Play Nice The "can CAS do a de novo hearing" even if the AFL code said it couldnt thread

[Jade]

County Court? Federal Circuit Court? Federal Court?

Up to the lawyers I would suppose, but my spidey senses tell me the Federal Court would be the port of choice.

 

[Muggs]

Ok my two cents worth.

ASADA I believe is responsible for ensuring sports are in compliance with the WADA code with their specfic codes. Had a discussion with Richard Ings on this once via Twitter.

Where in the 2010 code does it say anything about ground for appeals? I'm still firmly under the impression that the grounds from the AFL perspective is via the (appeal) tribunal rules not the anti-doping code as such the AFL appeal tribunal rules apply to the AFL tribunal and the CAS rules apply to CAS.
The 2015 code changes over rides the tribunal rules in anti doping matters.

 

[imperial_oz]

I think this is where the round and round stuffed happened. Some are arguing that the AFL has no jurisdiction to stop CAS from holding a de novo hearing. This is true.

The line you used above is what you should have used from the start. The AFL can refer back to their own code and use that to refuse to enforce the ruling.

From there we are back in that fantasy territory of the AFL going it alone without adhering to the code.

The AFL is required contractually to abide by the WADA Code. They simply can't go their own way unless they break with WADA completely and that may have substantial consequences

 

[The Old Dark Navy's]

The AFL is required contractually to abide by the WADA Code. They simply can't go their own way unless they break with WADA completely and that may have substantial consequences

It was a hypothetical remember. If it was in there and it was overlooked by WADA, then the AFL still can't prevent a de novo case in CAS, but might be able to pull out that clause to justify not enforcing the CAS decision. It would lead to them having to pull out of the WADA code of course.

 

[imperial_oz]

It was a hypothetical remember. If it was in there and it was overlooked by WADA, then the AFL still can't prevent a de novo case in CAS, but might be able to pull out that clause to justify not enforcing the CAS decision. It would lead to them having to pull out of the WADA code of course.

I dont see how it could work that way. Remember, the appeal has to be run under Swiss Admin Law and there is case law already established that means that any provisions that substantially alter the WADA Code cannot be applied. The AFL would be contractually obliged to enforce the CAS decision. They could leave the WADA code afterwards but I would think still be contractually obligated to enforce any decision that occurred during the period of contract.

Breaching the contract by refusing to enforce the CAS decision may well result in sanctions on the AFL but I'm not really familiar with that aspect. That would need research

 

[The Old Dark Navy's]

I dont see how it could work that way. Remember, the appeal has to be run under Swiss Admin Law and there is case law already established that means that any provisions that substantially alter the WADA Code cannot be applied. The AFL would be contractually obliged to enforce the CAS decision. They could leave the WADA code afterwards but I would think still be contractually obligated to enforce any decision that occurred during the period of contract.

Breaching the contract by refusing to enforce the CAS decision may well result in sanctions on the AFL but I'm not really familiar with that aspect. That would need research

I realise there would be some sort of fall out for the AFL. However this isn't criminal law. You'd imagine if they simply ignored the ruling and pulled out of the code, then it would simply be the Australian Government they answered to as far as funding. That's another story given the way the politicians think they are backing a political winner by sticking up for 34 Aussie boys against interfering foreigners.

 

[imperial_oz]

I realise there would be some sort of fall out for the AFL. However this isn't criminal law. You'd imagine if they simply ignored the ruling and pulled out of the code, then it would simply be the Australian Government they answered to as far as funding. That's another story given the way the politicians think they are backing a political winner by sticking up for 34 Aussie boys against interfering foreigners.

There might be other fallout than the governments reaction but I'm not too sure of that right now. Breach of contract can have financial repercussions. Again, I'm not how that might apply.

As for the interfering foreigners aspect, my god some of those comments were simply bizarre but you don't need either brains or integrity to be a politician do you

 

[The Old Dark Navy's]

There might be other fallout than the governments reaction but I'm not too sure of that right now. Breach of contract can have financial repercussions. Again, I'm not how that might apply.

As for the interfering foreigners aspect, my god some of those comments were simply bizarre but you don't need either brains or integrity to be a politician do you

I'm telling you, if the appeal gets up .... 34 Kings of Moomba next year.

