of manual so that doctors could read it because there’s just not enough information out there. I didn’t write any of it. I just compiled it. So, I went online and read some stuff that made sense and I put it together – yeah. This is it. This was supposed to go to doctors at the Anti-Aging Conference that wanted a bit of information about these peptides and dosages and frequencies and things like that.”
   
   
3. Alavi was being asked to include a comment in his statement that was untrue.
   
   Alavi’s statement authored by Aaron Walker 7 (page 16, clause 122):

 

WADA:

The WADA case against the 34 Essendon players was based upon WADA misrepresentations, perjury, lies and omissions, and CAS panel apathy and ignorance, and according to my dictionary, arguably corruption. To their everlasting shame and discredit to their profession, American attorneys Young and Rychener misrepresented the evidence in their WADA Appeal and Appeal Appendices documents and the process against the players should have ended there.

1. Item (Young & Rychener): “Dank participated in treating Cronulla [rugby league] players with Thymosin Beta-4 in August 2011,
   
   My comment: Young and Rychener lied, which means they perjured themselves. In his interview with the ASADA investigators, Sedrak said that he never ever prepared Thymosin Beta-4 (my emphasis).
   
   
2. Item (Young & Rychener): “Dank’s raw materials supplier intended to purchase, believed he had purchased and received confirmation he had purchased, Thymosin Beta-4 from a Chinese manufacturer.”
   
   My comment: Young and Rychener lied, and therefore, perjured themselves. Shane Charter was Nima Alavi’s raw material supplier and he (Charter) did not receive confirmation that he had purchased Thymosin Beta-4.
   
   
3. Item (Young & Rychener): “Dank’s compounding pharmacist intended to compound, and believed he had compounded, Thymosin Beta-4.”
   
   My comment: Young and Rychener lied and thereby committed perjury. Nima Alavi was the compounding pharmacist. They knew that Alavi repeatedly told the investigators that the raw material sent from China was labelled ‘Thymosin’ and not ‘Thymosin Beta-4’.
   
   
4. Item (Young & Rychener): “The compounding pharmacist invoiced Essendon for Thymosin Beta-4 and delivered to Dank vials containing what was believed to be Thymosin Beta-4.”
   
   My comment: Young and Rychener lied, and therefore, perjured themselves. The compounding pharmacist (Alavi) did not ever invoice Essendon for Thymosin Beta-4. In a response to Walker’s enquiry on 7 March 2014, key ASADA witness Nima Alavi said: “I am still looking for the invoices. They all have Thymosin written [on them]
   
   
5. Item (Young & Rychener): “Dank obtained confidential, signed forms from the Players consenting to a regiment of Thymosin injections.”
   
   My comment: Young and Rychener were being disingenuous. Thymosin and Thymosin Beta-4 and Thymosin Beta-10 and Thymosin Beta-15 and TB-500 are not interchangeable. Thymosin is often used as the generic name for the permitted Thymosin Alpha-1 / Thymomodulin. On 3 July 2012, ASADA’s science and results manager Dr Stephen Watt emailed WADA and said: “I wanted to enquire if WADA has considered the prohibited status of the drug Thymomodulin also known as Thymosin.” Nothing could be more certain, ASADA’s official position agreed with Dank’s that Thymosin was the generic name for the permitted Thymomodulin. Most importantly, the form didn’t mention the substance Thymosin Beta-4. Unconscionably, WADA falsely claimed that Thymosin and Thymosin Beta-4 were the same substances. There was no evidence Dank ever received Thymosin Beta-4 and there was no evidence even one named player was administered it. In his 15 January 2015 affidavit, at clause 93, lead ASADA investigator Aaron Walker said: “The key question is what was the source of the THYMOSIN (my emphasis); and when (IF AT ALL) {my emphasis}, it was delivered.”
   
   
6. Item (Young & Rychener): “The AFL Tribunal ignored the clear and substantial evidence that the Players were injected with Thymosin Beta-4 during the period between January and September 2012 and therefore used a prohibited substance in violation of clause 11.2 of the applicable 2010 AFT Code.”
   
   My comment: Young and Rychener disingenuously, believed that if you repeated a lie often enough, some fool or three inept panellists would believe that it was the truth. Clearly, as ASADA’s head investigator Aaron Walker implied at clause 93 of his 15 January 2015 affidavit, that there was no evidence that either Dank or Essendon received Thymosin of any variety, it was deceitful and unethical to claim that there was “clear and substantial evidence that the Players were injected with Thymosin Beta-4 during the period between January and September 2012.
   
   Thymosin Beta-4 was not listed by name by WADA as a prohibited substance in 2012, It was added to the WADA prohibited list six years later, on 1 January 2018. In an extraordinary criminal action, ASADA added Thymosin Beta-4 to its prohibited list website on 4 February 2013. Page 67 of the audit logs of the ‘Check your Substances’ document demonstrates that prior to 4 February 2013, athletes searching for “Thymosin Beta 4” were either not provided with a “Banned in Sport” response or were provided with a “Banned in Sport” response for unrelated substances (Tamosin and Tamoxen 20).  This was confirmed internally by ASADA at 10:34:17 am on 4 February 2013.
   
   Furthermore, at a Senate Estimates Hearing in October 2019, ASADA CEO David Sharpe admitted that ASADA changed the status off Thymosin Beta-4 on 4 February 2013. Following the timeline of the log, ASADA, in a duplicitous action to convict the innocent Essendon players, then breached the WADA Code by illegally altering the database when the issue blew up on 4 February 2013 and added a “Banned in Sport” status to Thymosin Beta-4.  This can be seen by the 12:59:17pm entry on the same date.
   
   
7. Item (Young & Rychener): “Stephen Dank, the former ‘Sports Scientist’ for Essendon, devised and implemented a team-wide doping program for the 2012 football season. The doping program included Dank’s injecting the Players with the prohibited substance Thymosin Beta-4. Thymosin Beta-4 is a peptide consisting of 43 amino acids and is designed and reputed to promote muscle growth and faster performance recovery.”
   
   My comment: WADA listed Thymosin Beta-4 by name for the first time on the prohibited list in 2018. No one in the world could have searched any of the 208 national anti-doping organisations’ websites and ascertained the status of Thymosin Beta-4 before 1 January 2018.
   
   Sport Integrity Australia’s (SIA) Sally Cook notified me on 27 July 2020 that on 30 September 2017, SIA had been sent the WADA 2018 List of Prohibited Substances and Methods along with the 2018 Summary of Major Modifications and Explanatory Notes that would be effective on 1 January 2018. (my emphasis). The Summary of Major Modifications included the statement: “Thymosin β4 was added as example of prohibited growth factors.” (my emphasis).
   
   The 34 player interviews and staff interviews indicate that Dank never used the word ‘Thymosin Beta-4’ to a single player nor to a single Essendon staff member. It wasn’t a team-wide programme. There is no indication that the individual player programmes involved Thymosin Beta-4. It wasn’t a doping programme and Young and Rychener had no evidence to support their claim and were clearly lying by making such a claim.
   
   
8. Item (Young & Rychener): “Thymosin Beta-4 is a peptide consisting of 43 amino acids and is designed and reputed to promote muscle growth and faster performance recovery.”
   
