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CAS

- WADA Appeal - Essendon Players - the Strands in the Cable

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A response to the sixteen Strands in the Cable in the Court of Arbitration for
Sports Judgement upholding the World Anti-Doping Authoritys Appeal
against the Australian Football League Tribunals Determination in favour of
thirty-four players charged by the Australian Anti-Doping Sports Authority
with anti-doping violations relating to Thymosin Beta-4.


A. Preamble
1.

2.

3.

In a reversal of where Australians are entitled to believe a burden of proof lies, the
Court of Arbitration for Sport (CAS) in Switzerland appears to have taken the view that
the mere fact that the Australian Sporting Anti-Doping Authority (ASADA) had laid
charges against 34 Essendon players meant that the burden lay with the players to
prove their innocence. In any reasonable jurisdiction concerned with natural justice
and procedural fairness, the burden of proof would always lie with those bringing an
accusation.

It is important to note that the following observations relate to the CAS panels
majority-judgement that 34 Essendon Football Club (Essendon) players past and
present are guilty of anti-doping violations, as encapsulated in what the panel refers
to as the strands in the cable. For some inexplicable reason, CAS does not allow
dissenting views of a panellist to be published, so it is impossible to know to what
extent the dissenting panel member disagreed with the other two.

Prior to dissecting the very flimsy strands in the cable, I should like to highlight my
view that if the CAS panel had not inappropriately accepted untested hearsay
evidence from a small number of people with questionable integrity, and only
selective hearsay evidence of Stephen Danks words, there would be no supposed
evidence; the World Anti-Doping Authoritys (WADA) appeal against the Australian
Football League (AFL) Tribunals determination would have failed; and all charges
against the players would have been dropped.

4.

In clause 118 of its judgement, the panel claims it:


approached the evidence of WADA's witnesses, especially those who were
tainted with criminality, with appropriate caution, where their statements were
self-serving as distinct from admissions against interestHowever, the Panel
was not prepared to r u l e out any consideration of the hearsay evidence.

5.

It is incomprehensible that the panel stated it would be cautious of evidence from


witnesses with questionable integrity when their hearsay evidence might advantage
them, but hearsay evidence from the same people if it were (seen by the panel to be)

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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6.

7.

8.

9.
10.

11.

not in their interest, would be considered reliable. As the panel could not possibly
know the nuances of what the hearsay witnesses felt was in, or against, their interest,
or who the witness might wish to harm or help, the differentiation between reliable
and unreliable statements from these people with questionable integrity seems a
matter of mind-reading by the panel.

To not rule out any consideration of hearsay evidence implies it will be given minimal
weight, and yet it is clear from the strands in the cable, which reveal a dearth of
material evidence, that their decision against the 34 players was in fact based largely
on just such untested, hearsay evidence.

Furthermore, if the World Anti-Doping Authority (WADA) had acted properly and
excluded known tainted evidence collected by ASADA and the AFL during their
corrupted investigation, it would not have appealed the AFL Tribunal decision.

Given that the issue here is 34 players having been found guilty of taking a banned
substance and who have been heavily sanctioned, it is perhaps appropriate to
mention just one example of ASADAs tainted processes and therefore tainted
evidence that involves the players directly. ASADA falsely guaranteed the players that
on the grounds of no fault they would not be sanctioned if they co-operated fully
with the ASADA investigators. With that kind of carrot, how could the players not
have been influenced to provide the answers they thought the investigators wanted to
hear; or conversely, to respond to questions without too much thought, as they all
considered themselves safe from any kind of penalty.

To have been given such an improper guarantee prior to their interviews and now to
find themselves in this situation is unconscionably cruel.

There are two recognised methods of catching drug cheats - first, through testing
urine and blood; and second, through a formal investigation. WADA director-general
David Howman proffers that at least 10 per cent of all athletes take prohibited
substances, but less than one half of one per cent test positive. Consequently, he
believes that the investigatory method is substantially more important. Just prior to
the CAS hearing, in a highly inappropriate and potentially prejudicial comment,
Howman inferred that if the Essendon players werent found guilty, the investigatory
method would be destroyed as a recognised method of identifying doping infractions.
I understand that following the CAS panels determination against the players,
Howman is now travelling the world requesting that governments increase their
donations to WADA, apparently with a budget of $300 million in mind, which would
pale the present $30 million into insignificance.

Finally, I should like to highlight here my view that the rules governing appeals to CAS
should have remained those in place when the case against the players began in the
AFL Tribunal. This would have meant that an appeal to CAS by WADA could only be on
the grounds of an error in law, or that it was an especially unreasonable decision; and

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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12.

not as the change of rules midstream allowed - an appeal to make the case all over
again and to present whatever new information into evidence it wished.

Below, I first include verbatim the strand identified by CAS, including the panels
numbering and then follow with my comment on the strand.

B. The Strands in the Cable


120. The Panel identified the following strands in the cable supporting WADAs case:
_________________________________________________________________________

(i) The Australian Administrative Appeals Tribunal in a decision dated 31 December
2014 (Earl and Anti-Doping Rule Violation Panel and Chief Executive Officer,
Australian Sports Anti-Doping Authority (Joined a Party) [2014] AATA 968) found
expressly that Mr Dank, before he joined Essendon, had used TB-4 on a Mr Earl. As
that Tribunal concluded (at para 106): Thymosin Alpha is not a prohibited substance
being used as an immune system stimulant, but Thymosin Beta-4 is, because of its
regenerative capacity. Even though the applicant [ie Mr Earl] said he was unsure
about the identity of the product, Dr Khan was sure it was Beta 4 - he was just
unsure whether it had actually been used. On the other hand, the applicant said he
had definitely used a form of Thymosin. Given that Mr Danks text message
referred to the product as being so effective in soft tissue maintenance, it is
implausible that the applicant was being administered Thymosin Alpha. The
likelihood is the substance being used by the applicant was Thymosin Beta-4. The
Panel respectfully endorses that analysis and conclusion, while acknowledging that
the decision is under appeal.
__________________________________________________________________________

My Comment:

13. Sandor Earl was a Penrith Panthers National Rugby League (NRL) player.

14. Contrary to the panels claim, the Administrative Appeals Tribunal of Australia (AATA)
(which the panel has incorrectly referred to as the Australian Administrative Appeals
Tribunal) did not find expressly that Dank had used TB-4 on Earl. This is a totally
unacceptable error that in the kindest light is careless and irresponsible. The weight
that the panel gave to the AATAs finding in its inaccurate version had catastrophic
consequences for the players.

15. In the first step in anti-doping investigations in the NRL, the Anti-Doping Rule Violation
Panel (ADRVP) found that it was possible that Dank had used TB-4 on Earl.

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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16.
17.
18.

The Administrative Appeals Tribunal of Australia (AATA) then considered and


endorsed the ADRVP finding that it was possible that Dank used TB-4 on Earl.

The case then went to the NRL Anti-Doping Tribunal, in the same way that the ASADA
charges against the Essendon players were heard by the AFL Anti-Doping Tribunal.

On Wednesday, 14 October 2015, four weeks before WADA began the presentation of
its case to the CAS panel, the NRL Anti-Doping Tribunal found Earl guilty of the
following:

19.

20.
21.
22.

Use of CJC-1295 (eight violations)


Possession of CJC-1295
Trafficking in Somatropin; Trafficking in Clenbuterol
Attempted trafficking in Testosterone


It is inexcusable that the CAS panel would have as its first strand to the cable, a
totally false claim of an earlier infraction by Dank of administering Thymosin Beta-4 to
a professional sportsman.

How could WADA present evidence that it must have known to be blatantly wrong?

A second inexcusable aspect of this strand is that the accusation against Dank is
based on the purported content of a text that has been altered from the original text.

The actual text sent by Dank to Dean Robinson on 2 August 2011 that the panel refers
to read:
Hi mate. Just in consult for shoulder reconstruction. This case will be of interest
to you. We are utilising Thymosin post surgically for one shoulder but
prophylactically for the other, Thymosin is so effective in soft tissue
maintenance.

23.

24.
25.

WADA submitted the following altered version of the texts contents to the CAS panel,
implying Earls name had been included in the text:

On 2 August 2011, Mr Dank, in a text message to Mr Robinson, referred to his
use of Thymosin for Mr Earl, adding, Thymosin is so effective in soft tissue
maintenance.

It would appear that someone in ASADA, and/or later in WADA (corruptly if so)
inserted Earls name into the text to advance a case against the 34 Essendon players.

This is still strand (i) and to put it as politely as I can, the way WADA has presented its
case against the players is already looking decidedly improper; some might even
perceive it as corrupt behaviour.

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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26.

27.

28.

29.


The person Dank was actually referring to in the text was a male in his mid-40s, who
was not a professional athlete and whom Dank was treating at his Medical
Rejuvenation Clinic (MRC) as a private patient.