 

[Komrade_Tiger]

Correct me if i'm wrong (and yes, I know I am/will be ) but since the doping issues occurred when the 2010 code was in place, doesn't the hearing/tribunal and any appeals have to take place under what that code specifies?

 

[Lionheart182]

To be honest, I don't think its really much of a concern for WADA. If there is any kind of a problem, they would just contact the AFL and let them know if there was any compatibility problems.

The AFL processes are much more cumbersome than the WADA Code requires and there was never any issue with those processes because they don't make any significant change to the actual Code itself.

Did you read para 114. That can add a lot to what I'm saying. If you're really keen, read the case law they cite

Following on from this, how does WADA go about making changes to its code? Doesn't the Essendon argument imply WADA benefited from changing it's own code when the hearing was still going on? Not having a go just curious.

 

[imperial_oz]

I'm telling you, if the appeal gets up .... 34 Kings of Moomba next year.

I'm from Perth. We don't get Moomba

 

[imperial_oz]

Following on from this, how does WADA go about making changes to its code? Doesn't the Essendon argument imply WADA benefited from changing it's own code when the hearing was still going on? Not having a go just curious.

I can only give a partial answer to that.

I'm aware there was a consultation period with all of the sports given an opportunity to provide input on what was working and what needed improvement. I also understand the AFL declined to participate but I cannot confirm that right now.

The proposed changes were accepted and promulgated to all signatories to allow them to adjust their own methods of applying the WADA Code. The changeover was effected on a nominated date for all codes.

Anything more detailed would need research

 

[The Old Dark Navy's]

I'm from Perth. We don't get Moomba

I'm in Qld but if I wasn't and the appeal got up, I would move!

 

[Lionheart182]

I can only give a partial answer to that.

I'm aware there was a consultation period with all of the sports given an opportunity to provide input on what was working and what needed improvement. I also understand the AFL declined to participate but I cannot confirm that right now.

The proposed changes were accepted and promulgated to all signatories to allow them to adjust their own methods of applying the WADA Code. The changeover was effected on a nominated date for all codes.

Anything more detailed would need research

Right okay. The Essendon defence makes it sound like WADA made it up on the fly so they could put them away. Truth is probably in the middle somewhere I suppose.

 

[imperial_oz]

Right okay. The Essendon defence makes it sound like WADA made it up on the fly so they could put them away. Truth is probably in the middle somewhere I suppose.

I think the changes to the WADA were in the pipeline for quite a while\, indeed before the Essendon matter was even heard by the AFL Tribunal so it definitely wasn't driven by the Essendon matter. The changes to the AFL Code were matched to the WADA code as far as I know.

 

[imperial_oz]

I'm in Qld but if I wasn't and the appeal got up, I would move!

Just got back from Queensland. You could move here! Its less humid

 

[Sydney Bloods]

CAS would be dictating to the AFL that it must breach it's own rules. It absolutely, categorically cannot do this. Neither can the SFT.

And it's not splitting hairs, it's flat out correct.

I fully agree that the likelihood of such a policy existing (forbidding de novo) is slim to none, but we are operating under the assumption that it does.

In that case, WADA could demand that the AFL change it's policy because it is not compliant, but it cannot do so retrospectively, and no one short of an Australian court could FORCE the AFL to do so - and of course they won't.

The CAS/WADA/SFT have ZERO power to disregard an existing policy. They can demand that changes be made to make it compliant, but cannot retrospectively make a ruling that contravenes the policy as it exists.

You're misunderstanding how things work.
What you say in your hypothetical is essentially correct, But you're arriving at the wrong conclusion.
under the WADA code CAS can hear the case no matter what the AFL code says.
Even if the AFL code prevented a de novo case, the function of CAS, ASADA and WADA remains unaffected, under their code which the AFL signed up for they very much can.

The argument you're presenting would be the AFL's own Anti-doping code prevents the WADA code from applying, either in full or in part. its contract law you're arguing which has nothing to do with the internal mechanisms of how the WADA code functions. This would mean that the Swiss court would not hear the appeal until an Australian Court decided whether or not the AFL's own Anti-drug code prevented them from actually being legally binding signatures of the WADA code in the first place.