   My comment: Invariably, there is no scientific reason for placing a substance on the prohibited list. WADA’s ‘experts’ troll websites and take as Gospel extravagant claims by manufacturers of ‘super’ substances marketed to gym junkies. Clearly, as there is no evidence that Dank took possession of Thymosin Beta-4, it is irrelevant what the manufactures alleged it does.
   
   
9. Item (Young & Rychener): “A few weeks before his official hiring, Dank openly stated in a 23 August 2011 text message to his soon-to-be Essendon boss, Dean ‘The Weapon’ Robinson, ‘Don’t forget how important Thymosin is. This is going to be our vital cornerstone next year. It is the ultimate assembly regulatory protein and biological modifier.’”
   
   My comment: The players were legally entitled to expect that WADA’s attorneys wouldn’t omit or ignore evidence when making allegations against the players. In the 23 August 2011 text, the panel implied that Thymosin was the generic name for Thymosin Beta-4. Consequently, Young and Rychener misrepresented the evidence by implying Dank was referring to Thymosin Beta-4. Furthermore, although Dank was treating Dean Robinson’s injured weight-lifting wife and supplying her with peptides, Young and Rychener stated that in the 23 August text that Dank was talking about Essendon and not Robinson’s wife or Dank’s businesses MRC and ICB. Robinson hadn’t even signed a contract to work at Essendon at that time and Dank wasn’t even interviewed for a job at Essendon until 28 September 2011.
   
   In claiming Dank was talking about Essendon, there was no doubt Young and Rychener took advantage of ASADA’s principal investigator Aaron Walker planting evidence. At page 28 of his ‘Final Investigation Report’, Walker dishonestly tampered with the evidence by inserting the words “at Essendon” into the text. Such tampering was a breach of Section 317 of the Crimes Act – a breach that carried a ten-year custodial sentence.
   
   
10. Item (Young & Rychener): “In the months prior to joining Essendon, Dank had participated in a Thymosin Beta-4 injection programme for a rugby league athlete. Sandor Earl, then a player for the Penrith Panthers of the National Rugby League (“NRL”), underwent shoulder reconstruction in June-July 2011
    
    My comment: Young and Rychener corruptly planted evidence by inserting the words ‘Mr Earl’ into the 2 August 2011 Dank text, which enabled it to falsely claim that there was evidence that Dank had administered Thymosin Beta-4 to Sandor Earl. WADA lied in stating that Dr Khan treated Earl with Thymosin Beta-4 injections. At line 9, page 113 of his 10 December 2013 interview with ASADA, Dr Khan was asked, “Is Thymosin a substance that you have prescribed?” Khan replied: “No, not at all.
    
    Earl was never found guilty of using Thymosin Beta-4. On Wednesday, 14 October 2015, four weeks before WADA began the presentation of its case to the CAS panel, the NRL Anti-Doping Tribunal found Earl guilty of the following: Use of CJC-1295 (eight violations); Possession of CJC-1295; Trafficking in Somatropin; Trafficking in Clenbuterol; Attempted trafficking in Testosterone.
11. Item (Young & Rychener): “In late August and early September 2011, just weeks prior to his joining Essendon, Dank also helped obtain Thymosin Beta-4 treatments for two Cronulla Sharks NRL players who had suffered muscle injuries. Dank made arrangements for these Thymosin Beta-4 treatments through Maged Sedrak, a compounding pharmacist in Sydney. During the course of consulting on the treatment of the Cronulla players, Sedrak told Dank that Thymosin is the ‘fastest way [for] repair of muscle tissues’ and is ‘well known in the literature for its fast repair for tissues, you know, anti-inflammatory and repair for the tissues.’”
    
    My comment: This was a lie. Young and Rychener perjured themselves. Dank did not help obtain Thymosin Beta-4 treatments for two Cronulla NRL players. As stated previously, Sedrak told the investigators that he supplied the two Cronulla players with ‘Thymosin’ and that he never ever prepared Thymosin Beta-4.
    
    
12. Item (Young & Rychener): “Dank was present when Sedrak supplied Thymosin Beta-4 to one of the Cronulla players and heard Sedrak explain how to use the product.”
    
    My comment: This was a lie. Young and Rychener perjured themselves. Sedrak told the investigators that he supplied the two Cronulla players with ‘Thymosin’ and that he never ever prepared Thymosin Beta-4.
    
    
13. Item (Young & Rychener): “One of the first steps taken by Dank to implement the Essendon doping program was drawing and analysing blood samples from the Players. On two different occasions in November Dank arranged for blood samples to be drawn from the Players. The blood samples were drawn and analysed under Dank’s direction without the knowledge or for analysis to the club approval of Essendon’s club doctors.”
    
    My comment: It was disingenuous for Young and Rychener to imply that having blood tests in November 2011 was evidence of players being administered Thymosin Beta-4 after February 2012. Young and Rychener were guilty of duplicity by implying the blood tests were linked to the use by Dank of Thymosin Beta-4. Beginning at line 6 on page 48 of the CAS transcript, ASADA counsel Knowles said: “Admittedly that test predates the injection regime, but for the reason that Mr Young explained, and admittedly it doesn’t relate to Thymosin Beta-4 …”
    
    
14. Item (Young & Rychener): “These blood tests are consistent with recommendations from peptide clinics that “patients” have their blood tested before receiving a doctor’s script for peptides — in fact, one Australian peptide clinic that sold Thymosin Beta-4 specifically recommended testing blood samples for IGF-1” (AS-16 Mullaly affidavit page 150)
    
    My comment: This was the comment of two desperate attorneys with no evidence to support their unsubstantiated allegations. Most doctors, most of the time, order blood tests before writing scripts. It doesn’t mean that they intended proscribing Thymosin Beta-4 to the patient. It is comprehensible that Young and Rychener implied that an unnamed Australian peptide clinic with no link to Dank or Essendon was evidence that Dank ordering bloods was because he was administering Thymosin Beta-4.
    
    
15. Item (Young & Rychener): “By November 2011, Dank also had established relationships with a raw materials supplier and compounding pharmacist to source Thymosin Beta-4 for the Essendon doping programme. Through Shane Charter, a convicted drug trafficker and biochemist known as ‘Dr. Ageless,’ Thymosin Beta-4 was obtained from a Chinese peptide supplier, GL Biochem. Dank and Charter arranged for the Thymosin Beta-4 to be compounded for injections by pharmacist, Nima Alavi, and his company Como Compounding Pharmacy.”
    
    My comment: Young and Rychener have misrepresented the situation through omission. Charter’s agent in China picked up several different substances from G L Biochem in December 2011 and took them to his office. He removed all the labels and placed the vials in the office fridge. One shelf was labelled Thymosin. The chain of custody was broken when Anthony removed the labels and placed them on the Thymosin shelf with other vials [of Thymosin]. Anthony subsequently removed a vial from the Thymosin shelf and sent it to Alavi. The vial was labelled ‘Thymosin’. As the substance was never tested, no one, including Young, Rychener, Dank, Alavi, Charter, Caroline Wilson, Eddie McGuire and the CAS panellists, knew whether it was Thymosin Alpha-1 / Thymomodulin, Thymosin Beta-4, Thymosin Beta-10, Thymosin Beta-15, TB-500 or an unknown substance.
    
