So many in the media have never reported the following statements from lawyers, CAS panellists, and expert witnesses. Out of respect to players, their names are redacted. “PLAYER” refers to different players at different times. - - - - - - - - -- - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - MR CLELLAND [for 32 players]: ...clearly WADA's brief did put its argument on the basis of links in a chain, and indeed when one looked at the appendices to the brief, not only did paragraph 14 say as much, but then set out seriatim* were each of these so-called links and their underlying facts... [*taking one subject after another in regular order; point by point] We’ve pointed to rule 56. In our submission, there was a deviation and a significant one from WADA’s appeal and the way it put its argument. THE CHAIR: So they’ve amended their argument? MR CLELLAND: Quite so, and we, as I think everybody did, learned that for the first time on Monday morning when the matter was opened for WADA. J34 comment: Did WADA pull a swifty? Did this give the players’ lawyers enough time to build a proper defence response? - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR CLELLAND: ... we would have thought one of the most glaring aspects of that area of evidence is, nobody can point to one of them who said "I received Thymosin Beta-4". - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE CHAIR: Would ASADA not have been under the kind of obligation that a prosecutor in a criminal proceeding is, to make disclosure of anything that they consider would help the defence? MR CLELLAND: All I can say about that, is that, one would certainly hope so, but I don’t think that that is enshrined necessarily in any statute that governs ASADA’s conduct. We have a notion in Australia of a model litigant; I don’t know whether that’s an expression you use in the UK, but it suggests – and it normally applies to public authorities, regulators, people or entities of that kind – and by assuming the mantle of being a model litigant there is an expectation that you conduct yourself in ways that would include making full and proper disclosure even if otherwise not required. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR SPIGELMAN [CAS Arbitrtator]: Consent forms were not all about injections, there were four consent forms? MR CLELLAND: Quite right, and two I think were tablets and two were substances... ...there were six [players] who spoke of Thymosin. As I indicated before lunch, interestingly, given that we’re told Thymosin is the generic description, nobody, not one of those people, says "I received Thymosin Beta-4". - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE CHAIR: ...if someone says “I was given Melanotan”, that may well have been the case, it doesn’t follow that he wasn’t given Thymosin on some other occasion... MR CLELLAND: ...there might be a whole lot of things you could say about that, in terms of process and all the rest of it, but it won’t fill an evidentiary vacuum when it's not there. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR CLELLAND: It is clearly open that these people were being given exactly what they said they were being given... If you look to a particular individual and you say, we’re going to assume, notwithstanding what you were told, that you had Thymosin Beta-4 administered to you on a given day, even though you were told something different, then in my submission you are in grave danger of visiting a real injustice on that person. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR CLELLAND: If one wants to identify and satisfy yourself that this complex molecule, Thymosin Beta-4, that that was probably supplied in an injection to an Essendon player on any given occasion, then the evidence just fails to get there. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR IHLE [for 32 players]: The toll on them [the players] has been huge... I've gotten to know them pretty well over the last two years, and to say that at times they’ve looked like dead men walking because of this case, is no overstatement at all. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR HALLOWES [for 2 players]: There are actually 38 players who signed the consent forms. Only 34 were charged. There may be various other reasons for a couple of those, but there were two who were interviewed and both indicated that they didn’t receive any injections. [Player] said he felt obligated to sign the consent form but never received injections from either Dank or Robinson. He was asked by Dank once or twice and said no. And [Player] didn’t receive treatment, he said he didn’t like needles, but nonetheless he signed the consent form. ... it doesn’t necessarily lead you to a conclusion that all the players at Essendon who signed the consent form took each and every one of those substances always. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR HALLOWES: The first batch, which there’s no certificate of analysis for, there’s talk about compounding, then there’s talk about difficulty compounding, there’s the invoices, there’s the reversal of invoices; there’s a number of issues there that we’d say cast considerable doubt on exactly what happened and you’re simply not in a position to hear from the principal people who were involved in that to determine what did happen with this first batch. THE CHAIR: So, there’s a doubt as to whether the first batch was even TB-4, and certainly a doubt as to, even if it were, where it went? MR HALLOWES: That’s correct, and whether or not in the end whether it made its way to the Essendon Football Club. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR YOUNG [for WADA]: It’s basically that WADA’s job, as an umbrella organisation, they present issues to CAS, they don’t really care whether they win or lose, they want the right thing to happen. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR IHLE: On the question of sanction: although one may wish to draw on the 2015 WADA Code, what we’re dealing with first and foremost is the 2010 AFL Anti-Doping Code; that’s the contract to which the players are bound and that’s the law that applied at the time that these violations are said to have occurred. There is no power within the AFL Anti-Doping Code 2010 to disqualify results - none. ... it’s absolutely without doubt that the 2010 AFL Anti-Doping Code was signed off and approved by ASADA. There’s one matter and this is the main matter. I don’t in any way want to criticise Mr Young... but if I understood his submission correct in dealing with no significant fault and negligence, he said, "Unless utmost caution is used by the players, you just don’t get there". To borrow from Professor Hibbert, Mr Young is just wrong, he’s absolutely wrong about that, and the cases that he cites in support of his contention prove that to be case. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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.