Player Litigation

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Throw said:
lawyer here. This is correct. Clearly egregious negligence occurred and the players have a legitimate grievance and a prima facie cause of action, despite being incredibly naive. I suspect hypothetically even if a player at an AFL club had known they were doping but had done so at the direction of their club in the context of professionals at the club administering the drug, some players would still have a prima facie case against the employer.

The loss (damages), foreseeability of harm and circumstances of each player are different. They'll probably build an argument around losses arising from lost income, reputational damage, stress (particularly if any have a psychological injury). In the end it's unlikely the loss will ever be tested by a court, as the $ will be reached at settlement. They might also have a cause of action in breach of contract worth exploring.

My real question is why the players allow themselves to be herded like sheep with the AFLPA, and have done so the whole time? Separate to any cause of action in negligence they almost certainly have against Essendon, the AFL and perhaps some player managers, it may be in the interest of some individual players to appeal the CASA decision too. They don't have to do everything together. Where has that gotten them?

Each player should be getting independent legal advice. Approaching it as a group by letting the AFLPA call the shots conceded a shared responsibility premise that enabled CASA to tar individual players with the one brush, and made the prosecution case much simpler to argue by allowing them to cherry pick details from each player's evidence to build a larger narrative, which then applied to the lot.

What we should be seeing is 34 separate letters of demand being sent from the representatives of each player. Of those 34, I doubt many if any will make it to a court. The AFL and Essendon will be under a huge incentive to settle.
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Question. It was the player's choice to fight this together. CAS heard this as a collective defence. How can an individual appeal a decision that went against the group? Nobody forced him to fight this as a collective.
 
Ancient Tiger said:
Question. It was the player's choice to fight this together. CAS heard this as a collective defence. How can an individual appeal a decision that went against the group? Nobody forced him to fight this as a collective.
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The way I read Throw's excellent post is that the 34 separate actions are for seeking damages against EFC not any appeal against the CAS findings.
 
Ancient Tiger said:
Question. It was the player's choice to fight this together. CAS heard this as a collective defence. How can an individual appeal a decision that went against the group? Nobody forced him to fight this as a collective.
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It was the club's strategy from day one to herd the players into a group defence. That way the club could manage the direction of the defence. For the club's benefit. jmo
 

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Ancient Tiger said:
Question. It was the player's choice to fight this together. CAS heard this as a collective defence. How can an individual appeal a decision that went against the group? Nobody forced him to fight this as a collective.
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I don't know - I would have to do research into an area of "law" that I don't have any experience in. It would depend entirely on the CAS rules which seem a bit mickey mouse to me. If an appeal exists it would probably be in the World Anti Doping Convention, which the court refers to as the source of its jurisdiction.

I don't think any player could argue they've been denied natural justice/procedural fairness (even though they've been poorly advised). It's possible that WADA jurisprudence allows an appeal for that (which would explain why the decision bent over backwards trying to preempt an appeal on that ground).

It could be that there are no avenues for appeal left, that this is the end of the line as far as the playing ban goes and their only legal recourse is now with the people who put them in this position, which I'd include the people who have advised the players over the recent period.

The silver lining from this process is that a lot of high fliers and heavy hitters in the AFL and its institutions/media have finally been tested and found wanting, starting with the lower "court" AFL tribunal which clearly fundamentally misunderstood the question being asked of it. The fact that a higher court so emphatically shot down a lower court's decision is an embarrassment to the people tasked with administering the game.

I'm not sure I'd agree with the implications of the players agreeing to deal with it as a "collective" necessarily meaning they can't decide now to go it alone as far as CAS is concerned. The CAS decision lists the players as separate parties, despite then proceeding to deal with them as if they are all in the same boat. Just because the players chose to argue the case as a collective I don't see how it necessary follows that their fates are tied as far as findings and penalties go, at least not when the decision itself lists them as separate, individual parties. If an appeal ground exists, that's where I'd start. But that's off the cuff. I'm not a sports lawyer although I couldn't have done any worse than the people who have been advising (and charging) the players to date. Amateur hour.

