No Oppo Supporters CAS hands down guilty verdict - Players appealing - Dank shot - no opposition - (cont in pt.2)

[Pevers-Legend]

No ASADA only has to make sure they don't disclose information.

The same as the AFL, the same as EFC, lest either one of them breach the NAD Act.

ASADA are no more of less liable than any other party.

Except how McDevitt said Dank was on RoF and when reported to police nothing happened.

or like how Vlad got us to self report and nothing happened.

Yup when the truth comes out the right thing is done......

 

[cymarak]

This is the part that I dont get.
Why are ASADA prosecuting all 34 players.
Would have thought that they should only go after the 12 (or as reported in the Herald Sun, 'The Dirty Dozen)
I recall, that if a few players in a premiership winning team, are found guilty of doping, the AFL has the powers to remove the premiership from that club, (thus penalising the entire team)

There are rules in the anti-doping code about escalating a punishment to a team punishment - I think it's this bit, which is very generic, and deliberately unconstrained:

"If more than one Player in a Club is found to have committed an Anti Doping Rule Violation during a season, the Club may be subject to sanctions to be determined, in their absolute discretion, by the Commission".

 

[DonsRule]

Not really. If I was being investigated for an incident related to my employment I know my employer would expect me to co-operate, and could terminate if I refused.

I think it is a little different, the contract to compel isn't necessarily legal - they was not questioned by the legal teams.

What also wasn't questioned too (up for debate here, there are mixed view on this) was can ASADA legally force the AFL to hand over information from a private contract that gets around their statutory rules. I'm not totally sure whether that was answered. Could the police force your workplace to hand over that information. Further, can the police request your employer to ask certain questioins in their interview, bypassing the right to silence if the police interviewed you.

 

[Mr Mojo Risin]

Not really. If I was being investigated for an incident related to my employment I know my employer would expect me to co-operate, and could terminate if I refused.

I would also assume you would expect confidentiality and accurate unbiased investigative procedures with your co-operation.

 

[Jade]

They are also investigators and meant to be model litigators, which is the issue.

Are we currently engaged in litigation?

 

[Jade]

Except how McDevitt said Dank was on RoF and when reported to police nothing happened.

or like how Vlad got us to self report and nothing happened.

Yup when the truth comes out the right thing is done......

Surely Dank is currently engaged in litigation to right this terrible wrong!

 

[expires]

Should it? What law was breached?

The law of common sense and decency. If ASADA can't get a conviction, the poor governance and bringing the game into disrepute almost becomes a moot point. Particularly as the stopping of the injections was an Essendon decision.

Just say the tribunal can't get reasonably satisfied in the coming weeks and the penalties of 2013 had not been handed out then, do you think anything akin to the 2103 penalties would follow now?

A former posted stated that we should have challenged the penalties in court back in 2013.

We should only have accepted them with a guarantee that things were all said and done with those penalties. ASADA wouldn't and couldn't give that guarantee.

With the benefit of hindsight we should not have gone along with 2013.

I know laws aren't being broken. But the law is being used in a scandalous manner.

 

[Mr Mojo Risin]

Are we currently engaged in litigation?

What's your point?

 

[Jade]

What's your point?

I've seen a few people claiming that ASADA should act as a model litigant in its prosecution of the players, yet we are not involved in litigation.

 

[Mercurial89]

I've seen a few people claiming that ASADA should act as a model litigant in its prosecution of the players, yet we are not involved in litigation.

Its one of those new buzzwords that people believe they know the meaning of and repeat ad nausem and that are now in general everyday speech. Right up there with corporate governance and peptides.


On an unrealated note, i saw Hirds Channel 7 inteview for the first time this afternoon. Funny how far we have come, he wouldnt have been able to give that inteview 8 months ago without it being front page news and quoted for weeks, now it doesnt really even promote discussion. Just on it, you can tell by the way he spoke the guy is fuming, dont think he will be calling it quits anytime soon.

 

[Jade]

Its one of those new buzzwords that people believe they know the meaning of and repeat ad nausem and that are now in general everyday speech. Right up there with corporate governance and peptides.

It sure seems that way....

We actually seem to be struggling with some other simple terms such as 'legal'.

 

[mxett]

Its one of those new buzzwords that people believe they know the meaning of and repeat ad nausem and that are now in general everyday speech. Right up there with corporate governance and peptides.


On an unrealated note, i saw Hirds Channel 7 inteview for the first time this afternoon. Funny how far we have come, he wouldnt have been able to give that inteview 8 months ago without it being front page news and quoted for weeks, now it doesnt really even promote discussion. Just on it, you can tell by the way he spoke the guy is fuming, dont think he will be calling it quits anytime soon.

what does he hope to achieve now that the players fates will be decided well before any High court action

 

[Whispering_Jack]

It sure seems that way....

We actually seem to be struggling with some other simple terms such as 'legal'.

I don't know, Lance Uppercut would be the man to explain it, I'd say.

