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

[Jimthegreat]

Chip's article. Paywall though.

http://www.theaustralian.com.au/spo...t/news-story/9893d062863029eedb3b153f5ab052e9

 

[Xtreme]

The lawyers must be laughing all the way to the bank

 

[manboob]

Chip's article. Paywall though.

http://www.theaustralian.com.au/spo...t/news-story/9893d062863029eedb3b153f5ab052e9

 

[The_Wookie]

All about the de novo proceeding. If thats the case, then i predict the appeal will be hit for 6.
http://www.theaustralian.com.au/spo...t/news-story/9893d062863029eedb3b153f5ab052e9

That work has now focused on a complex jurisdictional issue — the decision by CAS to allow the World Anti-Doping Agency to prosecute the entire doping case against the 34 players for a second time instead of limiting last November’s hearing to an appeal against the previous findings of the AFL anti-doping tribunal.

The rule which CAS relied on to do this was added to the World Anti-Doping Code on January 1, 2015 — after the AFL tribunal had begun hearing the case in Melbourne — and subsequently adopted by the AFL in its revised anti-doping code.

Legal advice obtained by the players is that the AFL anti-doping code in force at the start of the AFL tribunal hearing and throughout Essendon’s notorious 2012 supplements regimen should have limited any appeal by WADA to an error in law.

It is only after CAS shifted the goalposts — the lawyers for the players say unfairly — that the 34 players were exposed to a double jeopardy hearing of the same charges, on much the same evidence on which they had previously been cleared.

 

[imperial_oz]

Chip's article. Paywall though.

http://www.theaustralian.com.au/spo...t/news-story/9893d062863029eedb3b153f5ab052e9

Wow. After all this time Chip still gets the simple stuff wrong.

That work has now focused on a complex jurisdictional issue — the decision by CAS to allow the World Anti-Doping Agency to prosecute the entire doping case against the 34 players for a second time instead of limiting last November’s hearing to an appeal against the previous findings of the AFL anti-doping tribunal.

The rule which CAS relied on to do this was added to the World Anti-Doping Code on January 1, 2015 — after the AFL tribunal had begun hearing the case in Melbourne — and subsequently adopted by the AFL in its revised anti-doping code.

The AFL Anti-Doping Code only limited the grounds for an appeal to its own Appeal Panel. There were never any proscribed limits on WADA appealing to CAS. CAS hearings have always been 'de novo' and this has already been endorsed in the Swiss courts. If this is truly what the appeal is based on I'm suspecting that the appeal will not even be considered

Edit: an almost identical post The_Wookie and you beat me by a minute

 

[manboob]

And here I was thinking de novo was just a latin pop sensation.

 

[The_Wookie]

Chris Kais addresses this in his blog here - https://chriskaias.wordpress.com/2016/01/25/the-essendon-cas-verdict-your-top-15-questions-answered/

This point appears to be legally without merit for three reasons.

(i) The 2010 Anti-Doping Code does not specify the type of appeal

It would appear that Mr Gordon has not correctly represented what is in the 2010 AFL Anti-Doping Code for the following reasons:

• The 2010 AFL Anti-Doping Code does not stipulate that rulings can only be appealed if the decision involves legal error or gross unreasonableness. The 2010 Code does not specify or limit the type of appeal at all; and
• As the 2010 Code does not specify the type of appeal to the AFL Appeals Board, the position would arguably be the default position under normal AFL Appeals Board procedure, which is to limit an appeal to errors of law or gross unreasonableness. The default position under the CAS procedure is a ‘de novo’ hearing.

Further to this, the 2015 Code adds provision 20.1(b), which says that Appeals Board proceedings are ‘de novo’. However, even the 2015 Code is silent on the type of appeal to the CAS.

Therefore, it is not correct to say that the rules changed in 2015. The 2010 Code did not specify the type of appeal for either the Appeals Board or the CAS, and the 2015 Code still does not refer to the type of appeal to CAS.

(ii) The newer 2015 Anti-Doping Code would apply in any case

Even if the 2010 Code had in some way restricted the type of appeal to the CAS, the CAS Panel noted at [114] that it is the newer 2015 Code that applies to the procedural (as opposed to the substantive) aspects of the appeal.

As argued by leading academic Richard Garnett in Substance and Procedure in Private International Law, issues concerning appeals are procedural and not substantive ([6.16]–[6.19]).

(iii) The AFL Anti-Doping Code cannot validly restrict the CAS’s ability to hear an appeal ‘de novo’

Even further still, in the hypothetical scenario that the 2015 Code prevented the CAS from hearing a case ‘de novo’, the CAS Panel noted that such a provision would not reflect the provisions of the World Anti-Doping Code; would be a violation of a signatory’s obligations; and, as per previous CAS jurisprudence, would be inapplicable (CAS Decision [114]).

