CAS - 12JAN2016- EFC will learn if they got away with it - Zellenleiter Goddard will remain angry

[Muggs]

So, Christmas is nine days away. Anyone know when we can expect the judgement?

Few media sources (Sam Mclure, 3AW) now tweeting Essendon will know before Christmas, but who really knows..unless the players have been informed it's nearly ready.

 

[imperial_oz]

Sam MaClure saying Richard Young has all but nailed the players to a guilty finding.

Based on what?

I'm seeing all kinds of projections (not predictions) based on desired outcomes and not so far has been reasonable.

Unless the person has some kind of in with the actual panel then their desired outcomes have no more validity than me flicking a coin - heads, they're gone, tails, they're clear. Frankly, the chance of THIS panel leaking to the AFL, club, journo or mate is essentially zero. This panel is comprised of people who are well above that level of bulltish.

Fact is nobody has a realistic clue about the eventual outcome.

The only prediction I think is a realistic chance of occurring is the repositioning of the burden of proof. I think AFL tribunal set it too high by dismissing the production of TB4 out of China when there weren't real grounds for dismissing the supplier's claims. Note that still doesn't put TB4 at the club.

We also do not have any knowledge of the evidence submitted, the arguments submitted by WADA around that evidence or even the context surrounding the supposed 'elevated levels'.

Unless somebody can fill in all or most of those gaps, they are just not in any position to predict any outcome

 

[Jade]

Based on what?

I'm seeing all kinds of projections (not predictions) based on desired outcomes and not so far has been reasonable.

Unless the person has some kind of in with the actual panel then their desired outcomes have no more validity than me flicking a coin - heads, they're gone, tails, they're clear. Frankly, the chance of THIS panel leaking to the AFL, club, journo or mate is essentially zero. This panel is comprised of people who are well above that level of bulltish.

Fact is nobody has a realistic clue about the eventual outcome.

The only prediction I think is a realistic chance of occurring is the repositioning of the burden of proof. I think AFL tribunal set it too high by dismissing the production of TB4 out of China when there weren't real grounds for dismissing the supplier's claims. Note that still doesn't put TB4 at the club.

We also do not have any knowledge of the evidence submitted, the arguments submitted by WADA around that evidence or even the context surrounding the supposed 'elevated levels'.

Unless somebody can fill in all or most of those gaps, they are just not in any position to predict any outcome

Solid post.

I have no doubt that Richard Young presented a bloody good case - it's what he does. So when I hear 'wow! Young presented an outstanding case!' I can believe it. Everything I've seen from ASADAs prosecution says they set a really low bar to top.

Having said that, absolutely no one knows what the panel is thinking. I have NFI and don't pretend to.

I think that, with the exception of a few 'special' people on this board, we'll all just be happy to see this shit done with.

 

[Muggs]

Based on what?

I'm seeing all kinds of projections (not predictions) based on desired outcomes and not so far has been reasonable.

Unless the person has some kind of in with the actual panel then their desired outcomes have no more validity than me flicking a coin - heads, they're gone, tails, they're clear. Frankly, the chance of THIS panel leaking to the AFL, club, journo or mate is essentially zero. This panel is comprised of people who are well above that level of bulltish.

Fact is nobody has a realistic clue about the eventual outcome.

The only prediction I think is a realistic chance of occurring is the repositioning of the burden of proof. I think AFL tribunal set it too high by dismissing the production of TB4 out of China when there weren't real grounds for dismissing the supplier's claims. Note that still doesn't put TB4 at the club.

We also do not have any knowledge of the evidence submitted, the arguments submitted by WADA around that evidence or even the context surrounding the supposed 'elevated levels'.

Unless somebody can fill in all or most of those gaps, they are just not in any position to predict any outcome

Agreed, and if you think about it CAS lasted five days, closing statements started Thursday, players were interviewed over two days (based on media reports) and there were expert witnesses on the "elevated tests", throw in opening statements that's pretty much accounts for the whole 5 days. This would suggest most arguments and evidence were submitted before hand and not discussed in details at CAS like the tribunal did for days on end. So even if Richard Young performed better in the room it's not necessary a reflection of the details case but more the big picture overview.

 

[Randomizor]

Alright I really don't know who to side with on the argument of Doctor Reid's actions.

