Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar.*

1. Introduction.

The so-called specificity of sport represents one of the most debated, if not the most debated, but still undefined issue under European Union (EU) law. A noteworthy peculiarity is that the specificity of sport is frequently mentioned in several legislative and political documents issued by EU institutions, however it is not expressly referred to in any judgment by the European Court of Justice (ECJ).Conversely, the Court of Arbitration for Sport (CAS) case-law on Art. 17 of FIFA Regulations on status and transfer of players (RSTP) has repeatedly and expressly referred to the specificity of sport.[1] Apparently, the concept of specificity of sport has different meanings and purposes in the ECJ and CAS jurisprudence. In this blog (divided in two parts), I will try to analyse those two different meanings and to what extent the CAS case-law is consistent with the concept of specificity of sport as elaborated under EU law.

2. The specificity of sport under EU law.

The concept of the specificity of sport is mentioned in several documents issued by the EU institutions. In the Helsinki Report on Sport (1999), it is affirmed that ‘the application of the Treaty's competition rules to the sporting sector must take account of the specific characteristics of sport, especially the interdependence between sporting activity and the economic activity that it generates, the principle of equal opportunities and the uncertainty of the result’. According to the Declaration of Nice, (2000) ‘even though not having any direct powers in this area, the Community must, in its action under the various Treaty provisions, take account of the social, educational and cultural functions inherent in sport and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured’.

However, neither the Nice Declaration nor the Helsinki Report contains a clear definition of the specificity of sport: the Helsinki Report simply lists some specific characteristics of sports activities that are particularly important in the field of antitrust law, whereas the Nice Declaration identifies the specificity of sport with the social, educational and cultural functions inherent in sport. The same applies to the White Paper on Sport (2007), where it is stated that ‘sport has certain specific characteristics, which are often referred to as the “specificity of sport”’. According to the White Paper, the specificity of sport can be approached through two prisms: ‘the specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions; the specificity of the sport structure, including the autonomy and diversity of sport organisations, a pyramid structure of competitions from grassroots to elite level and organised solidarity mechanisms between the different levels and operators, the organisation of sport on a national basis, and the principle of a single federation per sport’.

Axiomatically, the White Paper tried to draw a distinction between the specificity of sporting rules  and the specificity of sporting structure The Commission’s effort is certainly commendable, except for two aspects:

a) on the one hand, the Commission does not offer a clear definition of the specificity of sport and instead has just highlighted some features of the specificity of sport in the EU context;

b) on the other hand, some of these features are rather questionable and deserve to be discussed in more detail. For example, separate competitions for men and women. What is the EU legal basis for not allowing Serena Williams to play the final of Wimbledon against Novak Djokovic? Similarly, as regards the competitive balance argument, we can all agree that it is good, but no one can truly define a ‘balanced’ competition. So, if we do not know how much competitive balance is needed, how can we say that it is always good?

More recently, Art. 165 TFEU states that ‘the Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport’. Again, the specificity of sport is only mentioned, but not defined. Lastly, the report Mapping the specificity of sport by the European Commission – Directorate-General for Education and Culture (2016) says that ‘the specificity of sport refers to the inherent characteristics of sport which set it apart from other economic and social activities’.

It follows from the foregoing that under EU sports policy, all the institutions agree on the fact that sport is special, in the sense that it is different from any other activity because of its social and educational dimension. That said, if one tries to translate this concept into a definition to be applied in concrete cases it is impossible to find a common benchmark.

3. The specificity of sport in the case law of the ECJ

In terms of EU case-law, the situation is even more difficult, given the ECJ has never defined the notion of specificity of sport. Rather, the Court of Justice has always indirectly dealt with the specificity of sport in terms of a general rule and its (even more general and not defined) exceptions. Since the Walrave ruling, the ECJ has always stated that ‘the practice of sport is subject to Community [now European] law only in so far as it constitutes an economic activity’ (the rule); however at the same time is has also stated that the prohibition of any discrimination based on nationality ‘does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity’ (the exception). The Walrave judgment (and subsequent ECJ case-law) shows that from the very beginning the common idea had been that sporting rules relating to purely sporting issues were as such, not subject to EU law and were known as purely sporting rules.

From a legal point of view, the notion of purely sporting rules is unclear. Through case law however, the ECJ managed to translate the concept of purely sporting rules into a workable tool to distinguish which rules are subject to EU law and which were not. In this context, it was possible to say that the purely sporting rules and the specificity of sport were two sides of the same coin. In other words, sport was not special because it was subject to EU law, but at the same time, it was special because some sporting rules were outside the scope of the Treaty.

