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Peter Gordon explores Swiss appeal and injunction on suspension

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Interesting read. However the anti doping code would never work at all if we practiced it in the way he'd want us too. Cheats would easily outsmart the system.

He fails to address the main problem the players had. They failed miserably in following the simple rules spelt out to them in no uncertain terms. After receiving injections they'd never had before, they could not verify what was in those injections. They never checked, never documented and never did what they've been lectured to do on countless occasions. So, even if they truly didn't know they were possibly administered banned drugs, they have to cop a punishment because of their stupidity.

If I inject a drug into a patient with good intentions but never check what it is that I gave and it leads to a poor outcome, I could lose my job. An investigation would show that I acted in an unprofessional manner. I cannot argue my case because I simply did the wrong thing, even if I had no harmful intent in my actions. I should know the basic rules of my job, just like the players should know the basic rules of drug taking.
 
What any appeal is going to ultimately come down to is whether on the comfortable satisfaction level was set way too low or the aFL's was way too high.

No, it won't. An appeal would come down to procedural and fundamental legal matters, such as whether all parties were given the ability to be heard.

The merits of the dispute have been adjudicated.
 
Interesting read. However the anti doping code would never work at all if we practiced it in the way he'd want us too. Cheats would easily outsmart the system.

He fails to address the main problem the players had. They failed miserably in following the simple rules spelt out to them in no uncertain terms. After receiving injections they'd never had before, they could not verify what was in those injections. They never checked, never documented and never did what they've been lectured to do on countless occasions. So, even if they truly didn't know they were possibly administered banned drugs, they have to cop a punishment because of their stupidity.

If I inject a drug into a patient with good intentions but never check what it is that I gave and it leads to a poor outcome, I could lose my job. An investigation would show that I acted in an unprofessional manner. I cannot argue my case because I simply did the wrong thing, even if I had no harmful intent in my actions. I should know the basic rules of my job, just like the players should know the basic rules of drug taking.
If you injected a player with a substance that your chemist told you was legit, would you still lose your job? And to that effect, does anyone in the AMA ever lose their job for anything but gross negligence?

How about you convince your fellow doctors to sign up to strict liability and then go and lecture the players about it? :p
 
Haha seemed to work fine for the NRL players- that's the model going forward
Had the essendon players accepted the deal offered by ASADA, like the NRL players did, WADA wouldn't have got involved and they'd be playing this year

Instead they refused to acknowledge that Dank gave them a banned substance (TB4) and knocked back the offer of a sweetheart deal

The model going forward is not to run a pharmacological experiment on your playing group
 

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No, it won't. An appeal would come down to procedural and fundamental legal matters, such as whether all parties were given the ability to be heard.

The merits of the dispute have been adjudicated.

Isn't public policy grounds for an appeal? Do you think they could make a case for examination of how the 'comfortable satisfaction' standard was applied under public policy grounds or have I misunderstood what that part means?
 
once again Lance -

the government would never accept the AFL pulling out of WADA.

It would simply be too embarrassing for Australia.

The Australian government was instrumental in setting up WADA, in writing the WADA code and the former President (for 5 years) is the former (Liberal) NSW Premier John Fahey.

The Australian government also signed (in 2007) the UNESCO International Treaty against doping in sport, which agrees to adopt measures against doping. "The UNESCO Convention is a practical and legally binding tool enabling governments to align domestic policy with the WADA code." (wiki)

there is absolutely no chance whatsoever that the government would stand by and watch one of Australia's mainstream sports say to the world that WADA is too strict, doesnt apply or isnt acceptable for Australian sports. Any government - Liberal or Labor - would use every power they had, including as a first step financial punishments, to ensure that ALL major Australian sports continue to be WADA accredited sports.

So - for the last time, can we please stop this fallacy that there is any chance at all that the AFL will pull out of WADA - or that if they made any move to do so, that the government would not step in.

It also begs the question for what benefit? To save Essendon :rolleyes: What other benefit is there?
 
Had the essendon players accepted the deal offered by ASADA, like the NRL players did, WADA wouldn't have got involved and they'd be playing this year

Instead they refused to acknowledge that Dank gave them a banned substance (TB4) and knocked back the offer of a sweetheart deal

The model going forward is not to run a pharmacological experiment on your playing group
Some of the NFL players accepted a deal. Those who didn't accept a deal and refused to talk in interviews got off scot free. That's the system that the players are unfortunately signed up to.

