Peter Gordon explores Swiss appeal and injunction on suspension

[Lance Uppercut]

Robbo in his SEN interview made clear inference to CAS being corrupt and incompetent. It was at 6.28pm yesterday.

well, even stupid opinions are allowed aren't they?

 

[Satan]

From Large Fries in the Oztrailyan

"AFL players found guilty of doping by the Court of Arbitration for Sport will appeal to a Swiss court in a last-ditched bid to clear their names.

Essendon has today committed to funding the latest legal challenge in the doping saga, which will be argued later this year before the Swiss Federal Tribunal.

It is understood that most of the 34 current and former Essendon players suspended for two years by last month’s CAS decision have agreed to join the appeal"

Way more money than sense comes to mind!

Chief likes this

And another season stuffed

 

[imperial_oz]

I've made plenty of those mistakes. SO onlt being cheeky with it too.

Always get a good shot in. You never know when it might be coming the other way

 

[sonnywalters]

I am backing Spigelman all the way. The chance of him being corrupt are close to nought. The chance of him being wrong in law are close to nought.

For those of you who dont know who he is:

https://en.wikipedia.org/wiki/James_Spigelman

 

[Andrew Mc]

Chief likes this

And another season stuffed

Chief and the lawyers. Season isn't stuffed - just ignore any games against them, and any coverage they get. It's pretty easy. It'll just be another laugh when it gets dismissed in minutes.

 

[Xtreme]

Chief likes this

And another season stuffed

Hawthorn's fourpeat is back on

* Being that every year Essendon has screwed around Hawthorn have been successful

 

[Boxhead_31]

Hawthorn's fourpeat is back on

* Being that every year Essendon has screwed around Hawthorn have been successful

Well apart from the first season

 

[Xtreme]

Well apart from the first season

*never happened*

 

[DEECEE]

Challenge is going ahead according to Chip. Bombers funding the bid.

 

[Boxhead_31]

So the players appeal is going to be based on that the CAS hearing shouldn't have been de novo?

And Wester Bulldogs president Peter Gordon, a prominent lawyer whose son Patrick is one of the leading lawyers involved, told ABC radio Friday the appeal would likely be on the grounds that CAS went beyond its legal scope in hearing the case from scratch.

Didn't they have a chance at the start of the hearing to raise this as a concern but chose not to?

 

[LanceRomance]

So the players appeal is going to be based on that the CAS hearing shouldn't have been de novo?

Didn't they have a chance at the start of the hearing to raise this as a concern but chose not to?

So the players appeal is going to be based on that the CAS hearing shouldn't have been de novo?

Didn't they have a chance at the start of the hearing to raise this as a concern but chose not to?

The appeal was always going to be de novo.... so that should be no surprise to them.

They also didnt challenge WADAs new approach to the case..... they accepted it.

 

[Muggs]

So the players appeal is going to be based on that the CAS hearing shouldn't have been de novo?

Didn't they have a chance at the start of the hearing to raise this as a concern but chose not to?

They did actually raise it, and CAS rejected this argument in paragraph 114.

Rejected on number of grounds

CAS is always de novo
If such a limit on CAS were in the AFL code it be a significant departure from the WADA code and CAS would strike it out.
The change was allowed via the players contract.
And some other reason I posted a few hours ago and slip my mind atm
Edit* no other reason, cited CAS precedent where CAS rules regarding de nova before have been disputed...

 

[jenny61_99]

They did actually raise it, and CAS rejected this argument in paragraph 114.

Rejected on number of grounds

CAS is always de nova
If such a limit on CAS were in the AFL code it be a significant departure from the code and CAS would strike it out.
The change was allowed via the players contract.
And some other reason I posted a few hours ago and slip my mind atm
Edit* no other reason, cited CAS precedent where CAS rules regarding de nova before have been disputed...

*De novo.

 

[QuietB]

Imagine CAS couldn't hear it de novo

Governing body deliberately frames hearing so it has no chance of success - CAS has no power to get it back on track

Surely no one would try that

 

[Muggs]

They did actually raise it, and CAS rejected this argument in paragraph 114.

Rejected on number of grounds

CAS is always de nova
If such a limit on CAS were in the AFL code it be a significant departure from the code and CAS would strike it out.
The change was allowed via the players contract.
And some other reason I posted a few hours ago and slip my mind atm
Edit* no other reason, cited CAS precedent where CAS rules regarding de nova before have been disputed...

Add to this most of the CAS cases that section 114 highlighted were appealed to the Swiss supreme court and have been translated to English, available here http://www.swissarbitrationdecisions.com/.

Needless to say all appeals were rejected.

 

[Muggs]

*De novo.

fixed and technically should be de novo - you forgot the italics...

