Essendon FC: A conclusion in the anti-doping saga

source: https://i.guim.co.uk/img/media/953c8c8a0495153919e22185969e1e2648c6054d/0_299_4500_2703/4500.jpg?w=620&q=55&auto=format&usm=12&fit=max&s=b28942be0fc50105725949d3b1f4b756

Yesterday, the Swiss Federal Tribunal (SFT) threw out the appeal of more than 30 current and former players of AFL team, Essendon FC, against doping bans that were imposed on them by the Court of Arbitration of Sport (CAS). 

Where did it all begin?

In February 2013, Essendon FC was investigated by the Australian Sports Anti-Doping Authority (ASADA) and the World Anti-Doping Agency (WADA). The inquiry suspected that 34 past and present Essendon players had been taking the banned substance, Thymosin Beta-4, via injection during the 2012 season. The substance was given to the players by a team official as part of a team-wide supplement plan. The players were of the understanding that the substance was compliant with the WADA Code.

The investigation highlighted governance and duty of care failures, on the part of the club, and the AFL fined Essendon $2,000,000, suspended the coach and general manager and banned the team from playing in the 2013 finals series. 

The findings, regarding the individual players, were also submitted to the AFL but their Anti-Doping Tribunal found that there was insufficient evidence to declare the players guilty of doping offences. None of the players had tested positive, most likely due to the passage of time, and as such the Tribunal dismissed the claims and no sanctions were imposed, clearing Essendon FC of any wrongdoing.
WADA fight back

WADA appealed the decision of the AFL tribunal, referring the case to the CAS. The CAS issued a two year ban to all 34 players on the basis that despite there being no positive tests, it was "comfortably satisfied" on the evidence that it had reviewed, that each of the players had received one or more injections of Thymosin Beta-4, which was a banned supplement. As such, the ban would be imposed. 

The sanction raised eyebrows, for some critics, as the ban was imposed in circumstances that appeared to justify a reduction in length. The doping offence was non-intentional in that it was a team exercise, sanctioned by a team official, where all offenders were of the understanding that the substance was compliant. In cases of non-intentional doping, the maximum length of ban is two years and as such, some might argue that there were circumstances, in this case, for mitigation and reduction in the period of sanction. 

Essendon appeal

Essendon appealed the decision of the CAS to the Swiss Federal Tribunal (SFT), which was ultimately unsuccessful. 

It is understood that Essendon players argued that the CAS did not have jurisdiction to hear the case as WADA should only have been allowed to appeal the decision of the AFT tribunal on grounds of either legal error or that it was grossly unreasonable. Secondly, the players also argued that the CAS did not consider the appeal on a case-by-case basis and the sanctions imposed were unreasonable.

The SFT stated that the bans, imposed by the CAS, would not be reduced as the players had effectively lost their right to appeal the CAS ruling. The players did not formally challenge the jurisdiction of the CAS during the arbitration process and had accepted the application of CAS's rules including a de novo hearing which allows the CAS to conduct a full review of the case. 

The SFT also stated that, in the event that jurisdiction had been properly challenged, it would have confirmed the CAS jurisdiction, in the matter, and the appeal would have still been dismissed. 

Appealing to the Swiss Federal Tribunal

The Swiss Federal Tribunal (SFT) is the Supreme Court in Switzerland and is a common port of call for challenging decisions of the CAS. There are four grounds in which the Court can review a decision under s.190(2)(a-d) of the Swiss Private International Law Act:

(1) The CAS arbitrator or panel was not appointed appropriately (complaints of independence is such 

      an example);

(2) The panel incorrectly accepted or declined jurisdiction to hear the case;

(3) The panel went beyond the claims submitted or failed to address a specific point put before it;

(4) There was a violation of due process or in some way a failure to guarantee procedural fairness.

Decisions of the CAS have proven very robust with the SFT overturning it's decisions on very few occasions, however, whilst the SFT is reluctant to overturn decisions, where CAS decisions violate public policy or basic legal principles, the Court will act to annul the decision.

Is there an argument for a single anti-doping body, across all sports, in Australia? 

Unlike in Canada, New Zealand and the UK, there is no single national body to hear anti-doping complaints, in Australia. The AFL as well as Cricket Australia and the National Rugby League all have their own tribunals and have the freedom to pick their own panel members - this undoubtedly allows for conflict of interest and lack of independence arguments to arise and the implementation of a single body, across all sports, will no doubt be called for after the Essendon case.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.