EDIT: the model litigant thing

 

[Dave]

I've seen a few people claiming that ASADA should act as a model litigant in its prosecution of the players, yet we are not involved in litigation.

And?

Its one of those new buzzwords that people believe they know the meaning of and repeat ad nausem and that are now in general everyday speech. Right up there with corporate governance and peptides.

True, but there are some pesky sites on the interwebs that define in quite simple language (strange for anything legal related!) what it is, who it relates to and what it requires of them.

 

[Lance Uppercut]

I've seen a few people claiming that ASADA should act as a model litigant in its prosecution of the players, yet we are not involved in litigation.

model litigant doesn't mean they are engaged in litigation. It is a doctrine that, boiled down, says if a government body is prosecuting another party, because that body has all the considerable powers and weight of the state behind it, then it is obliged to act in a way that is fair, over and above what might be considered fair in the normal course of events.

In practice, I think there's been far too much emphasis put on it. Federal court judges are far more aware of the obligations of a model litigant than any of us, and they didn't raise any issues with it. The tribunal is being run by extremely well regarded professionals and they will ensure obligations are met if required.

The other thing that people should get through their heads is that ASADA are NOT faking/falsifying/omitting key evidence. Please just stop that nonsense. They have obligations and they are meeting those obligations.

The whole "omitting evidence" thing is an artefact of the interim report, and whilst it was most distasteful it was for the purpose of the interim report - not the tribunal. Please have a little bit of faith that the chairs of the tribunal have long and storied careers in teh legal industry and they would not allow that kind of thing to go on.

 

[Mr Mojo Risin]

I've seen a few people claiming that ASADA should act as a model litigant in its prosecution of the players, yet we are not involved in litigation.

Not how I see it. I could be wrong...

http://www.asada.gov.au/about/

The Australian Sports Anti-Doping Authority (ASADA) is a government statutory authority that is Australia's driving force for pure performance in sport.

http://www.comlaw.gov.au/Details/F2011C00098/Html/Text#_Toc252530687

Appendix B The Commonwealth’s obligation to act as a model litigant

The obligation

1 Consistently with the Attorney‑General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and its agencies are to behave as model litigants in the conduct of litigation.

http://www.asada.gov.au/about/#

ASADA enforces any breach of a policy by ensuring those violating anti-doping rules are prosecuted and sanctioned.

http://www.oxforddictionaries.com/definition/english/prosecute

Prosecute:
Institute or conduct legal proceedings against (a person or organization).

http://www.oxforddictionaries.com/definition/english/litigate

Litigate:
Resort to legal action to settle a matter; be involved in a lawsuit.

http://www.asada.gov.au/about/

Disclosure notice
Aspects related to the issuing of the disclosure notice are specified in the legislation. This includes the format and content of the disclosure notice; conduct of interviews; retaining and making copies of documents and the use of information gathered from the disclosure notice. The amended legislation will also require ASADA to inform the person of their rights and the possible consequences for failing to comply with a disclosure notice. These rights include permitting an interviewee to have someone accompany them to the interview and not being required to answer questions that may incriminate, or expose the person to a penalty.

ASADA will only issue a disclosure notice when it is necessary to compel a person to assist with an investigation. This will usually be as a last resort.

I see us as being involved in litigation and that ASADA has not acted as model litigants as they are supposed to do for the above reasons.

Now as I said I could be wrong and this has nothing to do with the legality of a joint investigation and whether Middleton's decision was correct, as according to what the suit was about, he was IMO technically and legally correct.

However, ASADA have not, as I believe they should, acted as a model litigant.

 

[Jade]

I see us as being involved in litigation.

But the players are not involved in litigation, I think this line is consistently ignored.

This is a potential breach of sporting rules, it isn't a case determining a breach of the law.

 

[lysp]

But the players are not involved in litigation, I think this line is consistently ignored.

This is a potential breach of sporting rules, it isn't a case determining a breach of the law.

The principal applies to "legal proceedings" generally. I assume the tribunal would come under that.

Lawyers giving opening arguments, cross examination and closing arguments in front of an ex-judge should easily fit under the umbrella of "legal proceedings".

Victoria has its own Model Litigant Guidelines. These are policy guidelines originally issued in 2001 and revised in 2011. They set standards for how the state should behave as a party to legal proceedings.

All Australian governments have a common law responsibility to act as model litigants.

 

[Mr Mojo Risin]

But the players are not involved in litigation, I think this line is consistently ignored.

This is a potential breach of sporting rules, it isn't a case determining a breach of the law.

I think you misunderstand. The players are very much involved in litigation. Just because they are players in a sport that does not mean they are not legally bound by obligations that are legally enforced by ASADA. The player contracts are legally binding with the AFL who have signed to the WADA code that ASADA are tasked with enforcing in Australia.

I struggle to think how you believe the players are not involved in litigation, at least to the point whereby they should expect ASADA to behave appropriately according to their own act.

 

[DonsRule]

But the players are not involved in litigation, I think this line is consistently ignored.