This situation totally changed after the Meca Medina judgment by the ECJ. In order to contextualise the relevance of the Meca Medina case, it is worth recalling that the case was about the allegedly anticompetitive nature of the antidoping rules of the International Olympic Committee (IOC).

During the first round before the General Court, the judges stated that purely sporting rules may have nothing to do with economic activity, such that they do not fall within the scope of provisions on the free movement of people. Consequently, they have nothing to do with the economic relationships of competition, with the result that they also do not fall within the scope of Arts. 81 and 82 EC [now Arts. 101 and 102 TFEU]. Since the prohibition of doping is based on purely sporting considerations, it follows that it has nothing to do with any economic considerations. Thus, antidoping rules cannot come within the scope of the Treaty provisions on the economic freedoms and, in particular, of provisions on the free movement of people and competition.

Though according to the ECJ, the reasoning of the General Court amounted to a mistake in law. In its judgement, the ECJ underlined that ‘the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down. If the sporting activity in question falls within the scope of the Treaty, the conditions for engaging in it are then subject to all the obligations which result from the various provisions of the Treaty. It follows that the rules which govern that activity must satisfy the requirements of those provisions, which, in particular, seek to ensure freedom of movement for workers, freedom of establishment, freedom to provide services, or competition. Therefore, even if those rules do not constitute restrictions on freedom of movement because they concern questions of purely sporting interest and, as such, have nothing to do with economic activity, that fact means neither that the sporting activity in question necessarily falls outside the scope of Articles 81 EC and 82 EC nor that the rules do not satisfy the specific requirements of those articles. In such a context, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives and are proportionate to them’.

Though not explicitly stated in the ruling, the traditional approach based on the distinction between purely sporting rules and economic rules was openly denied by the ECJ and the notion of purely sporting rules expelled from EU law. Moreover, the new solution adopted by the ECJ does not simply amount to a terminological change; Consequently, any sporting rule is now subject to EU law per the Meca Medina judgment. Further, in cases where a sporting rule is challenged based on competition law, we must apply the Wouters test to assess the compatibility of the rule with EU law.Then in cases where a sporting rule is challenged on the basis of free movement principles, we must apply the Gebhard test to assess the compatibility of the rule with EU law. Although slightly different, these two tests require assessing the overall context of the rule, the objectives of the rule, if and to what extent the rule is able to attain each objective, and the proportionality of the rule.

The Meca Medina jurisprudence was later also endorsed by the Commission: in the White Paper on Sport, it stated that ‘in respect of the regulatory aspects of sport, the assessment whether a certain sporting rule is compatible with EU competition law can only be made on a case-by-case basis, as recently confirmed by the European Court of Justice in its Meca-Medina ruling. The Court provided a clarification regarding the impact of EU law on sporting rules. It dismissed the notion of “purely sporting rules” as irrelevant for the question of the applicability of EU competition rules to the sport sector. The Court recognised that the specificity of sport has to be taken into consideration in the sense that restrictive effects on competition that are inherent in the organisation and proper conduct of competitive sport are not in breach of EU competition rules, provided that these effects are proportionate to the legitimate genuine sporting interest pursued. The necessity of a proportionality test implies the need to take into account the individual features of each case. It does not allow for the formulation of general guidelines on the application of competition law to the sport sector.’

The new approach raises two fundamental problems:

a) the Wouters test as well as the Gebhard test apply to all sectors of the economy: they apply to goods as well as to services, to lawyers as well to sportspeople. Consequently, if the specificity of sport is taken into account based on the same rules and the same exceptions provided for any other type of economic activity, it follows that sport is no less special under EU law than one may think. Sport is deemed to be special, but sports matters are governed by the same legal tests applied in other economic sectors.

b) according to the Meca Medina judgment, the Court of Justice has the right to assess the proportionate character of any sporting rule allegedly in contrast with EU law. For example, rules relating to penalties in doping cases, rules of the game and rules relating to nationality requirements to be selected for national teams. Undoubtedly, in such cases the ECJ will state that the objectives of these rules are legitimate.

