Leading Athlete advocate CAS lowered the bar, was two years or nothing

[Muggs]

Chip has an article in today's Australian.

http://www.theaustralian.com.au/new...e/news-story/e84c28265b4b4d984309394ea5c5199e

Quotes Howard Jacobs - key quotes.

"Mr Jacobs, who has argued more than 35 cases before CAS since 2002, said this finding -appeared inconsistent with past decisions where the World Anti-Doping Agency has tried to prove doping in the absence of a positive drugs test.

"One of the more surprising parts of the decision was the conclusion that, well, they all must have used it," Mr Jacobs told The Australian.

"These cases are supposed to be harder cases for WADA to win than cases where there is a -positive test. It does seem like the standard is relaxed a little bit here."

and

"It was essentially an -all--or-nothing case," he said. "It was -either going to be two years or no sanction. It was hard to find grounds for something in -between. As a threshold issue, to even argue for no significant fault the athletes would have had to -establish how the substance -entered their system. You can't -really do that when you are saying you didn't take it.

"Whenever I go to CAS, the -initial question is: if you know where it came from, are you better off to argue for a reduction as opposed- to going for no sanction at all?" The CAS panel was split 2-1 on the question of whether all players took Thymosin Beta-4 and should receive a -reduced penalty under a "no significant fault or negligence" provision of the World Anti-Doping Code.

Wasn't this the guy that the AFLPA wanted but EFC would not fund?

 

[compact72]

Chip has an article in today's Australian.

http://www.theaustralian.com.au/new...e/news-story/e84c28265b4b4d984309394ea5c5199e

Quotes Howard Jacobs - key quotes.

"Mr Jacobs, who has argued more than 35 cases before CAS since 2002, said this finding -appeared inconsistent with past decisions where the World Anti-Doping Agency has tried to prove doping in the absence of a positive drugs test.

"One of the more surprising parts of the decision was the conclusion that, well, they all must have used it," Mr Jacobs told The Australian.

"These cases are supposed to be harder cases for WADA to win than cases where there is a -positive test. It does seem like the standard is relaxed a little bit here."

and

"It was essentially an -all--or-nothing case," he said. "It was -either going to be two years or no sanction. It was hard to find grounds for something in -between. As a threshold issue, to even argue for no significant fault the athletes would have had to -establish how the substance -entered their system. You can't -really do that when you are saying you didn't take it.

"Whenever I go to CAS, the -initial question is: if you know where it came from, are you better off to argue for a reduction as opposed- to going for no sanction at all?" The CAS panel was split 2-1 on the question of whether all players took Thymosin Beta-4 and should receive a -reduced penalty under a "no significant fault or negligence" provision of the World Anti-Doping Code.

Wasn't this the guy that the AFLPA wanted but EFC would not fund?

Correct. They wanted somebody "closer" to the case. Silly decision

are you able to quote the whole article? Australian paywall is pretty good

 

[Linda Lovelace]

Is there more to the article? This opinion coming from someone who makes his living arguing against the sort of outcome CAS delivered is hardly newsworthy.

The appeal isn't focused on whether or not the bar for comfortable satisfaction was set too low. It doesn't matter any more.

But surely Ol Chip doesn't doesn't have a dog in this fight and these articles aren't pushing an agenda.

 

[compact72]

Is there more to the article? This opinion coming from someone who makes his living arguing against the sort of outcome CAS delivered is hardly newsworthy.

The appeal isn't focused on whether or not the bar for comfortable satisfaction was set too low. It doesn't matter any more.

But surely Ol Chip doesn't doesn't have a dog in this fight and these articles aren't pushing an agenda.

Howard Jacobs is a pretty good lawyer in CAS, and has done a very good job at getting players off or reducing their sentences.

Chip is irrelevant here

 

[DonsRule]

Chip has an article in today's Australian.

http://www.theaustralian.com.au/new...e/news-story/e84c28265b4b4d984309394ea5c5199e

Quotes Howard Jacobs - key quotes.

"Mr Jacobs, who has argued more than 35 cases before CAS since 2002, said this finding -appeared inconsistent with past decisions where the World Anti-Doping Agency has tried to prove doping in the absence of a positive drugs test.

