Does a private email between ASADA and Stephen Dank suggest the Bombers might have no case to answer? Roy Masters
The Age
February 6, 2014 A recent email from the Australian Sports Anti-Doping Authority to controversial sports scientist Stephen Dank indicates the threat of bans still hangs over Cronulla players, while Essendon players may no longer be on the anti-doping body's radar. In an email request last month that Dank meet its officials, ASADA suggested he could help bring closure to the inquiry and allow some resolution for Sharks players following the year-long saga. No mention was made in that same email, however, of Dank delivering closure to Essendon players.
Dank worked at Cronulla for five months in 2011 and joined Essendon at the end of that year, remaining there for the 2012 season. Given Dank was central to the supply and use of peptides at Essendon and no mention was made in the ASADA email of bringing closure for the AFL players, are we to assume the anti-doping body has decided the Bombers have no case to answer?
In so far as Dank did not inject a single player at Cronulla, but was the architect of a regime that resulted in more than 1200 injections at Essendon, ASADA presumably believes the substances he brought to the NRL club might have been banned, while those used at the AFL club were not. Dank has always maintained he did not use any prohibited drugs, claiming ASADA and the World Anti-Doping Agency gave permission for any supplements he prescribed.
He claims to have credible witnesses to all phone calls he made to both anti-doping bodies.
Traditionally, ASADA does not officially declare an investigation over, relying on its eight-year-long statute of limitations to allow for fresh evidence that might result in infringement notices being issued.
However, because Dank was central to the supply and use of peptides at Essendon and no mention was made in the ASADA email of delivering relief to the AFL players, it can be assumed the anti-doping body has determined the Bombers have no case to answer.
While not declaring the end of an investigation might work for the odd weightlifter who refuses to be interviewed and later disappears to work in the mines, it does not address the frustrations of hundreds of thousands of football fans who want the matter concluded.
Presumably, this is one reason why a former Federal Court judge has been brought in to help ASADA and hopefully close the investigation by the end of April.
While Dank has been invited to meet ASADA, there has been no threat of a daily fine of $5100 for failure to co-operate with it.
The emails between lawyers acting for Dank and ASADA have been informal, yet frank.
Dank has made it clear he wants the matter resolved by the legal system, not a quasi-legal body.
''I'm not going to put myself before some kangaroo court of sport,'' he said. ''We're going straight to the Federal Court.
''It's not as if I am refusing to co-operate with ASADA, but simply that I want to put my case before an open court.''
Dank said he would use his appearance to expose ASADA's breaches of power and its complicity with the AFL during the ASADA-AFL investigation into Essendon.
Some claim politics is the motive behind federal government's Minister for Sport, Peter Dutton, bringing former Federal Court judge Garry Downes into the ASADA inquiry.
It's not as if ASADA requires additional legal resources to assist it in sport's supplements crisis.
ASADA, being a statutory body, has its own lawyers, plus access to federal government solicitors.
Downes has been appointed to review the evidence ASADA has collected and expedite the inquiry. Presumably, he will recommend one of three courses, after examining all testimony, including emails, phone records, invoices, bank records and pharmacy logs.
One course would be to recommend the entire investigation into the AFL and NRL be abandoned.
A second would be to order infraction notices for either or both Cronulla and Essendon.
A third would be to insist on more evidence.
This role is usually the responsibility of a panel called the Anti-Doping Rule Violation Committee, which is a body of eminent lay people, including lawyers.
However, Dutton obviously wants the logjam of evidence cleared with Downes' input before ASADA proceeds to the ADRVC.
Even when infraction notices go out, a mini-logjam appears.
NRL player Sandor Earl has been given a notice charging him with trafficking, yet the NRL tribunal is yet to call him, presumably because ASADA wants more information from him on Dank.
It is unlikely Dank could provide written records for a court, because records are retained by medical practices or clubs.
Should a Federal Court case call on records at Cronulla and Essendon, only for that evidence to be found to no longer exist, another ''blackest day in sport'' looms.
The law takes instances of destroyed evidence very seriously.
http://www.theage.com.au/sport/does-a-private-email-between-asada-and-stephen-dank-suggest-the-bombers-might-have-no-case-to-answer-20140205-321vd.html