Unfortunately, the same is not true for whether these rules are proportionate. In other words, the simple idea that the ECJ has the right to assess the proportionality of a rule fixing the number of players on the field of play means that sport is no longer special under EU law.  It is important to  remember that in the Meca Medina case, the ECJ ruled that the anti-doping rules at issue were not disproportionate only because the plaintiffs did not plead that the penalties were excessive. What may have happened if the plaintiffs had contested the proportionality of these penalties? Can one be certain that the ECJ has the competence to  decide whether a two-year penalty for doping is/is not proportionate? Does the specificity of sport really require this?

* Associate Professor of EU law and EU sports law, University of Bergamo (Italy); Attorney-at-law; CAS arbitrator. The views, thoughts, and opinions expressed in the text belong solely to the author.

[1] See M. Colucci, The specificity of sport and the employment relationship of athletes, R. Blanpain, F. Hendrickx (eds.), Labour Law between Change and Tradition: Liber Amicorum Antoine Jacobs, 2011, Kluwer Law International BV, The Netherlands.

Editor's note: James Kitching is Legal Counsel and Secretary to the AFC judicial bodies at the Asian Football Confederation. James is an Australian and Italian citizen and one of the few Australians working in international sports law. He is admitted as barrister and solicitor in the Supreme Court of South Australia. James graduated from the International Master in the Management, Law, and Humanities of Sport offered by the Centre International d'Etude du Sport in July 2012.

Introduction

On 12 May 2015, the Court of Arbitration for Sport (CAS) announced that the World Anti-Doping Agency (WADA) had filed an appeal against the decision issued by the Australian Football League (AFL) Anti-Doping Tribunal (AADT) that thirty-four current and former players of Essendon Football Club (Essendon) had not committed any anti-doping rule violation (ADRV) identified within the AFL Anti-Doping Code (AADC). The players had each been charged with using Thymosin-Beta 4 (TB4) during the 2012 AFL season.

On 1 June 2015, WADA announced that it had filed an appeal against the decision by the AADT to clear Mr. Stephen Dank (Dank), a sports scientist employed at Essendon during the relevant period, of twenty-one charges of violating the AADC. Dank was, however, found guilty of ten charges and banned for life.

This blog will solely discuss the likelihood of the first AADT decision (the Decision) being overturned by the CAS. It will briefly summarise the facts, discuss the applicable rules and decision of the AADT, review similar cases involving ‘non-analytical positive’ ADRVs relating to the use of a prohibited substance or a prohibited method, and examine whether the Code of Sports-related Arbitration (CAS Code) is able to assist WADA in its appeal.

This blog will not examine the soap opera that was the two years leading-up to the Decision. Readers seeking a comprehensive factual background should view the excellent up-to-date timeline published by the Australian Broadcasting Corporation. 

Factual Background

“Blackest day in Australian sport”

The Decision ultimately derived from what one media commentator dubbed the “blackest day in Australian sport” .

On 7 February 2013, the chief executives of the five biggest Australian sports appeared beside the Federal Sports Minister, Federal Justice Minister, and CEOs of the Australian Sports Anti-Doping Agency (ASADA), and Australian Crime Commission (ACC) at a press conference which detailed the findings of a twelve month inquiry into Australian professional sport. The resulting report, “Organised Crime and Drugs in Sport”, set out that the ACC had identified or suspected widespread use of peptides and hormones in Australian professional sport.

Two days prior, Essendon had requested that ASADA and the AFL investigate whether prohibited substances had been administered to its players during the 2012 season.

AFL disciplinary action

On 2 August 2013, the AFL received an interim report from ASADA and eleven days later charged Essendon and four officers with engaging “in conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or to bring the game of football into disrepute”. Essendon and three of the officials were ultimately sanctioned.

The grounds for the charges make for sobering reading. The highlights appear below (emphasis added):

51. With the assistance of Shane Charter (Charter), a convicted drug dealer, Dank ordered various peptides, or the raw materials for such peptides. The compounding of these substances was undertaken by Nima Alavi (Alavi) at the Como Compounding Pharmacy (Como). At least some of these substances were intended by Dank for administration to players at the Club and were in fact administered to players at the Club.

…

67. On 8 February 2012, at a meeting of players of the Club, Dank introduced four substances that were purportedly approved for use in accordance with the Protocol…

68. Following that meeting, 38 players at the Club signed “Patient Information/Informed Consent” forms in relation to these four substances…

69. If the dosages the subject of the “Patient Information/Informed Consent” forms were administered, the playing group would receive in the order of:

(a) more than 1,500 injections of AOD-9064 and Thymosin; and

(b) more than 16,500 doses of Colostrum; and

(c) more than 8,000 doses of Tribulus.

