Dons to claim drug was permitted

Essendon chairman David Evans releases the findings of the Switkowski report on Monday. Picture: Jake Nowakowski Source: Herald Sun

ESSENDON is building a defence that anti-obesity drug AOD-9604 was not prohibited in 2012 after insisting again yesterday it believed its players will not be sanctioned.

Bombers chairman David Evans said he was "more comfortable" about players beating bans if charged under anti-doping provisions.

"I am not prepared to concede our players have taken any banned substances," said Evans, who hopes the Australian Sports Anti-Doping Authority inquiry will be completed within weeks.

With former Essendon sports scientist Stephen Dank admitting he gave players the anti-obesity drug AOD-9604, legal experts believe the Bombers could be exploring one of several potential loopholes.

Essendon's pronouncements reveal it does not accept that AOD-9604 was banned for players during the 2012 season, but it will not confirm why it is so bullish.

The players were updated again by ASADA on Monday, and believe the No Fault or Negligence clause revealed by the Herald Sun in February is open to them.

Drug and legal experts believe the club might be trying to prove AOD-9604 was approved in some way for therapeutic use due to a special application, which would make it legal for use on humans in that instance.

The issue for Essendon is whether legal exemptions would override the World Anti-Doping Agency code.

WADA has stated that the substance is banned because it has "no current approval by any governmental regulatory health authority for human therapeutic use".

The national Therapeutic Drugs Administration last night confirmed to the Herald Sun it had not given approval for AOD-9604, but said "several other exemptions exist that could allow legal supply of AOD-9604".

Those include the use of "extemporaneous compounding", where a licensed chemist makes up compounds for individual use.

It was unclear last night if a prescription is required in this instance.

Essendon yesterday again refused to respond to questions about what ASADA had told it about the use of AOD-9604 but Evans made it clear its legality was at the heart of the club's defence.

Essendon coach James Hird watches as Bombers chairman David Evans speaks to the media. Picture: Jake Nowakowski Source: Herald Sun

Asked if the legal status of the drug would be played out in the courts, he replied: "I don't know the answer to that. There is more to play out on that in the course of the next few days and weeks, but I will leave it there, because that goes to the heart of the investigation".

Sports law expert Paul Horvath, the co-chair of the Law Institute of Victoria's Sports Law Committee, said Essendon could push the case that AOD-9604 was not banned last year.

"A strong position would come from having a letter authorising distribution of a product and that would indicate it wasn't in the S2 (named substances) or S0 (un-approved so automatically banned) categories," Horvath said.

"(Evans) doesn't seem to be suggesting they didn't take some substances; he is simply saying they didn't take banned substances.

"So they are not conceding what they took is banned. They would have seen documents and have more information than they have made public."

WADA's anti-drugs code declares on S0 non-approved substances: "Any pharmacological substance which is not addressed by any of the subsequent sections of the List and with no current approval by any governmental regulatory health authority for human therapeutic use (e.g drugs under pre-clinical or clinical development or discontinued, designer drugs, veterinary medicines) is prohibited at all times".

Essendon states information from consultant pharmacist Ross McKinnon and sports medico Andrew Garnham has it comfortable about its position.

But McKinnon told the Herald Sun this week he made it clear that he did not believe AOD-9604 was approved in any way.

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