CAS decision btw is at : http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ESSENDON.pdf
 
blackshadow said:
The way I read Throw's excellent post is that the 34 separate actions are for seeking damages against EFC not any appeal against the CAS findings.
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Correct- I don't know about the sports law/CAS appeal option stuff (see previous post), but civil litigation I do know. If the players aren't approaching civil litigation against the club/AFL/potentially their own agents, they are doing it wrong. There could be some merit to a united front dealing with the AFL as far as EDIT: negotiation around compensation, but each player should have independent legal advice before agreeing to anything offered by the AFL/Essendon.
 
Throw said:
Correct- I don't know about the sports law/CAS appeal option stuff (see previous post), but civil litigation I do know. If the players aren't approaching civil litigation against the club/AFL/potentially their own agents, they are doing it wrong. There could be some merit to a united front dealing with the AFL as far as EDIT: negotiation around compensation, but each player should have independent legal advice before agreeing to anything offered by the AFL/Essendon.
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Agree that the players should be getting independent legal advice. In my view the source of the advice they have been receiving appears to have multiple potential conflicts of interests where the players have been getting advice that is good them where its good for the major players. Running individual defences would have been a potential nightmare for Essendon / AFL as the players could not have been held to the agreed party line.

Also, if Essendon were to lead evidence that the players 'actively' took part in a doping program, had provided informed consent and had intended to deceive the ASADA investigators, then any potential claim they make will be somewhat reduced. I'm of the view that any claims that actually make it into court represent a risk to the players themselves as well as Essendon / AFL. If the AFL is included as a target by the players, I also think they leave themselves open to countersuit by the AFL in as much as the AFL could claim loss of revenue because of the players actions and perhaps be able to demonstrate a larger loss
 
imperial_oz said:
Agree that the players should be getting independent legal advice. In my view the source of the advice they have been receiving appears to have multiple potential conflicts of interests where the players have been getting advice that is good them where its good for the major players. Running individual defences would have been a potential nightmare for Essendon / AFL as the players could not have been held to the agreed party line.
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Plenty of conflict of interest in the players using EFC or AFLPA lawyers - EFC will look after the club before the players and the AFLPA will not put players' interests before the AFL's interests on anything substantial.

Each player needs to laywer up independently of EFC and the AFLPA and start to look after their own interests.
 
blackshadow said:
Plenty of conflict of interest in the players using EFC or AFLPA lawyers - EFC will look after the club before the players and the AFLPA will not put players' interests before the AFL's interests on anything substantial.

Each player needs to laywer up independently of EFC and the AFLPA and start to look after their own interests.
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Bingo!

I said this at least a year ago, maybe more. You have to wonder how much it has impacted on the player's defence
 
All deserve compensation.
But then, they also deserve to find out what Dank actually gave them so they know for the future.

Would hope for quick settlements with a "no hard feelings" clause for any that want to return to the club and their team-mates.
 
RegHickeyStand said:
It was the club's strategy from day one to herd the players into a group defence. That way the club could manage the direction of the defence. For the club's benefit. jmo
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Also being a consideration is that it would be a challenge to find 34 players guilty (as opposed to individuals)They rolled the dice on that as well.
 

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Group of up to 15 banned Bombers consider split ahead of compo bid

A group of up to 15 members of the banned Essendon 34 are considering breaking away from the AFL Players Association, and fighting their personal compensation claims against the Bombers through independent lawyers.

It shapes as the first major split among the former and current Bombers throughout the injection scandal, with some players understood to be shattered they were suspended for a year despite the confidence of others that they would not be found guilty of being administered a banned drug.
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mxett said:
i still think they'll be fighting in the same direction, just with different legal teams
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Maybe so, but they'll be pulling an a quite different direction to Essendon now they're splitting with the players association (assuming they actually go ahead with splitting). Has the potential to be quite a bit bloodier.
 
ZergMinion said:
Maybe so, but they'll be pulling an a quite different direction to Essendon now they're splitting with the players association (assuming they actually go ahead with splitting). Has the potential to be quite a bit bloodier.
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That was always going to happen once they were found guilty. However it will be interesting to see how the club defends itself against players who cas concluded Contributed to their own misfortune. It will also be interesting to see who remains to play at a club after they take it to the wall. Interesting times indeed
 
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