    
16. Item (Young & Rychener): “In a 12 January 2012 email to Dank and Alavi, Charter provided detailed instructions for compounding and administering Thymosin Beta-4 through subcutaneous injection. Charter’s email, titled ‘Thymosin Beta 4’, begins with the message, ‘Steve just want to check you agree with the below so we can make it up accordingly.’ Within a week after Charter’s email, Como dispensed 26 vials of ‘peptide thymosin’ to Dank.”
    
    My comment: Young and Rychener lied by claiming that “Como dispensed 26 vials of peptide thymosin to Dank. The email contained an attachment titled TB-500 (Thymosin Beta-4), which incorrectly implied that TB-500 and Thymosin Beta-4 were the same product. Young and Rychener knew, or should have known, the names were not interchangeable. The protocols listed on the document were not the protocols for Thymosin Beta-4. By claiming that the protocols were the same, Young and Rychener were planting evidence.
    
    
17. Item (Young & Rychener): “In early February 2012, Dank held a secretive meeting with the Players. The Essendon club doctors were not invited to and did not attend this meeting. During this meeting, Dank asked the Players to sign forms consenting to the administration of four substances, including a specific regimen of Thymosin injections. The Thymosin injection regimen described in the player consent form matched the prescribed regimen from Charter’s prior ‘Thymosin Beta 4’ email to Dank.”
    
    My comment: It was disingenuous and a major misrepresentation by Young and Rychener to describe the 8 February 2012 meeting as secretive. There was no evidence that the meeting was conducted any differently from the scores and scores of player meetings in 2012. The email contained an attachment titled TB-500 (Thymosin Beta-4), which incorrectly implied that TB-500 and Thymosin Beta-4 were the same product. Young and Rychener knew, or should have known, the names were not interchangeable. The protocols or regimen refers to a system of rules or guidelines. Many substances have the same guidelines. For example, I take 100mg pills after food of two different substances. The guidelines listed on the document were not the protocols for Thymosin Beta-4. By claiming that the protocols were the same, Young and Rychener were planting evidence.
    
    
18. Item (Young & Rychener): “The Players were informed the program would ‘enhance the rate of recovery and the benefits included an expected reduction in time required for performance recovery’. Dank told the Players the injection program would ‘push the edge’ and ‘was close to the line’.”
    
    My comment: More bottom of the bird cage nonsense from Young and Rychener. Clearly, they should have named the players who quoted Dank alleging stating that the substances were to ‘push the edge’. If you are travelling in a car at 59 kilometres per hour in a 60 zone you are pushing the limit, but you are not breaking the law. Thymosin Beta-4 was the only substance under review. It was either prohibited or permitted. There wasn’t a third category ‘pushing the edge’. The WADA and ASADA websites indicated that Thymosin Beta-4 wasn’t banned in 2012. Second, there was no evidence that Dank had procured Thymosin Beta-4, let alone had administered it to a single player. Once again, Young and Rychener were duplicit in implying that Thymosin and Thymosin Beta-4 were the same product.
19. Item (Young & Rychener): “No player disclosed the Thymosin injections on the doping control form.”

    My comment: This was an outrageous allegation that proved Young and Rychener’s incompetence or chicanery. In 2011, the WADA Code stated that athletes were only required to consider (my emphasis) declaring substances on their doping control forms they had been administered. Although it wasn’t compulsory, Young and Rychener stated it was compulsory. Tragically, for the players, this chicanery deceived the inept CAS panellists into believing the players were dishonest, and therefore had something to hide, by not disclosing the injections on the doping control form.

20. Item (Young & Rychener): “In an exchange of text messages with Essendon’s coach, James Hird, on 9 March 2012, Dank stated, ‘I.V. start next week. And Thymosin with Ubiquinone. We will start to see some real effect’.”
    
    My comment: Young and Rychener once again implied that Thymosin was the generic name for Thymosin Beta-4. It was not, as evidence by ASADA’s science and results manager Dr Stephen Watt. On 3 July 2012 email to WADA. Watt said: “I wanted to enquire if WADA has considered the prohibited status of the drug Thymomodulin also known as Thymosin.” Nothing could be more certain, ASADA’s official position agreed with Dank’s that Thymosin was the generic name for the permitted Thymomodulin.

21. Item (Young & Rychener): “The next day, on 12 April 2012 Dank sent a text to Hird confirming, “All IV and injections completed. Again, on 19 April 2012, Dank reported, ‘All injections completed for the week’. In subsequent text messages exchanges in April through July 2012. In subsequent text messages Dank checked with various players to make sure they were staying current with their Thymosin injections.”
    
    My comment: This section can only be described as WADA corruption. WADA has said Dank informed Hird on the 9 March 2012 that he was commencing Thymosin injections, which WADA claimed, without any evidence, were Thymosin Beta-4 injections. And on 19 April 2012, WADA was claiming that Dank informed Hird that all [Thymosin] injections were completed. To create this chicanery, WADA deliberately omitted eight key words from Dank’s 19 April text. Those omitted words were: “This afternoon’s group went very well on hyperbaric.” (my emphasis). Dank was not informing Hird of Thymosin injections. He was informing Hird that the injections Cerebrolysin and Amino Lite (amino acids) given to the players at HyperMED, had been completed. It is incomprehensible and unconscionable that WADA omitted those eight words from the text to create false evidence that the players had been administered Thymosin Beta-4.

22. Item (Young & Rychener): “On 9 May 2012, Como’s senior lab technician, Vania Giordani, tested this material using the facilities and equipment at Bio-21 Molecular Science and Biotechnology Institute, a research institute at Melbourne University.  The test results obtained by Giordani helped confirm the parties’ belief that the substance was Thymosin Beta-4. Two days after she tested the material, in a text dated 11 May 2012, Giordani informed Dank, ‘Just to let you know that your 15 vials of thymosin are ready to pick up.’”
    
    My comment: Young and Rychener misrepresented the evidence by omission. The 15 vials were never delivered to Dank / Essendon – a fact confirmed by ASADA’s head investigator Aaron Walker at clause 93 of his 15 January 2015 affidavit and Como Compounding Pharmaceuticals’ dispatch and stock records.
    
    Incomprehensively, and unconscionably, Young and Rychener lied, and therefore perjured themselves, by stating unequivocally that the vials were delivered to Dank. 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.”
    
    There were no records indicating that the 15 vials were ever delivered which ASADA confirmed in its response to my FOI (20-4) request. Furthermore, Como’s stock records prove that they were never delivered.
    
    Young also lied (page 810, lines 41 to 43 of the CAS hearing transcript) when he said: “One of the emails that the two players referred to about Thymomodulin was in June after the delivery of the 15 vials from Vania [Giordani].” There was no evidence that Vania Giordani or anyone else delivered 15 vials to Dank or Essendon. In fact, Como Compounding stock and dispatch records and ASADA’s response to my FOI (20-4) request prove that no such delivery took place.

23. Item (Young & Rychener): “Notwithstanding Dank’s efforts to improve the team’s performance with his doping program, Essendon lost seven straight games to end the 2012 season.”
    
    My comment: Young and Rychener, neither of who knew anything about AFL football, disingenuous accepted that Essendon’s success at the start of the season was because of the administration of a substance for soft tissue injuries that didn’t exist at that time. Here, Young and Rychener appear to make a claim that the same unknown substance caused losses at the end of the season.

24. Item (Young & Rychener): “In March 2013, Dean Robinson, Dank’s boss at Essendon, told ASADA investigators he believed Dank had administered Thymosin via injection to the Players.”
    