The relevant section of the code:

7.4 Before the commencement of the AFL Competition in each year each Player must advise his Club Medical Officer in writing of all substances and medications he is taking or using or has taken or used since the last Match in which the Player participated in the previous year. The Player must promptly advise his Club Medical Officer in writing of all substances and medications he subsequently takes or uses during the AFL Competition in that year. Each Club Medical Officer must maintain and keep a written record in respect of each Player of all substances and medications so advised to him. Such records will be the property of the Club.
Sanction for breach: minimum 10 Penalty Units (refer clauses 14.9 & 14.10)

So the appointed Club Medical Officer is obligated to record and maintain substances he is told of by a player. The player also must keep the Medical Officer updated on any substances or medications they take during the year. If Reid was unaware of a substance a Player took, it's because a Player failed to inform him - in itself a breach of this clause. If they informed him and he did not keep and maintain an accurate written record, he is also in breach of this clause.

That's the obligations part of it, which I think everyone agrees with?

7.7 Each Club must:
...
(l) ensure that its Players and Club Medical Officers comply with their obligations under clauses 5.1(a), 7.4 and 7.5;
...
Sanction for breach: minimum 10 Penalty Units (refer clauses 14.9 & 14.10)

So the club is definitely obligated to ensure that the players and Medical Officers are compliant. In this case, does the obligation make it their responsibility?

Let's move to section 14 - Sanctions.

14.9
(a) Where the AFL General Manager - Football Operations determines that a Club and/or any other person has committed a breach of:

clause 3.2;
clause 5.1;
clause 7.4;
clause 7.7;
clause 10.9;
clause 12.2;
clause 12.3;
clause 12.7;
or clause 12.8

of this Code, the Club and/or the other person concerned are subject to a fine of 10 Penalty Units, provided that if the AFL General Manager - Football Operations believes a greater sanction ought apply, he may refer the matter to the Tribunal for its determination as to whether any greater sanction ought be imposed.

Both Section 7.4 and 7.7 are directly linked to 14.9 - Both the section outlining the CMO and Player's obligations, and the section outlining the Club's obligations are directly linked to the section outlining sanctions.

I cannot, then, see an argument that the failure of the CMO to keep an accurate record of substances used by a Player is a responsibility that falls only to the Club with any definition of responsibility.

If the Player fails to inform the CMO of a substance taken, then the Player and Club are in breach of the code but the CMO bears no responsibility. If the CMO fails to maintain records of a substance after being informed by the Player of it's use, the Club and CMO are in breach of the code but not the Player.

-------

So if Dr. Reid was informed about any substance and he did not record it, he failed in his responsibilities and should have been found in breach of the code. If he didn't, well it's harsh to expect him to keep a record about something of which he is unaware.

Jade seems to be suggesting this as well. So I think I'm siding there for now.


A few devil's advocate questions though:

AFL charge sheet only states that Reid approved AOD for use and not that he kept a record of it, so was he informed by any players of their AOD use?
If so, is there anywhere it explicitly states that his records of player's supplements and medications included AOD?

 

[Crankyhawk]

So they are 'cheating' but not 'cheats'. Ooohhhhh sort of struggling around this one aren't we?

And strawman hey? Your words not mine, breaching even simple rules is cheating - according to you. Thus, every player that has ever had a free kick paid against is a cheat.

Do you not suspect that IF Jobe is found guilty that the AFL won't act to strip the Brownlow. Remember, AFL is only caring about the image of the game, not about whether anything follows due process.

So while not saying that it is right or fair I think the AFL will take the Brownlow if Jobe is guilty at CAS.

 

[Argy]

No. His responsibility was to record what he was told. And he did that.

He was responsible for recording what the players took regardless of where that information came from. He knew they had taken AOD, but failed to document it, or maintain the documentation

Dr Reid was responsible for recording what he was told players were administered. To this point, no one has accused him of not doing this.

Look, it's not rocket science.

He knew they were administered AOD, but the club says there are no records. Either he failed to record that information, failed to maintain it, or the club and he are lying about the lack of records.

It is ENTIRELY possible (and I would go as far as to say very, very likely), that Dr Reid could record everything he was told, and for the club to still not know exactly what substances were administered.

The club owns all records he made and/or maintains.

 

[Crankyhawk]

This repeated linking of the Essendon case to historical cases of systematic doping does no one any favours, including WADA likening the Essendon case to the Balco case. The main reason is the substances involved in the Essendon case are not in the same ball-park as Balco, the East Germans, or Lance Drugstrong for that matter; if Essendon had clearly used performance-enhancers such as steroids, EPO, HGH etc that would be fair enough, but they didn't and there is doubt over the performance-enhancing aspect of the drugs the Bombers took, which if they are performance-enhancing seems to be incremental at most.

