Mcdevitt says AFL tribunal just got it wrong

[threesixpio]

True, of course, but the jurisdictional differences allow an athlete to be both perpetrator (under anti-doping law) and victim (under civil law). I've said that from the get go.

Sure - but employees as well as employers have obligations in OH and S law. From all accounts the players thoroughly threw caution to the wind and kept Reidy in the dark

 

[Muggs]

I see what you are saying - it could be a problem for the AFL to remain WADA-compliant if the only option is to sever the clause. I agree. However, I don't know if that is the only option.

If it is, then the question for the AFL is whether it wants to stay WADA-compliant. There was some discussion after the CAS decision whether the AFL would stay in the system. If it wanted to leave WADA then a decision like this would facilitate that. (My own opinion is that it should stay with WADA because even though its a faulty system, it's all we've got and it'd be better to improve it than leave it.)

The alternative would be to amend the AFL's arbitration agreement to be both WADA-compliant but also not unlawful (to deal with subsequent cases.) There's a parallel here with Pechstein (who succeeded in her claim of bias of the CAS Tribunal and the CAS rules were changed in consequence.) If the relevant AFL arbitration provision is found to be unlawful, it would need to work with WADA to find wording that would keep the AFL in the system. This seems to me to be the better alternative and, judging from the mutterings from the AFL after the CAS decision, something they would be keen to negotiate.

Correction, Pechstien original argument was that the ISU abused their market power power to force her into arbitration, this is what the lower German court ruled, the higher court than overrode this on appeal and examined her secondary arguments one of which was bias and voided the award on the perceived bias grounds. CAS in the mean time between her award being handed down and her first court had already amended their rules to avoid this issue based on general disquiet from atheletes . The rules did not change as a result of her case rather to avoid something that was starting to emerge as issue and CAS wished to address it before it become an issue, they were to late in her case.

 

[sameolds33]

Correction, Pechstien original argument was that the ISU abused their market power power to force her into arbitration, this is what the lower German court ruled, the higher court than overrode this on appeal and examined her secondary arguments one of which was bias and voided the award on the perceived bias grounds. CAS in the mean time between her award being handed down and her first court had already amended their rules to avoid this issue based on general disquiet from atheletes . The rules did not change as a result of her case rather to avoid something that was starting to emerge as issue and CAS wished to address it before it become an issue, they were to late in her case.

I accept what you say on Pechstein. My point was more that the CAS rules do change - they're not set in stone - so it's not fatal to the AFL's case if the arbitration agreement is found to be unlawful and the AFL wants to remain with the WADA code.

 

[Slax]

Sure - but employees as well as employers have obligations in OH and S law. From all accounts the players thoroughly threw caution to the wind and kept Reidy in the dark

And under OH&S laws any Essendon player who wants to leave and the club tries to block or make difficult could co to the courts and have their contract void in a flash as Essendon has been convicted for breaches of the Worksafe Act and as such breached players contracts by providing an unsafe workplace.

 

[Muggs]

I accept what you say on Pechstein. My point was more that the CAS rules do change - they're not set in stone - so it's not fatal to the AFL's case if the arbitration agreement is found to be unlawful and the AFL wants to remain with the WADA code.

There is a bit of difference though, the rules change around bias was more to do with the independence of CAS, something CAS is very careful about. The Peschtien case was not an appeal against the harshness of the penalty, rather the structure of the organisation determining it.

A successful restraint of trade case against the AFL has more to do with the WADA code and its penalties than CAS structures like the Peschstien case. It has ramifications for the WADA code, countries with similar laws to Australia. It would also raise questions about Australia's compliance with the international convention on anti-doping and its agreement to uphold the WADA code.

 

[threesixpio]

And under OH&S laws any Essendon player who wants to leave and the club tries to block or make difficult could co to the courts and have their contract void in a flash as Essendon has been convicted for breaches of the Worksafe Act and as such breached players contracts by providing an unsafe workplace.

Yep. Agree

 

[Slax]

Yep. Agree

Rumour going around is that one of the 12 wants out and if Essendon try and stop him or make it difficult going to the club of his choice (ie Carlisle and Ryder style) he will go to court and be made a delisted free agent so Essendon get nothing.

 

[Boxhead_31]

Rumour going around is that one of the 12 wants out and if Essendon try and stop him or make it difficult going to the club of his choice (ie Carlisle and Ryder style) he will go to court and be made a delisted free agent so Essendon get nothing.

