Most media have never reported the following statements from lawyers, CAS panellists, and expert witnesses. Out of respect to players who have suffered immensely, their names are redacted. “PLAYER” refers to different players at different times. - - - - - - - - -- - - - - - - - - - - - - - - - - - - -- - - - - - - - - - MR GLEESON [QC, Senior Counsel for the AFL]: We know that they [players] didn't want to take prohibited substances. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR GLEESON: You can assume that the answers they [players] gave in relation to Thymosin at those interviews all those months ago were quite unvarnished. They didn't know that it was going to be Thymosin they were going to be prosecuted for. So, when they say, "I don't remember being asked about Thymosin", you can put significant weight on that. When they say, "I was always told it was AOD, I was always told it was, whatever", you should assume that that's honest – they haven't been challenged on it... - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: The next point that counts in favour of a finding of no significant fault is this: the patient consent form that they all signed says in black and white: “All components of the interventions are in compliance with current WADA anti-doping policy and guidelines. See appendix for documentation to this effect as of 1 January 2012.” ... We start from the position that they did not believe they were taking a prohibited substance, it was never put to any player that they did believe they were taking a prohibited substance in this hearing or elsewhere. They were told in writing, it's not a prohibited substance. There is no evidence that they checked on the WADA prohibited substances list, but if they’d done so, they wouldn't have found Thymosin Beta-4. J34 comment: Thymosin Beta 4 was, for the first time, specifically named on the World Anti-Doping Agency’s Prohibited Substances List updated on January 1, 2018. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SPIGELMAN [CAS Arbitrator]: Is there any evidence, for example, that any of the players knew about the protocol? It appears Dr Reid knew. GLEESON: I don't think so. But I would urge you to consider these individuals when viewed at a high level, and we look at this phrase "fault", what fault did you have? They didn't want to take a prohibited substance. And, they could have done more, and they were negligent for not doing more, but they weren't significantly negligent when you put it into the context of where they were. Who would have done more? I don't know that I would have, with the benefit of a tertiary education, done more. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: One other point about the disclosure or non-disclosure on these forms, is that, the players don't know what is detectable. So, they know they're getting a test, and they don't know what's detectable. I make this point: that I think I'm right in saying that some players had more than one test during the year, and they keep coming back clean. So, for those players at least, taking individual consideration, they know they're taking the supplements, they are tested, no-one comes knocking on the door and says, those supplements you're taking are illegal; does that perhaps reinforce the view that they're quite benign as they're being told they are? - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: I think the last document in your package is a letter from ASADA. It's a single, double-sided page, dated 12 November. It's addressed to Gillon McLachlan, CEO of the AFL... He [McDevitt] goes on to say: “The recommendation that it issue an infraction notice in accordance with ...(reading to the words)... ineligibility with no significant fault or negligence would be appropriate...” It would be an anathema to that approach for Australia's governing body to state, based on what we know, the full reduction for no significant fault or negligence is appropriate, and then resile from that. We like it because it also carries some sort of suggested weight, that is, they think— THE CHAIR: I understand. GLEESON: -- there's been no significant fault... We in Australia deal with ASADA. They are the instrument of WADA, who deal with the sportspersons and, if they write letters like that, which are meaningless, to the CEO of the AFL, the biggest sporting code in the country, we've got a problem. ... but we ought not underestimate the extraordinary burden these players have carried over three years through this process. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CLELLAND [for 32 players]: ...we say that the additional evidence brought forward on this appeal by WADA has failed to redress or cure what were obviously the evidentiary deficiencies of the case before the tribunal. Mr Knowles' client, who is the CEO of ASADA, Mr McDevitt, made some public statements about the state of the evidence after the tribunal hearing... ASADA did not know, and to use his words, had no idea of what the players were actually injected with. What we say is that the additional evidence, of course, is first and foremost the so-called Cologne evidence.... we've now heard that evidence. In our submission, the scientific evidence is such that this panel could not be comfortably satisfied that the levels of [Player], in particular, evidence of exogenous use of Thymosin Beta 4. ...The other evidence that was put forward was the so-called Bio21 evidence... what we are not satisfied of is where the material came from that might have been analysed by Ms Giordani, and we're certainly not satisfied that any of that material went to the Essendon Football Club... The third area of evidence that was, as I say, foreshadowed by WADA to address what was, we would submit, perceived as the evidentiary shortcomings or failings at first instance, was the indication that they may call evidence from somebody from GL Biochem, and obviously, that hasn't occurred... We say that the case otherwise is no different to that that was put before the tribunal. Those gaps in the evidence as to the material analysed by Ms Giordani and where it went still remain; they haven't been filled at all. One can put, we would submit, to one side the so-called Cologne evidence, and of course there is no additional evidence from GLBiochem. CLELLAND [quoting CAS judgement in Montgomery case]: “USADA bears the burden of proving, by strong evidence commensurate with the serious claims it makes, that the athlete committed doping offences. It makes little, if indeed any, difference whether a beyond reasonable doubt or comfortable satisfaction standard is applied to determine the claims against the athlete.” CLELLAND: It struck a chord with us, Mr Chairman, because it seemed to not conflate; it seemed to suggest that there wasn't that much difference in these kinds of hearings between a test of comfortable satisfaction as opposed to beyond reasonable doubt. We found some other support for that in a text... “The Fight For the Spirit of Sport” ... page 204 the author said this: Given the seriousness of doping allegations and their effect on sporting careers, the standard of proof is, in reality, close to the criminal standard and it is probably that standard. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SPIGELMAN: One rational link... was that, Dank would have used this in his anti-ageing clinic rather than at Essendon. Now, have you got anything to submit about that option? GLEESON: It's an option. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: You can assume that the answers they [Players] gave in relation to Thymosin at those interviews all those months ago were quite unvarnished. They didn't know that it was going to be Thymosin they were going to be prosecuted for. So, when they say, "I don't remember being asked about Thymosin", you can put significant weight on that. When they say, "I was always told it was AOD, I was always told it was, whatever", you should assume that that's honest – they haven't been challenged on it. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: ... I would urge you to consider these individuals when viewed at a high level, and we look at this phrase "fault", what fault did you have? They didn't want to take a prohibited substance. And, they could have done more, and they were negligent for not doing more, but they weren't significantly negligent when you put it into the context of where they were. Who would have done more? I don't know that I would have, with the benefit of a tertiary education, done more. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GLEESON: One other point about the disclosure or non-disclosure on these forms, is that, the players don't know what is detectable. So, they know they're getting a test, and they don't know what's detectable. I make this point: that I think I'm right in saying that some players had more than one test during the year, and they keep coming back clean. So, for those players at least, taking individual consideration, they know they're taking the supplements, they are tested, no-one comes knocking on the door and says, those supplements you're taking are illegal; does that perhaps reinforce the view that they're quite benign as they're being told they are? - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Justice for the 34 renews its call for a Senate or Independent inquiry into anti-doping with wide ranging terms of reference which allow all sporting bodies, all athletes, and all interested parties to make representations. It’s in the national interest. Support an independent inquiry to sort this mess out.