    My comment: Once again, Young and Rychener were disingenuously implying that Thymosin and Thymosin Beta-4 were interchangeable. The evidence and WADA’s expert witness proved they were not interchangeable. Furthermore, the evidence proved that neither Dank nor Essendon took possession of Thymosin of any variety. Young and Rychener were dishonestly cherry-picking Robinson’s evidence. They deliberately omitted mentioning that in his 8 August 2013 interview Robinson said: “I don’t know more than Thymosin or Thymomodulin. That’s all I know about this. I don’t know exactly what it is. I can’t give you anymore. I wish I could… to make this clear, because I know this has come up. I have never heard of Thymosin Beta-4.”

WADA’S LIES AND OWN GOALS.

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 by the WADA Code. 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”.

My comment: In their foregoing comments, Young and Rychener repeatedly implied that claims were irrefutable facts. Here they have back peddled and watered-down their evidence to circumstantial based on “intermediate facts which must be established to the standard of comfortable satisfaction”. Incomprehensively, Young and Rychener made no attempt to identify the “intermediate facts” against a single player. Furthermore, in my limited knowledge, I thought in circumstantial evidence cases, intermediate facts must be proven beyond a reasonable doubt to establish the guilt of the accused. 

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 up and Como Compounding Pharmaceutical’s stock and delivery records prove they were never delivered. Furthermore, ASADA’s response to my FOI (20-4) request stated that there was no such delivery.

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 of the 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 several players were not asked about Thymosin Beta-4. 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 by name 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 12:59:17 pm 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.

COURT OF ARBITRATION FOR SPORT:

Preamble

1. To secure a ‘conviction’ against 34 Essendon AFL players for using a prohibited World Anti-Doping Agency (WADA) substance, the Court of Arbitration for Sport (CAS) panel (The Hon. Jim Spigelman AC QC, Michael Beloff QC and Romano Subiotto QC) had to be comfortably satisfied that Essendon Football Club scientist Stephen Dank took possession of the peptide Thymosin Beta-4 and was comfortably satisfied that he administered it to each of the 34 Essendon players.
   
   
2. As there wasn’t a scintilla of evidence to this effect (there were no invoices, no dispatch records, no delivery records, no goods received records, no record of payment), Jim Spigelman, a former Chief Justice of the New South Wales Supreme Court, was arguably either incompetent or biased when he stated unambiguously that Thymosin Beta-4 was delivered to Dank. Spigelman said (line 14, page 814 of Day 5 transcript): “I don‘t think it was an issue that he [Dank] got it [the 15 vials of Thymosin Beta-4 from Vania Giordani]; it was a question of where it went.”
   
   
3. Spigelman had absolutely no evidence to justify his outrageous claim that Dank got the 15 vials. As neither of Spigelman’s fellow panellists Michael Beloff and Romano Subiotto challenged Spigelman’s false finding, it mistakenly became ‘fact’ in their minds and helped secure the unjust ‘guilty’ verdict against the 34 players.
   
   
4. Unconscionably, in a decision that also helped secure the ‘guilty’ verdict, the panel corruptly changed evidence by merging two texts (11 and 12 January 2012) from Dank into one text by replacing the word ‘Thymosin’ with a comma. That chicanery enabled the panel to claim Dank was ordering 20 vials of Thymosin Beta-4 from Como Compounding Pharmaceuticals, when in fact he ordered 20 vials of Thymosin. NB Thymosin, a permitted WADA substance, was a different substance from the WADA alleged prohibited Thymosin Beta-4. NB As Thymosin wasn’t listed by WADA as a prohibited substance until 1 January 2018, I don’t accept that it was a prohibited substance in 2011 and 2012.
   
   
5. On 11 January 2012, Shane Charter, a peptide middleman, sent Dank an SMS querying ‘which peptides do you need next?’ Dank replied: “Thymosin Beta-4 and CJC-1295.”
   
   
6. In response to Charter’s follow-up query about the quantities Dank required, on 12 January 2012, Dank revoked his 11 January comment by sending Charter an SMS saying: “Hi mate. Thymosin – 20 x 5ml vial.”
   
   
7. On 12 January 2012, Charter sent compounding pharmacist Nima Alavi an SMS stating: “Hi Mate. Thymosin – 20 x 5 ml vial. Steve’s [Dank] request.” NB In his capacity as an expert in the peptide field, Charter told the ASADA investigators he never had, never ever would, use the word ‘Thymosin’ as an alternative to the word ‘Thymosin Beta-4.
   
   
8. In paragraph 134 (3) in its Arbitrary Award [the Decision], the CAS panel said: “On 11 January 2012, Mr. Charter asked Mr. Dank what peptide he needed next, to which the response was TB-4, quantity being 20 times 5ml vials, being confirmed the next day”. It is irrefutable that the comma after TB-4 was inserted to replace the word Thymosin, which corruptly changed the evidence.
   
   
9. The CAS panel corruptly planted evidence by deliberately replacing the word ‘possible’ with the absolute meaning word ‘expressly’ in an Administrative Appeals Tribunal (Case No. AATA 968) decision (31 December 2014) transcript. This enabled the CAS panel to falsely claim that the AAT president Stephen Frost ruled that Dank had administered Thymosin Beta-4 to rugby league player Sandor Earl. The panel then disingenuously drew an exceptionally long bow and used the planted Earl ‘false evidence’ as proof that Dank administered Thymosin Beta-4 to the Essendon players.
   
   
10. At paragraph 126 of its Arbitral Award [Decision], the CAS panel changed the meaning of a 19 April 2012 text from Dank to senior coach James Hird by omitting the first eight words from the Dank text. This enabled the panel to make a damaging false assessment. Dank’s 19 April 2012 text said: “This afternoon’s group went very well on hyperbaric. All injections completed.” In paragraph 126, the CAS panel only quoted half of the 19 April text which changed the meaning. Viz: ‘On 19 April 2012 “All injections completed”.’ The panel deliberately omitted the first eight words of the text viz: “This afternoon’s group went very well on hyperbaric.”  Those eight words indicated that Dank was texting on 19 April 2012 about Cerebrolysin which was administered at the hyperbaric chambers HyperMED. Deleting those words from the Dank text enabled the panel to falsely claim that Dank had indicated the text was about Thymosin injections, which it falsely ruled were Thymosin Beta-4 injections.
    
    
11. Paragraph 126 also contained additional CAS panel chicanery and bias. The panel disingenuously cherry-picked the evidence to make the case that all 34 players received the same substances but in different dosages.  Incomprehensively, in paragraph 126 the panel said: “It was Mr [David] Hille’s understanding that all Players were in the same supplementation program even if the dosage might be altered for particular Players.”
    
    
12. Tragically for the players, the panel used Hille’s (mis)understanding to rule that Stephen Dank introduced a team-based or team-wide supplements programme at Essendon. The panel cherry-picked the evidence to reach its desired outcome. Unbelievably, the panel ignored evidence that Hille’s understanding was wrong. Businessman Serge Del Vecchio’s evidence contradicted Hille’s evidence, but it was ignored by the panel. Inter alia, Del Vecchio said: “He [Dank] gave me the impression he was giving peptides to all of the Essendon players and had developed different peptide programmes for different groups of players depending on where these players were in their football development.”
    
