ASADA defied as banned dog at work. 2/3: Prismall no longer working for Dogs

[sameolds33]

The make up of the panel and how it was appointed was the very crux of the Claudia Pechstein case, she could only select people appointed by sporting bodies, thus the potential for bias as not independant. Since that point in time CAS moved to have a more independant appointment process.

Maybe that was relevant to her case but in an action for abuse of market power here, the action would be against the AFL. From the same article, the argument would be that the AFL:

• has a substantial degree of power in the relevant market
• has used that power to compel the players to enter into highly restrictive arbitration agreements
• those arbitration agreements and the attendant consequences prevent those players from engaging in competitive conduct in the relevant market.

 

[gavaniacono]

Then where will I turn to for entertainment?

Our own club?

 

[sameolds33]

So he's not restricted by an award that is currently subject to a hearing? If not why can't he be employed?

He's being restrained, from yesterday, from working in his job by the AFL who are complying with their WADA obligations by enforcing the CAS Award. He's appealing the CAS decision in the Swiss court on various points of law.

 

[Ancient Tiger]

Playing devil's advocate, I'd say that the confusion yesterday could have been the AFL giving the players an opportunity to open the CAS award to further scrutiny by an Australian court.

But as Muggs said, the player and not the AFL is the one who is currently appealing in the Swiss Courts. How can the player start proceedings about restraint when the appeal he is involved in is still awaiting a decision? It makes legal sense for the appeal to be dealt with before any other legal matter, which may be influenced by the appeal, can be pursued.

 

[Muggs]

Maybe that was relevant to her case but in an action for abuse of market power here, the action would be against the AFL. From the same article, the argument would be that the AFL:

• has a substantial degree of power in the relevant market
• has used that power to compel the players to enter into highly restrictive arbitration agreements
• those arbitration agreements and the attendant consequences prevent those players from engaging in competitive conduct in the relevant market.

The same article also cites the Pescthein case as an example of how its done. The restrictive arbritaton agreement is as a result of a non independant arbitration panel. A independant panel that cames up with the agreement makes it much less likely it was restrictive. If it was a AFL appointed panel than there is a case.
Forcing independant mediation makes it much harder to say the AFL abused market power. They would of had a better argument if the AFL tribunal found them guilty!

 

[sameolds33]

But as Muggs said, the player and not the AFL is the one who is currently appealing in the Swiss Courts. How can the player start proceedings about restraint when the appeal he is involved in is still awaiting a decision? It makes legal sense for the appeal to be dealt with before any other legal matter, which may be influenced by the appeal, can be pursued.

not if they're different actions in different jurisdictions against different parties. In terms of timing it makes more sense to run the actions concurrently rather than sequentially (when the opportunity to take action for restraint of trade would be lost.)

 

[crowsup]

Yeah ok, and if I went in to the cops and made a statement htat HairyO punched me then stabbed me with a needle, and there was no other evidence. Would HairyO be convicted? Nope.

What if the guys go out for a few drinks at a few different pubs. One gets spiked? No idea what pub or what drink. There is no provision for that.

I wouldn't be too sure about the highlighted part. Except for the convicted part, I speak for first hand information that that does happen.
If you want more detail, PM me and I'll tell you.

 

[Ancient Tiger]

not if they're different actions in different jurisdictions against different parties. In terms of timing it makes more sense to run the actions concurrently rather than sequentially (when the opportunity to take action for restraint of trade would be lost.)

Why would it be lost if he waited for the appeal decision? If he won the appeal, he would get his job back then with back pay. If he waits and loses but then wins on his restraint case, he gets his job back with back pay. Either way he wins but he has to win one of the cases.

 

[sameolds33]

The same article also cites the Pescthein case as an example of how its done. The restrictive arbritaton agreement is as a result of a non independant arbitration panel. A independant panel that cames up with the agreement makes it much less likely it was restrictive. If it was a AFL appointed panel than there is a case.
Forcing independant mediation makes it much harder to say the AFL abused market power. They would of had a better argument if the AFL tribunal found them guilty!

I took the reference to the Pechstein case as being an example of a domestic court addressing a perceived injustices of the CAS/WADA system of dealing with anti-doping matters rather than being instructive on the substantive issues of that case.

 

[sameolds33]

Why would it be lost if he waited for the appeal decision? If he won the appeal, he would get his job back then with back pay. If he waits and loses but then wins on his restraint case, he gets his job back with back pay. Either way he wins but he has to win one of the cases.

because he's out of his job as of yesterday!

