The day after

I’ve had a tough run the last 3-4 years and had many occasions when it felt too much. On those occasions, it feels like you’re carrying a burden you can no longer support. You’re worn down and out of ideas. Rarely is there a moment that it hits you like a train.

Yesterday was different. Yesterday I felt gutted, as I haven’t felt throughout my own personal saga. The difference yesterday was that I wasn’t gutted for myself, I was gutted for others. Even in the worst of my times, the damage has been limited to myself, and that’s important because there has been no-one else I need to take responsibility for. And because there remains the illusion of potential control.

When it happens to other people, you have no control. You can only look on, helpless. There’s nothing like the solace of taking responsibility for your own decisions. Instead, you’re on the outside looking in as others flail helplessly caught in the tangled web of fate.

Such as it was yesterday when I saw the news that CAS had found 34 past and present Essendon players guilty of taking banned supplements. I felt it physically, the bottom of my stomach falling away with a lurch. I felt instant pity, mixed in with disbelief. The players have been suspended for a year as a penalty, which further stretched belief. After 3 years of this, the penalties don’t stop. It felt cruel and a miscarriage of natural justice.

Let me make it clear here and now, my sympathies are all with the players. As a consequence of these suspensions, my team will struggle on-field this year, and I couldn’t care less. My concern is wholly with the players, who have been the real victims of this saga – and now named the guilty party.

For me, it’s hard to understand a guilty verdict, especially given they were cleared last year on substantially the same evidence. If I put that aside and assume guilt, then the penalty handed down is an even greater shock. These players have been subject to this for 3 years. They have been denied a finals appearance. They have already served match day suspensions. They have been subject to ridicule and torment throughout. They have been teased with the prospect of innocence only to have it snatched from them more than once. And they have had to endure the bumbling incompetence of ASADA and AFL corruption which has dragged out the process much longer than it should. They have been well and truly punished already, guilty or innocent, and now this.

It’s a hugely contentious and divisive case that at some primitive level has played out according to club loyalties. It’s a hugely tribal sport, and while many have been reasonable, there’s been an unfortunate amount of glee from supporters of some of our rivals. For them, it’s not about justice, but pleasure at seeing their rival tormented. I read somewhere yesterday that something like this separates the decent from the rest. I even found myself blocking someone yesterday, a long term friend who I may not unblock.

The decision itself seems to be predicated on a different way of looking at the existing evidence.

The ‘facts’ are haphazard and inconsistent and joined together by speculation and so-called circumstantial evidence. The evidence can be arranged in many different ways to paint many different scenarios. The evidence – or lack of it – fit more neatly in some scenarios than in others. There are plausible scenario’s, and others less plausible. It’s basically why the case was thrown out by the AFL tribunal last year – because the known facts more neatly arranged into a not guilty judgement. That was the most plausible.

A key difference in the CAS from the AFL tribunal is how the evidence was presented this time. When the AFL tribunal reviewed the evidence, it saw it as a chain – it only took one link to be missing, or incorrect, for the whole chain of evidence to fall apart. This time WADA very cleverly presented it as strands of the same evidence – if one strand was weak then there were others, they contended, which made up for it.

What this necessitated was a leap of faith by CAS. The lack of evidence was not seen as a negative, but rather a positive. Their published judgement is full of ifs, coulds, and possiblys, all presumed as actuals. Rather than dismiss them in their absence, they have speculated upon their existence, and in so doing created a case upon which a judgement could be made. To return to the chain metaphor, they have presumed the missing links back into existence.

Of course, any case can be made this way. The difference with CAS is they only need to assess guilt to a ‘comfortable satisfaction’, which makes it so much easier to speculate into existence ‘facts’ that don’t exist as actual evidence. String enough of these ‘facts’ together, then there is a case. The problem is, you can just as easily speculate other ‘facts’ which tell an opposite tale. Even more, to speculate one ‘fact’ is pushing it, to string it together with other ‘facts’ is to push the limits of probability.

How has this happened? Because they only need comfortable satisfaction. And because the WADA advocate was so much more skilful (and experienced) than the lawyers representing the players. They were badly let down.

I’m not going to go over the evidence, but to make some salient points. The players have been found guilty of taking TB4. There is no hard evidence that Dank ever sourced this, and no evidence that places it at the club. There is some evidence that some players had readings of TB4 in their blood tests – but TB4 is a naturally occurring substance. I could be tested tomorrow and show elevated levels of it. Furthermore, only a few out of the 34 had those levels. Furthermore, in random testing across the league players from other clubs had elevated readings consistent with those at Essendon – and no-one is accusing them of taking banned substances.

CAS also decreed that the players had covered up. This is a major stretch, but a fundamental part of their judgement. At worst I would suggest the players were sloppy with some of their paperwork – which CAS has stretched to be proof (‘evidence’) of a cover-up. If there’s one thing the football-loving public of Melbourne can be sure of, then it’s the player’s belief in their own innocence. This has been consistent and loudly proclaimed throughout. They refused deals because of it. It flies in the face of logic that they would cover up when they genuinely believe in their innocence.

The final thing is that even with a guilty verdict, the penalties are indiscriminate. We know that the verdict wasn’t unanimous. We also know that they believe some players are more guilty than others, who may well be completely innocent. Unfortunately, it’s one size fits all – the innocent are penalised the same as the alleged guilty. Call this justice?

I don’t know what happens now. There’s predictable turmoil and much talk of further legal action by the players against both the club and the AFL. I hope the players choose to appeal the decision by CAS – they have nothing to lose now but a few dollars. It’s they I feel for, and can’t forget. This feels nothing like justice when the victims are those that get penalised.

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