Sports Integrity Initiative: Essendon – The black, the white and the grey in between

Nightmare. A miscarriage of justice. Shocked. Manifestly unfair. A tragedy of Shakespearean proportions. A Pandora’s box.

The reaction to this morning’s news that the Court of Arbitration for Sport (CAS) has overturned the AFL tribunal’s acquittal of 34 current and former Essendon players has sent shockwaves though the sporting world. The ruling transcends a sport confined in the most part to just one country, Australia, its repercussions setting a precedent for professional sport worldwide.

This is a bleak day for AFL and for sport; schadenfreude has no place in a verdict that has all but ended, if not significantly damaged, the livelihoods of 34 healthy young men. The verdict itself will be widely debated – when so many uncertainties had dragged out a case for almost three years, questions will remain as to how, exactly, a panel so swiftly came to the ‘comfortable satisfaction’ that such a fundamental clause had been violated. Nor was the violation by just one perpetrator, but by 34.

Victims, not perpetrators

Perhaps the most significant finding of the whole affair however, is the responsibility thrust on the players involved. AFL is a unique sport; more parochial and family-orientated than football in the northern hemisphere, the list of players on the payroll at each club is vast.

In professional football clubs in Europe young players are shielded and groomed behind closed doors in well-established academy systems before being exposed to the limelight. Those in AFL, by contrast, are out in the open from an early age. Like a Victorian-era schooling system, young players are ranked 1-to-112 in a draft containing players as young as 19. The pressure comes early, and is both immense and incessant in a nation obsessed with the sport.

Throughout the three years of the investigation, much emphasis has been placed on the stress incurred by the players involved.

“There is not one scintilla of evidence that said the players had any knowledge of what was going on here,” said Gillon McLachlan in August 2013, then the AFL’s deputy chief executive. “And that’s incredibly important to remember.”

“They are the victims, not the perpetrators. They serve our sympathy, not our scorn,” said Paul Marsh, the chief executive of the AFL Players’ Association (AFLPA), earlier today.

However ASADA CEO Ben McDevitt drew attention to a key passage in the ruling that refused to absolve the players of responsibility and reduce their sanctions.

“There were very little grounds for the players to claim they were at no significant fault,” said McDevitt in a statement.

“The players had received anti-doping education through the AFL and ASADA, and were well aware that they are personally responsible for all substances that entered their body.

“Unfortunately, despite their education, they agreed to be injected with a number of substances they had little knowledge of, made no enquiries about the substance and kept the injections from their team doctor and ASADA.

“Of 30 ASADA testing missions during the period in question, none of the 18 players tested declared the injections, despite being asked each time whether they had taken any supplements.

“At best, the players did not ask the questions, or the people, they should have. At worst, they were complicit in a culture of secrecy and concealment.”

An athlete’s personal duty

Under Article 2.2.1 of the World Anti-Doping Code “It is each athlete’s personal duty to ensure that no Prohibited Substance enters his or her body and that no Prohibited Method is used.

“Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athlete’s part be demonstrated in order to establish an anti-doping rule violation for use of a Prohibited Substance or a Prohibited Method.”

Based on the 2014 CAS award in the case of Croatian tennis player Marin Cilic, in Cilic v. ITF, the panel in the Essendon case used guidelines to assert the fault of the athletes. It was found that the players all received education in anti-doping, none appeared to make use of the WADA hotline available to them, non appeared to have conducted internet searches for Thymosin (the banned drug), and no player asked the Essendon club doctor for advice on the drug, although all signed a consent form to its administration.

According to the CAS award, none of the pleas in mitigation on behalf of the players came ‘within measurable distance of providing a platform for the submission that ineligibility should be reduced on account of the display of due care.’

An extract from the CAS verdict dismissing the pleas in mitigation

An extract from the CAS verdict dismissing the pleas in mitigation

Legally, the players have little ground for recourse, as McDevitt confirmed. The education was there, and these are grown men, the law argues.

Maybe so. What is less black and white is the pressure under which these players function. There is no means of putting it into legal terms or even into words, for the pressure of the professional elite athlete is one that is hard to convey to the lay onlooker.

It is a pressure suffered due to the efforts of retaining a livelihood, due to the need to maintain a level of admiration within the public eye and due to a ‘group-think’ mentality caused by being surrounded by other athletes in the same situation. If everyone is doing it, it must be okay, surely?

Too big to fail

In one passage in the verdict it read that, ‘On 12 February 2012, the Essendon players attended a meeting at the club auditorium. The meeting was addressed by Mr. Hird [senior coach], Mr. Robinson [high performance coach] and Mr. Dank [sports scientist] and related to the new supplement protocols.

Either at the meeting or shortly thereafter, the vast majority of players signed ‘patient information/informed consent’ forms in which they consented to the administration of four substances including … ‘Thymosin’ by way of injections.’

It would have taken a strong individual to refuse to sign such a form, both due to the fact that ‘everyone else’ was complying, and because of those in authority who were encouraging the process.

“As an athlete who abides by these rules, I would have done the same thing. It makes you feel sick,” one elite Australian athlete told The Sports Integrity Initiative.

“I think it’s more not having to do as we are told but more the trust we have to put in the professionals telling us. Because they are the ones with the specialty knowledge and we have no option but to trust them because we don’t know any better,” she said.

“Since the Essendon story broke [three years ago] there have been overhauls in protocol in most elite programs, including ours, to try and prevent something similar happening. But in the end we are at the hands of the team doctors and medical staff we chose to trust.”

Not just doping

Ariel Steinberg, one of the 34 players, was just 19 when he was being administered with Thymosin. His plight draws parallels to that of Mohammad Amir, the young Pakistan fast bowler who was convicted of match-fixing when he was just 18 years old. Despite the likelihood that Amir was coerced into the act through his captain and influential elders, he received a jail sentence and a five-year ban from the sport. Harsh, but fair, deduced the sporting world.

Ariel Steinberg

It’s not just the players either; medical staff in high performance environments are often under huge pressure themselves. Concussion is a huge issue in many sports, including both American football and cricket. There are numerous incidences of a player being hit, by another player or by a ball, and continuing to play on, despite failing the new concussion tests that sports are now trying to implement.

The pressure on these employees to ensure that the elite players continue playing, within a win at all costs environment, is immense. Concussion can be lethal in the short term and increasingly there is evidence to suggest that it may be highly damaging in the long term too, especially if a player suffers continuous blows to the head, as is often the case in American football. Yet it is very difficult to implement a culture change unless a fatality – or near fatality – occurs, which is a tragedy in itself.

One step back, two steps forward?

The convicted Essendon players are not the Lance Armstrongs of AFL; even though in both cases anti-doping violations have occurred, the circumstances, and fault of the athletes differ immensely. Civil suits will undoubtedly ensue but under what grounds it remains to be seen – most likely negligent administration of a duty of care by those in positions of authority at Essendon football club.

These are likely not evil individuals out to cheat the system for an unfair advantage, they are guilty instead of making ill-informed decisions in misguided surrounds. Under the WADA code they must be punished. Indeed the WADA Director General Howman said the decision ‘represents justice for clean athletes in Australia and worldwide’.

However the hope isn’t that the anti-doping education be improved (by all accounts it is very good, in teaching the players the theoretical facts at least), but it is the implementation of these protocols in practice that needs to change – the culture. Former Essendon coach James Hird continuing to act the victim is indicative of how far professional sport still needs to come for that culture to change. It may not be immediate, but let’s hope that in due course, that change does come.

• This article was originally published in the Sports Integrity Initiative internet journal on 12 January 2016. To access the original, please click here.

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