"One of the more surprising parts of the decision was the conclusion that, well, they all must have used it," Mr Jacobs told The Australian.

"These cases are supposed to be harder cases for WADA to win than cases where there is a -positive test. It does seem like the standard is relaxed a little bit here."

and

"It was essentially an -all--or-nothing case," he said. "It was -either going to be two years or no sanction. It was hard to find grounds for something in -between. As a threshold issue, to even argue for no significant fault the athletes would have had to -establish how the substance -entered their system. You can't -really do that when you are saying you didn't take it.

"Whenever I go to CAS, the -initial question is: if you know where it came from, are you better off to argue for a reduction as opposed- to going for no sanction at all?" The CAS panel was split 2-1 on the question of whether all players took Thymosin Beta-4 and should receive a -reduced penalty under a "no significant fault or negligence" provision of the World Anti-Doping Code.

Wasn't this the guy that the AFLPA wanted but EFC would not fund?

The rumor was Essendon tried to get Mike Morgan, a UK anti doping expert/lawyer bought in for the CAS appeal. The AFLPA talked the players into using their team from the AFL tribunal minus David Grace.

 

[Lance Uppercut]

Is there more to the article? This opinion coming from someone who makes his living arguing against the sort of outcome CAS delivered is hardly newsworthy.

The appeal isn't focused on whether or not the bar for comfortable satisfaction was set too low. It doesn't matter any more.

But surely Ol Chip doesn't doesn't have a dog in this fight and these articles aren't pushing an agenda.

it is an intensely meh article. Advocate advocates, hold the press Chip

 

[Proper Gander]

it is an intensely meh article. Advocate advertises, hold the press Chip

Edit for accuracy - what all lawyers do, write articles on decisions or hold forth to media. Gets their name out there for potential clients

Edit: "intensely meh" is a strange concept. Like Fun Run

 

[Muggs]

Correct. They wanted somebody "closer" to the case. Silly decision

are you able to quote the whole article? Australian paywall is pretty good

That would be a breach of forum rules...and copy right.

Only parts I did not quote were talking abt the green senator calling for an enquiry and the normal waffle each article about the players being banned, appealing etc. nothing new.

 

[Muggs]

Is there more to the article? This opinion coming from someone who makes his living arguing against the sort of outcome CAS delivered is hardly newsworthy.

The appeal isn't focused on whether or not the bar for comfortable satisfaction was set too low. It doesn't matter any more.

But surely Ol Chip doesn't doesn't have a dog in this fight and these articles aren't pushing an agenda.

Maybe but personally found it interesting that you had someone who normally defends athletes, and who on his webpage boasts that 75% of his clients get reduced sanctions, coming out to say that the two years is not unexpected if they argued we don't know what we got injected with.

With two of the appeal grounds based on it being to harsh and the right to be heard I think it is relevant. Agree not relevant to the main ground.

 

[yaco55]

Maybe but personally found it interesting that you had someone who normally defends athletes, and who on his webpage boasts that 75% of his clients get reduced sanctions, coming out to say that the two years is not unexpected if they argued we don't know what we got injected with.

With two of the appeal grounds based on it being to harsh and the right to be heard I think it is relevant. Agree not relevant to the main ground.

Howard Jacob's speciality is getting reduced sentences for athletes, as opposed to getting athletes not guilty of an offence - Jacob's is a big name but not one suited to representing the players in the EFC 34 case, seeing the players always conceded they weren't guilty.

 

[ChrisKaias]

Howard Jacob's speciality is getting reduced sentences for athletes, as opposed to getting athletes not guilty of an offence - Jacob's is a big name but not one suited to representing the players in the EFC 34 case, seeing the players always conceded they weren't guilty.

Good thing then that the EFC34 went with someone experienced in getting players cleared at CAS

 

[Muggs]

Howard Jacob's speciality is getting reduced sentences for athletes, as opposed to getting athletes not guilty of an offence - Jacob's is a big name but not one suited to representing the players in the EFC 34 case, seeing the players always conceded they weren't guilty.