None of this would change or overturn the guilty verdict at CAS, it would simply mean the AFL is not able enforce the guilty verdict.
This is because as others have rightly pointed out, the WADA code which they signed up for does not recognise significant alterations.

the outcome would be that the CAS rulings would be upheld and WADA would still register them as drug cheats.
The AFL would be unable to enforce the suspension of players or penalise them in anyway because of the previous AFL tribunal ruling under the AFL's anti-drug code and now the AFL itself would need to front a senate hearing regarding all the funding they received on the condition that they signed up to the WADA code.

in order to get players names stricten from the record after the Australian court ruled the AFL was not under the WADA code at the time of the violations, You would then need to appeal to Swiss supreme court and demand the guilty verdict be overturned on the grounds that WADA and CAS did not have the authority to act.

This is because the AFL anti drug codes stipulations carry no legal authority in a Swiss court. The Swiss are only interested in whether ASADA, CAS and WADA complied with the WADA, that's it, nothing else they can only rule on whether the WADA code was followed, not the AFL anti-doping code.

Of course your hypothetical, as you stated is not reality.

 

[ChrisKaias]

Correct me if i'm wrong (and yes, I know I am/will be ) but since the doping issues occurred when the 2010 code was in place, doesn't the hearing/tribunal and any appeals have to take place under what that code specifies?

It's a fair question.

There's a difference in law between matters of "substance" and matters of "procedure". Matters of substance are the really key ones, the types of things you can be banned for, length of penalty, things like that. Procedural matters are kind of what it sounds like, how a hearing is heard, the evidence rules, appeal rights.

For substantive issues, in sports law there's a concept used called "lex mitior". It means that where a substantive law later changes, the athlete will get to use whichever of the two laws that is more favourable to them.

For procedural issues (such as appeals), it's the Code that is currently in effect that's used, not the one that was in place at the time.

 

[HairyO]

Its interesting that all the fights the players have fought outside the AFL have been on technicalities not on guilt or innocence.

I wonder if this tells us something...

 

[jenny61_99]

I agree, But its not my point and im still lost.

Does WADA have to sign off on the AFL code?

If yes and the code states.

1. De Novo hearing is NOT allowed ( Hypothetical)
2. Max Penalty is 2 years.

Then surely once WADA has approved it, then that is the rules. This is of course until such a time when WADA says "Hey Mr AFL" We have changed the rules and it is now 4 years max, you need to update your code to remain compliant. Oh and while you're at it, We missed the bit where your code say de novo is not allowed. Best fix that as well.

I hate to agree with an Essendon supporter but he makes total sense to me

WADA would never sign off on it. It's a stupid hypothetical.

 

[jenny61_99]

No. He knows what he is saying is completely untrue and he's made most of that up. You'll note he refuses to provide any references.

As a signatory to the WADA Code, the AFL is bound to enforce the WADA Code. It does so by having its own Anti-Doping Code however there are provisos here that some refuse to accept. The AFL Code MUST apply the WADA Code 'with no significant changes' . WADA does not need to sign off on the AFL Code. It has no role at that point. The AFL Code is operation when the AFL promulgates it.

If the AFL Code has a 'significant difference' with the WADA Code, the WADA Code will apply. There is Swiss case law to support this. (see the Arbitral Award for the Essendon Players para 114) Even if the AFL Code said no 'de novo' hearing, that wouldn't apply and the AFL would be bound by the CAS Ruling.

The hypothetical scenario is completely at odds with the relevant case law.

Edit:

I'd cut and paste the relevant material but io don't have a cut and paste version sadly. I typed it out before but its a hassle and I'm doing other things here as well

Follow the link, read para 114 in particular. Its pretty straight forward

http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ESSENDON.pdf

When the AFL was refusing to sign up to WADA, other sports were adapting their codes.

The ARL said it had been given the all clear by the WADA for its proposed anti-drugs policy for the 2006 season.

The ARL and the Australian Sports Commission have spent some time adapting the international WADA template to fit the weekly demands of the code in Australia while still maintaining the international WADA list of banned substances, the ARL said in a statement.
http://www.abc.net.au/news/2005-06-30/afl-refuse-to-sign-wada-anti-doping-code/2049072

WADA would clearly never agree to something that went against their normal operational procedures.

