Peter Gordon explores Swiss appeal and injunction on suspension

[imperial_oz]

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."

I'm just reading that now and I note that it states "Once the jurisdiction of the arbitrators is established, the Supreme Court considers that it is not its role to supervise or second-guess the arbitrators’ decision-making process"

Thats going to make it hard for any appeal based on how the 'comfortable satisfaction' standard was applied very difficult, if not impossible. I just cannot see any appeal being raised on the procedural aspects of the CAS hearing as those procedures were well established and all parties confirmed their agreement at the conclusion of the hearing. Its really hard to see anything at this point that the Swiss Supreme Court would agree to accept.

I was thinking that an examination of the 'comfortable satisfaction' standard would be both interesting and valuable but it pretty much looks that any consideration of that will never happen. Maybe the Swiss lawyers will be in a better position to provide advice

 

[andrewb]

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've said it before, but unless you can pull up a set of doping control forms showing that all AFL players are specifying all the supplements that they are taking, this is no evidence of intent.

Let's take Brent Guerra and his orthokine injections at Hawthorn. Did he specify the substances in those injections on his DC form?

Let's take Chris Judd and his infamous blue drink. Did he specify the contents of that on his DC form?

Let's take the Geelong players and their (Dank supplied) Tribulus. Did that appear on their DC forms?

Players are given stuff by their club dieticians, club sports scientists and club doctors all the time and I'll guarantee they don't know what is in that stuff down to a molecular level.

The players were aware that what they were doing was on the edge, which is why they pushed for the consent forms. They were never aware that what they were doing was over the edge.

They trusted the wrong guy - and he's been shown to have duped the players at cronulla, GCS, melbourne, baseball teams, etc - they are not on their pat. Unless you think it's some sort of grand doping scheme between all the players at all those clubs then you can't plausibly attach intent to anyone except Dank and Robinson.

 

[ChrisKaias]

I'm just reading that now and I note that it states "Once the jurisdiction of the arbitrators is established, the Supreme Court considers that it is not its role to supervise or second-guess the arbitrators’ decision-making process"

Thats going to make it hard for any appeal based on how the 'comfortable satisfaction' standard was applied very difficult, if not impossible. I just cannot see any appeal being raised on the procedural aspects of the CAS hearing as those procedures were well established and all parties confirmed their agreement at the conclusion of the hearing. Its really hard to see anything at this point that the Swiss Supreme Court would agree to accept.

I was thinking that an examination of the 'comfortable satisfaction' standard would be both interesting and valuable but it pretty much looks that any consideration of that will never happen. Maybe the Swiss lawyers will be in a better position to provide advice

The reports that Gordon has referred the matter to the Swiss lawyers is why I still don't think the appeal is a guarantee. I hope the players take the advice of the Swiss lawyers seriously.

 

[LoungeLizard]

I think it's just as if not more conceivable as proclaiming they were all complicit.


No they wouldn't. And haven't.


Not at all. What they did of their own accord was trust the club when it said everything was legal.


Sorry where did I say the player wasn't responsible?

If you think an athlete focuses 100%, you a way wrong.
Also the statement you made doesn't really make sense, the drug program was part of training anyway.

 

[Chief]

Not at all. What they did of their own accord was trust the club when it said everything was legal.

That's a passive state. "They didn't set out to cheat, the club did it for them and before they knew anything was wrong they were done for."

Rubbish. They actively deceived doctors, club staff, ASADA, the public.

 

[QuietB]

Sorry where did I say the player wasn't responsible?

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.

I must be reading it wrong

 

[Beerfish]

That's a passive state. "They didn't set out to cheat, the club did it for them and before they knew anything was wrong they were done for."

Rubbish. They actively deceived doctors, club staff, ASADA, the public.

Well I don't think they set out to cheat. I just think they were terribly ignorant, like a lot of football players seem to be. You think differently. That's life. Let's move on then because neither of us will convince the other either way.

I must be reading it wrong

Yeah you did. You're trying to imply that I don't think they should be responsible for their misplaced trust. Can you please highlight where I said or even implied they shouldn't be held responsible?