The original text was obtained by the Australian Crime Commission (ACC) in its earlier
investigation of corruption in sport. Evidence from that investigation is supposed to be
sealed.

I understand that within the legislation, the ACC is entitled to provide the text
message to ASADA for interest purposes but not for use in a case. ASADA is not
entitled to provide a copy of the text, or any of its contents, to anyone else.

ASADA investigator Aaron Walker lodged an affidavit during the Middleton Federal
Court hearing in August 2012. Clause 64 states:
ASADA had a substantial body of information which it had obtained from the
Australian Crime Commission (ACC) about various activities which it was not able
to share with the AFL. I did not share this information with the AFL and to the
best of my knowledge the other ASADA investigators did not do so either. I was
conscious throughout the investigation that ASADA had information from the
ACC that it was not allowed to show to the AFL as it had been given to ASADA for
specific purposes.

30.

31.

32.

33.

As AFLs general counsel Andrew Dillon used the text - before it was changed - in his
charges against Essendon, it would appear that someone from ASADA gave it to him. It
would therefore appear that ASADA breached the Australian Crime Commission Act
and the Telecommunications Act. Breaches of the Acts attract custodial sentences.

Even the ASADA website, in its Register of Findings, refers to Earl as having been found
guilty of anti-doping violations in relation to four substances, none of them Thymosin
Beta-4. For the panel to use the Earl case as compelling evidence that 34 Essendon
players took Thymosin Beta-4 is incomprehensible, and deserving of severe censure.

To present false findings against Earl in making the case against the players should
place an automatic question-mark over the reliability of even the facts included in
the remaining fifteen strands of the cable, let alone the conclusions reached by the
panel.

On this strand in the cable alone, the Judgement of the CAS panel should be
overturned on Appeal.

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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_________________________________________________________________________
(ii)

Prior to his employment with Essendon, Mr Dank discussed Thymosin with Mr


Robinson. On 2 August 2011, Mr Dank, in a text message to Mr Robinson, referred to
his use of Thymosin for Mr Earl, adding, Thymosin is so effective in soft tissue
maintenance. On 23 August 2011, Mr Dank texted Mr Robinson: Dont forget how
important Thymosin is. This is going to be a vital cornerstone next year. It is the
ultimate assembly regulatory protein and biological modifier. Mr Charter, in a
supplementary statement to ASADA, dated 26 July 2013, said that on or about 13
September 2011, Mr Dank told him that he needed TB-4. This statement was
corroborated by a contemporaneous note of that conversation. On 9 November
2011, Mr Dank texted Mr Alavi asking for Thymosin 2mg/ml (and also asking for
another prohibited substance).

_________________________________________________________________________

My Comment:
34.

35.

36.

37.

The panel has improperly joined four totally unrelated occasions together - 2 August,
23 August, 13 September, and 9 November 2011 - creating the impression that they
are each part of the one issue, when in fact the four dates relate to four different
matters.

Issue 1: The SMS Dank sent to Robinson on 2 August 2011. As referred to in my
comment relating to strand (i), this text message related to a private patient not Earl,
or any other professional athlete. It would appear that ASADA and/or later WADA
corruptly altered the meaning of the text by inserting the name Earl. Earl was found
guilty of anti-doping infractions involving four substances. None was Thymosin Beta-4.

Issue 2: The SMS text sent by Dank to Robinson on 23 August 2011. Again this text
message was sent prior to Dank even being interviewed for a position at Essendon.
There is no evidence Dank was referring to Thymosin Beta-4 in this text message. In
fact, Dank claimed publicly that he was referring to Thymomodulin. As it has been
explained by Dank, the ultimate assembly regulatory protein and biological modifier
referred to is a protein that optimises and maximises an assembly of protein cascades.
Therefore the sub units of Thymomodulin are all important in regulating various
immune proteins in relation to switching on an amplifying immune response.

Issue 3: Danks conversation with Charter on or about 13 September 2011. Dank has
never denied using Thymosin Beta-4 at his Medical Rejuvenation Clinic. Dank was not
interviewed for a position at Essendon until 28 September 2011. The panels
determination that Danks conversation with Charter on 13 September 2011, two
weeks prior to his interview, is evidence that he gave the Essendon players Thymosin
Beta-4 in April 2012 is unfathomable. For some inexplicable reason, the panel seems

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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38.

to have totally ignored or discounted the fact that Dank used Thymosin Beta-4,
perfectly legally, at his Ageing clinic.

Issue 4: Danks text to Alavi on 9 November 2011. There is nothing to indicate that
Dank was referring to Thymosin Beta-4, but even if he were, he has never denied using
the latter at his Ageing clinic. Neither has he denied using any other substance on his
private patients that was prohibited for professional athletes but not prohibited for
members of the general public.

_________________________________________________________________________
(iii) All players had blood tests before the administration of the injections commenced,
an exercise recommended for peptides like TB-4, and for which no purpose other
than a sinister one (the epithet) of Dr De Morton, a former club Dr) could be
identified. The tests were carried out by Dr Khan, the very same doctor who had
participated in the therapy administered to Mr Earl
_________________________________________________________________________

My Comment:

39. At Danks direction, blood samples were taken from each player, prior to the
commencement of the supplement program and analysed for the following:
Testosterone

Mean
Haemoglobin
Hormone-Binding Platelet Count

Sex
Globulin
Testosterone Free
Luteinizing Hormone
Serum Cortisol

Haemoglobin
Total White Cell Count
Red Cell Count
Haematocrit
Mean Corpuscular Volume
IGF-1

40.

Corpuscular Liver
Function
Damage
Iron

Tissue

Neutrophils
Lactate Dehydrogenase
Lymphocytes
Vitamin B12
Erythrocyte Sedimentation Serum Folate
Rate
Urea
C-reactive Protein
Creatinine
Thyroid-Stimulating
Hormone
Cholesterol
Free Thyroxine
Liver Function Cell Damage
Free Triodothyronine
Creatine Kinase
Growth Hormone

Of the tests conducted in respect of the players blood, it was the testing of the levels
of IGF-1 (Insulin Growth Factor-1) that Dr De Morton referred to as sinister. It is
noteworthy that he only used the word sinister on the ASADA investigator framing his
question to include not just the word sinister, but the inference that sinister was the

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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ASADA investigators own view, and he was merely asking for agreement with that
view. Any court concerned with natural justice and procedural fairness would consider
this a leading question that by its very nature contaminates the answer.
ASADA:

What is an IGF-1

De Morton:

IGF-1 is Insulin Growth Factor 1, which is I think is IGF-1 a


banned substance It is IGF-1 is, yeah, yeah

AFL:

Well, why would you do it?

De Morton:

Well, thats right why would you do I mean, I havent done


a growth hormone test for 30 years, and itd be on a kid who
isnt growing properly, not on an athlete. So you know, what
the hell was going on.

ASADA:

The fact that [IGF-1] appears do you have to specifically test


for it?

De Morton:

You would have to specifically test for it its not a garden


variety test. I mean Ive never ordered an IGF-1 in my life.

ASADA:

Can either yourself or perhaps [Dr De Morton] explain to me


why there would be a need to check for IGF-1, sinister or
otherwise?
[Note: ASADA is interviewing De Morton, so presumably
they meant here or perhaps Dr Reid. A human slip of the
tongue/keyboard they dont seem to allow Dank in one
inadvertent (purported) accepting of a journalists use of
the term Thymosin Beta-4, when Dank was obviously
referring to Thymomodulin. As there is a major question
mark over the reliability of the hearsay evidence that
Thymosin Beta-4 was mentioned by the journalist or
Dank at all, the anti-doping authoritys refusal to accept
the possibility of an inadvertent error in speech, might be
the least of their sins.]

De Morton:
41.

42.

Well well, I mean, you can only think sinister really.

De Morton used the word sinister in relation to testing for IGF-1, and on prompting
with the word in the question put to him. At no point did he say, or even imply, that
the blood tests were associated with commencing a program that included Thymosin
Beta-4, nor that no purpose other than a sinister one could be identified for having an
array of blood tests before the beginning of a supplements program.

As it would seem entirely reckless and pointless for any team supplements program to
be initiated without knowing the condition of the players and the individual levels of

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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43.

substances occurring naturally in the body prior to the program commencing, it seems
somewhat outlandish for the panel to be making a gratuitous observation that blood
testing is an exercise recommended for peptides like TB-4. It is more than outlandish,
and some would argue corrupt, for the panel to substitute TB-4 for IGF-1, when
quoting Dr De Mortons use of the word sinister.

During his ASADA interview, Dr De Morton recalled hearing about Danks blood testing
regime from players mentioning that theyd had blood tests. De Morton articulated
that his issue with blood testing was not necessarily their occurrence, but the failure
to keep him and Dr Reid in the loop, and to provide them with the results, because
we had no idea what we were actually taking bloods for.

