Essendon players escape sanction? It's hard to see why
Date
August 1, 2013 - 3:44PM
Peter Brukner
Australian sports medicine physician
On April 30, I wrote an article for The Age indicating the likely sanctions against players involved in the Essendon peptide saga. Since then, there have been almost daily disclosures in the media and much discussion around possible penalties.
There seems to be a general feeling that the likely result of the Australian Sports Anti-Doping Authority inquiry is that the club will be severely punished with a large fine, suspension of officials and probable loss of points, but that the players will avoid suspensions.
I am not so sure about that.
There are two basic questions in this case. First, did the Essendon players, knowingly or not, take any banned substances or undertake any banned methods in 2012? Second, if they have taken banned substances, what penalties are likely to be handed out?
Did the Essendon players in 2012 take any banned substances? Jobe Watson has admitted on television he believed he – and presumably other Essendon players – took the anti-obesity drug AOD-9604.
There has been some confusion regarding the status of AOD-9604 based on a statement in the Australian Crime Commission report which said "AOD-6904 is not a banned substance".
The ACC subsequently published the following statement:
The Australian Crime Commission sought expert advice from the Australian Sports Anti-Doping Authority (ASADA) at the time of developing the Organised Crime and Drugs in Sport report and was advised (correctly) that AOD-9604 is not prohibited under schedule S2 of the WADA prohibited list[1].
The World Anti-Doping Authority is the pre-eminent authority and expert in this field and the Australian Crime Commission welcomes the subsequent clarification by WADA on 22 April, 2013, of the status of AOD-9604 as a prohibited substance under the S0 classification.
The WADA statement confirms that AOD-9604 was a prohibited substance, both in and out of competition, during the period of activity that was investigated by Project Aperio.
The S0 classification reflects WADA's advice that there is no current approval by any governmental regulatory health authority in the world for human therapeutic use of AOD-9604. One of the concerns held by the ACC during Project Aperio was that professional athletes were being administered substances that had not been approved for use on humans.
There is no doubt that AOD-9604 is a banned substance under Section S0 of the WADA Code which states:
Any pharmacological substance which is not addressed by any of the subsequent sections of the Prohibited List and with no current approval by any governmental regulatory health authority for human therapeutic use (eg drugs under pre-clinical or clinical development or discontinued, designer drugs, substances approved only for veterinary use) is prohibited.
AOD-9604 is not approved for human use in any country in the world. So on the basis of this drug alone, players would be guilty of taking a banned substance.
There have been suggestions that the players were also administered a number of other drugs, including CJC-1295, GHRP-6, hexarelin, melanotan, cerebrolysin and thymosin. These drugs are either banned peptides under WADA S2 or substances not approved for use under S0.
It has also been suggested that the Essendon players might have been given intravenous vitamins in a drip containing more than the 50mls allowed by WADA.
So if we assume, as seems likely, that the Essendon players have taken at least one (and probably more) banned substances, what penalty is likely?
Most of us, I assume ASADA as well, have sympathy for the Essendon players. There is no suggestion they knew they were taking banned substances and, as a result, it has been suggested they will avoid suspensions. However, the basic principle of the WADA Code is that a player is totally responsible for what he takes.
There is only one section of the WADA Code that allows avoidance of suspension altogether – Section 10.5.1, No Fault or Negligence. This relates to suspension being waived in specific rare scenarios where an athlete can prove he or she was sabotaged by a competitor. It specifically states that it is not applicable in the following scenario:
"The administration of a prohibited substance by the athlete's personal physician or trainer without disclosure to the athlete (athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any prohibited substance).''
So it is hard to see how zero suspension can be applied in the Essendon case.
The WADA code stipulates a standard punishment of two years' suspension.
However, there are several clauses in the WADA Code that relate to reduction of the standard ban. The first is 10.5.2, entitled No Significant Fault or Negligence. It states:
"If an athlete or other person establishes in an individual case that he or she bears no significant fault or negligence, then the otherwise applicable period of ineligibility may be reduced, but the reduced period of ineligibility may not be less than one-half of the period of ineligibility otherwise applicable."
It is possible under this clause for players to argue they have no significant fault and have their bans halved.
The next relevant clause is 10.5.3, Substantial Assistance in Discovering or Establishing Anti-Doping Rule Violations. This clause states:
"An anti-doping organisation ... may ... suspend a part of the period of ineligibility imposed in an individual case where the athlete or other person has provided substantial assistance to an anti-doping organisation, criminal authority or professional disciplinary body which results in the anti-doping organisation discovering or establishing an anti-doping rule violation by another person or which results in a criminal or disciplinary body discovering or establishing a criminal offence or the breach of professional rules by another person ... No more than three-quarters of the otherwise applicable period of ineligibility may be suspended."
If the Essendon players were considered to be eligible for reductions under both clauses 10.5.2 and 10.5.3, then the best-case scenario is a six-month ban.
The WADA Code also imposes sanctions on teams with multiple players found guilty. Clause 11.2, Consequences for Team Sports, states:
"If more than two members of a team in a team sport are found to have committed an anti-doping rule violation during an event period, the ruling body of the event shall impose an appropriate sanction on the team (eg, loss of points, disqualification from a competition or event, or other sanction) in addition to any consequences imposed upon the individual athletes committing the anti-doping rule violation."
The AFL clearly has the authority to dock premiership points. These offences took place in 2012 and there is no suggestion that any banned substances have been taken this season. However, the AFL may take the attitude that any performance-enhancing effect may have carried over into this season and justify the deduction of points on that basis. Alternatively, they could decide that a points deduction is warranted on the basis of bringing the game into disrepute.
Like most football followers, I don't believe that the individual players should be suspended, but given that the AFL has signed up to the WADA Code, there seems little doubt to me that suspensions will be inflicted.
The minimum suspension will be six months. While there have been suggestions the ban will commence after this season and conclude at the start of next season, for the ban to be meaningful it must include some matches.
Probably the saddest thing is that the much-admired Jobe Watson may well be stripped of his 2012 Brownlow Medal.
Peter Brukner, OAM, is a sports physician and media commentator.