So we've got a sliding scale:

Essendon players who cooperated in interviews but didn't take a deal from the prosecutor: 2 year bans
Cronulla players who didn't cooperate in interviews but took a deal: 3 weeks
Cronulla players who didn't cooperate in interviews and refused to take a deal: Scot free.

Justice!
 
once again Lance -

the government would never accept the AFL pulling out of WADA.

It would simply be too embarrassing for Australia.

The Australian government was instrumental in setting up WADA, in writing the WADA code and the former President (for 5 years) is the former (Liberal) NSW Premier John Fahey.

The Australian government also signed (in 2007) the UNESCO International Treaty against doping in sport, which agrees to adopt measures against doping. "The UNESCO Convention is a practical and legally binding tool enabling governments to align domestic policy with the WADA code." (wiki)

there is absolutely no chance whatsoever that the government would stand by and watch one of Australia's mainstream sports say to the world that WADA is too strict, doesnt apply or isnt acceptable for Australian sports. Any government - Liberal or Labor - would use every power they had, including as a first step financial punishments, to ensure that ALL major Australian sports continue to be WADA accredited sports.

So - for the last time, can we please stop this fallacy that there is any chance at all that the AFL will pull out of WADA - or that if they made any move to do so, that the government would not step in.
And didn't the High Court find those agreements are binding (Franklin Damn???)
 
It also begs the question for what benefit? To save Essendon :rolleyes: What other benefit is there?
It's too late to save Essendon mate but I'd almost guarantee that they will make some serious changes to the way that the code is implemented.
 
You guys are all too short sighted to see that this is actually BAD for anti doping

The players cooperated
The league cooperated
WADA threw that cooperation in their face

You think that any player or league is going to cooperate in future? You think that the AFLPA will compel players to speak to ASADA?

They won't. They'll play a straight bat amnesia defense - find your own evidence.

A 'shot across the bow' for anti doping my arse
Players co-operated? Bullshit!

"Aww umm yeah I kinda remember the name of the drug you mentioned but I dunno... ummm..."
 
Isn't public policy grounds for an appeal? Do you think they could make a case for examination of how the 'comfortable satisfaction' standard was applied under public policy grounds or have I misunderstood what that part means?

That'd be so much of a stretch I don't think they'd even attempt it. That's really getting at the application of the law which they won't want to touch except in absurd situations where it truly was not open to make the decision.

Public policy is getting at much more fundamental things. E.g. in the past people have (unsuccessfully) challenged the strict liability nature of the WADA Code as being against public policy.

This paper is good on the topic http://m.jids.oxfordjournals.org/content/1/1/217.full.pdf:

"Among the principles that can be considered as belonging to public policy within the meaning of Article 190(2)(e) PILA the Supreme Court invariably lists ‘the doctrine pacta sunt servanda, the prohibition against abuse of contractual or legal rights, the principle of good faith, the prohibition of expropriation without compensation, the prohibition against discrimination and the protection of minors and other persons incapable of legal acts’."

Read also:

"In the field of sports arbitration, the violation of public policy is most often raised (without success) with regard to doping sanctions. Applying the above-mentioned principles, the Supreme Court has found in particular that:
— The so-called ‘strict liability’ principle and the imposition of doping sanctions regardless of the effect of prohibited substances on athlete’s performances are not contrary to public policy.182 Doping sanctions being private in nature, the athletes cannot rely on the principle of the presumption of innocence under Article 190(2)(e) PILA.
— Both the automatic annulment of the results obtained and the imposition of a two-year ineligibility period as a consequence of doping, without taking into account the degree of fault attributable to the athlete, do not amount to breaches of public policy.183 The fact that athletes may be (and often) are treated unequally does not amount to a discrimination giving rise to a breach of Article 190(2)(e) PILA as interpreted by the Supreme Court."
 

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How is that not cooperating?
It's called "being obtuse".

But let's believe they all genuinely couldn't recall what they took. Or thought they only got the occasional shot of vitamins. And forgot multiple injections each time they were asked, despite the emphasis on the revolutionary nature of the program, the off-site injections, the new specialist staff chasing them around asking if they had gotten their jabs that day, the meetings, the forms, the "concerns" raised, the texts between players discussing side effects.

Players were complicit. Played dumb when it suited them. They were lucky to get a backdated judgement.
 