_________________________________________________________________________
(iv) All players admitted to receiving injections by Mr Dank
_________________________________________________________________________

My Comment:

44. The players werent charged with receiving an injection. They were charged with
receiving injections of Thymosin Beta-4.

45. There is no evidence Thymosin Beta-4 was ever at Essendon.

46. Six players stated that they were administered Thymosin.

47. Dean Wallis photographed a vial he removed from Danks fridge after the latter had
left the club. It was one of three vials labelled Thymomodulin remaining in the fridge.
The photo was submitted to the ASADA investigation.

48. The panels inclusion of the players admitting to receiving injections as a strand in the
cable is flawed logic. The logic of the panel is:

34 players admitted that they received an injection
6 players stated that they were administered Thymosin.
Therefore, 34 players were administered Thymosin Beta-4.

49. In its Interim Report, ASADA created a table titled, Admitted use of Substances by
Players. Without evidence that the Thymosin mentioned by six players was Thymosin
Beta-4, none of the substances admitted to was prohibited at the time. The table
presented the following information:

8 players admitted being administered AOD-9604 injections
12 players admitted being administered AOD-9604 cream

Bruce Francis

Response

CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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50.

21 players admitted being administered Cerebrolysin injections


15 players admitted being administered Colostrum tablets
7 players admitted being using Comfrey paste
21 players admitted being administered Lact-Away
4 players admitted being administered Lube All Plus
15 players admitted being administered Melanotan II
6 players admitted being administered Melatonin
1 player admitted being administered PRP and Interleukin
6 players admitted being administered Thymosin.
4 players admitted being administered Traumeel injections
32 players admitted being administered Tribulus tablets
35 players admitted being administered a wide-range of other substances
38 players admitted having Vitamin B & C drips


The following discrepancies in the table should be noted:

a)
Two players admitted being handed AOD-9604 cream for use at home. However,
they informed ASADA that when they noticed that the label said for research
purposes only, they didnt even open it. Improperly, the ASADA investigators
still registered those two players as having admitted to using AOD-9604. This has
to raise a question about the veracity of all the evidence presented by ASADA.

b)
Apart from the six players described in the ASADA table as having been
administered Thymosin, two further werent sure, but SMS exchanges at the
time of the injection program confirm that they were administered the
substance. An additional four thought they may have been, but they were
uncertain. ASADA improperly registered these four players as a definite yes.

c)
Because of the very similar names, a number of players stated that they were
given Melanotan II when they meant Melatonin, and vice versa.

d)
Mark McVeigh testified that he received only one substance by injection. He had
a new-born child and had a sleeping problem. He thought he was administered
Melanotan II to address this. He was in fact administered the sleeping aid
Melatonin. The panel realised that many of the players mixed up these two
similar names and merely noted that they clearly meant the other. Inexplicably,
the panel gave McVeigh no such grace and bizarrely determined that because
his skin didnt turn orange (a side effect of Melanotan II) he must have been
administered Thymosin Beta-4.

Bruce Francis

Response

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CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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51.

52.

53.

54.

Apart from the noted discrepancies, and others I could detail, the importance of the
ASADA table cannot be understated. It reveals the following, inter alia:

a)
The variation in substances taken proves that Dank didnt design a team-based
program.

b)
Each player clearly had his own individually designed programme.

c)
As some players couldnt recall receiving a particular substance, but showed no
reluctance in admitting they received a substance of some kind, its not
unreasonable to assume that the figures in the Admitted use of Substances by
Players table could be understated to a degree. However, even if the figures
were adjusted by 50 per cent for any, or each, substance, that doesnt alter the
underlying evidence of the table that each player had an individual nutrition and
supplement programme.

d)
It is absurd to determine that if a player had an injection of one substance, he
must have had an injection of every substance.

e)
It is absurd to determine that if a player had an injection of any substance, he
must also have been administered Thymosin.

WADA claimed that Dank designed a team-wide program. Thus, if one player were
injected with anything, then they all were. WADA used the team-wide argument in its
Appeal to CAS to overturn the AFL Tribunals finding in favour of the players. As
WADA, inexplicably, was able to convince the CAS panel that Thymosin mentioned by
six players was in fact Thymosin Beta-4, the team-wide program argument was
fundamental to all 34 players being found guilty of using Thymosin Beta-4.

As WADA had a copy of the Players admitted Use of Substances table, it is
unconscionable that it based a major thrust of its Appeal on a claim it knew was
untrue.

This is only strand (iv) and WADAs improprieties are already adding up to behaviour
that is so outrageous that one could be forgiven for viewing it as misconduct.

_________________________________________________________________________
(v) All players signed a consent form for the injection of Thymosin.
_________________________________________________________________________

My Comment:

55. As no reliable evidence contradicts Danks claim that he administered Thymomodulin,
often referred to informally as Thymosin; and as the players were assured that
Bruce Francis

Response

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56.

57.

58.

nothing they were agreeing to was prohibited; their signing a consent form that
included injections of Thymosin is inconsequential.

In any event, consenting to something in a team situation on 8 February 2012, does
not mean that the individual player went through with it in April 2012, or even that
any particular substance was offered to be administered as per the consent forms.
People have second thoughts, particularly given time to think about it when not
surrounded by their peers, and it is clear from the available data that only six players
received all four substances listed in the consent forms.

It is incomprehensible that the panel determined that signing a consent form in
February equates with each substance listed necessarily being administered two
months later.

Brent Stantons comments in his interview with ASADA on 7 May 2013 illustrate the
absurdity of the panels premise. Inter alia, Stanton stated:
And then he [Dank] sort of just went through the four supplements that we
could possibly take. You wont be taking them all. It will be down to needs or
how youre feeling. And he will be doing regular blood tests to see your blood
levels.

59.

60.

61.

62.


Stanton was not given all the substances listed in the 8 February consent form, so
clearly each one was only a possibility. If this applied to Stanton, then presumably
none of the 34 players would necessarily be taking all the supplements - it depended
on need and how they were feeling.

Dank stated publicly that he decided against supplements for particular players by
design, and on one occasion gave the example of young players who still may be
maturing. Furthermore, just as many people in the wider community refuse to be
administered flu injections, a number of players declined to be administered an
immune booster to ward of colds and flu.

All players signed a consent form to be administered AOD-9604 by injection. As it
transpired, only eight players received AOD-9604 injections and 10 used AOD-9604
cream.

All players signed consent forms to be administered Tribulus tablets. As it transpired,
32 players admitted to being administered Tribulus. This number is high (32 out of 45
players) because Robinson handed them out in October 2011 prior to Dank joining the
club, and was the catalyst for Dr Reid expressing his first concerns [see my clause 161
under my response to strand (xiv)]. Protocols and consent forms were introduced
after Danks arrival.

Bruce Francis

Response

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CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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63.
64.
65.

66.

67.

All players signed a consent form to be administered Colostrum. As it transpired, 15


players admitted being administered Colostrum tablets.

As it was never even suggested that Colostrum was a banned substance, there would
be no reason for the players responses to be anything other than honest.

In assessing the players honesty, it should be noted that on 20 February 2013,
ASADAs investigator Paul Simonsson read out a letter to the players. Inter alia, the
letter included a guarantee to the effect that if the players were truthful during their
interviews, they would not be suspended, even if it were determined they had been
administered a prohibited substance. The grounds would be no fault.

It is reasonable to assume that by guaranteeing the players immunity from sanctions if
they co-operated fully with the ASADA investigators, that they would wish to
ingratiate themselves and would be inclined to give their interrogators what they
thought they wanted to hear, or at least to please them. They certainly wouldnt want
to be seen to be hiding anything. This could explain why so many answered, perhaps,
maybe or rings a bell instead of what was probably the more accurate, I dont
know, or I cant recall when asked whether theyd been administered particular
substances.

In light of Stantons comments, ASADAs own table of admitted substances, and the
above examples of variations in individual players supplement regimes, it is
inexplicable that WADA would argue that having an injection was proof the injection
was Thymosin, let alone specifically Thymosin Beta-4, and incomprehensible that CAS
would accept the flawed proposition.

_________________________________________________________________________

(vi) The consent form said, inter alia:

Nature of the recommended invention: Thymosin injection 5ml 3000mg per ml

The recommendation for the following intervention for you: One Thymosin injection
once a week for six weeks and then one injection per month

The intervention is recommended because enhance the rate of recovery. [sic] The
benefits of this treatment are an expected reduction of the time required for
performance recovery.

All components of the interventions are in compliance with current WADA anti-
doping policy and guidelines

_________________________________________________________________________

Bruce Francis

Response

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CAS - WADA Appeal - Essendon Players - the Strands in the Cable

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My Comment:

68. As detailed in my comment in response to strands in the cable (v), there is no
evidence that the reference to Thymosin is Thymosin Beta-4. The expectation of an
enhanced rate of recovery was just as readily as an effect of the boost to the immune
system occasioned by a Thymomodulin injection, as any recovery effect from a
Thymosin Beta-4 injection. There is also no evidence that all players were
administered Thymosin (Thymomodulin), irrespective of their signing a consent form
to allow the administering of the WADA-compliant supplement.