…

124. During the relevant period, the Club caused the following substances to be administered to players at the Club:

(a) Actovegin;

(b) unspecified amino acids

(c) unspecified multi-vitamins;

(d) AOD-9604 creams;

(e) AOD-9604 injections;

(f) Cerebrolysin;

(g) Colostrum;

 (h) REDACTED;

(i) Lactaway;

(j) Lube-all-plus;

(k) Melatonin;

(l) Melanotan II;

(m) TA-65;

(n) Thymosin Beta 4;

(o) Traumeel; and

(p) Tribulus.

125. The use of these substances by the players was not approved by the Club’s medical staff, with the exception of AOD-9604, which was the subject of some sort of informal approval by Reid in February 2012.

126. In many instances the use of these substances failed to have proper regard to player health and safety.

127. Proper records were not maintained by the Club as to precisely which players received which of the substances referred to in paragraph 124 above, in which quantities and when, during the relevant period.

AFL Anti-Doping Tribunal

Applicable Rules

On 14 November 2014, the AFL issued identical infraction notices to the 34 players alleging use of the prohibited substance TB4 during the 2012 season in violation of Article 11.2 of the AADC. The players were provisionally suspended on the same day. The infraction notices were issued after the players were placed on the ADRV Register of Findings on 12 November 2014 by an independent Anti-Doping Rule Violation Panel pursuant to the National Anti-Doping Scheme prescribed in the Australian Sports Anti-Doping Authority Act 2006.

As the alleged misconduct occurred during the 2012 AFL season, the applicable version of the AADC was the 2010 edition. This version was effectively a mirror of the WADA Code 2009.

As such, the standards applied universally by sports disciplinary and anti-doping panels applied. Accordingly, AFL and/or ASADA bore the burden of proving each ADRV to the comfortable satisfaction of the AADT, bearing in mind the seriousness of each allegation made. Such standard of proof was greater than a mere balance of probability, but less than beyond a reasonable doubt.[1] The AFL and/or ASADA were able to establish the allegations by “any reliable means”.[2]

Decision

The hearing was conducted on various dates between December 2014 and February 2015. The Decision was announced on 31 March 2015. However, its written reasons have never been made public. As such, determining the evidence that was available has been gleaned from numerous media reports (including this comprehensive piece by Gerard Whateley), public announcements, and leaked documents. The author has also had the benefit of discussing the matter with a number of parties close to the proceedings.

It was agreed by the parties that the case against each player had two limbs:

(i)           during the 2012 AFL season, the player used (through injections) TB4; and

(ii)          TB4 was a prohibited substance on the relevant WADA Prohibited List.

As a threshold issue, the AADT was comfortably satisfied that TB4 was a prohibited substance within the category of substances set out in s2 of the 2012 WADA Prohibited List:

“any pharmacological substance which is not addressed by any of the subsequent sections of the list and with no current approval by any governmental regulatory health authority for human therapeutic use”.

Thus, the case turned on the ability of ASADA to discharge its burden of proof relating to the first limb. This limb was broken down into three elements, agreed by the parties, which formed the basis of the ASADA case:

(a)          TB4 was procured from sources in China;

(b)          TB4 was obtained by Alavi, compounded and provided to Dank in his   capacity as Sports Scientist at Essendon; and

(c)           Dank administered TB4 to each player.

This was essentially the same conduct, described above, for which Essendon and its four officials were sanctioned.

Charter, Alavi and Dank all refused to appear at the hearing, and ASADA failed in a last-ditch application to the Victorian Supreme Court to compel Charter and Alavi to appear pursuant to the Commercial Arbitration Act 2011.[3] As such, ASADA’s case was wholly circumstantial, and relied, in a large part, on testimony and documents provided to it by Charter and Alavi during its investigation, and statements made by Dank in the media.

The AADT thus had an unenviable task in determining the probative value of the evidence provided by key witnesses without having the benefit of observing them under examination and cross-examination. As such, the AADT held (emphasis added):

“Having considered all the evidence relating to the credibility and reliability of Mr Alavi, Mr Charter and Mr Dank … the Tribunal finds that the credibility of each of these principal participants is at a low ebb and each man in acting as he did in his own way and for his own motive saw a golden opportunity to “feather his own nest.” Their lack of credibility is reflected when their reliability is called into question and the Tribunal is satisfied that on a number of important issues their evidence on those issues was not only unreliable but also … dishonest.”

In the absence of reliable direct evidence to establish that the players had used TB4, the decision of the AADT ultimately turned on these adverse credibility findings.

