Waiting for decisions
By Martin Hardie
At the moment it is as if the whole country, or at least the footballing part of the country, is sitting waiting for ASADA to say or do something, even if possible make a decision as to what happened and when.
In recent days the media has published stories to the effect that both ASADA and WADA were consulted and approved the use of the various substances in issue in Footygate. If this is correct is raises serious concerns about the ability of ASADA to provide good and reliable advice to athletes as to what they can or cannot use.
In an article I co-authored recently we raised some of the issues at play when an athlete or support person might have in consulting ASADA. The allegations made in respect of ASADA’s approval of certain substances compound these problems.
It raises the question: if ASADA did give such approval what are they currently doing and why? Is this in any way related to the fact that they only seem (once again) to be taking on the smallest fish in town (even if they are Sharks in name)?
If various clubs, the NRL, or even (God help us) the untouchable AFL had knowledge of the use of these substances why is it that the focus is not on them rather than a small group of players from the poorest rugby league team in the country?
We could also ask whether what ASADA is currently doing is yet another fishing expedition, similar to the one that they undertook in the wake of the Armstrong case? Without having any real intelligence of their own, in that instance, ASADA investigators turned up at the doorstep of retired cyclists early in the morning demanding that the cyclists tell ASADA everything they knew.
Everything about what you might ask? Aren’t investigations and interviews of this type meant to be based on some evidence that the investigator puts to the suspect? Rather than the investigator, who knows nothing, asking the suspect to tell them a story from which they might glean some information?
Maybe part of the problem is that in the scheme of things ASADA doesn’t really do that much at all. Is it that ASADA is really just one great big bloated exercise in governmental symbolic legitimation?
Last year the Administrative Appeals Tribunal made a decision to the effect that the ASADA Act and Regulations required ASADA’s Anti-Doping Rule Violation Panel to make findings that anti-doping rule violations had occurred. This decision was mandated by the text of the Regulations and the definition of a finding contained in them.
What was ASADA’s response? They managed to get the Minister to change the Regulations to make it clear (they say) that ASADA’s Anti-Doping Rule Violation Panel does not make decisions that violations have occurred but that they only decide that a possible violation might have occurred.
In a case of a "positive" doping test result, that is what is known as an Adverse Analytical Finding, the ASADA Regulations now have created a situation where a laboratory makes a decision that an Adverse Analytical Finding has occurred and then this finding is managed by ASADA or the sporting body in a process known as Results Management.
Once this process is complete ASADA sends the Adverse Analytical Finding to the Anti-Doping Rule Violation Panel who then decide what ASADA and the Laboratory have already found, namely that there has been an Adverse Analytical Finding. But this finding is not a finding that the rules have been violated as it only opens the door to disciplinary action by the sport.
The point is that ASADA merely confirms what the laboratory has already confirmed, not once, but twice.
In Footygate, there are no “positive” test results but what is in issue is whether there is any other evidence of the use of a prohibited substance. Think about this, as the football world sits waiting for ASADA to say something or make a decision that someone has broken the rules, what in actual fact will happen(after a long drawn out period in which people’s lives and reputations are destroyed) is that it might be possible that a violation occurred.
Don’t we already know that? Anything is possible, but what we want to know is did ithappen.
ASADA of course will say, “well the decision as to whether something occurred is made by the sporting authorities” and yes this is true, but the problem then becomes that not all sporting authorities and sportspeople are treated the same.
Let’s put to one side the possibility that a sporting body might try and cover up a violation, such as has been alleged in the Armstrong case (of course this couldn’t happen in Australia, let alone in the AFL) and thus treat one athlete in a manner different from another. If we turn to the various sporting rules (e.g. the Cycling, NRL and the AFL anti-doping rules) we see that in each of these sports the role of ASADA and the manner of hearing violations is very different.
In the case of cycling any hearing to decide whether a violation has in fact occurred takes place in the Court of Arbitration for Sport (CAS). Such hearings are usually heard with a CAS Member sitting in Australia. Any appeal from that decision then goes to the Appeals division of the Court of Arbitration for Sport, which might sit in Australia or at its headquarters in Lausanne, Switzerland. In cycling the hearing is in CAS and ASADA acts as the prosecutor.
In a case against a Rugby League player, following a decision of ASADA that a violation might possible have occurred, the NRL acts as prosecutor and the case is heard before the NRL Anti-Doping Tribunal. Importantly, and in order to supervise those decisions there is a right for ASADA and WADA to appeal the decision of the NRL Anti-Doping Tribunal to CAS.
If we turn to look at the situation in respect of the AFL we see once again that following a decision of ASADA that a violation might possibly have occurred, the AFL acts as prosecutor and the case is heard before the AFL Tribunal. From this Tribunal there is a right of appeal to AFL Appeals Board.
For all intents and purposes this is where it ends. The AFL does allow an appeal to CAS in the case of violations occurring in relation to international events, but this of course does not relate to the AFL competition, wherever it is played, but AFL matches between different nations or other forms of international competition. The only relevant competition might be the matches played between Irish Gaelic football teams and an AFL team, but even these matches might not fall within the provision.
Another difference is who actually issues the infraction notice, which occurs afterASADA decide that there might have been a possible violation. In the case of cycling it is ASADA, whereas in the case of the two football codes it is the NRL or the AFL that issues the notice. If for example the AFL decides that the possibility is not good enough for them and they don’t issue the infraction notice it is effectively the end of the matter.
This is all (more or less) law and procedure, but what happens if Steve Dank is right when he says ASADA was consulted and approved the substances. This may or may not lead to a defence of some sort or another for the players and others who may face allegations. It raises very complex issues concerning the role and effect of representations made by administrative decision makers.
But maybe even more importantly it suggests strongly that the left hand of ASADA doesn’t know what the right hand is doing, or maybe, even worse. We are going to have to wait and see what happens next, but the questions that really needs to be asked in the light of the allegations of approval by ASADA is whether it iscompetently and effectively using the large amount of public resources it commands and whether it is really doing its job properly?
The public believes and expects that ASADA makes decisions about violations, but it seems that they really don’t want to do that.
One could ask – what’s the point of their existence. Furthermore, if ASADA did in fact give the green light to Steve Dank, is it really fair that they now, after the fact, turn that light red?
Is it to much to ask that we might soon possibly have an authoritative final decision from ASADA, that after the application of those vast resources, that it had now found that something possibly might have occurred?