 

[Crankyhawk]

No I'm not the one failing here. The AFL simply cannot enforce anything outside the WADA code. It cannot and never could prevent CAS from holding its hearings d novo. Everything you have said is wrong. Completely, utterly and absolutely wrong. Even if the AFL tried to put that into their code, it would not have any force and CAS would continue to hear appeals de novo.

I cannot believe that you continue with this rubbish after you have been proven wrong multiple times. Read what I quoted. Have somebody explain it you if you can't read it yourself. Its time you just stopped.

I would have thought that the AFL could choose to not follow WADA at the cost of leaving the WADA code (and the government funding).

 

[Sydney Bloods]

I would have thought that the AFL could choose to not follow WADA at the cost of leaving the WADA code (and the government funding).

well it depends on the nature of the contract, some agreements require both parties to mutually agree.
but even if it did, the AFL could still hypothetical tell WADA to get ****ed. (it just means that ASADA can move to have the AFL recorded as breaching their agreement)

and yes given that ASADA is a government department. it's unlikely any federal funding will be coming the AFL's way.
depending how pissy the feds get they could tie any sport club where the people are considered professional athletes to be wada compliant as an OH&S issue.

 

[gavaniacono]

It's a fair question.

There's a difference in law between matters of "substance" and matters of "procedure". Matters of substance are the really key ones, the types of things you can be banned for, length of penalty, things like that. Procedural matters are kind of what it sounds like, how a hearing is heard, the evidence rules, appeal rights.

For substantive issues, in sports law there's a concept used called "lex mitior". It means that where a substantive law later changes, the athlete will get to use whichever of the two laws that is more favourable to them.

For procedural issues (such as appeals), it's the Code that is currently in effect that's used, not the one that was in place at the time.

This and with ref to article 114 of the CAS appeal decision makes it seem the 34 have NO chance with the Swiss appeal.

Which would lead one to asking, why do it?

Is it poor advice, is the basis of CAS decision wrong, or is their a longer game being played out that eventually leads to the AFL moving away from WADA by "demonstrating" it's unsuitability to Football, Meat Pies, Kangaroos, and Holden Cars, with the support of certain Aust Govt folk?

 

[Jade]

You're misunderstanding how things work.
What you say in your hypothetical is essentially correct, But you're arriving at the wrong conclusion.
under the WADA code CAS can hear the case no matter what the AFL code says.
Even if the AFL code prevented a de novo case, the function of CAS, ASADA and WADA remains unaffected, under their code which the AFL signed up for they very much can.

The argument you're presenting would be the AFL's own Anti-doping code prevents the WADA code from applying, either in full or in part. its contract law you're arguing which has nothing to do with the internal mechanisms of how the WADA code functions. This would mean that the Swiss court would not hear the appeal until an Australian Court decided whether or not the AFL's own Anti-drug code prevented them from actually being legally binding signatures of the WADA code in the first place.

None of this would change or overturn the guilty verdict at CAS, it would simply mean the AFL is not able enforce the guilty verdict.
This is because as others have rightly pointed out, the WADA code which they signed up for does not recognise significant alterations.

the outcome would be that the CAS rulings would be upheld and WADA would still register them as drug cheats.
The AFL would be unable to enforce the suspension of players or penalise them in anyway because of the previous AFL tribunal ruling under the AFL's anti-drug code and now the AFL itself would need to front a senate hearing regarding all the funding they received on the condition that they signed up to the WADA code.

in order to get players names stricten from the record after the Australian court ruled the AFL was not under the WADA code at the time of the violations, You would then need to appeal to Swiss supreme court and demand the guilty verdict be overturned on the grounds that WADA and CAS did not have the authority to act.

This is because the AFL anti drug codes stipulations carry no legal authority in a Swiss court. The Swiss are only interested in whether ASADA, CAS and WADA complied with the WADA, that's it, nothing else they can only rule on whether the WADA code was followed, not the AFL anti-doping code.

Of course your hypothetical, as you stated is not reality.

It was a good write up - and I agree with it.

Probably my only minor quibble is stating I arrived at the wrong conclusion - I didn't, my conclusion was exactly the same as yours.