 

[Lance Uppercut]

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.

oh please. You merely provide reference to the unesco convention then jump to the conclusion that would naturally entail a hugely punitive responses from any government now and into perpetuity?!

And you accuse me of peddling fallacies?

I am not saying definitively one way or another. The government may respond like you think. They may well not, too. As I've previously stated, it would require spending political capital one way or another, whereas you have this simplistic view that governments would launch themselves into potentially bruising fights on the basis of an international treaty.

Now speaking of international treaties, please can you enlighten me as to your interpretation of the similiarly supposedly binding treaty that Australia is a signatory to, the Refugee Convention. Yeah, that seems to be a REAL iron binding on the government doesn't it... The fact is the government can and act as it pleases despite being a signatory to that supposedly binding treaty.

I've just stated that there's no proof a government now or in the future would sanction the afl for leaving wada and your response is that signing a treaty 10 years ago is that proof?? Er... what was that about fallacies again?

 

[Lance Uppercut]

It also begs the question for what benefit? To save Essendon What other benefit is there?

um, derp?

Even if the afl left wada tomorrow the EFC suspensions would stand

 

[Keys]

Well I don't think they set out to cheat. I just think they were terribly ignorant, like a lot of football players seem to be.

Agree with this and will add that in light of the decision by CAS, I think it's been exposed that it's not just the players that are terribly ignorant but many sections of the wider AFL industry including coaches, administrators (at club and league level) and media.

I think most other players would have done the same as what the Essendon players did, unfortunately for the Essendon group their club was the only one that let loose a mad scientist within their ranks under the cheerleading of an inexperienced and impatient coach who was indulged due to his club icon status

 

[lethalselbow]

Well I don't think they set out to cheat. I just think they were terribly ignorant, like a lot of football players seem to be. You think differently. That's life. Let's move on then because neither of us will convince the other either way.


Yeah you did. You're trying to imply that I don't think they should be responsible for their misplaced trust. Can you please highlight where I said or even implied they shouldn't be held responsible?

Didn't set out to cheat, but the fact they left stuff off their forms seems to tell us all that they knew something was dodgy. The only Essendon player to speak truthfully on the matter has told us they all knew it was suspicious.

They're drug cheats. Turning a blind eye doesn't stop that.

 

[Lance Uppercut]

And didn't the High Court find those agreements are binding (Franklin Damn???)

http://www.crikey.com.au/2012/11/29/crikey-clarifier-does-australias-refugee-policy-breach-un-rules/

yeah, real binding

 

[Beerfish]

Agree with this and will add that in light of the decision by CAS, I think it's been exposed that it's not just the players that are terribly ignorant but many sections of the wider AFL industry including coaches, administrators (at club and league level) and media.

I think most other players would have done the same as what the Essendon players did, unfortunately for the Essendon group their club was the only one that let loose a mad scientist within their ranks under the cheerleading of an inexperienced and impatient coach who was indulged due to his club icon status

Agree 100%. It makes me wonder where that leaves every other player now. You can't necessarily trust the people who are in charge of making sure what you allow to be put into your body is compliant. Strict liability dictates every player should now be checking every substance for themselves for peace of mind. I wonder if that's actually happening? You'd bloody hope so given what everyone has just witnessed at Essendon.

 

[QuietB]

um, derp?

Even if the afl left wada tomorrow the EFC suspensions would stand

And why would the suspensions stand if the code does not apply anymore. Didn't an English King once start his own religion just to get the outcomes he wanted

Anyway it is not happening, it is a lot lot easier to just comply with the code

 

[QuietB]

http://www.crikey.com.au/2012/11/29/crikey-clarifier-does-australias-refugee-policy-breach-un-rules/

yeah, real binding

I don't think there is the same political will for this subject

 

[Baltimore Jack]

I think it's just as if not more conceivable as proclaiming they were all complicit.

Collective Amnesia?
Come on, if there are the two possibilities;
One of collective amnesia or the other of deliberately withholding information they knew if discovered it would drop them in it, your choice is the first option?

 

[Beerfish]

Collective Amnesia?
Come on, if there are the two possibilities;
One of collective amnesia or the other of deliberately withholding information they knew if discovered it would drop them in it, your choice is the first option?