In relation to the first element, ASADA led (predominantly) documentary evidence to demonstrate that two shipments of substances (in December 2011 and February 2012) were procured from China, both of which included TB4, and were provided to Alavi. A substance in the second shipment was tested in May 2012 at a laboratory connected to the University of Melbourne, and the results proved the substance was TB4. As such, the substance that was purported to be TB4 in both shipments, as a result of the test results, was TB4.

After a thorough examination of the evidence and arguments of the players, and in particular, the fact that the majority of evidence had been obtained from dishonest witnesses, the AADT held that the first shipment had occurred, but that the second shipment had not. However, the AADT still considered the veracity of the test results, and whether they gave rise to the position that TB4 was procured in the first shipment. Faced with contrasting expert reports, which gave margin for error in the test results, the AADT ultimately held that “it is possible it was [TB4], but the Tribunal is not comfortably satisfied that it was”.

In relation to the second element, the AADT was not comfortably satisfied that TB4 was compounded or provided to Dank. As a result of its findings relating to the first and second elements, the AADT did not “consider it necessary to consider the third element…as it is dependent upon the first and second elements…being established and neither has been established to the comfortable satisfaction of the Tribunal”.

Accordingly, the AADT was not comfortably satisfied that the first limb required to prove the ADRV was made out, and exonerated each player of their charge.

Non-analytical positive “use”

The Decision is a classic non-analytical positive “use” case.[4] In this class of cases, as no adverse analytical finding is recorded, the relevant anti-doping organisation must rely on a combination of direct and/or circumstantial evidence in order to discharge its burden of proving use of a prohibited substance or method.

Comfortable Satisfaction

Prior to the implementation of the WADA Code, sports arbitration panels embryonically decided to apply a ‘comfortable satisfaction’ standard of proof; less than the criminal standard of proof beyond a reasonable doubt but more than the ordinary civil standard of proof on the balance of probabilities.[5]

This standard was preferred due to sports disciplinary cases not being criminal in nature, but rather, a private law of association type.[6] This principle has been consistently upheld and was espoused as such by the Swiss Federal Tribunal: “the duty of proof and assessment of evidence [are] problems which cannot be regulated, in private law cases, on the basis of concepts specific to criminal law”.[7]

However, precisely where this standard falls between the criminal and civil standards is unclear.[8] That anti-doping cases are presented in a quasi-criminal manner suggests they should be closer to the latter, but the private nature of sports disciplinary cases suggests that the lesser standard is more appropriate.

This distinction is significantly important to WADA overturning the Decision. In its press release after receiving the Statement of Appeal, the CAS recorded that “WADA requests that the CAS issue a new decision based on an appropriate burden of proof and evidentiary standards”. As such, it is clear that WADA considers that the standard of proof applied by the AADT was too high when considering the evidence.

However, an analysis of a number of prior decisions suggests that the standard of proof in this class of cases has always been close to the criminal standard. The jurisprudence suggests that Panels rely solely on direct and incontrovertible testimonial, documentary, and scientific evidence to sanction individuals for “use” violations.

pre WADA Code cases

In French[9], it was alleged that French used prohibited substances after the discovery of a bucket of used syringes, needles containing traces of a prohibited substance, and a supplement whose label stated that it contained a prohibited substance, inside his room at his athlete residence. The CAS, however, was not comfortably satisfied as there was “no direct evidence that Mr. French had used the material in the sense that no-one saw him use it and he has consistently denied use”.[10] Furthermore, that the label stated the name of the prohibited substance was not sufficient to prove that the supplement actually contained the prohibited substance.[11]

In A., B., C., D., E. v IOC[12], five simultaneously-decided cases, the CAS held that admissions of undertaking or performing blood transfusions, coupled with the discovery of instruments and chemicals necessary for blood-doping in their residence during the 2002 Winter Olympics, was sufficient evidence to sanction four individuals for using a prohibited method. In the absence of direct evidence against Mr. E, the only of the five whom argued that “he had nothing to do with the paraphernalia found in the chalet and that he did not perform any type of autologous or other blood manipulation while he was at the 2002 Winter Games”[13], the Panel issued a warning only.[14]

