Play Nice The CAS Appeal thread - update: appeal fails (11/10/16)

[sameolds33]

Umm yeah they have been found guilty

They haven't been found guilty of cheating.

 

[hawk65]

They haven't been found guilty of cheating.

They've been found guilty of using banned drugs. If you don't think that's drug cheating, that's fine.

 

[blured]

They haven't been found guilty of cheating.

Keep telling yourself that

 

[ChrisKaias]

Hearsay evidence was accepted by the CAS panel. Would you say that's an error of law?

No.

 

[sameolds33]

No, it isn't. It's allowed at CAS.

You can also have hearsay in a criminal case under certain conditions. Expert opinion for example is hearsay evidence but can be allowable. Don't let the TV law shows cast your opinions. They aren't really all that accurate

I think that the reason most lawyers are naturally suspicious of private tribunals such as CAS accepting hearsay evidence is because it is unreliable. Even in a criminal court (with its higher standard of proof) the exceptions to the hearsay rule are strict. Again, to quote Mr Gibson (http://geoffrey-gibson.com/2016/01/...part-ii-how-the-essendon-players-were-dudded/)

"In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’ I gather that that means that they apply the Swiss laws of evidence. I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia. Perhaps they are not bound by any rules of evidence. There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court. These charges would never have got off the ground in a real court under our law."

 

[ChrisKaias]

No, it isn't. It's allowed at CAS.

You can also have hearsay in a criminal case under certain conditions. Expert opinion for example is hearsay evidence but can be allowable. Don't let the TV law shows cast your opinions. They aren't really all that accurate

There are even more exceptions to the hearsay rule for civil proceedings.

American TV shows have a lot to answer for re: 'hearsay' and 'circumstantial'.

 

[ODNBlue]

I think that the reason most lawyers are naturally suspicious of private tribunals such as CAS accepting hearsay evidence is because it is unreliable. Even in a criminal court (with its higher standard of proof) the exceptions to the hearsay rule are strict. Again, to quote Mr Gibson (http://geoffrey-gibson.com/2016/01/...part-ii-how-the-essendon-players-were-dudded/)

"In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’ I gather that that means that they apply the Swiss laws of evidence. I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia. Perhaps they are not bound by any rules of evidence. There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court. These charges would never have got off the ground in a real court under our law."

Yes. Unfortunately, under these conditions, Lance Armstrong, Marion Jones, et al. would all still be revered champions... do you not see a problem with that?

 

[imperial_oz]

I think that the reason most lawyers are naturally suspicious of private tribunals such as CAS accepting hearsay evidence is because it is unreliable. Even in a criminal court (with its higher standard of proof) the exceptions to the hearsay rule are strict. Again, to quote Mr Gibson (http://geoffrey-gibson.com/2016/01/...part-ii-how-the-essendon-players-were-dudded/)

"In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’ I gather that that means that they apply the Swiss laws of evidence. I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia. Perhaps they are not bound by any rules of evidence. There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court. These charges would never have got off the ground in a real court under our law."

I think he is perhaps getting confused with the differing standards of proof required. The restrictions on hearsay evidence are tighter in a criminal court because of the higher standards of evidence required. That doesn't necessarily apply when the required standard is less. The rules pertaining to the evidence would be different as well.

I'm not sure I would take those comments at face value, particularly when he fails to make the distinctions between criminal and civil cases. Even just looking at the title, he appears to be trying to make a case rather than conduct an even discussion. He spends his time referring to criminal intent right from the start. For a lawyer to fail to differentiate between criminal and civil matters is rather odd, don't you think?

 

[imperial_oz]

There are even more exceptions to the hearsay rule for civil proceedings.

American TV shows have a lot to answer for re: 'hearsay' and 'circumstantial'.

Agreed. I was just giving an example most familiar to me.

 

[Slartibartfast]

Phhhhh!

 

[ChrisKaias]

I think that the reason most lawyers are naturally suspicious of private tribunals such as CAS accepting hearsay evidence is because it is unreliable. Even in a criminal court (with its higher standard of proof) the exceptions to the hearsay rule are strict. Again, to quote Mr Gibson (http://geoffrey-gibson.com/2016/01/...part-ii-how-the-essendon-players-were-dudded/)

"In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’ I gather that that means that they apply the Swiss laws of evidence. I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia. Perhaps they are not bound by any rules of evidence. There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court. These charges would never have got off the ground in a real court under our law."

This was the part of what he wrote that I stopped paying any attention. He doesn't know that the rules of evidence don't apply in an arbitration??

The CAS Panel admitted the hearsay evidence much the same as the Aussie Tribunal did. Under Strayan law.

 

[sameolds33]

There are even more exceptions to the hearsay rule for civil proceedings.

American TV shows have a lot to answer for re: 'hearsay' and 'circumstantial'.

Again, there are strict rules that determine when hearsay evidence is admissible in a court, often preceded by lengthy legal argument. Mr Gibson says that, in his opinion, the hearsay evidence would not be allowed in Australian proceedings (and was not allowed in the AFL Tribunal hearing). I tend to agree with him.

 

[sameolds33]

This was the part of what he wrote that I stopped paying any attention. He doesn't know that the rules of evidence don't apply in an arbitration??

The CAS Panel admitted the hearsay evidence much the same as the Aussie Tribunal did. Under Strayan law.

No, my memory is that they didn't admit that evidence because it was unreliable.

 

[imperial_oz]

Again, there are strict rules that determine when hearsay evidence is admissible in a court, often preceded by lengthy legal argument. Mr Gibson says that, in his opinion, the hearsay evidence would not be allowed in Australian proceedings (and was not allowed in the AFL Tribunal hearing). I tend to agree with him.