Hurley for $900k per year as per the HUN

 

[Randomizor]

Hurley for $900k per year as per the HUN

Ouch. That one will hurt.

 

[jenny61_99]

Rumour going around is that one of the 12 wants out and if Essendon try and stop him or make it difficult going to the club of his choice (ie Carlisle and Ryder style) he will go to court and be made a delisted free agent so Essendon get nothing.

Didn't the AFL give them an out clause?

 

[Just interested]

Sure - but employees as well as employers have obligations in OH and S law. From all accounts the players thoroughly threw caution to the wind and kept Reidy in the dark

Again, furious agreement with just one reservation - Reid.

There was enough light for Reid to write the letter and, from memory, he was privy to at least one version of the consent forms. I tend to think his fanboi bested his doctor, and he, at least to some degree, retreated into his office and switched off his own lights. I would have thought medical ethics would have demanded he make his own enquiries, given what he, himself, claimed he was aware of.

And, it's not as if he worked in a remote location, in a $100B company with 30,000 employees and operations on 5 continents. Doc's should be the last to turn blind eyes, and resort to plausible deniability.

 

[the conch]

Hurley for $900k per year as per the HUN

Reported on doggies board he has already had talks with Buckley.

 

[Boxhead_31]

Didn't the AFL give them an out clause?

A grievance process and, if needed, a grievance tribunal chaired by Federal Court judge, Professor Geoffrey Giudice, would follow.

Giudice’s tribunal deputy is retired County Court judge Murray Kellam and the panel supporting them comprises David Maddocks, Michael Moncrief and Kevin Power.

The AFL refused to discuss potential cases.

“Under the collective bargaining agreement any player in the competition who has a grievance with their club has the right to have that grievance aired through the processes of the grievance tribunal as agreed under the CBA between the AFL and the player group,” an AFL spokesman told the Herald Sun.

 

[Percel]

I wonder if my club will pick up any of these dirty 34 now or in the future? If they do, it will test my support. Could end up supporting the local croquet club on the weekends.

View attachment 223615

You've prepared well with Martin and Jake King

 

[Satan]

You've prepared well with Martin and Jake King

And Charles

 

[sameolds33]

There is a bit of difference though, the rules change around bias was more to do with the independence of CAS, something CAS is very careful about. The Peschtien case was not an appeal against the harshness of the penalty, rather the structure of the organisation determining it.

A successful restraint of trade case against the AFL has more to do with the WADA code and its penalties than CAS structures like the Peschstien case. It has ramifications for the WADA code, countries with similar laws to Australia. It would also raise questions about Australia's compliance with the international convention on anti-doping and its agreement to uphold the WADA code.

Thinking further on this, and I accept what you say, perhaps nothing - or very little - needs to be changed at CAS. If the AFL's arbitration provisions in the players' contracts are found to be unlawful then these are the provisions that would need to be changed - not the CAS rules. The change would obviously still need to be WADA-compliant.

The necessary amendment would, of course, be determined by the judgment but, for our purposes now, say that the court ruled that CAS being the player's only option was the unlawful restraint. The AFL might be able to amend the arbitration provisions in the players' agreements to accommodate this. So, for example, it could provide that, in actions in which the AFL is an interested party (ie not your run of the mill positive test result), the player with an adverse CAS decision can either appeal to the Swiss court (as now) or have the decision reviewed by the AFL Appeals Tribunal (and there could be limited grounds of review to safeguard the CAS decision). If the review finds (perhaps to a "comfortable satisfaction") grounds that are actionable in Australia the player can elect to pursue those claims in the Supreme Court of Victoria.

Would WADA accept this? "NO!", I hear you say (loudly). "Having CAS as a final decision-maker is the corner-stone of the CAS/WADA system." But would WADA have a choice if it wanted the AFL to stay in the system? After all, the AFL would be making the change only because it was compelled by the court and would be working with WADA to ensure compliance. To a certain extent, this sort of amendment only codifies what already exists at law - that a player has other legal rights in the local jurisdiction that can impact on the CAS decision. In practical terms, I think that very little would change if the arbitration clauses of the players' agreements were amended along these lines.

 

[imperial_oz]

Thinking further on this, and I accept what you say, perhaps nothing - or very little - needs to be changed at CAS. If the AFL's arbitration provisions in the players' contracts are found to be unlawful then these are the provisions that would need to be changed - not the CAS rules. The change would obviously still need to be WADA-compliant.