More like collective ignorance.

 

[sauce_head]

maybe, and no doubt I'm biased, and Gordon is biased (which he admits); but he makes some interesting points about how it could be considered manifestly unfair.

Points and examples:

• Players said to have delayed process by court action: wrong. They specifically didn't
• They said players should have pleaded guilty and that goes against them in sentencing: how is that reasonable to plead guilty in front of a tribunal that cleared them
• They said more players should have given evidence: all players who were asked gave evidence, and it was a 5 day window at the request of the panel
• Players who didn't mention thymosin on forms: many of them didn't and got done anyway
• Panel found players insisted Dank didn't travel interstate, which was used to impugn players: players weren't named and that was for good reason, because that's not what the players actually said, and how do they know every single club official who's there? Panel have used that one answer by one player, by Jobe, to impugn all players
• The fact that the de novo appeal option didn't exist under the 2010 rules, and it changed after the tribunal sat, and they changed the rules mid-course
• Unsure why they surpressed details on the dissenting panel member and why

Most likely outcome is that nothing will come of it, but I don't see how anyone could have an issue with an examination of a decision like that, surely

It's desperation in the extreme. I doubt an injunction would be granted for a perfectly rational decision anyway.

 

[ODNBlue]

More like collective ignorance.

But how could they be ignorant? How can professional sporting club remain ignorant of the code of behaviour they are signed up to and working under? How do they remain ignorant when they receive lectures from ASADA each year? How can they be considered ignorant when they actively sideline the club doctor? Ignorance doesn't cut it.

Twelve year old athletes know to be careful of what they ingest. Why not grown men?

 

[Baltimore Jack]

More like collective ignorance.

Which is probably more damning

 

[Beerfish]

But how could they be ignorant? How can professional sporting club remain ignorant of the code of behaviour they are signed up to and working under? How do they remain ignorant when they receive lectures from ASADA each year? How can they be considered ignorant when they actively sideline the club doctor? Ignorance doesn't cut it.

Twelve year old athletes know to be careful of what they ingest. Why not grown men?

I think there was a lot of ignorance in club land before this happened despite lectures from ASADA that happen every year that probably just became part of the timetable. Hopefully a lot less so now.

Which is probably more damning

Really? I would think intentionally doping would be more damning but each to his own.

 

[Just interested]

If you think an athlete focuses 100%, you a way wrong.
Also the statement you made doesn't really make sense, the drug program was part of training anyway.

To support your contention, LL, one just needs to look at how players are increasingly taking on work, education and other pursuits outside of their contractual requirements to play the game for the employer.

Much of that came from a recognition that 100% focus on the one thing, 24/7, is not possible, and when the focus naturally shifts it is better players focus on something that is to their benefit and helps get some balance into their lives. It's the channeling question.

 

[ODNBlue]

I think there was a lot of ignorance in club land before this happened despite lectures from ASADA that happen every year that probably just became part of the timetable. Hopefully a lot less so now.]

Yes. You're right of course. There was undoubtedly a lot of ignorance across most, if not all, clubs prior to this 'episode.' You would hope that isn't the case anymore. And yes, there has undoubtedly been a cavalier attitude to personal responsibility, which, once again, is hopefully not the case anymore. However, with the benefit of hindsight (as 20/20 as it is) no-one could claim actual ignorance of the rules considering the opportunities they had to be aware of them. People think ASADA come along at the start of the season and deliver some lecture that the players routinely ignore and that's it. It's simply not the case. ASADA can test the players ANYWHERE (where the players live must be reported to ASADA routinely; players can be tested overseas on holiday). The players KNOW they have to respond to ASADA requests in a timely manner. It's hard for me to fathom that you can have the onerous responsibility to do what ASADA says when they say it, without recognising that not doing what they say might come with consequences.

 

[Suma Magic]

I think as they realised they were in too deep they moved from ignorance towards conscience deception (through admission).

 

[Armchair Critic]

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!

The Cronulla players legal advisers were smart and challenged the legal process before the interviews. AT a later date a process was agreed to an the Cronulla players Co-operated with ASADA.

It is a huge stretch to say that Essendon players Co-operated and Cronulla players didn't.