69. Despite there being no evidence that all 34 players charged were administered any
kind of Thymosin, the panel apparently brought out the tarot cards and determined
not only had they all been administered Thymosin of some kind, but found them all
guilty of being administered very specifically Thymosin Beta-4.

70. The dosage and frequency listed here is irrelevant. Literature indicates that there is an
unlimited range of dosage and frequency for both Thymomodulin and Thymosin Beta-
4.

71. If WADA suggested there was some relevance in the above dosages, then it should
have been incumbent on them to provide incontrovertible evidence that Danks
dosage and frequency of intervention for Thymosin was not only standard for
Thymosin Beta-4, but also substantially different from any likely regime of
Thymomodulin injections.

72. Thymomodulin and Thymosin Beta-4 can both be used for performance recovery but
in a very different way. With Thymomodulin (and its twin Thymosin Alpha-1) it is
from the effect of a boost in the immune system.

73. Inexplicably, given evidence to the contrary, the panel dismissed the notion that
anything was ever used at Essendon to boost the immune system.

74. Inter alia, Stewart Crameris interview included the following answer, relevant to this
matter:

75.

Walker (ASADA investigator):

Yep. Now, from your perspective Stu,


what did you think the Thymosin was
doing for you?

Crameri:

He [Dank] said it was an immune


booster.


In articles in the Age on 11 April and 24 August 2013, ASADA, WADA, and the panels
darling, Nick McKenzie quoted Dank as saying he used an immune booster.

Bruce Francis

Response

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76.

77.

78.

79.

80.

ASADA and WADA seem to have been very selective in identifying which parts of
McKenzies articles, and which parts of the players testimonies in relation to
Thymosin to use in their case against the players and which parts to ignore. The
panel seemed to follow their lead in that.

One would hope that ASADA, WADA, and the panels motives were not sinister in
ignoring evidence that the Thymosin supplement Dank was administering to
whatever number of players was to boost the immune system, and was thus
Thymomodulin.

Dank explained publicly on numerous occasions that the worst thing that can happen
to a football team is for a player or players to catch a cold or the flu, because both
invariably spread through the team.

The panel was either ignorant of the proximity health vulnerabilities of members of
sports teams over individual competitors, or chose to ignore the known vulnerability,
and the possible use of Thymomodulin to address it.

Boosting the immune system with Thymomodulin not only wards off colds and flu and
assists recovery from them, but it also speeds recovery from injury. If a player sustains
a soft tissue injury, for example, it takes longer to recover if the immune system is low.

_________________________________________________________________________
(vii) In the 32 ASADA interviews, six players said that Mr Dank had identified what he
was injecting as Thymosin.
_________________________________________________________________________

My Comment:
81.
82.
83.

Thymosin is Thymomodulin

There is no reason, nor evidence, to believe that the identified Thymosin is Thymosin
Beta-4.

On 1 December 2011, Mr Vince Xu, Global Sales Manager for GL Biochem (Shanghai)
Ltd, sent an email to Mr Shane Charter stating:

thank you very much for your time to visit us, Its our great honour. Mr Xu then
outlined their ability to supply Mr Charter with: GHRP-6; GHRP-2; CJC-1295;
Melanotan II; Thymosin; Thymosin Beta 4 and MGF (Mechano Growth Factor).
Mr Xu also advised that he could not provide HGH-191; HJCG, IGF1-LR3 or AOD-
1296 (sic).

Bruce Francis

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84.
85.

86.

87.

88.

89.

90.

Mr Xu clearly made a distinction between Thymosin and Thymosin Beta-4. In his view
Thymosin is not Thymosin Beta-4.

According to ASADA, Shane Charter claimed, and they accepted his claim that he only
ordered Thymosin Beta-4 from GL Biochem Shanghai on one occasion the one
above.

Although Charter produced scores of texts and emails between Dank and himself, he
did not produce a single text or email from Dank ordering Thymosin Beta-4 or asking
him to travel to China.

Even if Dank had ordered Thymosin Beta-4 from Charter, the ordering itself is
irrelevant, as Dank has never denied the perfectly legal use of Thymosin Beta-4 in his
private Ageing clinic.

There is no evidence other than ASADA investigator Aaron Walkers untested say-so
that Mr Xu told him that he sent Thymosin Beta-4 to Cedric Anthonys warehouse in
Shanghai for forwarding to Melbourne at a later date. But even if Walkers evidence is
accurate, this does not constitute evidence that Thymosin Beta-4 was delivered to
Dank, let alone to Dank at Essendon to administer to the players.

Chip Le Grand in his book The Straight Dope, records that Cedric Anthony told him
that he kept various versions of Thymosin in his warehouse fridge, and on receiving
instructions from Charter forwarded raw material labelled Thymosin to compounding
pharmacist Nima Alavi in Melbourne.

Le Grand interviewed Alavi in June 2014, and on 20 June the Australian newspaper
published Le Grands article. Inter alia, Le Grand stated that Mr Alavi said,
It was impossible to know [my emphasis] whether the players were given
Thymosin Beta-4, a substance that is banned, Thymosin Alpha 1, a substance
that is permitted, the similarly permitted Thymomodulin, or something else
altogether. Mr Alavi said the shipment arrived at his pharmacy simply marked
Thymosin. It didnt tell me what type it was, which worried me a little bit. He
said peptide materials imported from China could be notoriously unreliable.
When it is something from overseas, it could be anything.
Im not sure what he [Dank] has done with it. He may have very well taken it to
the club and used it on the players. If he has done that - which I cant be sure of -
we still dont know what type of Thymosin it was because that was the whole
point of me in giving it to him to have it tested.

91.


Dank has stated that he picked up a number of clear unlabelled vials from Alavi in
January 2012. These were the vials Alavi refers to above and were created as a result
of his compounding the raw material labelled Thymosin that was sent by Cedric

Bruce Francis

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92.

93.

Anthony that arrived in Melbourne on 29 December 2011. This was purportedly the
same substance ordered by Charter and supplied by Mr Xu from GL Biochem.

Dank stated publicly that the substance in the clear vials was ruined when
inadvertently exposed to the sunlight and was thus unusable and had to be thrown
out. Danks version of events is supported by the paper trail that has Alavi issuing an
invoice, and then reversing part of it that included the Thymosin.

An invoice issued by Alavis company Como Compounding Pharmacy on 31 January
includes various substances supplied to Essendon on 10 January 2012, and 26 vials of
Peptide Thymosin and 7 vials of Hexarelin supplied on 18 January. As ASADA
recorded in its Interim Report,
the costs of the Hexarelin and the Thymosin were re-credited to the Club in a
subsequent invoice dated 29 February 2012, and did not form part of the final
amount ultimately paid by Essendon, under the authority of Hamilton sometime
after 11 April 2012.


Alavi clearly accepted that the Thymosin was unusable and thus destroyed.

95. The relevance to the WADA case of Dank throwing out the vials is that Charter and Mr
Xu were involved in only one order and supply to Dank and ASADA has accepted
Charters word on that. Thus their involvement in the matter is finished with the
destruction of the vials. They are irrelevant, and have no bearing on the case.

96. WADA offered no evidence that the Thymosin sent by Anthony to Melbourne was
Thymosin Beta-4.

97. WADA offered no evidence that the batch of Thymosin was not destroyed as Dank
stated, and the paper trail suggests.

98. Even if the batch were not destroyed, WADA has no evidence that it was used at
Essendon.

99. No payment for the 27 vials in the batch was made by Essendon, providing further
evidence that it was not used at Essendon.

100. On 3 July 2012, ASADA Science and Results Manager, Dr Stephen Watt, sent an email
to WADA with the following enquiry:
94.

I wanted to enquire if WADA has considered the prohibited status of the drug
Thymomodulin also known as Thymosin?


101. Thymomodulin is a non-prohibited supplement.

Bruce Francis

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102. Watts email proves that ASADA and WADA knew that Thymomodulin is often referred
to informally as Thymosin, and yet both chose not to disclose this fact in either the
formers case against the players before the AFL Anti-Doping Tribunal, or the latters
Appeal before the CAS panel. The omission is inexcusable and again some would argue
sinister.
_________________________________________________________________________
(viii) Two Players, including Mr Crameri, saw the word Thymosin on the vials which
contains the substance with which they were injected.
_________________________________________________________________________

My Comment:
103. The CAS panel has accepted evidence that it knows, or should know, to be inaccurate,
though not intentionally inaccurate by the players.

104. Although Thymosin is used in informal conversation or written text to refer to
Thymomodulin, no compounding chemist would label a vial of Thymomodulin,
Thymosin-Alpha-1, or Thymosin Beta-4, simply Thymosin. There is no substance
known officially by that name.