The necessary amendment would, of course, be determined by the judgment but, for our purposes now, say that the court ruled that CAS being the player's only option was the unlawful restraint. The AFL might be able to amend the arbitration provisions in the players' agreements to accommodate this. So, for example, it could provide that, in actions in which the AFL is an interested party (ie not your run of the mill positive test result), the player with an adverse CAS decision can either appeal to the Swiss court (as now) or have the decision reviewed by the AFL Appeals Tribunal (and there could be limited grounds of review to safeguard the CAS decision). If the review finds (perhaps to a "comfortable satisfaction") grounds that are actionable in Australia the player can elect to pursue those claims in the Supreme Court of Victoria.

Would WADA accept this? "NO!", I hear you say (loudly). "Having CAS as a final decision-maker is the corner-stone of the CAS/WADA system." But would WADA have a choice if it wanted the AFL to stay in the system? After all, the AFL would be making the change only because it was compelled by the court and would be working with WADA to ensure compliance. To a certain extent, this sort of amendment only codifies what already exists at law - that a player has other legal rights in the local jurisdiction that can impact on the CAS decision. In practical terms, I think that very little would change if the arbitration clauses of the players' agreements were amended along these lines.

You are getting so desperate now.

There is absolutely no reason to suggest that any provisions that lead to CAS arbitration are illegal. None. CAS as the final arbiter is apparently ok for almost every sport in Australia, swimming, athletics, gymnastics, soccer, etc but are somehow, perhaps, maybe, pleeeeeeease hopefully illegal for AFL only but only the bit that deal with CAS rulings and everything else is ok to keep.

Keep hoping and deluding yourself. The rest of the world is moving on without you. This just isn't going to happen so why do you persist with this nonsense? Are you so determined to prevent intelligent discussion on this forum that you keep derailing it with nonsense?

Let it go!

 

[Muggs]

Thinking further on this, and I accept what you say, perhaps nothing - or very little - needs to be changed at CAS. If the AFL's arbitration provisions in the players' contracts are found to be unlawful then these are the provisions that would need to be changed - not the CAS rules. The change would obviously still need to be WADA-compliant.

The necessary amendment would, of course, be determined by the judgment but, for our purposes now, say that the court ruled that CAS being the player's only option was the unlawful restraint. The AFL might be able to amend the arbitration provisions in the players' agreements to accommodate this. So, for example, it could provide that, in actions in which the AFL is an interested party (ie not your run of the mill positive test result), the player with an adverse CAS decision can either appeal to the Swiss court (as now) or have the decision reviewed by the AFL Appeals Tribunal (and there could be limited grounds of review to safeguard the CAS decision). If the review finds (perhaps to a "comfortable satisfaction") grounds that are actionable in Australia the player can elect to pursue those claims in the Supreme Court of Victoria.

Would WADA accept this? "NO!", I hear you say (loudly). "Having CAS as a final decision-maker is the corner-stone of the CAS/WADA system." But would WADA have a choice if it wanted the AFL to stay in the system? After all, the AFL would be making the change only because it was compelled by the court and would be working with WADA to ensure compliance. To a certain extent, this sort of amendment only codifies what already exists at law - that a player has other legal rights in the local jurisdiction that can impact on the CAS decision. In practical terms, I think that very little would change if the arbitration clauses of the players' agreements were amended along these lines.

Why would any restraint of trade arguement be different if it's still subject to the WADA code regardless who is the final appeals decider?

Also do you understand the role of WADA and CAS in the WADA code? WADA is a centralized monitoring body and ensure consistency in application of the WADA regardless of sport and country, soon as you move to a country or state based court you prevent this from happening. You not world compliant if local courts have the final say. Imagine the outcry if CAS bans the Russian atheletes before it than a Russian court changes the decision or applies mitigating circumstances or something. Why should Australia or the AFL have that right and not Russia? There is zero chance of the AFL remaining WADA compliant if such a thing was suggested. If it was enacted into Australia more generally we be banned from the Olympics!

so What is your argument?

Is it a abuse of market power to force the players to sign up to the WADA code or use CAS arbritration (note these are different)

Is it a restraint of trade arguement that a decision under the WADA rules the players can no longer ply their trade? You seem to be implying its CAS who is stopping Primsall working, but if the AFL tribunal handed down the same ban, the same restriction would apply. The fact it was CAS has nothing to do a restraint of trade arguement.