...and again, you are applying incorrect standards to an arbitration hearing.

Based on what I rad of his article, I very much disagree with most of what he was saying. The bit where he said he had trouble following the law made the most sense

 

[sameolds33]

This was the part of what he wrote that I stopped paying any attention. He doesn't know that the rules of evidence don't apply in an arbitration??

The CAS Panel admitted the hearsay evidence much the same as the Aussie Tribunal did. Under Strayan law.

I would have thought that if rules of evidence don't apply to private arbitration panels then there's even more reason not to admit unreliable hearsay evidence, particularly when you're also lowering the standard of proof (to whatever"comfortable satisfaction" is.) Unless of course you don't care about the process being fair.

 

[ChrisKaias]

Again, there are strict rules that determine when hearsay evidence is admissible in a court, often preceded by lengthy legal argument. Mr Gibson says that, in his opinion, the hearsay evidence would not be allowed in Australian proceedings (and was not allowed in the AFL Tribunal hearing). I tend to agree with him.

You may be disappointed to learn that the Strayan Tribunal did admit the hearsay evidence. I'll attach some of their reasoning for you.

 

[sameolds33]

...and again, you are applying incorrect standards to an arbitration hearing.

Based on what I rad of his article, I very much disagree with most of what he was saying. The bit where he said he had trouble following the law made the most sense

I'm not applying any standards to the CAS hearing. I'm saying that courts, with their strict rules of evidence and procedure, are careful with hearsay evidence for a good reason and CAS seems to have been quite cavalier, if not downright careless, in dealing with this evidence, accepting the bits that fitted with the WADA narrative and disregarding the bits that didn't.

 

[ODNBlue]

Let's not forget this pearler from RoCo...

Bigger Bombers for bruising battles

 

[Ancient Tiger]

I would have thought that if rules of evidence don't apply to private arbitration panels then there's even more reason not to admit unreliable hearsay evidence, particularly when you're also lowering the standard of proof (to whatever"comfortable satisfaction" is.) Unless of course you don't care about the process being fair.

Mate believe me when I say that the players received banned drugs from Dank.He told this to a friend of mine who ended up being an ASADA witness. My friend told me this almost a year before the story broke. So you can come up with whatever crap you like to convince yourself that the players did not receive banned drugs, but you are just plain 100% wrong. They did. They were caught and are now paying the penalty. Some people call that karma.

 

[sameolds33]

I think he is perhaps getting confused with the differing standards of proof required. The restrictions on hearsay evidence are tighter in a criminal court because of the higher standards of evidence required. That doesn't necessarily apply when the required standard is less. The rules pertaining to the evidence would be different as well.

I'm not sure I would take those comments at face value, particularly when he fails to make the distinctions between criminal and civil cases. Even just looking at the title, he appears to be trying to make a case rather than conduct an even discussion. He spends his time referring to criminal intent right from the start. For a lawyer to fail to differentiate between criminal and civil matters is rather odd, don't you think?

No, I don't think he's confusing criminal standards with civil matters. I think he's saying there's well established case law for each of those standards and courts understand how to apply the rules of evidence to them. This is not the case with the reasoning in the CAS decision.

 

[imperial_oz]

I'm not applying any standards to the CAS hearing. I'm saying that courts, with their strict rules of evidence and procedure, are careful with hearsay evidence for a good reason and CAS seems to have been quite cavalier, if not downright careless, in dealing with this evidence, accepting the bits that fitted with the WADA narrative and disregarding the bits that didn't.

Of course you are basing that on having seen all of the submissions made to CAS, the oral testimony and cross examination as well as being a full party to all the deliberations, is that correct?

It seems to me that unless you have had full access to all of that, you are not in any position to make the sort of judgement you just espoused. It seems to be a case of I didn't like the result so it can't be right.

You are simply make allegations without foundation and impugning the integrity of those responsible, from a position of ignorance.

 

[sameolds33]

Mate believe me when I say that the players received banned drugs from Dank.He told this to a friend of mine who ended up being an ASADA witness. My friend told me this almost a year before the story broke. So you can come up with whatever crap you like to convince yourself that the players did not receive banned drugs, but you are just plain 100% wrong. They did. They were caught and are now paying the penalty. Some people call that karma.

I didn't say that the players didn't receive drugs - I can't tell from what I've read whether they did or didn't. What I am saying is that the process that has taken them to the Swiss Federal Court has been manifestly unjust and, in my opinion, WADA's case would not have succeeded in a court. It was not a just result.

 

[Chameleon75]

Looks like stabby is back

 

[sameolds33]

Of course you are basing that on having seen all of the submissions made to CAS, the oral testimony and cross examination as well as being a full party to all the deliberations, is that correct?

It seems to me that unless you have had full access to all of that, you are not in any position to make the sort of judgement you just espoused. It seems to be a case of I didn't like the result so it can't be right.

You are simply make allegations without foundation and impugning the integrity of those responsible, from a position of ignorance.

I'm not making a judgment nor speaking from a position of ignorance. I'm saying that a court is very careful about admitting hearsay evidence and that does not seem to have been the case here (where the record shows that the Panel accepted the bits that they thought were ok.)

 

[jenny61_99]

Again, there are strict rules that determine when hearsay evidence is admissible in a court, often preceded by lengthy legal argument. Mr Gibson says that, in his opinion, the hearsay evidence would not be allowed in Australian proceedings (and was not allowed in the AFL Tribunal hearing). I tend to agree with him.

Mr Gibson sounds like a bit of a dill.