    
13. During its cherry-picking, the panel also chose to ignore player Brent Stanton’s testimony.  Stanton said: “And then he [Dank] sort of just went through the four supplements that we could possibly take. ‘You won’t be taking them all (my emphasis). It will be down to needs or how you’re feeling.’ And he will be doing regular blood tests to see your blood levels.”
    
    
14. Although WADA did not submit a skerrick of evidence that the players lied when responding to questioning about what substances they had been administered, the panel unfathomably ruled that they were lying, which detrimentally affected the panel’s attitude to other favourable player evidence.
    
    
15. Further proof that the panel was cherry-picking Hille’s comment at the expense of the other players’ evidence was evident through the panel rejecting Nathan Lovett-Murray’s evidence. According to the Herald Sun newspaper, the transcript of Lovett-Murray’s interview with ASADA totalled 57 pages. Only 20 words from those 57 pages concerned Thymosin. Lovett-Murray was asked whether he was administered Thymosin and he said “No, I don’t think so.” No evidence was offered by WADA to contradict Lovett-Murray’s evidence. Incomprehensively, it appears Lovett-Murray was found guilty because it was Hille’s (mis)understanding that all 34 players were in an identical programme.
    
    
16. Beloff corruptly planted evidence when he said: “Again, put on one side what was in fact injected. The program was, as it were, sold on the basis – we’ve seen all this, Mr Dank saying this is a magic way of improving tissue traumas and accelerating recovery. Now, why would that not be applicable to every player in the team? We heard from Dr Reid this morning, those of us who were not so familiar with the game, the nature of the game that it is and persons suffering in these particular ways and therefore need these particular forms of treatment. I find it at the moment difficult to understand why one should individualise this?”
    
    
17. Dank did not say “this is a magic way of improving tissue traumas and accelerating recovery”. Dr Reid did not say or imply that Thymosin was used for tissue traumas. Dr Reid testified that he hadn’t heard of Thymosin until February 2013. Beloff has disingenuously implied all 34 players suffered tissue traumas and would need the same treatment. That was untrue. Only a few players suffered tissue injuries. Beloff has also unconscionably overlooked the fact that Thymosin Beta-4 was never delivered to Dank and therefore could not have been administered to the players.
    
    
18. Panel chairman Beloff corruptly planted evidence by attributing quotes to Dank that he never made. Inter alia, at line 14, page 201 of the hearing transcript, Beloff said: ‘Again I don’t want to come back to this endlessly, but one has again the interview with Mr McKenzie in which he says, “I injected him with TB-4.” Beloff wasn’t telling the truth. Dank never uttered those words. It was incomprehensible and unconscionable that Beloff put – “I injected him with TB-4” – in quotation marks. Res ipsa loquitur, If Dank had used the word ‘him’, McKenzie, WADA and the CAS panel would have named the ‘him’.
    
    
19. Dank was found not guilty by the AFL Anti-Doping Tribunal on all 21 charges related to Essendon. Although neither WADA nor ASADA appealed the not guilty verdicts, the CAS unconscionably found him guilty, without charges laid and without him being able to defend himself, of being guilty of administering thymosin Beta-4 to the 34 players.
    
    
20. Incomprehensibly, the CAS panel allowed WADA to treat the case as one in, all in. WADA was required by law to prosecute the case against each of the 34 players. WADA made no attempt to make a case against a single player. As WADA didn’t prosecute the case against a single player, CAS should have found them all not guilty.
    
    
21. Despite each player receiving a different mix of injections rather than the same injections, the panel disingenuously claimed that if a player received an injection, it was a Thymosin Beta-4 injection. It was illogical to claim that if a player had an injection from a range of seven different substances – Melatonin; Melanotan II; Cerebrolysin; Amino-Lite; AOD-9604; Traumeel and vitamin boosts – it must have been a Thymosin Beta-4 injection. Bearing in mind that there was no evidence Dank ever took possession of Thymosin Beta-4, such a ruling indicated that the panel lacked credibility and was either corrupt/biased, and/or incompetent.
    
    
22. The players were legally entitled to expect that none of the panellists had any preconceived views of their guilt. Unconscionably, the evidence indicates players were most likely the tragic victims of a preconceived determination. Just prior to Player ‘A’ being called to give evidence, head panellist Michael Beloff said: “… yes, though I’d be prepared to lay (indistinct) on what the answer’s likely to be.”  In my view, and I suspect in the view of the rest of the world, Beloff had decided before Player ‘A’ gave evidence that Player ‘A’ was going to deny being administered Thymosin and could not be believed.
    
    
23. Beloff was implying Player ‘A’ was a drug cheat. As the panel unconscionably adopted a one in, all in, approach, Beloff’s implied preconceived guilt finding against Player ‘A’ contributed to the other 33 players being unjustly found guilty.
    
    
24. The players were entitled to expect that the panellists knew the WADA rules for filling out a doping control form in 2011 and 2012. The panellists incomprehensively claimed that it was compulsory for the players to declare every substance consumed within seven days of a doping control test and were biased against the players for not making such declarations. 
    
    
25. The panellists were ignorant. It wasn’t compulsory to declare any substance on the doping control form. Section 9 of the ‘ASADA Athlete Testing Guide’ in 2012 stated: “Consider (my emphasis) declaring any substance used in the last seven days.” It became compulsory in 2015. The panellists’ unforgivable incompetence had catastrophic consequences for the players. The panel concluded that the players colluded not to comply with the ‘compulsory’ declaration requirements, and therefore, they were basically dishonest and none of their evidence could be trusted. Misjudging the players’ honesty based on the panel’s incompetence was unforgivable.
    
    
26. As it was a de novo hearing, the players were legally entitled to expect that none of the panellists would rubber-stamp WADA’s belief that metaphorically speaking Dank was a bank robber and rogue, and therefore, he had no compunction about using banned substances, which meant the panel could conclude that the players were guilty. Although the panel thought Dank was a liar, it embraced alleged newspaper comments by Dank that supported ‘convictions’ but ignored comments by him that supported ‘not guilty’ findings.
    
    
27. The players were legally entitled to expect that none of the panellists had any preconceived views on whether they would accept information given in interviews from known liars and forgers who refused to testify under oath and who refused to appear before the hearing. Even WADA acknowledged that three of its key witnesses, forged documents that were submitted as evidence.
    
    
28. Incomprehensively, panellist Subiotto decided before the hearing that he would accept evidence from those who refused to appear before the hearing. Subiotto’s exchange with the players’ lawyer Neil Clelland QC during the hearing showed Subiotto’s preconceived position: Subiotto said: “I think the panel should be able to decide whether or not – what weight to put on the material, and I think in that context your task is to show to us why that material is unreliable in any way, or says something different from what WADA‘s saying. Rather than discussing all this stuff about excluding – we‘re not going to exclude this evidence.”  (my emphasis)
    
    
29. Clelland responded: “Aren‘t you?”
    
    Subiotto said: “No.”
    
    Worse still, when caught out, Subiotto responded with a fork tongue and pretended that he hadn’t made up his mind before the hearing to accept such evidence.
    
    
30. Amazingly, at page 181, line 5 of the CAS hearing transcript, CAS panellist James Spigelman said: “A liar can give credible evidence, can’t he?” Spigelman was clearly implying that the panel would cherry-pick the evidence of the liars and forgers who weren’t available for cross-examination.
    