To illustrate this point you only have to look at those other cases; the difference in the times of the Tour de France from about 1994 onwards show something like a 15-18% improvement within the space of a few years, for example. Its obvious when you look at historical times that from about that year onwards quite a few riders in the peleton were on the juice. The reason Drugstrong stood out above all was not only his ability to get the best drugs, but also his ability to cover his tracks, but most importantly he was an extremely high-responder in terms of the effect EPO/steroids etc had on his body.

If Essendon were taking substances similar in those other cases, we would have won every game, and most games by 80 points, and would have won the Premiership with ease. Clearly, this didn't happen; I repeatedly see journalists making this trite and sloppy linkage between the Essendon case and the Drugstrong case just because "its drugs in sport" without any real understanding of any of the cases they refer to. Peter Fitzsimmons from Fairfax is a case in point; basically just can't be bothered to do his job to any degree of accuracy and prefers to be a tub-thumper like a radio-shock-jock rather than being an actual journalist.

I thought Essendon won lots of games early in 2012 before getting destroyed by soft tissue injuries. Weren't they 8-1 before playing Melbourne?

 

[Argy]

I thought Essendon won lots of games early in 2012 before getting destroyed by soft tissue injuries. Weren't they 8-1 before playing Melbourne?

He's using the "only a little bit pregnant" defence.

 

[compact72]

Solid post.

I have no doubt that Richard Young presented a bloody good case - it's what he does. So when I hear 'wow! Young presented an outstanding case!' I can believe it. Everything I've seen from ASADAs prosecution says they set a really low bar to top.

Having said that, absolutely no one knows what the panel is thinking. I have NFI and don't pretend to.

I think that, with the exception of a few 'special' people on this board, we'll all just be happy to see this shit done with.

With the dollars he will be getting paid, you would expect him to do well.

Interesting that they are saying Essendon will know by Xmas, as that's next week.

Perhaps CAS will say their verdict and suspensions (if any) and release findings later on.

Either way, still don't expect to know before Xmas, it's just too quick

 

[Jade]

Alright I really don't know who to side with on the argument of Doctor Reid's actions.

The relevant section of the code:



So the appointed Club Medical Officer is obligated to record and maintain substances he is told of by a player. The player also must keep the Medical Officer updated on any substances or medications they take during the year. If Reid was unaware of a substance a Player took, it's because a Player failed to inform him - in itself a breach of this clause. If they informed him and he did not keep and maintain an accurate written record, he is also in breach of this clause.

That's the obligations part of it, which I think everyone agrees with?



So the club is definitely obligated to ensure that the players and Medical Officers are compliant. In this case, does the obligation make it their responsibility?

Let's move to section 14 - Sanctions.



Both Section 7.4 and 7.7 are directly linked to 14.9 - Both the section outlining the CMO and Player's obligations, and the section outlining the Club's obligations are directly linked to the section outlining sanctions.

I cannot, then, see an argument that the failure of the CMO to keep an accurate record of substances used by a Player is a responsibility that falls only to the Club with any definition of responsibility.

If the Player fails to inform the CMO of a substance taken, then the Player and Club are in breach of the code but the CMO bears no responsibility. If the CMO fails to maintain records of a substance after being informed by the Player of it's use, the Club and CMO are in breach of the code but not the Player.

-------

So if Dr. Reid was informed about any substance and he did not record it, he failed in his responsibilities and should have been found in breach of the code. If he didn't, well it's harsh to expect him to keep a record about something of which he is unaware.

Jade seems to be suggesting this as well. So I think I'm siding there for now.


A few devil's advocate questions though:

AFL charge sheet only states that Reid approved AOD for use and not that he kept a record of it, so was he informed by any players of their AOD use?
If so, is there anywhere it explicitly states that his records of player's supplements and medications included AOD?

Damn good post. I agree with it almost entirely. My only quibble (and it is a small one) is this:

14.9
(a) Where the AFL General Manager - Football Operations determines that a Club and/or any other person has committed a breach of:

clause 3.2;
clause 5.1;
clause 7.4;
clause 7.7;
clause 10.9;
clause 12.2;
clause 12.3;
clause 12.7;
or clause 12.8

of this Code, the Club and/or the other person concerned are subject to a fine of 10 Penalty Units, provided that if the AFL General Manager - Football Operations believes a greater sanction ought apply, he may refer the matter to the Tribunal for its determination as to whether any greater sanction ought be imposed.