 

[Boxhead_31]

From Chris Kaias piece on the matter

1. Did WADA change the rules in 2015, and therefore was it wrong for CAS to conduct the hearing ‘de novo’?

By way of some background, there are three main types of appeal:

• A ‘strict’ appeal, which is limited strictly to errors of law, and no new evidence is permitted;
• A ‘rehearing’, where the case is not heard again from the beginning, but new evidence may in some cases be permitted; and
• An appeal ‘de novo’, a complete rehearing of the case where new evidence can be produced, provided that it wasn’t unreasonably withheld originally.

The CAS conducted this proceeding on a ‘de novo’ basis – a complete re-hearing, which is its usual practice in all appeals that it hears.

Western Bulldogs President Peter Gordon has argued that this should not have been permitted, and his view has been summarised succinctly by Jon Pierik in The Age:

‘Gordon said the players had initially fallen under the 2010 AFL anti-doping code, which stipulated that rulings could only be appealed if the decision involved legal error or gross unreasonableness. But he said the upgraded AFL anti-doping code unveiled in January last year – when the case before the AFL anti-doping tribunal was underway – allowed CAS to pursue the entire case again.’

This point appears to be legally without merit for three reasons.

(i) The 2010 Anti-Doping Code does not specify the type of appeal

It would appear that Mr Gordon has not correctly represented what is in the 2010 AFL Anti-Doping Code for the following reasons:

• The 2010 AFL Anti-Doping Code does not stipulate that rulings can only be appealed if the decision involves legal error or gross unreasonableness. The 2010 Code does not specify or limit the type of appeal at all; and
• As the 2010 Code does not specify the type of appeal to the AFL Appeals Board, the position would arguably be the default position under normal AFL Appeals Board procedure, which is to limit an appeal to errors of law or gross unreasonableness. The default position under the CAS procedure is a ‘de novo’ hearing.

Further to this, the 2015 Code adds provision 20.1(b), which says that Appeals Board proceedings are ‘de novo’. However, even the 2015 Code is silent on the type of appeal to the CAS.

Therefore, it is not correct to say that the rules changed in 2015. The 2010 Code did not specify the type of appeal for either the Appeals Board or the CAS, and the 2015 Code still does not refer to the type of appeal to CAS.

(ii) The newer 2015 Anti-Doping Code would apply in any case

Even if the 2010 Code had in some way restricted the type of appeal to the CAS, the CAS Panel noted at [114] that it is the newer 2015 Code that applies to the procedural (as opposed to the substantive) aspects of the appeal.

As argued by leading academic Richard Garnett in Substance and Procedure in Private International Law, issues concerning appeals are procedural and not substantive ([6.16]–[6.19]).

(iii) The AFL Anti-Doping Code cannot validly restrict the CAS’s ability to hear an appeal ‘de novo’

Even further still, in the hypothetical scenario that the 2015 Code prevented the CAS from hearing a case ‘de novo’, the CAS Panel noted that such a provision would not reflect the provisions of the World Anti-Doping Code; would be a violation of a signatory’s obligations; and, as per previous CAS jurisprudence, would be inapplicable (CAS Decision [114]).

https://chriskaias.wordpress.com/2016/01/25/the-essendon-cas-verdict-your-top-15-questions-answered/

 

[compact72]

Do they have to apply for it to go to the high courts? Could they turn around and say it's not worth hearing?

 

[jenny61_99]

Do they have to apply for it to go to the high courts? Could they turn around and say it's not worth hearing?

In Australia you have to apply for leave to appeal to the high court, that is, you aren't guaranteed a hearing. There has to be sufficient grounds for the high court to consider an appeal. I would think this situation would be the same, but happy to be corrected.

 

[Muggs]

Do they have to apply for it to go to the high courts? Could they turn around and say it's not worth hearing?

Been reading a few decisions today so getting some idea.

Don't need to apply, in saying that the court sometimes dismisses them out of hand, or after very little consideration, posted a link to some stats yesterday about 14% of cases has this happen, or don't pay the fee.

 

[3rd Grade Maggy]

It would be delicious if they got an injunction and then lost on appeal anyway.

 

[LanceRomance]

Been reading a few decisions today so getting some idea.

Don't need to apply, in saying that the court sometimes dismisses them out of hand, or after very little consideration, posted a link to some stats yesterday about 14% of cases has this happen, or don't pay the fee.

on only 14% get dismissed?

 

[Jimthegreat]

So the players appeal is going to be based on that the CAS hearing shouldn't have been de novo?

Didn't they have a chance at the start of the hearing to raise this as a concern but chose not to?

These idiots going to appeal on the basis that the case should not have been heard de novo"? Seriously?

 

[The 747]

well, even stupid opinions are allowed aren't they?

Yes, otherwise would we even have Figbooty?

 

[Satan]

We need a gofundme so chrisk can tweet from the canton of ? Court back to us