    
31. It was incomprehensible that the panel, with CAS Secretary-General Matthieu Reeb sitting alongside them during the hearing, defied CAS rule 44.2 from Despina Mavromati and Reeb’s book, ‘The Code of the Court of Arbitration for Sport’.  At paragraph 28 on page 334, CAS rule 44.2 said: “The parties are responsible for the presence of the witnesses and experts at the hearing. If any witness or expert is absent, any witness statement or expert’s opinion related to this person is normally removed from the file and the panel doesn’t consider such evidence.” (my emphasis) The panel defied CAS rule 44.2 and accepted written interview ‘evidence’ from WADA’s key witnesses, Nima Alavi, Aaron Walker, Nick McKenzie and Richard Baker. The panel’s decision to accept such mythical statements without them being cross-examined discredited the entire proceedings.
    
    
32. In an extraordinary decision, the panel allowed WADA to change the case set out in its Appeal Brief. In its Appeal Brief, WADA said it was running a ‘Links in the Chain’ defence. That meant that if one link was broken, WADA’s case failed. The players prepared their defence on WADA running the Links in the Chain defence. Incomprehensively, in his opening address, WADA’s American lawyer Richard Young said he was running a ‘Strands in the Cable’ defence, which meant that not all strands had to be valid.
    
    
33. The players’ lawyers objected to the switch in strategy made by WADA on the morning of the first day of the hearing. Neil Clelland QC said: “The characterisation that is being, we would say, adopted very late in the piece by WADA this morning, the way it puts its case as sticks or strands, is quite different to (sic) the way it was put in their appeal brief and the appendices to their appeal brief. We came to respond to a case which, we think for very good reason, acknowledged that this was clearly a links in the chain case. When one understands what the nature of the substance in question is, and its very specific constitution, it is understandable that it has to be a links in the chain case.” Astonishingly, the panel said it would rule on the change later. To WADA’s huge advantage, the panel never did.
    
    
34. The panel incomprehensibly accepted WADA mistakenly placing significant influence in its case that TB-500 was the same substance as Thymosin Beta-4, even though one of WADA’s witnesses Professor Handelsman stating that they were different substances.
    
    
35. The dosage and frequency listed by WADA and accepted by CAS was for TB-500. As TB-500 was a completely different substance from Thymosin Beta-4, the CAS panel made an unforgivable terminal mistake in ruling that the frequency protocols for TB-500 were the same as the frequency protocols for Thymosin Beta-4. As it transpired, the frequency protocols for administering Thymosin Beta-4 were never tabled.
    
    
36. Seven players were crossed-examined at the hearing under oath. None gave any evidence that could lead the panel to be comfortably satisfied that they or the other players were administered Thymosin Beta-4.
    
    
37. In the most illogical statement imaginable, Spigelman said: “Mr Prismall was injected for about eight weeks [with an unknown substance] while he was only training and not playing … that would suggest, would it not, that whatever was being done, was being done to everyone.” On its own, Spigelman’s comment was illogical and wrong. In simple terms Spigelman was disingenuously saying that if one injured player was administered [an unknown] substance, the other 33 players, whether injured or not, were administered the same substance. The illogical comment aside, Spigelman conveniently overlooked Brent Stanton stating that Dank said: “And then he [Dank] sort of just went through the four supplements that we could possibly take. ‘You won’t be taking them all. It will be down to needs or how you’re feeling.’” Serge Del Vecchio said: “He [Dank] gave me the impression he was giving peptides to all of the Essendon players and had developed different peptide programmes for different groups of players depending on where these players were in their football development.”
    
    
38. Subiotto appeared to rubber-stamp many WADA claims irrespective of their merit. The players, Alavi, WADA key witness Professor Handelsman, Professor Boyd and other witnesses questioned the reliability of substances emanating from China. Subiotto disingenuously believed that the GL Biochem substances must have been up to world standards because the company was acquired shortly after by an American company. Subiotto’s inference was that no American company would buy a company selling sub-standard products. It was incomprehensible that a QC thought an acquisition was evidence of the quality of an untested substance. Embarrassingly for Subiotto, the American company went into receivership shortly after the acquisition.
    
    
39. The players were legally entitled to expect that the panel would not make unsubstantiated ignorant damaging judgements of the type made over Dank’s desire for the players to be excused from interviews on Essendon’s internal TV channel, ‘The Hanger’, prior to the Anzac Day match. Beloff rubber-stamped WADA attorney Brent Rychener’s implied claim that Dank was acting sinisterly because he “wanted a free run without anybody looking over his shoulder”. Dank administered the substances in his office so it was disingenuous for Rychener and Beloff to imply that Dank was being sinister in stating that didn’t want the TV cameras catching him administering substances to the players. The cameras never had access to his office.
    
    
40. The players were entitled to expect that the panellists wouldn’t judge something they had no knowledge. Panellist Romano Subiotto knew nothing about the elements involved in winning AFL matches. For example, he was ignorant about the effect on the result of a match by players dropping out of games due to injuries to Essendon players and its opposition. He was unaware of the effect the senior coach and forward coach and centre coach and back coach had before the match and during the match on winning games. Despite his ignorance, Subiotto believed that Essendon won several matches in early 2012 because the players were all administered Thymosin Beta-4. Up until the bye (first 11 matches) most of the teams Essendon had beaten were no-hopers – North Melbourne who finished 8^th at the end of the season; Port Adelaide 14^th; Gold Coast 17^th; Carlton 10^th; Brisbane 11^th; West Coast 5^th; Richmond 12^th; Greater Western Sydney 18^th.
    
    
41. Subiotto made unjustifiable false statements. At page line 43, page 104 of the CAS hearing transcript, Subiotto said: “If that was Dank saying no TB-4, it’s interesting that Del Vecchio is telling Shane Charter this guy has got confused about it.” Del Vecchio never mentioned TB-4 to Dank or Charter. Furthermore, Thymosin Beta-4 was not listed by name as a prohibited substance by WADA until 1 January 2018, so Del Vecchio could not have known its status. Clearly, Subiotto was wrong and had no right to make such a damaging allegation about TB-4.
    
    
42. The players were legally entitled to expect that the panel was conscientious enough and smart enough to identify that WADA had inserted the extremely damaging words ‘Mr Earl’ into Dank’s 2 August 2011 text to Dean Robinson. The 2 August 2011 text that the panel saw didn’t contain the words ‘Mr Earl’. The text referred to a patient who was utilising Thymosin post-surgically in one shoulder and prophylactically in the other shoulder. Prophylactically means a preventative measure. In the text, Dank was stating that he used Thymosin in one shoulder that had been reconstructed and he used Thymosin in the other shoulder. Dank could not have been referring to Earl as claimed by WADA and the panel because he had both shoulders reconstructed before 2 August 2011.
    
    
43. The players were legally entitled to expect that the panellists wouldn’t omit or ignore evidence when making an adverse decision against the players. In the 23 August 2011 text, the panel unconscionably implied that Thymosin was the generic name for Thymosin Beta-4. The CAS panel failed to mention and consider that Kogarah compounding pharmacist Maged Sedrak told the ASADA investigator that there were many varieties of Thymosin Beta and that he never used Thymosin Beta-4. Consequently, the CAS panel unconscionably misrepresented the evidence by implying Dank was referring to Thymosin Beta-4.
    