 

[Muggs]

I took the reference to the Pechstein case as being an example of a domestic court addressing a perceived injustices of the CAS/WADA system of dealing with anti-doping matters rather than being instructive on the substantive issues of that case.

Yet the Pechstien case was based on abuse of market power....

 

[Muggs]

because he's out of his job as of yesterday!

Still have not answered my question, was he sacked thus restrained from trade, or was he suspended, relieved of his duties but still paid thus still engaged in trade?

 

[sameolds33]

Still have not answered my question, was he sacked thus restrained from trade, or was he suspended, relieved of his duties but still paid thus still engaged in trade?

My understanding - from this thread - is that he's not allowed to do his job. Isn't that what all the fuss was about yesterday? That's what gives rise to a potential action. Not being allowed to do his job is the restraint of trade.

 

[Ancient Tiger]

I took the reference to the Pechstein case as being an example of a domestic court addressing a perceived injustices of the CAS/WADA system of dealing with anti-doping matters rather than being instructive on the substantive issues of that case.

We understand that BUT the Pechstein case is often quoted because it WAS successful. However, the reason why it was successful and how that does not apply now because of the much more stringent and fair selection process of the arbitration panel, is not often mentioned by those who bring up this case as a shining example.

 

[sameolds33]

Yet the Pechstien case was based on abuse of market power....

So?

 

[Muggs]

My understanding - from this thread - is that he's not allowed to do his job. Isn't that what all the fuss was about yesterday? That's what gives rise to a potential action. Not being allowed to do his job is the restraint of trade.

If he is still employed he has a job, the job just has no duties.

Being prevented from being employed is the restraint of trade.

 

[sameolds33]

We understand that BUT the Pechstein case is often quoted because it WAS successful. However, the reason why it was successful and how that does not apply now because of the much more stringent and fair selection process of the arbitration panel, is not often mentioned by those who bring up this case as a shining example.

I believe that the Pechstein case is now on appeal in Germany. I do not think that the makeup of the panel would be relevant in the players case, as outlined above.

 

[sameolds33]

If he is still employed he has a job, the job just has no duties.

Being prevented from being employed is the restraint of trade.

I don't agree. If you can't go to your place of work and can't speak to players when you are employed as a welfare officer you can't do your job. And that is what ASADA confirmed the rules provide.

 

[Ancient Tiger]

My understanding - from this thread - is that he's not allowed to do his job. Isn't that what all the fuss was about yesterday? That's what gives rise to a potential action. Not being allowed to do his job is the restraint of trade.

But you do not know if he is being paid which is crucial. If he is, he will have a hard time arguing about any restraint. The 12 players are continued to be paid by the EFC. How do we know if the FFC is not continuing to pay him?

 

[Muggs]

So?

Many of the arguments you are throwing up the German courts considered and rejected.

The Pechstien case is an interesting case as much for what was not seen as abuse of market power as to what was.

 

[sameolds33]

But you do not know if he is being paid which is crucial. If he is, he will have a hard time arguing about any restraint. The 12 players are continued to be paid by the EFC. How do we know if the FFC is not continuing to pay him?

no, I don't know if he's being paid. I don't believe that it is relevant for the reasons I outlined previously. It may be that he doesn't do anything so we'll never know but I think it's interesting that he now has a cause of action to have the CAS decision looked at by an Australian court.

 

[Muggs]

I don't agree. If you can't go to your place of work and can't speak to players when you are employed as a welfare officer you can't do your job. And that is what ASADA confirmed the rules provide.

On of the lawyers on here may know but pretty certain there is already precedent regarding employees being suspended with pay vs suspended without pay regarding restraint of trade. With pay there is no restraint as you still Employeed. It's why when police doctors etc investigate their own it's always suspension with pay as it prevents issues.

 

[sameolds33]

Many of the arguments you are throwing up the German courts considered and rejected.

The Pechstien case is an interesting case as much for what was not seen as abuse of market power as to what was.

Yes, it was interesting but I do not think that the players would argue along the same lines in an action against the AFL - perceived bias - in an Australian action.

 

[sameolds33]

On of the lawyers on here may know but pretty certain there is already precedent regarding employees being suspended with pay vs suspended without pay regarding restraint of trade. With pay there is no restraint as you still Employeed. It's why when police doctors etc investigate their own it's always suspension with pay as it prevents issues.

Maybe, as I said I was speculating about yesterday's events. It may be that nothing comes of it. Then again...

 

[Zgope1]

overall, it's undeniable that the AFL industry is a f***ing disgrace. Cut them off gov funding, these geezers don't deserve it. And my club's been one of the worst perpetrators, no eyes for the bigger picture at all