The quibble, the specific breach still needs to have occurred. Ie, all parties are NOT responsible for each clause. That is, not all parties can be held accountable for a breach not specific to them.

Otherwise, a very good post.

As for your final comment, to my knowledge no record of the records has ever been made public; but I would say they continued mention of AOD and Reid in the trumped up charge sheet indicates that whatever unknown records exists, it was there.

 

[Jade]

Do you not suspect that IF Jobe is found guilty that the AFL won't act to strip the Brownlow. Remember, AFL is only caring about the image of the game, not about whether anything follows due process.

So while not saying that it is right or fair I think the AFL will take the Brownlow if Jobe is guilty at CAS.

I was being a bit, shall we say, cheeky.

If EVERY rule breach meant a Brownlow must be stripped, we'd have no Brownlow medalist. And anti-doping breaches have never been part of the criteria for a Brownlow.

To answer your question, I suspect (and it is totally a guess) that in the event Jobe Watson is found guilty of a doping offense, the Brownlow will not be stripped unless CAS themselves order it (which I highly doubt).

 

[Crankyhawk]

I think you're giving him far too much credit frankly.

This is what he said. His verbatim comments.

"Quite simply, if the BALCO cases had been decided under the principles followed by the AFL tribunal, none of the BALCO people would have been sanctioned,"

That is demonstrably wrong. NONE of the balco people would have been sanctioned? Really? Even the ones with positive tests?

Far too much energy has been spent by people defending this. If you agree that NONE of the balco cases would have been sanctioned if they were heard by the AFL tribunal then you're an idiot, plain and simple. I'm sure you don't believe that, so I can't for the life of me understand why it's so important to hypothesise about what he didn't say come up with some kind of underlying consistency for what is clearly a really stupid comparison.

If Howman had come out and simply said: "we believe the AFL tribunal applied a burden of proof inconsistent with previous cases WADA have prosecuted, and if it is upheld we believe it will be difficult to sustain prosecutions moving forward; therefore we see it as an important principle to subject to further independent scrutiny" then I would have had no issue with it whatsoever.

But he didn't. He made an emotive and silly claim that doesn't stack up, no matter how much hypothesising anyone does.

Agree that he overreached in the statement but was trying to reference the BALCO athletes who did not test positive but were banned based on testimony of others (some of whom I think did test positive and were willing to turn evidence)

 

[Argy]

If EVERY rule breach meant a Brownlow must be stripped, we'd have no Brownlow medalist. And anti-doping breaches have never been part of the criteria for a Brownlow.

The rule is that players who have been disqualified during the year cannot win. If Jobe is found guilty and disqualified then he must return the medal.

 

[Jade]

He was responsible for recording what the players took regardless of where that information came from. He knew they had taken AOD, but failed to document it, or maintain the documentation

Did he? Prove it. I've offered several sources that suggest he DID record it - show me that he didn't.

Look, it's not rocket science.

He knew they were administered AOD, but the club says there are no records. Either he failed to record that information, failed to maintain it, or the club and he are lying about the lack of records.

Is that so? Show me where the club has said no records exist.

The club owns all records he made and/or maintains.

Indeed they do. Isn't that nice.

 

[Jade]

The rule is that players who have been disqualified during the year cannot win. If Jobe is found guilty and disqualified then he must return the medal.

Is that the rule is it?

Wanna go and have a look see before I respond?

 

[Crankyhawk]

Sam MaClure saying Richard Young has all but nailed the players to a guilty finding.

Unsurprising, Young is after all the prosecution representative. Now if the defence representative came out and said this, it would be more indicative of what was happening.

 

[Muggs]

I was being a bit, shall we say, cheeky.

If EVERY rule breach meant a Brownlow must be stripped, we'd have no Brownlow medalist. And anti-doping breaches have never been part of the criteria for a Brownlow.

To answer your question, I suspect (and it is totally a guess) that in the event Jobe Watson is found guilty of a doping offense, the Brownlow will not be stripped unless CAS themselves order it (which I highly doubt).

I would not be surprised to see CAS strip it if the players are found guilty. They have a tendency to strip awards from the time the offense, and do in most cases. If they found guilty in part due to the new "elevated tests" would not be surprised to see this testing date be the start of a back dated sentence if some no sig. fault discount is applied. It would fit in with with normal WADA code back dating principles.