    
44. The panel rubber-stamped WADA false claim that Serge Del Vecchio warned Dank that Thymosin Beta-4 was a banned substance. Del Vecchio never mentioned Thymosin Beta-4 to Dank. Furthermore, as Thymosin Beta-4 was never listed by name by WADA as a prohibited substance until 1 January 2018, neither Del Vecchio nor anyone else could have known Thymosin Beta-4 was a prohibited substance.
    
    
45. The panel misrepresented Essendon Dr De Morton’s evidence by implying that Dank tested the players’ bloods for Thymosin Beta-4. The CAS panel was biased, arguably corrupt, and factually wrong to claim that the blood tests “were recommended for peptides like Thymosin Beta-4”.
    
    
46. The panel lied by claiming that several players said that Dank didn’t attend away matches. No player made such a claim.
    
    
47. The panel was either incompetent or biased when identifying the alleged strands in the cable. None of the 16 strands identified by the panel had any validity. NB Evidence that each of the 16 strands was destroyed is contained in a discrete 23-page document.

 

PRIME MINISTER JULIE GILLARD’S GOVERNMENT:

1. Ironically, the investigation should have been aborted for unlawful behaviour by ASADA and the sports minister Senator Kate Lundy, and/or her representatives before the first witness was interviewed on 13 February 2013.
   
   
2. The Sport Integrity Australia Act 2020 – Sect 24 states that:
   
   (1)  The Minister may, by legislative instrument, give directions to the CEO in relation to the performance of his or her functions and the exercise of his or her powers. For example, the Minister can instruct the CEO to donate $130,000 to WADA to run an appeal.
   
   (2)  However, such a direction must not (my emphasis) relate to a particular athlete, or a particular support person or a particular non – participant, who is subject to the NAD scheme; Clearly, this means that neither the Minister nor her representatives could lawfully be involved in the investigation of the Essendon players.
   
   
3. On 9 February 2013, one of the most shameful meetings in Australian sporting history took place at ASADA’s Canberra headquarters. Essendon chairman David Evans and chief executive Ian Robson attended the meeting with ASADA’s chief executive Aurora Andruska, chief operating officer Trevor Burgess, general manager of anti-doping programmes and legal services Elen Perdikogiannis, director of intelligence and investigations Paul Simonsson, AFL’s Gillon McLachlan and Brett Clothier, and Richard Eccles from Senator Kate Lundy’s office.
   
   
4. In what constitutes unlawful gross misconduct by the minister’s representative, during the meeting, Eccles asked McLachlan what he wanted from the investigation. The joint investigation had nothing to do with the government and Eccles should not even have been at the meeting.
   
   
5. Eccles presence was clearly in breach of Section 24 (2) of the ASADA/Sport Integrity Australia Act. Here, we had the Prime Minister’s senior sporting bureaucrat not only denying Essendon and Hird procedural fairness but corrupting the investigation.
   
   
6. Incomprehensively, during the meeting, Eccles asked McLachlan what result he wanted from the investigation. According to Andruska’s meeting notes and her subsequent affidavit, (Source: ASA.0032.0149, affidavit exhibit AA-2), McLachlan said:
   
   “Come to arrangement. Players found to be innocent. This is the outcome [I want]. Sanctions against Essendon. [The Essendon club] held responsible. Hold individuals [coaching staff] accountable.”
   
   
7. My legal adviser, a former Supreme Court judge and KC, advised me that this was a possible criminal conspiracy.
   
   
8. David Evans and Ian Robson, in their capacity as Essendon board members, endorsed all McLachlan’s demands. The decision was subsequently endorsed by the Essendon board. The bottom line was Evans agreed to sacrifice the innocent Hird to protect the AFL Commissioners, the Essendon board and the players.
   
   
9. Although ASADA was an independent statutory body, the Gillard government interfered with its operation on numerous occasions. As veteran broadcaster Tim Lane pointed out in an interview with AFL CEO Gillon McLachlan in 2016, “What the AFL and the Gillard Government was attempting to do to influence ASADA was no different from what the Russian government was doing.”
   
   
10. Deciding the outcome prior to the first witness being interviewed was arguably no different from match fixing. In cricket, match fixing results in gaol.
    
    
11. Richard Eccles compounded the misconduct and contamination of the investigation by telling the attendees that the Prime Minister wanted the matter to end.
    
    
12. Res ipsa loquitur, that the Prime Minister’s representative, senior ASADA and AFL executives having established the result of the investigation before it started, meant that the investigators could not have conducted the investigation with an open mind, and consequently, no information or evidence they provided to support their findings can be considered untainted.
    
    
13. Specifying the AFL’s desired outcomes, including who would be found culpable, is yet another factor in the early corruption of the process that made any findings of the investigation both unfair and unsafe.
    
    
14. On 13 February 2013, Richard Eccles informed ASADA’s lawyers in writing that “he had told AFL deputy chief executive Gill 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”. (Source: ASADA: 0001: 0342).
    
    
15. Although, Andruska believed a ‘no fault or negligence defence’ was not an option for the players, the AFL, the government’s Richard Eccles and ASADA’s director of investigations Paul Simonsson did not accept CEO Andruska’s position.
    
    
16. On 13 February 2013, Simonsson sent an email to the AFL’s Brett Clothier in which he stated that “ASADA and the AFL will fully explore all avenues in an attempt to provide substantial assistance to a no fault or no negligence defence”.
    
    
17. The AFL, Simonsson and Eccles’ view held sway at this time, even to the point of a written agreement from ASADA to this effect. It is incomprehensible that not only was the AFL’s deputy chief executive Gillon McLachlan prepared to exonerate the players at this point, but that ASADA’s director of investigations was also prepared to do so.  This was the most senior ASADA investigator prepared to participate in a corrupt investigation, and to even be a player in the corrupting of the process.
    
    
18. It was one thing for the Gillard government, ASADA, and the AFL to run a corrupted investigation but here we had the prime minister’s representative implying that the two judges and the barrister who were to sit on the tribunal would determine as the AFL wished them to.
    
    
19. It was unlawful for Prime Minister Gillard to interfere with a statutory body and ASADA officials knew it was unlawful and should have forbidden Eccles’s involvement. Andruska should have abandoned the contaminated investigation at this point and made a formal complaint regarding government interference.
    
    
20. On 20 February 2013, ASADA’s director of investigations, Paul Simonsson, and ASADA lawyer Darren Mullaly attended the Essendon club and spoke to the players and other EFC personnel en masse. Simonsson read from a prepared statement and handed out a document.
    
    
21. Inter alia, the document said: “… ASADA will explain to the players that these are exceptional circumstances, and the defence of no fault or negligence may be available. It will be explained to players that under a no fault or negligence defence a player can receive a complete elimination of sanction. Where a player does come forward and provides a sworn statement regarding his involvement and the involvement of any other person, ASADA will fully explore all avenues in an attempt to provide a no fault or negligence defence was substantial assistance.” (Source Chip Le Grand ‘The Straight Dope’). In making this promise, and without even having interviewed the players, ASADA was abrogating one of its major responsibilities, which was to penalise athletes who took WADA prohibited substances.
    