This is a potential breach of sporting rules, it isn't a case determining a breach of the law.

Probably gets very interesting though, ASADA's role is not to investigate criminal or legal matters, their primary role in investigation of doping wheir they core investitions apply,

I've seen some views of where you're coming from. SO am a little curious

 

[Mercurial89]

what does he hope to achieve now that the players fates will be decided well before any High court action

Fighting for what he believes in i assume. no idea, ask him that

 

[DonsRule]

model litigant doesn't mean they are engaged in litigation. It is a doctrine that, boiled down, says if a government body is prosecuting another party, because that body has all the considerable powers and weight of the state behind it, then it is obliged to act in a way that is fair, over and above what might be considered fair in the normal course of events.

In practice, I think there's been far too much emphasis put on it. Federal court judges are far more aware of the obligations of a model litigant than any of us, and they didn't raise any issues with it. The tribunal is being run by extremely well regarded professionals and they will ensure obligations are met if required.

The other thing that people should get through their heads is that ASADA are NOT faking/falsifying/omitting key evidence. Please just stop that nonsense. They have obligations and they are meeting those obligations.

The whole "omitting evidence" thing is an artefact of the interim report, and whilst it was most distasteful it was for the purpose of the interim report - not the tribunal. Please have a little bit of faith that the chairs of the tribunal have long and storied careers in teh legal industry and they would not allow that kind of thing to go on.

Just as much, we would have heard a lot more from the players lawyers if they weren't offering relevant information to the case. No one outside forum posters is questioning that now. And as you said it all stems from teh interim report, not the tribunal.

 

[Dave]

model litigant doesn't mean they are engaged in litigation. It is a doctrine that, boiled down, says if a government body is prosecuting another party, because that body has all the considerable powers and weight of the state behind it, then it is obliged to act in a way that is fair, over and above what might be considered fair in the normal course of events.

In practice, I think there's been far too much emphasis put on it. Federal court judges are far more aware of the obligations of a model litigant than any of us, and they didn't raise any issues with it. The tribunal is being run by extremely well regarded professionals and they will ensure obligations are met if required.

The other thing that people should get through their heads is that ASADA are NOT faking/falsifying/omitting key evidence. Please just stop that nonsense. They have obligations and they are meeting those obligations.

The whole "omitting evidence" thing is an artefact of the interim report, and whilst it was most distasteful it was for the purpose of the interim report - not the tribunal. Please have a little bit of faith that the chairs of the tribunal have long and storied careers in teh legal industry and they would not allow that kind of thing to go on.

Without disagreeing with you Lance, as I think the notion that legal professionals are in on some sort of fix is farcical (the AFL is a whole nother box and dice!), it was reported that "ASADA is of the view it should only be required to hand over evidence it will rely on to prosecute its case.", which doesn't seem to me to meet the requirements. Of course, being reported doesn't make it true , and I could also be wrong.

But the players are not involved in litigation, I think this line is consistently ignored.

This is a potential breach of sporting rules, it isn't a case determining a breach of the law.

The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other ADR processes) involving State Departments and agencies, as well as Ministers and officers where the State provides a full indemnity in respect of an action for damages brought against them personally.

Seems to indicate it should apply. In any event, what Lance said above that I bolded is correct.

 

[Jade]

I think you misunderstand. The players are very much involved in litigation. Just because they are players in a sport that does not mean they are not legally bound by obligations that are legally enforced by ASADA. The player contracts are legally binding with the AFL who have signed to the WADA code that ASADA are tasked with enforcing in Australia.

I struggle to think how you believe the players are not involved in litigation, at least to the point whereby they should expect ASADA to behave appropriately according to their own act.

Yep you've convinced me. I went searching for the definition of 'litigation' and came up with; "the process of taking legal action" - which doesn't apply here, but then went and searched for 'legal' and was met with 'appointed or REQUIRED by the law' - which would seem to fit IMO (as the NAD Act is law).

Still doesn't sit right with me though, as the inference would be that ANY tribunal or arbitration conducted by or involved in by an empowered government agency would in fact be 'litigation' by that definition. But whether it sits well or not would be irrelevant.

 

[Mr Mojo Risin]

Yep you've convinced me. I went searching for the definition of 'litigation' and came up with; "the process of taking legal action" - which doesn't apply here, but then went and searched for 'legal' and was met with 'appointed or REQUIRED by the law' - which would seem to fit IMO (as the NAD Act is law).

Still doesn't sit right with me though, as the inference would be that ANY tribunal or arbitration conducted by or involved in by an empowered government agency would in fact be 'litigation' by that definition. But whether it sits well or not would be irrelevant.

I think you need to realign your interpretation of litigation.

In any case I think ASADA have not acted as they should at many stages, especially under the role of investigator, but am aware it doesn't change much to where we are now they are in the role of the prosecution. I only ever brought it up in the scope of Hird's actions and why I understand what he has done/is doing and nothing to do with any tribunal corruption as I don't believe that to be likely at all.