105. It is inconceivable that Alavi, a compound chemist, would risk his professional status
by dispatching vials of substances with a name that doesnt exist. Mislabeling a
substance by a man in his position is a major breach of the law that would risk severe
penalties, including the possible cancellation of his professional licence.

106. Alavi chose no labels over risking mislabeling when he compounded and placed into
clear vials the substance from China marked merely Thymosin.

107. The label on the vial Crameri and the second player noticed would have been
Thymomodulin, Thymosin Alpha-1, or Thymosin Beta-4. Even if Alavis integrity
were in question, he would not have labelled the vials simply Thymosin. As there is
photographic evidence of Thymomodulin in Danks fridge, and no evidence that
Thymosin Beta-4 was ever at Essendon, it is inexplicable that the panel would ignore
the photographic evidence and simply determine that Crameri and the second player
must have seen the label Thymosin.

108. Crameri and the second player obviously made a mistake in their recall, which isnt
unexpected given terminology that is not in everyday conversation, and given the
familiarity of the one word Thymosin as it was the informal term used in their
consent forms, was mentioned by name by the ASADA investigators, and by this time
had appeared frequently in the media in relation to the Essendon saga.

Bruce Francis

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109. On a number of occasions, the panel noted inadvertent mistakes in recall by players,
and merely corrected them without aspersions on their credibility. Inexplicably, the
panel chose not to note the obvious error in recall of Crameri and the second player
and more inexplicably used it to infer that the vials must have contained Thymosin
Beta-4.

110. Dean Wallis, an assistant coach, provided to ASADA the one piece of photographic
evidence of what was being used at Essendon. The vials in Danks fridge were labelled
Thymomodulin, as a photograph of one of them demonstrated.
_________________________________________________________________________
(ix)

TB-4 is accepted to aid recovery and repair tissues (whereas Thymosin Alpha is
used to boost immune system).

_________________________________________________________________________

My Comment:

111. The panel was correct with respect to the effect of Thymosin Beta-4, but was wrong in
its limited understanding of the use of Thymomodulin (and its twin Thymosin Alpha-
1)

112. Inexplicably, the panel dismissed the notion that anything was ever used at Essendon
to boost the immune system.

113. As detailed above in my response to the panel strand in the cable (vi), Dank explained
publicly on numerous occasions that he used Thymomodulin to boost the immune
system not only to ward off colds and flu, but to help speed the recovery from injury
because of the boost to the immune system.

114. I place here again Stuart Crameris answer to a question thats also relevant to this
strand:
Walker (ASADA investigator): Yep. Now, from your perspective Stu, what did
you think the Thymosin was doing for you?
Crameri:
He [Dank] said it was an immune booster

115. Similarly, extracts from Age journalist, Nick McKenzies article of 11 April 2013, co-
written with Richard Baker, illustrate that the panel was wrong to determine that an
immune booster was not used at Essendon.

"Records of Hird and Dank's dealing reveal the coach knew specific details about
the supplementation regime, including the intravenous administration of
vitamins and injections into the stomach or oral administration of other
Bruce Francis

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supplements, including an immune-booster known as Thymosin [my
emphasis].


116. The panel has chosen to discount McKenzies words here, while basing much of its
findings against the players on alleged words of Dank from the same interview that did
not appear in this article, but magically appeared in an article four months later.
Further detail of this is at my response to Strands of the Cable (xii).
_________________________________________________________________________
(x)

Mr Danks job with Essendon and his reputation as a sports guru depended upon
improvement in the teams results. It would have been inconsistent for him to seek
to access TB-4 but then used it entirely for other purposes. On 9 March 2012, Mr
Dank sent a text message to Mr Hird saying, IV start next week. And Thymosin with
Ubiquinone. We will start to see some real effects.

_________________________________________________________________________

My Comment:

117. It is incomprehensible that the panel would use such flawed logic to arrive at its
inevitably flawed determinations. In essence, the panel is saying:

a)
Danks reputation as a sports guru depended on improvement in the teams
result

b)
He sought access to Thymosin Beta-4

c)
He used Thymosin Beta-4 for other purposes [They must mean his Ageing clinic,
as there has been no finding that ARL player Earl was administered TB-4]

d)
It would be inconsistent for Dank to use Thymosin Beta-4 in his private clinic
and not use it on the players

e)
Therefore, Dank must have administered Thymosin Beta-4 to the players

118. My response to the panels flawed logic:

a)
Danks reputation as a sports guru would be ruined were he found to be
administering a banned substance to the players

b)
He would know that the chances of his being caught through random testing
would be very high if he were administering a banned substance to as many as
45 players, or even just 34.

Bruce Francis

Response

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c)
d)
e)

f)

g)
h)

Seeking access to TB-4 and obtaining access, particularly in the supposed


quantities that have been bandied about, are different things.

Dank used TB-4 at his Medical Rejuvenation Clinic, perfectly legally

TB-4 is a prohibited supplement for professional sportspeople, so there is
nothing inconsistent in Dank administering the supplement legally to his private
clinic patients, but not as a banned substance to the Essendon players

There is no evidence that the Thymosin referred to in Danks message to Hird is
anything other than Thymomodulin (or its twin Thymosin Alpha-1) as Dank has
asserted frequently.

There is no evidence that Thymosin Beta-4 was ever present at Essendon.

There is irrefutable evidence Dank used Thymosin Beta-4 at his MRC clinic.

_________________________________________________________________________
(xi) In 2011, Mr Del Vecchio, who was involved in a business called Australian Medical
Solutions, which was considering the purchase of Mr Charters Dr Ageless company,
had a conversation with Mr Dank in which Mr Dank said he was giving the Essendon
players peptides and Mr Del Vecchio advised him that they were prohibited.
_________________________________________________________________________

My Comment:

119. This constitutes yet another changing of the facts, that many would argue amounts to
misconduct, or even corrupt behaviour by ASADA and/or WADA, with the false facts
accepted inexplicably by the panel.

120. Mr Del Vecchio did not advise Dank that peptides were prohibited.

121. Del Vecchio sent an email to Charter about Danks supplement program at Essendon,
expressing some concern for Dank on the basis of most peptides being prohibited.

122. All peptides are not prohibited, including Thymomodulin and Thymosin Alpha-1, so
such advice would be irrelevant, anyway, as Dank knew which peptides were
prohibited and which were not.

123. ASADAs Interim Report (page 248) stated that Del Vecchio was specifically concerned
about GHRP-6

124. There is no accusation that Dank used GHRP-6 at Essendon.

Bruce Francis

Response

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125. The panels determination was that Dank used Thymosin Beta-4 at Essendon.

126. The players have been found guilty of the use of Thymosin Beta-4, and nothing else, so
a warning about anything else is irrelevant.

127. The panel implied that Del Vecchio warned Dank about Thymosin Beta-4. An
incomprehensible claim as the exchange between the ASADA investigator and Del
Vecchio that appeared in the Interim Report doesnt mention Thymosin or any
variation.

128. Del Vecchio made no mention of Thymosin or Thymosin Beta-4.

129. It is impossible to understand why the panel included Del Vecchio as one of the
strands in the cable unless wishing to imply that he warned Dank that Thymosin was
banned. But then they know Del Vecchio did not, so his inclusion here is totally
unfathomable.
_________________________________________________________________________
(xii) In an interview with Mr Nick McKenzie of the Age newspaper in April 2013, Mr Dank
admitted the use of TB-4 on the players. Although he sought to retract sometime
thereafter once it had been pointed out to him that TB-4 was a prohibited
substance.
_________________________________________________________________________

My Comment:
130. The only brick in the panels house that Thymosin at Essendon was Thymosin Beta-4
seems to be the Age journalist Nick McKenzies claim that Dank admitted to him to
using Thymosin Beta-4 at Essendon.

131. The accuracy of this claim is tenuous anyway, but even if the claim were true, the
possibility that Dank made an inadvertent error in response to a leading question is so
obvious, it is baffling that the panel would include this as a strand, let alone as a
foundation brick in their decision.

132. If the panel is disinclined to even consider the possibility of an inadvertent error on
Danks part, panel members must be deeply suspicious of the egregious mistake
ASADA made in asking the players how they felt about being administered substances
that had been brought in from Mexico [Interim Report 208]. It seems that somehow
they didnt know/forgot that El Paso is in the United States! The revelation that
Mexico was the (presumably secret) source of the supplements was distressing
enough, but for the players to find that the Mexico connection and the negative

Bruce Francis

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connotations of that was leaked to the media and became front page news was so
damaging to them in the publics eyes that ASADAs mistake had a devastating effect
on the players emotional and mental wellbeing. Obviously ASADAs explanation that
it was an inadvertent error would be treated with derision by the panel.

133. McKenzie interviewed Dank in early April 2013, and his article co-written with Richard
Barker appeared in the Age on 11 April. The word Thymosin was used twice, but
there was no mention of Thymosin Beta-4.