    
22. When John Marshall, ASADA’s long-term senior counsel became aware of the letter Paul Simonsson read to the players on 20 February 2013, he told ASADA that what the letter promises is in breach of the World Anti-Doping Code and ASADA must renege. ASADA, now in a difficult position of its own making, at first refused. Marshall resigned. [Source: Chip Le Grand – The Straight Dope]
    
    
23. Aurora Andruska testified before Justice Middleton in the Federal Court in August 2014 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’.” (my emphasis).
    
    
24. Such interference from Senator Lundy’s office corrupted the investigation and denied procedural fairness to Essendon and individuals under investigation. Andruska should have formally protested Senator Lundy’s pressure. Whether Andruska capitulated to Lundy’s demands or not, it is clear from (the clause below) that she felt the pressure. Justice must be done it must also be seen to be done.
    
    
25. On 4 June 2013, Andruska and ASADA’s Elen Perdikogiannis spoke to Glenys Beauchamp, deputy secretary Department of Sport. The handwritten notes taken by Perdikogiannis record the following: “9.00am conversation with Glenys Beauchamp [Secretary, Department of Regional Australia, Local Government, Arts and Sport] with AA [Aurora Andruska]. Clear instructions from Min [Minister 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.
    
    
26. 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.” It is impossible not to see this meeting as anything other than the Gillard government, the AFL, and ASADA corruptly conspiring to find Essendon, Hird, and support staff guilty and for them to be harshly penalised.
    
    
27. On 5 June 2013, ASADA’s John Nolan expressed concern that Andruska was serving the “political agenda of others” (my emphasis). Justice must not only be done it must be seen to be done. When an ASADA executive implies ASADA’s chief executive is guilty of what amounts to misconduct, it is impossible to accept justice was done. Any evidence provided to support findings in the investigation was tainted and should be declared unsafe and therefore inadmissible in this or any other jurisdiction.
    
    
28. ASADA chief operating officer Trevor Burgess told the Federal Court he received a briefing on 13 June 2013 from Richard Eccles about an AFL plan to act against the club staff and suspend Hird for at least six months (my emphasis). ‘Ducks all lined up’ notes Burgess. [Source: Trevor Burgess’s diary notes from his 13 June 2013 conversation with Richard Eccles, which were tendered to the Federal Court on 13 August 2014, VID No. 327 of 2014.]
    
    
29. This was an extraordinary situation. The ASADA/AFL investigators were being usurped by ASADA, AFL and government officials who should never have been involved in the process once the investigation commenced.
    
    
30. During a conversation between Andruska and McLachlan on 26 June 2013, the ASADA head noted McLachlan’s comments as follows:
    
    • “Take points off Essendon – if High Court [challenge], 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).”
    
    
31. Andruska attended a meeting with AFL officials Demetriou, Clothier and senior counsel Andrew Dillon on 24 July 2013. Demetriou stated that “two or three things cannot afford to be made public” (my emphasis).
    
    
32. Andruska told the Middleton Federal 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. This suggests Ministers Lundy and Clare regretted their stage-managed over-the-top, damaging, media conference with the ACC, the AFL and the NRL on 7 February 2013 and they needed a deal with ASADA and the AFL to get the government out of trouble. The ‘deal’ corrupted the investigation resulting in a denial of procedural fairness to the Essendon club, James Hird, other support staff and, as it has now transpired, the players. (Source Chip Le Grand ‘The Straight Dope’)
    
    
33. 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. She couldn’t explain.
    
    
34. This was a clear admission by Andruska that ASADA failed to fulfil its statutory obligations. Accordingly, the investigation should have been declared null, and void and WADA should not have been allowed to submit to any jurisdiction any of the supposed ‘evidence’ collected or provided by ASADA to support its unsafe findings.
    
    
35. 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. One would hope it was unusual, as in participating in these meetings she was operating outside her statutory obligations to be independent of government, or any other external influences.
    
    
36. The court was told that Richard Eccles, then serving Sports Minister, Kate Lundy as a deputy secretary within the department of regional Australia local government parks and sport had a “persisting involvement” in the investigation from January 2013 until August 2013.
    
    
37. Furthermore, Andruska told Justice Middleton that Richard Eccles, had been at several meetings involving the AFL, ASADA, the ACC and the government. In allowing these meetings and especially allowing Eccles to participate in such meetings Andruska clearly breached ASADA’s obligations and denied Essendon and individuals under investigation procedural fairness.
    
    
38. Andruska recounted to the Middleton Federal Court former sports minister Kate Lundy’s determination to strike a deal to punish Essendon. Andruska’s comments revealed the level of political involvement in the ASADA and AFL’s joint investigation of Essendon.
    
    
39. In allowing the interference, she permitted ASADA to breach its statutory obligations. The deal between ASADA, the government and the AFL facilitated the AFL imposing grossly onerous penalties on the Essendon club and Hird, with lesser penalties on other support staff. Inter alia, Essendon was fined $2 million. And none of this resulting from a charge of administering banned substances, but rather on a charge of governance failures. It could be argued that the deal enabled the AFL to improperly obtain $2 million from the Essendon club.
    
    
40. The statements made on 7 February 2013 by Justice Minister Jason Clare and Sports Minister Kate Lundy were made for political purposes and caused enormous damage to Australia’s sporting reputation.
    
    
41. In coverage of the media conference, the Age newspaper stated: “The links may have resulted in match-fixing and fraudulent manipulation of betting markets – and it was hopeful criminal charges would be laid.”
    
    
42. None of the ACC, Jason Clare and Kate Lundy’s outrageous claims came to fruition.
    
    
43. Preventing unlawful government interference notwithstanding, in the first instance, the investigative process to determine the players’ guilt involved ASADA proving that Essendon sports scientist Stephen Dank or Essendon Football Club took possession of Thymosin Beta-4 in 2011 or 2012.
    
    
44. As it transpired, ASADA admitted that there was no evidence that Dank or Essendon ever took possession of Thymosin Beta-4. There were no orders; no delivery records; no invoices; no payments; and no dispensing records.
    
    
45. Furthermore, in clause 93 of his 11 January 2015 affidavit, Staffer 7 said: “The key question is what was the source of the Thymosin; and when (if at all) (my emphasis) it was delivered – and in what coloured vial?”
    
    
46. Clearly, ASADA head investigator Aaron Walker’s comment “if at all” implies ASADA had no evidence that Thymosin of any variety was ever delivered to Dank or Essendon.
    
    
47. Res ipsa loquitur, if there were no evidence that either Stephen Dank or Essendon took possession of Thymosin Beta-4, the saga should have ended when ASADA delivered the Final Investigation Report on 4 March 2014.
    
    
48. Incomprehensively, despite no player testing positive to Thymosin Beta-4, and despite there being no evidence that either Stephen Dank or Essendon took possession of Thymosin Beta-4, ASADA under its new chief executive Ben McDevitt appealed to the Anti-Doping Review Violation Panel.
    
    
49. Clearly, ASADA’s task of convincing the ADRVP that it was possible the Essendon players were administered Thymosin Beta-4 was a tougher campaign than Christ had over two thousand years ago when he turned water into wine and breadcrumbs into bread loaves to feed 4000 people.

Conclusion: Clean athletes deserve protection from dirty athletes.

Clean athletes deserve protection from dirty officials.

Jobe Watson and his 33 teammates were destroyed by dirty officials from several organisations.

Jobe Watson deserves support from the AFL and media because if he doesn’t get it, those current officials will be seen as condoning the corruption of their predecessors.