 

[footyfan1978]

The longer they drag it out, the more notorious they become, even if they eventually get off. No one remembers much about the Carlton salary cap cheating but we all know the details of the Bombers' case to the nth degree because they keep it in the news. W

Oh, trust me, as a Carlton supporter I remember it well as 23rd Novemenber 2002 with Draft beginning that weekend.
Just like everyone knew coming up to 2015 National Draft that Carlton were taking Weitering with pick one and Lions Schache with pick two everyone knew as we were about to hit draft of 2002 that Carlton were taking Brendan Goddard with pick one and Daniel Wells with pick two. Then the nightmare of hearing just about at the day the draft about to start we are losing picks No. 1, 2, 31 and 34 from the 2002 National Draft
All other first and second round picks the following year and the pre-season draft too was a killer blow that you could not possibly understand the long term effects even over 13 years later. Actually I believe the off field hit to club has been even bigger that the on field results. That fine came at worst possible time and $930K in 2002 Aussie dollars I cannot imagine what is worth now but it sure as hell would be worth way more than Essendon got for bringing game into disrepute.
We lost our own ground indirectly of financial mess we got in as a result and therefore part of our independence as a club to make choices of home games. Geelong basically kept their homeground with less support. We should have done even more with our homeground but had to let it go and be another club that AFL direct to play at bloody Docklands. That irks me even more than any low finishes on ladder in last decade and a half.

The following headline and some words below it are part of some article back on that Saturday morning.

Carlton Hit With Massive Penalty For Breaches

The AFL hearing against Carlton took place Friday evening, Nov. 22. Representing the club were new president Ian Collins and CEO Don Hanly. The hearing dragged on late into the night with Collins vigorously pleading the club's case.

In the end, the Blues were fined a whopping $930,000 and have lost picks in this year's national draft, the preseason draft, and in next year's national draft.
Details of the punishment are:
- the fine
- its number one and two picks in Sunday's national draft
- its second and third round picks (numbers 31 and 34 overall)
- exclusion from the first round of December's pre-season draft
- exclusion from the first two rounds of the 2003 national draft.

Club president Ian Collins said the club would consider its legal options to challenge the AFL ruling, but was non-committal whether there was grounds to do so to prevent Sunday's draft from proceeding. "A fine of this magnitude in the AFL competition, which is very fragile ... would put any club on the brink," an angered Collins said.
And considering the club is believed to be on course to already post a financial loss of at least $500,000 in 2002 – there are legitimate concerns amongst the new Blues board that the club will be unable to pay the fine – which must be paid by December 31, 2003.


Aftermath
The four directors implicated in the illegal payments were all removed from the club in the board election at the end of 2002. John Elliott was voted out as president, and the club sought to distance itself from him, the Elliott Stand at Princes Park was renamed the Carlton Heroes Stand

The loss of draft picks came at the time when the club needed them the most to rebuild its playing list. This resulted in the worst extended period of on-field performances in the history of the club. In the six seasons between 2002 and 2007, Carlton finished last three times, and five times in the bottom two.



As a Carlton supporter watching on the effects of on field and off field punishment of last 13 years and seeing another club mess up big time recent years in different circumstances there is a vast difference in how it unfolded. As a Carlton supporter it was like BANG, here is a punishment to deal with and both the shock of it and working out what actually happening under Ellott to get this punishment. That took some time to process and then realize the long terms effects it would have as a club for a very long time. Essendon situation has been speculated to the nth degree what happened and been years in making to get to the final punishment. Carlton's punishment was decided so quickly it was a shock to take in. Essendon's punishment decision has been so drawn out and mostly because of their own stupidity of seeing the extent of what a mess they had got themselves in. As a result the endless speculation have made it a media circus event for so long.

The most hilarious part is if they'd bent over on day one the punishment would have been so minor. They've dragged it on so long that they're almost self-flagellating now.

The punishment now is really just to the players, not the club.
The club itself has not been punished except for the part of bringing game into disrepute. That was a slap on wrist compared to what we got in 2002. They also have got any draft restrictions finished with already.

Any appeal now is also by players and not by the club.

 

[KM00]

in relation to whether or not the panel applied to wrong code and allowed a de novo hearing -

As far as I understand ... and according to the assesment by Chris Kaiss ... it doesnt really matter what the AFL code says. The WADA code says that hearings to CAS are de novo - and the WADA code will prevail if it is in conflict.

 

[compact72]

in relation to whether or not the panel applied to wrong code and allowed a de novo hearing -

As far as I understand ... and according to the assesment by Chris Kaiss ... it doesnt really matter what the AFL code says. The WADA code says that hearings to CAS are de novo - and the WADA code will prevail if it is in conflict.

However I thought the AFL Anti Doping code overrules the WADA code?

 

[The_Wookie]

However I thought the AFL Anti Doping code overrules the WADA code?

CAS seems to believe otherwise, the AFL is a signatory to WADA, not the other way round

 

[manboob]

However I thought the AFL Anti Doping code overrules the WADA code?