I should also add an extra bit from the article I just cited from:

'Furthermore, the Supreme Court considers that even a manifestly wrong application of a rule of law or an evidently false factual finding do not justify the setting aside of an award.185 As a result, one can fairly say that, in practice, arbitrators enjoy an almost absolute freedom as to how they decide a case on its merits—the Supreme Court’s control in this respect being virtually non-existent.'

Antonio Rigozzi, 'Challenging Awards of the Court of Arbitration for Sport' (2010) 1 Journal of International Dispute Settlement 217

http://m.jids.oxfordjournals.org/content/1/1/217.full.pdf
 
It's too late to save Essendon mate but I'd almost guarantee that they will make some serious changes to the way that the code is implemented.

Why? It is easier to just comply with the code. The options are accept the code for what it is or opt out. And opting out is not really an option. The next time the AFL get a sniff of something like this they will manage it much differently.

Any appeal will be no win, no fee.

We know that:

Slater and Gordon are involved indirectly.
AFLPA have their lawyers on the case.
Players have their own individual legal minds in on it as well.

No win no fee my arse. Slater and Gordon are already leaking cash and this is certainly not their panacea

and the AFLPA - LMAO. There is a supremely incompetent organisation
 
Any appeal will be no win, no fee.

We know that:

Slater and Gordon are involved indirectly.
AFLPA have their lawyers on the case.
Players have their own individual legal minds in on it as well.

Absolute bullshit. No win no fee cases are sure bets for the lawyers and they get a huge cut of any settlement or court awarded damages. Slater and Gordon are in a potentially fatal downward spiral (check their share price) and will not be doing anything for free.

There may be Essendon sympathetic lawyers who might look at taking a case on pro bono or for reduced fees but I'd be surprised if that happened. More likely coteries tapped and tins rattled to fund legal fees for an appeal.
 
It's called "being obtuse".

But let's believe they all genuinely couldn't recall what they took. Or thought they only got the occasional shot of vitamins. And forgot multiple injections each time they were asked, despite the emphasis on the revolutionary nature of the program, the off-site injections, the new specialist staff, the meetings, the "concerns" raised.

Players were complicit. Played dumb when it suited them. They were lucky to get a backdated judgement.
I think it's conceivable. A player's focus is training and playing football. In the end they trusted those in charge at the club at the time with the supplements and were horribly let down.
 

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No win no fee is crap and you still have to pay Disbursements win or lose and these can be huge money depending on the case and a heap of factors.

Lawyers never lose.
 
I think it's conceivable. A player's focus is training and playing football. In the end they trusted those in charge at the club at the time with the supplements and were horribly let down.
And what of the ASADA training they receive every year.
Do you think they just forgot that too, after all Dustin Fletcher had only done it 20 times
 
I think it's conceivable. A player's focus is training and playing football. In the end they trusted those in charge at the club at the time with the supplements and were horribly let down.
You're trying to frame it as a passive state. It was done to the players, they did nothing of their own accord.

This is a false view. They actively deceived ASADA drug testers. At least one actively deceived his personal doctor and club doctor. At least one actively deceived the public with the "only vitamins" statement. And these are just the things we know about.
 
I think it's conceivable. A player's focus is training and playing football. In the end they trusted those in charge at the club at the time with the supplements and were horribly let down.

So sue the club.

The player is still responsible, just like when a Chinese swimmer who has been part of a state run drug program from the age of 12 get caught, they carry the can. Unfortunately for them they probably don't have such a favourable legal system awaiting them but they are Chinese swimmers so who cares.
 
And what of the ASADA training they receive every year.
Do you think they just forgot that too, after all Dustin Fletcher had only done it 20 times
I think it's just as if not more conceivable as proclaiming they were all complicit.

They only focus on that when they are doing that, if it was 100% focus, they would burn out in 1 year.
No they wouldn't. And haven't.

You're trying to frame it as a passive state. It was done to the players, they did nothing of their own accord.

This is a false view. They actively deceived ASADA drug testers. At least one actively deceived his personal doctor and club doctor. At least one actively deceived the public with the "only vitamins" statement. And these are just the things we know about.
Not at all. What they did of their own accord was trust the club when it said everything was legal.

So sue the club.

The player is still responsible, just like when a Chinese swimmer who has been part of a state run drug program from the age of 12 get caught, they carry the can. Unfortunately for them they probably don't have such a favourable legal system awaiting them but they are Chinese swimmers so who cares.
Sorry where did I say the player wasn't responsible?
 
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