134. McKenzie and Baker wrote:
"Records of Hird and Dank's dealing reveal the coach knew specific details about
the supplementation regime, including the intravenous administration of
vitamins and injections into the stomach or oral administration of other
supplements, including an immune-booster known as Thymosin [my
emphasis].
"When asked why Thymosin peptides were given to players as an immune
system booster [my emphasis] when there is debate about their effectiveness,
Dank said: 'Well, apart from the fact that we won 11 out of our first 14 games ...
at the end of the day, I was very happy with the science.

135.
136.

137.

138.

139.


On 24 August 2013, the Age published excerpts from Nick McKenzies April interview
with Dank.

Inexplicably, this article mentions Thymosin Beta-4, and quotes Dank saying he used it
to boost the immune system of the players. As Thymomodulin boosts the immune
system and as Thymosin Beta-4 does not, whatever Thymosin Dank said, he was
clearly referring to Thymomodulin.

Furthermore, it is incomprehensible, and in fact beyond the realm of possibility, that if
Dank admitted to administering Thymosin Beta-4, and McKenzie pointed out to him
that Thymosin Beta-4 was a banned substance, that McKenzie and Baker would not
have included the admission and McKenzies comment in the original article on 11
April. There is no plausible explanation for such an omission.

It is preposterous that any credibility has been given to the sudden inclusion of
Thymosin Beta-4 in a follow-up article four and a half months later. It is impossible to
understand why ASADA, WADA, and the CAS panel didnt simply dismiss this reference
as totally unreliable.

If McKenzie had any credibility after the 24 August article, it should have been in
tatters over what many saw as a deliberate omission from a column written by him
and Baker on 16 December 2013. Inter alia, they wrote:

Bruce Francis

Response

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"On June 15, 2012, Essendon's then high-performance boss Dean Robinson
emailed Hird, senior assistant coach Mark Thompson, football chief Danny
Corcoran, doctor Bruce Reid and other senior officials a document titled
Supplements till GF 2012.
"One of the drugs to be injected fortnightly two days before a game was the
anti-dementia drug Cerebrolysin.


140. ASADAs Interim Report stated:

"On 15 June 2012, Robinson emailed Dr Reid a list of supplements to be
administered between the mid-year bye and the 2012 Grand Final which included
Thymomodulin [my emphasis]... and Cerebrolysin."

141. Some would believe that the omission of Thymomodulin from McKenzies article was
an attempt to suppress facts that would have helped Essendons case. In my view, this
omission and the fiasco of 24 August 2013 article, is at least sufficient evidence that
McKenzies writings cannot be relied upon.

142. Some of the issues that arise from this:

a)
Was WADA inappropriately selective in the writings of McKenzie it chose to
submit to the panel? Did WADA only submit the 24 August 2013 article; or did it
also submit the 11 April 2013 article, pointing out the discrepancy between the
two; and the 16 December 2013 article, pointing out the omission.

b)
If WADA only tabled the 24 August 2013 article, how can it justify withholding
information that supports the players case that they were administered
Thymomodulin, not Thymosin Beta-4?

c)
If in fact, both, or all three articles were submitted as evidence, the panel was
clearly incompetent in not realising that the 11 April 2013 and 24 August 2013
articles, though reporting on the same interview, were factually and crucially
substantially different.

d)
Did WADA request McKenzie appear as a witness? If it didnt, how did the panel
allow some of McKenzies writings to be admitted as evidence? The words that
Dank supposedly said to McKenzie during the interview are the only (purported)
evidence that Thymosin Beta-4 was used at Essendon, and the panel seems to
have given McKenzies accusation an inordinate amount of credibility and
relevance. If the players lawyers couldnt cross examine McKenzie, the panel
should have rejected it.

Bruce Francis

Response

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e)

Even if McKenzie were interviewed, his writings should have been rejected as
any kind of evidence, given the seeming bias against Essendon obvious in the
discrepancies and omissions.

_________________________________________________________________________
(xiii) Mr Dank had been anxious from the start to divert attention away from the
substances he was proposing to use and to downplay their true nature. In a text
message exchange on 4 October 2011, Mr Dank discussed with Mr Robinson the use
of peptides including (expressly) Thymosin. He said, GLBC and Thymosin are just
peptides. No worries there. Mr Robinson said, Can we just call them amino acids?
or something of that kind? Mr Dank responded, Yes, that is all they are. An amino
acid blend. Adding that they should leave peptides out in the description of what
was being used.
_________________________________________________________________________


My Comment:

143. The fact that Dank then went on to describe the benefits applicable to Thymomodulin,
as an immune booster, and not TB-4, was ignored by the panel.

144. The selective use of part-quotes from Dank, particularly hearsay quotes, when a full
quote changes the picture, is a very troubling aspect of the panels findings.

145. Dank did not use the acronym GLBC. The text message stated GPLC. Normally, this
wouldnt be an issue, as its clearly just a human error by someone in the chain of
people reproducing the text, including possibly the panel, or simply an oversight by
the panel in not correcting an error by their own transcriber.

146. However, as the panel has found the 34 players guilty because of Danks alleged
failure to correct the Ages Nick McKenzie when the latter allegedly used the term TB-
4 in an interview with Dank in April 2013, it is relevant to highlight the fact that
hearing or seeing what you expect to hear or see, is a very common human failing.

147. To determine that Mr Dank had been anxious from the start to divert attention away
from the substances he was proposing to use and to downplay their true nature is
another extraordinary example of the panels view that they can read minds,
particularly as none of them has even met Dank, let alone asked him about his state of
mind and motives.

148. To put the best light possible on what seems inexplicable behaviour and/or
determinations by ASADA, WADA and the CAS panel, lets assume that the three
bodies really believed that Dank had sinister motives in using the term amino acids.

Bruce Francis

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149. However, if convinced the evidence was there, why have other comments by Shane
Charter that shed light on the use of the term not been included here. ASADA asked
Charter to comment on the use of the term amino acid. ASADA reported the
exchange on page 89 of its Interim Report as follows:
As part of this investigation, Mr Shane Charter was also interviewed by ASADA.
Mr Charter is a biochemist with post-graduate studies in nutrition, followed up
by exercise physiology and then [an] Australian Pharmaceutical Manufacturers
Diploma. Mr Charters credentials and business relationship with Mr Dank will
be discussed extensively throughout the report. Mr Charter believes that the
term Amino Acid is a sufficiently generic term within the anti-Ageing industry
that it could, technically be used to describe a variety of peptides.
An amino acid is simply a sequence of you know, of base proteins at a
specific length so all peptides are in short, sequences of amino acids.


150. ASADA used the term amino acids itself. As an example, on page 385 of the Interim
Report, ASADA wrote:

Essendon players were also injected with an amino acid blend at HyperMED by
Dr Hooper. A sample of the amino acid blend was not recovered.
According to Dr Hooper's patient records, 33 players received a total of 112
injections of amino acids.


151. Dank said he used the term amino acid because many people, including the AFLs
integrity officer Brett Clothier, wrongly believed all peptides were banned. Though
disputed by others present, Clothier claims he told Hamilton and Hird that, peptides
were a serious risk to the integrity of the AFL, in the same category as steroids and
HGH.

152. All peptides are not banned. For example, Thymomodulin and Thymosin Alpha 1 are
peptides and they are not banned.

153. Dank chose to use the term amino acid because he believed there was less ignorance
about them than there was about the word peptides.

_________________________________________________________________________

(xiv) The closed circle of officials within the club privy to Mr Danks regime were careful
to ensure that even the club Doctor was not made aware of it. It was surely by
design, not through accident, that the regime was not disclosed outside the closed
circle during the season. In the letter dated 17 January 2012 to the Essendon coach
and Essendon football manager, referred to at paragraph 25 above, Dr Reid said:

Bruce Francis

Response

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I have some fundamental problems being the club doctor at present
This particularly applies to the administration of supplements.
Although we have been using supplements for approximately 3 months,
despite repeated requests as to exactly what we are giving our players in the
literature related to this I have at no time being given that until last Sunday.
Last week the players were given subcutaneous injections not by myself and I
had no idea that this was happening and also the drug that was involved.
The letter makes no reference to Thymosin but says in relation to AOD-9604,
I think we are playing at the edge.
On 15 January 2012, Dr Reid framed his protocol to the effect that any substance
administered must be proven to be legal, safe, explain to the players and in receipt
of their informed consent.
The P anel was not prepared to accept that, because Dr. Reid was privy to the
player Mr. Lovett-Murray to being injected with muscle relaxant by another
professional practitioner, Dr. Hartmann, doubt should be cast upon his ignorance
of the injections of Thymosin by Mr. Dank. That was a submission too far. Nor
can the Panel construe the letter of complaint written by Dr. Reid to the head coach
and team manager on 17 January 2012 as indicative in any way of a knowledge
(even then) that Dr. Reid knew about the injections, still less thereafter when he
clearly did not, in particular about injections with Thymosin
_________________________________________________________________________

My Comment:

154. There was no closed circle of officials privy to Danks supplements regime that was
purportedly keeping Dr Reid in the dark.