Given how few non AAF cases have got to CAS, or even US arbitration, there are few, if any, experienced atheltes defence advocates who have experience in guilty/not guilty as opposed to reduced sanctions after an AAF.

 

[Lance Uppercut]

Good thing then that the EFC34 went with someone experienced in getting players cleared at CAS

yeah, you're just so neutral aren't you

 

[compact72]

Richard Ings ‏@ringsau 48m48 minutes ago
@Adrig18 @Kernal81 EFC34 requested that Richard Young be disallowed as counsel. Work that one out. It was dismissed of course.


Never knew about that one. Massive LOLs there

 

[ChrisKaias]

yeah, you're just so neutral aren't you

*shrug* I thought they made a mistake at the time and I still do. The only advantage of Clelland was that he knew the case already. Was a huge gamble that backfired and I've seen plenty of Bombers fans agree with that.

EDIT: Here are some Tweets from me in the past (before the CAS decision) where I've said that I would've gone Jacobs. Not sure why you have an issue with this tbh.

 

[HairyO]

Richard Ings ‏@ringsau 48m48 minutes ago
@Adrig18 @Kernal81 EFC34 requested that Richard Young be disallowed as counsel. Work that one out. It was dismissed of course.


Never knew about that one. Massive LOLs there

EFC Official Complaint
Name of Counsel to be removed: Richard Young
Reason for removal of Counsel: He is too good at catching drug cheats

 

[compact72]

*shrug* I thought they made a mistake at the time and I still do. The only advantage of Clelland was that he knew the case already. Was a huge gamble that backfired and I've seen plenty of Bombers fans agree with that.

EDIT: Here are some Tweets from me in the past (before the CAS decision) where I've said that I would've gone Jacobs. Not sure why you have an issue with this tbh.

Because Lance has an issue with most things tbh

 

[sameolds33]

EFC Official Complaint
Name of Counsel to be removed: Richard Young
Reason for removal of Counsel: He is too good at catching drug cheats

Here's why I think that EFC made that request, quite reasonably.

Richard Young had a role in advising ASADA on its case before SCNs were issued and reportedly told Aurora Andruska that it was a strong case (apparently the ASADA investigators thought that the evidence was weak and advised ASADA not to proceed). So he was familiar with the case before the AFL Tribunal hearing - and, importantly, knew the evidence even though he didn't represent ASADA at the Tribunal.

David Grace, QC represented the players at the Tribunal. He's experienced and good - the players won. However, once WADA appealed to CAS, the players had to find new counsel as DG is a CAS arbitrator and was not allowed to represent them. The CAS hearing, as we all know, is de novo which means that WADA could start again. At this point, the players had a choice of either getting foreign counsel experienced with the CAS/WADA process or Australian counsel with local knowledge. AFL is not like hockey or swimming with international rules and knowledge, they went with the local knowledge.

Maybe they made the wrong choice by electing for factual knowledge over procedural knowledge but it was a de novo case with new evidence, that's probably why they elected the counsel they did.

What is inherently unfair is that they had to make this choice when WADA did not. At CAS, WADA had counsel with both extensive CAS experience and prior knowledge of the ASADA case. WADA always had the power to appeal de novo so could use the AFL Tribunal decision as a trial run (why else run with the links argument rather than the cable?) It also chose not to appeal to the AFL Appeals Tribunal where, at the very least, more of the case could have been fleshed out with Grace QC acting for the players. In short, Richard Young advised Aurora Andruska to issue SCNs with poor evidence because he was sufficiently familiar with both the evidence and the process to feel confident about winning the case at CAS. The players never had a chance once WADA decided to appeal to CAS.

So, given the advantages that WADA already had at CAS (de novo and experience at CAS), I expect that the players argued that WADA should also not have the benefit of familiarity with the evidence, given that they did not - level playing field and all that. It was yet another issue on which they lost.

 

[Muggs]

Here's why I think that EFC made that request, quite reasonably.

Richard Young had a role in advising ASADA on its case before SCNs were issued and reportedly told Aurora Andruska that it was a strong case (apparently the ASADA investigators thought that the evidence was weak and advised ASADA not to proceed). So he was familiar with the case before the AFL Tribunal hearing - and, importantly, knew the evidence even though he didn't represent ASADA at the Tribunal.