 

[threesixpio]

Why would any restraint of trade arguement be different if it's still subject to the WADA code regardless who is the final appeals decider?

Also do you understand the role of WADA and CAS in the WADA code? WADA is a centralized monitoring body and ensure consistency in application of the WADA regardless of sport and country, soon as you move to a country or state based court you prevent this from happening. You not world compliant if local courts have the final say. Imagine the outcry if CAS bans the Russian atheletes before it than a Russian court changes the decision or applies mitigating circumstances or something. Why should Australia or the AFL have that right and not Russia? There is zero chance of the AFL remaining WADA compliant if such a thing was suggested. If it was enacted into Australia more generally we be banned from the Olympics!

so What is your argument?

Is it a abuse of market power to force the players to sign up to the WADA code or use CAS arbritration (note these are different)

Is it a restraint of trade arguement that a decision under the WADA rules the players can no longer ply their trade? You seem to be implying its CAS who is stopping Primsall working, but if the AFL tribunal handed down the same ban, the same restriction would apply. The fact it was CAS has nothing to do a restraint of trade arguement.

Sameolds is nothing but persistent and you are a patient man Muggs

 

[Muggs]

Sameolds is nothing but persistent and you are a patient man Muggs

I'm bored on a bus... And he's not persistent... I've totally lost track of his arguement... It's morphed into something..what I don't know.. But something.

 

[sameolds33]

I'm bored on a bus... And he's not persistent... I've totally lost track of his arguement... It's morphed into something..what I don't know.. But something.

You are patient - thank you. And I will let it go as it's getting so speculative that I'm beginning to agree with Imperial Oz (!!)

The situation I was wondering about was what would happen if an Australian court found that the arbitration clause in the players' agreements was an unlawful restraint of trade because it is the only avenue of relief. Could it be resolved so that the AFL could amend the players' agreements to make the clause lawful and still be WADA-compliant? I think it's possible but problematic as you point out. And so speculative that I will give it a rest!

 

[Muggs]

You are patient - thank you. And I will let it go as it's getting so speculative that I'm beginning to agree with Imperial Oz (!!)

The situation I was wondering about was what would happen if an Australian court found that the arbitration clause in the players' agreements was an unlawful restraint of trade because it is the only avenue of relief. Could it be resolved so that the AFL could amend the players' agreements to make the clause lawful and still be WADA-compliant? I think it's possible but problematic as you point out. And so speculative that I will give it a rest!

A statement of yours I can like and agree with!

 

[Ancient Tiger]

You've prepared well with Martin and Jake King

Martin doesn't use PEDs. He may use illicit drugs on days other than game day though!
Wouldn't be surprised at all if Jake used PEDS although that is a slanderous accusation as there is zero proof and nobody has reported it.

Justin Charles, according to him, only used PEDs once he got injured so he could get back on the field. At least he paid his dues and then went around giving talks about the dangers of drug taking from memory.

 

[Laphroaig]

You are patient - thank you. And I will let it go as it's getting so speculative that I'm beginning to agree with Imperial Oz (!!)

The situation I was wondering about was what would happen if an Australian court found that the arbitration clause in the players' agreements was an unlawful restraint of trade because it is the only avenue of relief. Could it be resolved so that the AFL could amend the players' agreements to make the clause lawful and still be WADA-compliant? I think it's possible but problematic as you point out. And so speculative that I will give it a rest!

You might gain some enlightenment if you look over the Greg Williams court case.

It was a cynical little exercise to help Williams get past a suspension and play out his final year. It worked, kind of. He got an extra 5 games in his last year, at a legal cost of $80,000 per game.

The Victorian Court initially ran with the claim of injustice because the AFL (then) had no appeals process. But Carlton and Williams lost on appeal in Victoria with the suspension reinstated; and the Australian High Court refused to hear a further appeal by Williams.

Mainstream Courts don't like sports cases. I would suggest this one only got as far as it did because of the lack of an AFL appeal process. Which was immediately put in place afterwards.

 

[Percel]

Martin doesn't use PEDs. He may use illicit drugs on days other than game day though!
Wouldn't be surprised at all if Jake used PEDS although that is a slanderous accusation as there is zero proof and nobody has reported it.

Justin Charles, according to him, only used PEDs once he got injured so he could get back on the field. At least he paid his dues and then went around giving talks about the dangers of drug taking from memory.

Don't you dare engage me in a serious discussion, i will fail, and fail hard

shame on you old moggy