155. Characteristically, the panel has not disclosed the names of the officials that it believes
were part of the closed circle. As theyre keeping us in the dark about that, I must
attempt the same mind-reading technique they seem to employ frequently in regard
to Dank, the players and others, and Ill conjecture that theyre not just referring to
Dank and Robinson, but also to Paul Hamilton, James Hird, Mark Thompson and Danny
Corcoran.

156. In reality, Dank and Robinson were the only ones privy to the complete details of what
should properly be called the Dank and Robinson supplements regime. They failed in
their responsibility to keep Dr Reid in the loop, both in providing information and
seeking approvals. Further, they failed to keep proper records. Essendon has already

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157.
158.

159.

160.

161.

162.

163.

paid a massive $2 million fine and been penalised with other sanctions for the failure
of proper governance that would have detected and corrected this cavalier behaviour
and careless lack of attention to protocols by Dank and Robinson at a much earlier
stage. To be now punishing the players over the same governance issues - as it is still
the failure to follow proper protocols and recording keeping, and not any evidence of
an actual anti-doping infraction, that has been evidenced here - is a most egregious
form of double jeopardy on both the players and the club.

In imagining some kind of nefarious closed circle, WADA and the CAS panel have
chosen to ignore key events that belie their assertion.

In May 2011 Essendon chairman David Evans, CEO Ian Robson, Danny Corcoran, Paul
Hamilton, James Hird and Mark Thompson agreed that the club had to adopt a more
scientific approach. Each understood that the programme would involve the taking of
supplements, as was already the case in several of the other clubs.

With the above in mind, Dean Robinson, formally of the AFLs own club, Gold Coast
Suns, was appointed to the position of high performance coach and commenced duty
on 25 August 2011.

On 30 August 2011 Essendon bought 60 vials of Vitamin B Dose Forte. They were
administered to the playing group by injection by club doctor Brendan De Morton at
the request of Robinson. Dr Reid was aware of the purchase and sanctioned its use.
This was the first occasion that the players were administered a supplement injection.

On 19 October 2011, the first day of 2012 pre-season training, Dr Reid discovered
Robinson handing out Tribulus tablets. Concerned about their status, he immediately
reported it to the AFL. The AFL failed to follow-up. Hird was overseas at the time and
Reid told no one at Essendon, although he chastised Robinson. Tribulus in not a
prohibited substance.

On 4 November 2011, Dank joined Essendon as a consultant, not as an employee.
Dank was responsible to Robinson, who also had the doctors, physiotherapists,
psychologist, nutritionist, and the weights and conditioning trainer reporting to him.
Robinson reported to Paul Hamilton, who was general manager of the football
department. Hird reported to CEO Ian Robson and had four assistant coaches
reporting to him. He and his team were on a different branch of the organisation
structure from the football department and had no responsibilities for the supplement
programme.

Hirds only involvement in the supplements programme was to support it in principle
and to constantly remind those responsible for the programme that:
the supplements had to be WADA permitted

Bruce Francis

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Dr Reid had to approve their use
the players had to consent to their use
they could not harm the players

164.

165.

166.
167.

168.

169.


The protocols were very simple, in line with Hirds mantra above, and everyone
understood them and signed-off on them. Dank was required to recommend a
substance to Robinson. If Robinson were sold on the substances benefits he had to
get approval from Dr Reid to use it. If Dr Reid approved it, Robinson then had to get
permission from Hamilton to purchase the substance.

On or about 13 January 2012, Dr Reid discovered Dank administering AOD-9604
injections and Tribulus orally. Robinson had not sought approval from Reid for their
use at this time and no one apart from Dank and Robinson was aware those two
substances were being used. Reid was very angry. Because Paul Hamilton, his
department head was not about at the time, he mentioned it to Hird. Hird told Reid
that he must discuss the matter with Hamilton, and suggested that if he werent
happy with the outcome of that discussion, he should write a letter to Robson, the
CEO.

Hamilton spoke to Robson that afternoon and admonished Robinson the next day for
not keeping Dank under control.

On 15 January 2012, Reid helped Robinson and psychologist Jonah Oliver write the
new protocols, which Robinson distributed. Everyone accepted that without Reids
permission, there was to be no supplements program. It is now obvious that Robinson
and Dank didnt keep their commitment in relation to seeking Dr Reids approval at
every step along the way.

Reid, who had been opposed to the supplement program from the start, dug his heels
in and it was feared by those who believed in a supplements programme in principle,
that he wouldnt approve the administering of any further substances.

On 30 January 2012, Hird sent an SMS to Corcoran:
No stress but need to organise a meeting with you me Reidy, Danksy and
Weapon [Dean Robinson] the day you get back. Reidy has stopped everything,
which is getting a little frustrating. Need to get your United Nations skills back
into action.


170. It seems that the above was submitted as evidence that Reid was being kept out of
the loop by Hird, and for nefarious reasons. In another example of WADA seeming to
omit crucial evidence that would help the players defence that they werent
administered Thymosin Beta-4 and that there wasnt an inner circle involved in a
conspiracy to have them injected with the substance behind Dr Reids back, the
second half of the above text was omitted in WADAs submission:

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171.

172.

173.

174.

175.

176.

177.

Understand about injecting and dont want to push the boundaries. Just need to
make sure we are doing everything we can within the rules as the other clubs are
a long way ahead of Reidy and us at the moment.


This SMS is evidence that Dr Reid wasnt being kept in the dark by an inner circle, and
there was no intention of keeping him out of the loop. Reid wasnt being kept
informed to the extent he should have been by Dank and Robinson, however, and in
his view he wasnt being asked for approval when necessary. He simply wanted the
program to stop. Although Hird was a little frustrated, he was the one who had always
emphasised the need for Reids approval and knew there was no programme without
it. To that end, he hoped that Corcoran could persuade Reid to continue with the
programme. Everyone except Dank and Robinson accepted that without Reids
permission there was no supplement programme. It was therefore unconscionable for
the CAS panel to state that a close circle of officials within the club privy to Mr Danks
regime were careful to ensure that even the club doctor was not made aware of it.

Dank and Robinson claimed that between 15 January 2012 and 8 February 2012, they
obtained Dr Reids permission to administer AOD-9604, Tribulus tablets, Colostrum
tablets and Thymosin injections, and these were the substances included on the
player consent form. Reid testified that he only agreed to AOD-9604 being used.

When Hamilton, Corcoran, Hird and Thompson saw the player consent form they all
automatically believed that Reid had given permission for AOD-9604, Thymosin,
Colostrum and Tribulus to be used.

As far as Hamilton, Corcoran, Hird and Thompson were concerned those four
substances and the Vitamins B and C intravenous treatments constituted the
programme, which would then be individualised for each player, and they believed
Reid had approved it.

The four of them were assured by Dank and Robinson that all four substances were
WADA permitted. There was simply no reason for the four of them to hide anything
from Dr Reid.

Unbeknown to Hamilton, Corcoran, Reid, Hird and Thompson at the time, in April and
May 2012, Dank and Robinson organised for a Dr Hooper to administer Cerebrolysin
and an amino acid, to some of the players, while they were attending Hoopers
hyperbaric chamber, HyperMED.

When Reid, Corcoran, Hird and Thompson eventually found out about the
unauthorised injections at the HyperMED, though involving nothing prohibited, they
insisted that the programme be stopped.

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178. By May 2012, Dr Reid and Corcoran were so disenchanted with Dank and Robinson
administering substances without Reids permission that they asked Evans and Robson
to dispense with their services. Hird supported their request. Their request was
declined on the basis of financial cost.

179. As an illustration of the likelihood that even Robinson was cavalier and incompetent
with administrative protocols rather than intentionally keeping any aspect of the
supplements program from Dr Reid, ASADA recovered an email sent from Robinson to
Reid informing Reid that he was commencing Thymomodulin injections. As Robinson
wasnt asking for approval, it appears he believed he already had permission and was
just informing Reid of a commencement date.

180. Hird had 7000 SMSs on his phone and not one alluded to keeping Dr Reid out of the
loop. In fact, none of Hird, Thompson, Corcoran, or Hamilton was in Robinson and
Danks loop of information for the vast majority of the time.

181. The panels totally unsubstantiated claim, heavy with innuendo, that, It was surely by
design, not through accident, that the regime was not disclosed outside the closed
circle during the season deserves censure.

_________________________________________________________________________
(xv) The Players, during the season, were instructed to keep it secret. One of the
Players, Mr. Davis, in his statement to ASADA said, "they wanted to be
confidential within the playing group, because they didn't want other teams to ...
find out". In the same interview, Mr. Davis also said, "I remember them saying
that only a couple of the coaches were aware of what the supplement program
was going to be". Though several of the players disputed that they received such
instructions, their behaviour, keeping the club doctor out of the loop, and failing
to record the injections on the doping control forms, clearly justifies such
inference being drawn. This was, at its lowest, consistent with an appreciation of
its controversial nature.
_________________________________________________________________________

My Comment:

182. The first part of this strand suggests that the panel has a nave view of professional
sporting competitions. Most individuals and teams refuse to share their nutrition and
supplements programmes with their opponents.