David Grace, QC represented the players at the Tribunal. He's experienced and good - the players won. However, once WADA appealed to CAS, the players had to find new counsel as DG is a CAS arbitrator and was not allowed to represent them. The CAS hearing, as we all know, is de novo which means that WADA could start again. At this point, the players had a choice of either getting foreign counsel experienced with the CAS/WADA process or Australian counsel with local knowledge. AFL is not like hockey or swimming with international rules and knowledge, they went with the local knowledge.

Maybe they made the wrong choice by electing for factual knowledge over procedural knowledge but it was a de novo case with new evidence, that's probably why they elected the counsel they did.

What is inherently unfair is that they had to make this choice when WADA did not. At CAS, WADA had counsel with both extensive CAS experience and prior knowledge of the ASADA case. WADA always had the power to appeal de novo so could use the AFL Tribunal decision as a trial run (why else run with the links argument rather than the cable?) It also chose not to appeal to the AFL Appeals Tribunal where, at the very least, more of the case could have been fleshed out with Grace QC acting for the players. In short, Richard Young advised Aurora Andruska to issue SCNs with poor evidence because he was sufficiently familiar with both the evidence and the process to feel confident about winning the case at CAS. The players never had a chance once WADA decided to appeal to CAS.

So, given the advantages that WADA already had at CAS (de novo and experience at CAS), I expect that the players argued that WADA should also not have the benefit of familiarity with the evidence, given that they did not - level playing field and all that. It was yet another issue on which they lost.

I't was the players choice to use Grace at the tribunal knowing full well that the odds where high that this would end up CAS regardless of the AFL tribunal decision. Grace was also involved in the preparation of the players defense in the lead up to the hearing so served a similar role to Young pre tribunal.

So don't see how it's inherently unfair for the players when they knew the risks well before hand, they could well have got someone to see through the entire process.

With the case being based in the breach of the WADA code (in the form of the AFL anti-doping code) I really don't see how an understanding of local laws or Aussie rules really mattered, the key was the code. Any local issues could well be handled by having a local support team and going 2nd chair. Surely having someone with a deep understanding of defending athletes in the code would be more beneficial?

 

[ChrisKaias]

Here's why I think that EFC made that request, quite reasonably....

Can I just make sure I understand this argument?

Both counsel at the Tribunal were disqualified from representing the prosecution and defence, because they are CAS arbitrators. Malcolm Holmes for ASADA, David Grace for the 34.

You believe that WADA should be disqualified from using their lawyer because ASADA sought his opinions early in the piece, and the 34 didn't do similarly? The CAS should have 'evened up' the representation?

 

[sameolds33]

I't was the players choice to use Grace at the tribunal knowing full well that the odds where high that this would end up CAS regardless of the AFL tribunal decision. Grace was also involved in the preparation of the players defense in the lead up to the hearing so served a similar role to Young pre tribunal.

So don't see how it's inherently unfair for the players when they knew the risks well before hand, they could well have got someone to see through the entire process.

With the case being based in the breach of the WADA code (in the form of the AFL anti-doping code) I really don't see how an understanding of local laws or Aussie rules really mattered, the key was the code. Any local issues could well be handled by having a local support team and going 2nd chair. Surely having someone with a deep understanding of defending athletes in the code would be more beneficial?

It was the players choice - but it was a mug's choice. You usually go with the best counsel and that was Grace QC. There were even at this stage a much smaller pool of counsel for the players if they were to retain the same counsel all the way through - they had to get someone familiar with CAS/WADA who also knew AFL and was not a CAS adjudicator. That's a pretty small pool.

As to the choice of whether to opt for someone foreign with CAS experience or someone who understood AFL, it could well be that was an error. But my own opinion is that the possibility of new evidence being brought in caused then to go with counsel already familiar with the evidence to date. hindsight is a wonderful thing. In any case, it appears that RY had the unfair advantage of having the time to plan his strategy even before SCNs were even issued. so he also had time on his side.

 

[sameolds33]

Can I just make sure I understand this argument?