AFL code is the WADA code. The AFL signed up to it.

 

[compact72]

CAS seems to believe otherwise, the AFL is a signatory to WADA, not the other way round

Correct. I still don't think they have a chance of winning, but lets see

 

[compact72]

Wow. After all this time Chip still gets the simple stuff wrong.

That work has now focused on a complex jurisdictional issue — the decision by CAS to allow the World Anti-Doping Agency to prosecute the entire doping case against the 34 players for a second time instead of limiting last November’s hearing to an appeal against the previous findings of the AFL anti-doping tribunal.

The rule which CAS relied on to do this was added to the World Anti-Doping Code on January 1, 2015 — after the AFL tribunal had begun hearing the case in Melbourne — and subsequently adopted by the AFL in its revised anti-doping code.

The AFL Anti-Doping Code only limited the grounds for an appeal to its own Appeal Panel. There were never any proscribed limits on WADA appealing to CAS. CAS hearings have always been 'de novo' and this has already been endorsed in the Swiss courts. If this is truly what the appeal is based on I'm suspecting that the appeal will not even be considered

Edit: an almost identical post The_Wookie and you beat me by a minute

Can Swiss courts turn around as soon as they see their argument and dismiss it?

 

[imperial_oz]

Can Swiss courts turn around as soon as they see their argument and dismiss it?

My understanding is that they can dismiss without further consideration. I may be wrong but based on what Ive seen so far I think its possible.

The only way that is likely to happen though is if the appeal is based on matters they have already decided ie if the appeal was based on CAS holding the hearing 'de novo'. That is something that has been ruled on previously. They are going to have to have grounds that the court accepts and considers justifies an appeal.

Wait and see I guess.

 

[compact72]

My understanding is that they can dismiss without further consideration. I may be wrong but based on what Ive seen so far I think its possible.

The only way that is likely to happen though is if the appeal is based on matters they have already decided ie if the appeal was based on CAS holding the hearing 'de novo'. That is something that has been ruled on previously. They are going to have to have grounds that the court accepts and considers justifies an appeal.

Wait and see I guess.

Seems to me the lawyers just want a new holiday house, knowing they have no chance of winning

 

[Satan]

Seems to me the lawyers just want a new holiday house, knowing they have no chance of winning

Could be a shortage of lawyers next year, they will be lots retiring early

 

[Toump Ass]

Essendon still trying to get off on a technicality... what a disgusting club

 

[imperial_oz]

Seems to me the lawyers just want a new holiday house, knowing they have no chance of winning

No, the whole thing doesn't make sense.

No way they would proceed on something that couldn't get off the ground. For all his somewhat dopey public statements, Gordon cannot be that dopey. There must be more to this than is immediately obvious.

Nobody is going to commit 500k to something that would be over in 5 minutes.

Lets wait and see what actually happens

 

[manboob]

No, the whole thing doesn't make sense.

No way they would proceed on something that couldn't get off the ground. For all his somewhat dopey public statements, Gordon cannot be that dopey. There must be more to this than is immediately obvious.

Nobody is going to commit 500k to something that would be over in 5 minutes.

Lets wait and see what actually happens

I think there's a lot of politicking and backroom Discothèque action going on. At a guess I'd say that they (Dons & Co.) figure that they are up the creek for 30 million plus when costs for damage to reputation are paid to the 34.

So they figure why not spend 1 million try to get the players cleared and then when they (the players) sue the club/whoever. The club/whoever can turn around and say well their reputation has been cleared we are only paying them their playing wage not costs for damage to reputation et cetera.

 

[imperial_oz]

I think there's a lot of politicking and backroom Discothèque action going on. At a guess I'd say that they (Dons & Co.) figure that they are up the creek for 30 million plus when costs for damage to reputation are paid to the 34.

So they figure why not spend 1 million try to get the players cleared and then when they (the players) sue the club/whoever. The club/whoever can turn around and say well their reputation has been cleared we are only paying them their playing wage not costs for damage to reputation et cetera.

I dont see that as a realistic proposition. Its the same as spending 1 million to spend another 30.

There must be more to this than is clear because what has been announced has little real chance of clearing the players

 

[manboob]

I dont see that as a realistic proposition. Its the same as spending 1 million to spend another 30.

There must be more to this than is clear because what has been announced has little real chance of clearing the players

There have been outcomes where players are "cleared" but the findings still stand. It's complicated.

 

[Subutai]

Some dark powerful forces really want Jobe to keep his precious

 

[pablo668]

Well I guess luxury yachts and holiday homes don't buy themselves.

Seriously though. This is an utter disgrace and is taking us down a peg or two internationally on the sporting stage.
It's also an indication of the length that the boys club is willing to go to in order to push a narrative.

 

[Thrawn]

I really hope the clubs say "enough is enough" and force the AFL commission to resign, and appoint competent people.