183. Every player and each coach believed that all substances administered to the players
were WADA permitted. None believed that the reason to keep the programme

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184.

185.

186.

187.

188.

189.

190.

confidential was to prevent the club from being accused of administering banned
substances. All believed that the confidentiality was for two reasons:

To stop other clubs from using and thus benefiting from the same programme
To protect Stephen Danks intellectual property

The players admired Dr Reid and had complete faith in him. They were aware of the
protocols and believed that Dr Reid had approved the programme. They trusted Steve
Dank. They saw no reason to ask Dr Reid whether he was happy with the programme.
They did not keep Dr Reid out of the loop. They believed that he was the key figure in
the loop and had approved everything.

The panels suggestion that the players kept the doctor out of the loop deliberately is
without foundation, counter-intuitive and, given the total lack of evidence to support
their assertion, dangerously cavalier and quite outrageous.

The players attitude in trusting Dank, and therefore not questioning Dr Reid, was no
different from the AFLs attitude in trusting every player at every club and every
doctor at every club to comply with clause 7.4 of the AFLs Anti-Doping Code.

Clause 7.4 basically says that at the start of each season, every player at every club is
required to hand to the club doctor a form containing every substance that the player
was administered at the club and away from the club during the previous twelve
months. To my knowledge, no player has ever complied and the AFL has never
checked compliance.

Every club was contacted by ABC radio on Wednesday, 1 April 2015 regarding their
compliance. No club spokesman had heard of clause 7.4 of the AFL Anti-Doping
Doping Code. All spokesmen promised to ring back with the information. None did.

The fact that the AFL trusted every doctor and every player to comply is no different
from the Essendon players trusting Dank to comply with the club protocols and WADA
code. Nave, perhaps; but sinister, no.

Players failing to record all injections on the doping control forms during occasional
visits from ASADA was a mistake that possibly deserved a financial penalty, but it is
disingenuous to suggest, as the panel has done, that it justifies an inference being
drawn of nefarious intent. Some players believed they only had to record substances
administered in the last seven days; some were exhausted or in a hurry to get back to
training or get home and didnt consider it anything to be bothered about. It is an
astounding and unsupportable leap to suggest that they were neglectful in their
record keeping because they believed they were taking banned substances.

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191. Additionally, the panels one-in, all-in approach to their bizarre determinations in this
matter is extraordinary and totally unjustifiable. Only 21 of the 34 players were tested
by ASADA during this period, so the others werent asked to provide any information.
None of the 34 deserves the negative connotation placed on what was little more than
carelessness, but for the 13 who werent even asked the questions, the blanket
aspersions on their characters is doubly unfair and some would say little more than an
attempt to justify a determination against the players that has not evidentiary base.

192. Basically, the panel has determined that any number of players not filling out their
forms correctly, meant that they were administered Thymosin Beta-4, and even those
who werent required to fill out a form at any given time, must also have been
administered Thymosin Beta-4. The law is not my expertise, but logic, statistics and
sampling are. It was an inexplicable and grave injustice by the panel to declare guilt
of all, based on a sample of players.

193. As the panel has determined that some Essendon players failing to record all
injections on the doping control forms during occasional visits from ASADA was an
indication of nefarious intent, presumably it required to know from WADA how
Essendon players compliance in the filling out of such forms compared with all the
other AFL clubs. If the panel did not require that information from WADA, it cannot
expect those of us looking on to accept that it had a fraction of the information
necessary for it to make even an educated guess on the intentions of the players. As it
made a determination of the Essendon players motives anyway, we can only assume
that the panel members are again flirting with evidence-devoid mind-reading.

194. If WADA failed to provide the panel with comparative information of form-filling
compliance of the other AFL clubs without the need to be asked, it also failed in its
duty to seek the truth and not merely a desired outcome, at the expense of justice for
the players.
_____________________________________________________________________________
(xvi) Several players insisted that Mr. Dank was not present at away matches until
confronted with a text message exchange that proved he was. This also undermines
their credibility.
_____________________________________________________________________________

My Comment:

195. A player not recalling Dank being present at away games has nothing to do with:

whether Thymosin is a permitted form of Thymosin or Thymosin Beta-4
whether the players were administered Thymosin Beta-4
their credibility

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196. I doubt that Hird remembers who played in the back pocket in various games. To put
any weight on whether the players recalled whether Dank was present at a particular
away game, when they have been trained to totally focus on the job at hand on the
ground, raises questions about the panels appreciation of the pressures of game-day
on professional sporting teams.

197. One of the most important meetings the players attended was one called by Dank and
Robinson on 8 February 2012. The purpose was to explain the new supplement
protocols. None of the players could recall who was there. A lack of recall regarding
anyones presence does not in any way reflect on their credibility in relation to their
honesty.

198. At clause 129 (ii) the panel wrote:
by the time they came to be interviewed by ASADA in May-July 2013, and asked
for the first time to recollect events which occurred several months after the
end of the season, their recollection could not have been precise

199.

200.

201.

202.

203.


This suggests that the panel accepted that the players could not have perfect recall on
events, yet here they count some of them not recalling something as inconsequential
as Danks presence at a particular game, as undermining their credibility.

I have yet to hear of a club choosing its young recruits on the basis of their school
academic results. For the panel to turn a failure to recall something the player might
consider mundane and of no need to store in the memory banks into a serious
character flaw is an extraordinary and unsustainable leap.

If the panel thought for some inexplicable reason that a players lack of recall of
Danks presence at a particular game was a serious reflection on that players
credibility, then it is incomprehensible that the panel used the term several players
rather than provide the exact number and their names. For the panels inexplicably
negative view of the credibility of a few players due to their inability to recall
something, to result in a negative assessment of the credibility of all 34, is yet another
example of their inappropriate one-in, all-in approach to the players.

As I have been pointing out the deficiencies and lack of procedural fairness in the
Essendon saga since early 2013, with AFL officials, journalists and others choosing to
ignore the analyses I was sending to them on a regular basis - even when my voice
became shriller and shriller out of frustration - it has been a considerable relief to find
that finally others are starting to raise their voices at this latest travesty.

Critiques of the CAS judgment have frequently marveled at the panels extraordinary
ability to mind-read and see things that dont seem to exist. The panels astonishing
ability to make determinations despite there being no evidence to support their

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findings is truly breathtaking. And this includes their inference that the players who
couldnt recall Dank being present at certain games were being disingenuous and thus
lacked credibility overall.

204. Page 381 of the ASADA investigators Interim Report reads:
As part of the investigation, ASADA has interviewed every player subject to
Essendons 2012 supplementation program. The vast majority of the players
were professional, cooperative and sincere in their efforts to assist in the
investigation.


205. Praise from ASADA was not just for the players. James Hird, the big scalp sought by
the AFL and painted publicly as the real villain in all this, was praised to the players for
the way he acquitted himself in the ASADA interviews.

206. ASADA chief investigator Paul Simonsson addressed the players on 6 May 2013 and
praised Hird to them for the professional and exemplary manner in which he
conducted himself during his seven hours and forty minutes interview before the
investigatory committee. Simonsson added words to the effect that the players should
take a leaf out of Hirds book when testifying. Given ASADA investigators praise of the
players detailed above, it would seem that they did.

C.
207.

208.

209.

210.

Further Observations

I know enough about the law to believe that the CAS panels judgement was at best
careless and incompetent, and at worse the result of a corrupted hearing based on an
agenda other than justice. Either way it was a gross miscarriage of justice and
specifically a denial of natural justice and procedural fairness for the players.

I dont know enough about the law or how much CAS is subject to legislation outside
its own protocols to know whether the 34 players have an avenue of appeal. If they
do, I have little doubt they have the grounds. It is incumbent on those culpable in the
situation the players now find themselves in, to fund such an appeal.

If there is no right of appeal against such a malodorous decision then the whole
international anti-doping organizational structure and its processes need to be
overhauled.

For the sake of our own sportsmen and women, and the integrity of our sporting
bodies and anti-doping authorities, we in Australia need to review how we go about
the business of ensuring our professional sports are free from the use of prohibited
substances. We need to review our own anti-doping body and we need to bring
authority over our sportspeople back to Australia.

Bruce Francis

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211. In the interim, if there is no formal right of appeal in the international processes as
they are now, the AFL, ASADA and WADA must accept their culpability in this
outrageous outcome and attempt to have the judgement overturned with a
submission to CAS to declare the evidence and processes contaminated and therefore
the panels findings null and void.

Bruce Francis
2 February 2016

Bruce Francis

Response

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