Both counsel at the Tribunal were disqualified from representing the prosecution and defence, because they are CAS arbitrators. Malcolm Holmes for ASADA, David Grace for the 34.

You believe that WADA should be disqualified from using their lawyer because ASADA sought his opinions early in the piece, and the 34 didn't do similarly? The CAS should have 'evened up' the representation?

I'm saying that the CAS hearing was not a level playing field for the reasons I set out. How could the players have had RY - or any other anti-doping lawyer review the evidence before the SCNs had been issued?

 

[Muggs]

It was the players choice - but it was a mug's choice. You usually go with the best counsel and that was Grace QC. There were even at this stage a much smaller pool of counsel for the players if they were to retain the same counsel all the way through - they had to get someone familiar with CAS/WADA who also knew AFL and was not a CAS adjudicator. That's a pretty small pool.

As to the choice of whether to opt for someone foreign with CAS experience or someone who understood AFL, it could well be that was an error. But my own opinion is that the possibility of new evidence being brought in caused then to go with counsel already familiar with the evidence to date. hindsight is a wonderful thing. In any case, it appears that RY had the unfair advantage of having the time to plan his strategy even before SCNs were even issued. so he also had time on his side.

Was not my choice!

I don't really get why the need for someone with knowledge of the AFL, it's a team sport I get that, different set of game rules, but from a team environment not a huge amount of differences across sports once you step of the playing areana. Especially as it was a breach of the code that was being judged and not playing rules. Jacobs has defended people across all the major American sports, so is well versed in team environments.

Seems to me the arguement is the players wanted the advantage by having someone who understands AFL, rather than having someone who is experinced in defending the code. They complained that WADA went for someone with knowledge of the code.

The players had the option of bringing someone in at the interview stage, the SCN stage or the the tribunal stage, heck even the moment EFC first self reported. To claim it was unfair, is frankly unfair. They made a decision and one in hindsight I think looks stupid, but they should not crying about it being unfair.

 

[ChrisKaias]

I'm saying that the CAS hearing was not a level playing field for the reasons I set out. How could the players have had RY - or any other anti-doping lawyer review the evidence before the SCNs had been issued?

I don't understand why Young being involved at an earlier point meant it wasn't a level playing field. There was a year between players receiving all of the evidence and the CAS hearing where any experts could have been involved. How long does it take to get familiar with a case?

On topic I'm not sure Ings is right on this point anyway, CAS Award lists all the procedural steps but didn't say anything about this. What did happen though was the Players were trying to find out more info about Young's involvement to try and make an argument that he was involved at the ASADA hearing and should be prevented from bringing any new evidence. Didn't go anywhere.

 

[sameolds33]

Was not my choice!

I don't really get why the need for someone with knowledge of the AFL, it's a team sport I get that, different set of game rules, but from a team environment not a huge amount of differences across sports once you step of the playing areana. Especially as it was a breach of the code that was being judged and not playing rules. Jacobs has defended people across all the major American sports, so is well versed in team environments.

Seems to me the arguement is the players wanted the advantage by having someone who understands AFL, rather than having someone who is experinced in defending the code. They complained that WADA went for someone with knowledge of the code.

The players had the option of bringing someone in at the interview stage, the SCN stage or the the tribunal stage, heck even the moment EFC first self reported. To claim it was unfair, is frankly unfair. They made a decision and one in hindsight I think looks stupid, but they should not crying about it being unfair.

well that's your view - and I accept that the players' choice of counsel was not your choice!!

I don't know if the players are "crying about it being unfair". This is my view on what happened and I think it's extremely unfair. I think that a telling point is that the opinion of the investigators there was no case but the lawyers saw that there was one. That tends to indicate that the people most familiar with the legal process ran the game. It doesn't necessarily produce a just result, it's knowing how the system works. On the experience point, how many times have AFL players appeared before the CAS panel? Once, this time. How many times has WADA appeared before a CAS panel - every single time!!

I think that Ben McDevitt pushed hard for the EFC players to accept the gulity plea because he wasn't convinced by ASADA's case and knew that, if they lost at the Tribunal he was then going to have to persuade WADA to go the extra step. But you must be familiar with these arguments - they're not new.