In Collins[15], a case deriving from the BALCO scandal, the United States Anti-Doping Agency (USADA) relied on a cache of emails where Collins admitted to using prohibited substances (both EPO and the hybrid testosterone “cream” developed by BALCO)[16], as well as test results of independent blood and urine tests arranged by BALCO.[17] Following expert testimony, the Panel found beyond a reasonable doubt (as was required by the relevant IAAF Rules) that her blood samples demonstrated EPO use in 2002 and 2003[18] and that her urine samples demonstrated “a pattern of testosterone and epitestosterone levels that can only be explained by the illegal use of BALCO’s cream”.[19]

post WADA Code cases

In Gaines[20] and Montgomery[21], two further BALCO cases heard simultaneously, following argument on the appropriate standard, the Panels stated: (emphasis added)

“From this perspective, and in view of the nature and gravity of the allegations at issue in these proceedings, there is no practical distinction between the standards of proof advocated by USADA and the Respondents. It makes little, if indeed any, difference whether a “beyond reasonable doubt” or “comfortable satisfaction” standard is applied to determine the claims against the Respondents. This will become all the more manifest in due course, when the Panel renders its awards on the merits of the USADA’s claims. Either way, USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes, that the Respondents committed the doping offences in question”.[22]

Similar to Collins, the USADA relied on a multitude of testimonial, documentary and scientific evidence to allege use of a prohibited substance. However, the Panel ultimately decided that admissions about their use of the infamous “Cream” developed by BALCO to their ex-teammate Kelli White, was “sufficient in and out of itself”[23] to comfortably satisfy themselves of the athletes’ guilt.

In Hamilton[24], the Panel cited the discussion of the appropriate standard referred to in Gaines and Montgomery but did not explicitly apply it.[25] After upholding the reliability and validity of the homologous transfusion test of Hamilton’s blood samples, the Panel relied upon these test results to be comfortably satisfied that Hamilton had used a prohibited method.[26] A similar approach was undertaken by the Panel in Pechstein[27] to find that %retics peaks in her blood sample of February 2009 were abnormal and that accordingly she had used a prohibited method.

In the Cyprus case[28], WADA and FIFA appealed a decision of the Cyprus Football Association (CFA). Prior to a number of league matches, a club coach administered two pills (which he had independently sourced) to the starting line-up, claiming them to be caffeine pills and/or vitamins.[29] Two players subsequently recorded an adverse analytical finding for a prohibited substance, while five others who did not test positive admitted to investigators that they had also used the pills. Only the two players and the coach were sanctioned by the CFA. WADA alleged that the CFA had erroneously failed to sanction the five players. The Panel was not comfortably satisfied of this conclusion:

199. The Panel notes, in fact, that there is no evidence that the actual pills individually used by each of the Other Players contained a prohibited substance. Indeed some players took the pills, were subsequently tested and there was no adverse analytical finding.

200. No clear cut evidence was brought to show that…the pills administered…were “plain steroids” and not “caffeine pills” contaminated by steroids”.[30]

The most famous case in this class, albeit never reviewed by an arbitration panel, was Armstrong.[31] The USADA relied on witness testimony which provided direct evidence of Armstrong using prohibited substances or prohibited methods during the 1999, 2000, 2002, 2003, 2004, and 2005 Tour de France races. The USADA also utilised financial records linking Armstrong to the disgraced sports doctor, Dr. Michele Ferrari, as well as undertaking retesting of old samples which purportedly demonstrated EPO use at the 1999 Tour de France, and provided a “compelling argument consistent with blood doping” at the 2010 Tour de France.

Conclusions

Two overriding conclusions can be drawn.

The first is that there is no definitive answer to the question of what evidence shall be presented to prove a non-positive analytical “use” case.[32] As stated by the Panels in Gaines and Montgomery:

“[d]oping offences can be proved by a variety of means; and this is nowhere more true than in “non-analytical positive” cases such as the present”.[33]

The second is that the standard of proof is significantly closer to the criminal than the civil standard. Indeed, in Gaines and Montgomery, the Panels could draw no distinction between beyond a reasonable doubt and comfortable satisfaction, taking into account the allegations raised and the sanctions requested. This elevated standard becomes clear in those matters which relied solely upon circumstantial as opposed to direct evidence.

In French and the Cyprus case, the Panels held that admissions could be relied upon only where there was unambiguous evidence that the substance used either was or contained a prohibited substance. Thus, a label on supplement packaging which lists a prohibited substance as an ingredient, or the ingestion of a pill taken from the same batch as one ingested by a teammate who subsequently tests positive, are not enough on their own to comfortably satisfy a Panel that a used substance was a prohibited substance.