 

[compact72]

Either way the verdict, I actually feel sorry for the players if their managers are out there spreading the word and even commenting on it. I don't think they should even be involved. It should be the players vs WADA, that is all.

If it's through the families with all these "leaks", they should STFU and respect the other 33 players

 

[TropperFarquhar]

Unsurprising, Young is after all the prosecution representative. Now if the defence representative came out and said this, it would be more indicative of what was happening.

MaClure said the CAS people were very impressed by Young's case. So much so that they were looking at ASADA's previous presentation in a different way.

 

[LoungeLizard]

Oh totally.

Except not at all....

Every charge sheet levelled against him said he did.

You're arguing that a verifiable fact isn't a fact.

Makes you extraordinarily invested. As in, you're so tired to an idea of "the truth", that even having a fact presented to you is not enough to sway you.

It is, to my great amusement, the very definition of delusional.

Glad you find it amusing, as i do.
You actually think the club is to document players medical records BWahahahaha.
Well really it's not so funny, because the doc is hired by the club, therefore is part of the club.
You actually think that the doc didn't know, now that is hilarious.

 

[Crankyhawk]

I was being a bit, shall we say, cheeky.

If EVERY rule breach meant a Brownlow must be stripped, we'd have no Brownlow medalist. And anti-doping breaches have never been part of the criteria for a Brownlow.

To answer your question, I suspect (and it is totally a guess) that in the event Jobe Watson is found guilty of a doping offense, the Brownlow will not be stripped unless CAS themselves order it (which I highly doubt).

I also think that CAS wouldn't order it themselves.

But the AFL have a history of shifting goalposts and if they thought there was a benefit to stripping the medal that outweighed any negative publicity I believe (also a guess) that they would strip it.

 

[compact72]

MaClure said the CAS people were very impressed by Young's case. So much so that they were looking at ASADA's previous presentation in a different way.

You also have to remember, Malcom Holmes is no fool, either is David Grace.

Grace saved them big time, as he was getting to Holmes. Grace could clearly be the better lawyer, as Holmes had a outburst of Grace annoying him half with through the tribunal

 

[Muggs]

Either way the verdict, I actually feel sorry for the players if their managers are out there spreading the word and even commenting on it. I don't think they should even be involved. It should be the players vs WADA, that is all.

If it's through the families with all these "leaks", they should STFU and respect the other 33 players

Also would not put it past the AFL if they been given a heads up, or people within EFC either.

Frankly would not put it past most of the secondary parties to leak it, with the main parties the players and WADA being tight lipped.

 

[LoungeLizard]

Alright I really don't know who to side with on the argument of Doctor Reid's actions.

The relevant section of the code:



So the appointed Club Medical Officer is obligated to record and maintain substances he is told of by a player. The player also must keep the Medical Officer updated on any substances or medications they take during the year. If Reid was unaware of a substance a Player took, it's because a Player failed to inform him - in itself a breach of this clause. If they informed him and he did not keep and maintain an accurate written record, he is also in breach of this clause.

That's the obligations part of it, which I think everyone agrees with?



So the club is definitely obligated to ensure that the players and Medical Officers are compliant. In this case, does the obligation make it their responsibility?

Let's move to section 14 - Sanctions.



Both Section 7.4 and 7.7 are directly linked to 14.9 - Both the section outlining the CMO and Player's obligations, and the section outlining the Club's obligations are directly linked to the section outlining sanctions.

I cannot, then, see an argument that the failure of the CMO to keep an accurate record of substances used by a Player is a responsibility that falls only to the Club with any definition of responsibility.

If the Player fails to inform the CMO of a substance taken, then the Player and Club are in breach of the code but the CMO bears no responsibility. If the CMO fails to maintain records of a substance after being informed by the Player of it's use, the Club and CMO are in breach of the code but not the Player.

-------

So if Dr. Reid was informed about any substance and he did not record it, he failed in his responsibilities and should have been found in breach of the code. If he didn't, well it's harsh to expect him to keep a record about something of which he is unaware.

Jade seems to be suggesting this as well. So I think I'm siding there for now.


A few devil's advocate questions though:

AFL charge sheet only states that Reid approved AOD for use and not that he kept a record of it, so was he informed by any players of their AOD use?
If so, is there anywhere it explicitly states that his records of player's supplements and medications included AOD?

Oh yes he was informed all right, ask NLM