Effectively, the cases require the party bearing the evidentiary burden to prove that the used substance or method was without doubt the substance or method alleged; in other words, the highest possible standard of ‘comfortable satisfaction’. Even in Pechstein, where the Panel emphatically rejected the Appellant’s request to apply a higher than normal standard of proof and stated that it would apply the “normal comfortable satisfaction standard”,[34] the Panel still blurred the lines between the two after systematically reviewing and rejecting each of the Appellant’s argument, leaving little doubt in its own mind that the use of a prohibited method was the only possible reason for the blood abnormalities.

To meet this standard, the cases articulate that only direct evidence should be adduced. This includes: admitting to using a proven prohibited substance or prohibited method; scientific evidence of which no credible explanation other than the use of a prohibited substance or prohibited method is possible; scientific evidence which demonstrates that a substance used is a prohibited substance; witness observations of use; and witness testimony of direct admissions.

One further conclusion can be drawn: WADA, on the basis of its current evidence, is unlikely to overturn the Decision. The inherited ASADA case was wholly circumstantial. It did not contain direct, incontrovertible evidence from any of the classes seen in the previous cases. Its key witnesses chose not to testify, nor could they be compelled under Australian law, and nor is it likely that they can be compelled under Swiss law to attend at the CAS.[35] As such, WADA’s prospects of success hinge upon its ability to adduce new and direct evidence of the use of TB4 by the players. 

Will R57.3 of the CAS Code prevent WADA from adducing new and direct evidence?

R57 of the CAS Code provides that a Panel in the appeal arbitration division has “full power to review the facts and the law”. Appeals are heard de novo and any procedural fairness issues deriving from the first-instance are thus automatically cured. This interpretation has been upheld in numerous Awards and the Swiss Federal Tribunal.[36]

R57.3 of the CAS Code, introduced in 2013, provides one limitation: “[t]he Panel has the discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”. This is consistent with Swiss procedural law in that a document can only be adduced, at an appellate hearing, if it did not exist at the time of the first instance hearing or hearings or was not in the possession of the appellant at the time.[37]

According to Rigozzi et al, in appeals against decisions rendered by sports-governing bodies, the scope of R57.3 should extend only to those cases “where the adducing of pre-existing evidence amounts to abusive or otherwise unacceptable procedural conduct by a party”.[38]

Mavromatis characterises de novo review as “not only desirable, but also necessary for a number of reasons, to the extent that the previous instance is not an independent arbitral tribunal but the internal body of a sports federation”.[39] As such, R57.3 should be interpreted “as not to circumvent the core principle of the Panel’s full power of review”[40].

In two recent Awards, the Panels held that this discretion should be exercised with caution, in situations where a party may have engaged in abusive procedural behaviour or in any other circumstances where the Panel might, in its discretion, consider it either unfair or inappropriate to admit new evidence.[41]

In SC FC Sportul Studentesc SA[42], the Sole Arbitrator excluded the principal evidence supporting the appeal as he was not provided any satisfactory explanation why it could not be submitted or adduced during the two sports-governing body proceedings.[43]

Hence, it is only in rare cases that the CAS limits its power of full review. Thus, as long as new evidence adduced by WADA is neither abusive nor can be construed as unacceptable procedural conduct, it is highly unlikely to be excluded. Levy has suggested that such exclusions may give rise to an appeal to the Swiss Federal Tribunal due to the denial of the right to be heard.[44] In any event, WADA was not a party at first instance, so it remains questionable whether R57.3 may even be utilised by the players. 

Conclusion

The biggest soap opera in the history of Australian sport will come to a conclusion some time prior to the 2016 AFL season. At the time of publishing, the CAS has recently announced the hearing timeline.

Media reports have recently suggested that WADA ordered retesting of samples obtained from the players in 2011-2012, resulting in two samples demonstrating abnormally high levels of TB4. As set out above, the previous cases suggest that only this type of direct evidence will be able to convince a Panel to the requisite standard. The challenge for WADA, given the length of the ASADA investigation, is to find it.

An independent report commissioned by Essendon published in May 2013, graphically described its supplements programme as “a pharmacologically experimental environment never adequately controlled or challenged or documented within the Club in the period under review”. It is not disputed that the players must ultimately take full responsibility for each substance that presents in their body.

However, at the same time, the gross inadequacies in the governance at Essendon during the period – failures in documentation and record keeping, lack of (proper) informed consent for the players, uncertainty in the supplements administrated, and the creation of an unsafe work environment, among others – for which the club was already heavily sanctioned and which gave rise to the investigation in the first place, ironically appears to be the main obstacle preventing WADA from discharging its burden of proof.

[1] AFL Anti-Doping Code (2010 Edition), Article 15.1.

[2] AFL Anti-Doping Code (2010 Edition), Article 15.1.

^[3] ASADA v 34 Players and One Support Person [2014] VSC 635. 

[4] See e.g. Richard H McLaren, An Overview of Non-Analytical Positive & Circumstantial Evidence Cases in Sports, 16 Marq. Sports L. Rev. 193 (2006).

[5] See e.g. N., J., Y., W. v Federation Internationale de Natation CAS 98/208.

[6] Ibid.

[7] SFT, 5P83/1999, para. 3.d.

[8] Michael Straubel, Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better, 36 Loy. U. Chi. L. J. 1203 (2005), at 1270.

[9] Mark French vs Australian Sports Commission and Cycling Australia, CAS 2004/A/651.

[10] French at 58.

[11] French at 51.

[12] A., B., C., D. & E. v International Olympic Committee, CAS 2002/A/389, 390, 391, 392, 393.

[13] A., B., C., D. & E. v IOC at 53.

[14] A., B., C., D. & E. v IOC at 53.

[15] United States Anti-Doping Agency vs Michelle Collins, AAA No. 30 190 00658 04.

[16] Collins at 1.3, 4.1, 4.2, 4.3, 4.4.

[17] Collins at 1.3, 4.11 – 4.24.

[18] Collins at 4.16.

[19] Collins at 4.17.

[20] United States Anti-Doping Agency vs Chryste Gaines, CAS 2004/O/649.

[21] United States Anti-Doping Agency vs Tim Montgomery, CAS 2004/O/645

[22] Gaines at 36, Montgomery at 36.

[23] Gaines at 52, Montgomery at 50.

[24]Tyler Hamilton vs United States Anti-Doping Agency and Union Cycliste International, CAS 2005/A/884.

[25] Hamilton at 47.

[26] Hamilton at 91.

[27] Claudia Pechstein vs International Skating Union, CAS 2009/A/1912.

[28] World Anti-Doping Agency and Federazione International de Football Association v Cyprus Football Association, Carlos Marques, Leonel Medeiros, Edward Eranosian, Angelos Efthymiou, Yiannis Sfakianakis, Dmytro Mykhailenko, Samir Bengeloun, Bernardo Vasconcelos, CAS 2009/A/1817.

[29] WADA & FIFA v CFA et al at 14.

[30] WADA & FIFA v CFA et al at 198-200.

[31] United States Anti-Doping Agency vs Lance Armstrong, Reasoned decision of the USADA on disqualification and eligibility (10 October 2012).

[32] McLaren at 212.

[33] Gaines at 45, Montgomery at 45.

[34] Pechstein at 123-126.

[35] See this piece for an excellent analysis of the operation of the powers of compulsion within the Swiss Public International Law Act vis-à-vis Australian law: < http://sociallitigator.com/2015/05/25/essendon-supplements-saga-is-it-up-up-and-away-to-switzerland/>.

[36] see FC Sion v Federation Internationale de Football Association & Al-Ahly Sporting Club, CAS 2009/A/1880; E v Federation Internationale de Football Association, CAS 2009/A/1881; Eintracht Braunschweig GmbH & Co. KG a. A. v. Olympiakos FC CAS 2012/A/2836; SFT 4A_386/2010

[37] Article 317 of the Swiss Civil Procedure Code.

[38] Antonio Rigozzi /Erika Hassler / Brianna Quin, The 2011, 2012 and 2013 revisions to the Code of Sports-related Arbitration, in: Jusletter 3 juin 2013, at 14.

[39] Despina Mavromatis, The Panel’s Right to Exclude Evidence Based on Article R57 Para. 3 CAS Code: a Limit to CAS’ Full Power of Review, in CAS Bulletin 1/2014, at 56.

[40] Mavromatis at 56.

[41] See Zamalek Sporting Club vs Accra Hearts of Oak Sporting Club, CAS 2014/A/3518; MFK Dubnica v FC Parma, CAS 2014/A/3486.

[42] SC FC Sportul Studentesc SA v Romanian Football Federation & several players, CAS 2013/A/3286-3294.

[43] SC FC Sportul Studentesc SA at 66-70.

[44] Roy Levy, The new CAS rules – what you need to know, at < http://www.lawinsport.com/blog/roy-levy/item/the-new-cas-rules-what-you-need-to-know>.