Play Nice The "can CAS do a de novo hearing" even if the AFL code said it couldnt thread

[ShanDog]

Well no player was charged with the 2015 policy; the offence occurred when the 2010 policy applied.

So, where it was said in the recent announcement "The appeal has been made on the ground that the CAS erred in determining that the WADA appeal should be conducted as a de novo hearing. That is, WADA should only have been allowed to appeal the unanimous decision of the AFL Anti-Doping Tribunal on grounds of either legal error or that it was grossly unreasonable." - this has nothing to do with the changes in anti-doping code in 2015?

 

[jenny61_99]

So, where it was said in the recent announcement "The appeal has been made on the ground that the CAS erred in determining that the WADA appeal should be conducted as a de novo hearing. That is, WADA should only have been allowed to appeal the unanimous decision of the AFL Anti-Doping Tribunal on grounds of either legal error or that it was grossly unreasonable." - this has nothing to do with the changes in anti-doping code in 2015?

We think that's what they are aiming for... but it's ridiculous because the 2010 AFL anti doping code didn't have anything at all in regards to how appeals are run at CAS. All it talks about was WADA's right to appeal to CAS at any stage.

 

[Muggs]

So, where it was said in the recent announcement "The appeal has been made on the ground that the CAS erred in determining that the WADA appeal should be conducted as a de novo hearing. That is, WADA should only have been allowed to appeal the unanimous decision of the AFL Anti-Doping Tribunal on grounds of either legal error or that it was grossly unreasonable." - this has nothing to do with the changes in anti-doping code in 2015?

prior to the 2015 changes appeals to the AFL appeals tribunal had to be on those grounds, as per the AFL tribunal rules not anti doping code. The 2015 anti doping code was changed to broaden this to bring it in line with world standards, such as what happened when WADA appealed to CAS. Thus the 2015 anti-dopnig code overrules the more general appeal tribunal rules in anti doping matters.

The players are stating in essence, IMO, that as it as a AFL matter the normal AFL tribunal rules at the time of charge should apply thus should have been only on restricted appeal grounds.

Even if you hold this argument CAS considered this very point and decided this would have been a substantial change of the WADA code, which is not permitted by signatures of the WADA and would have stuck out such a clause.

 

[Jade]

So, where it was said in the recent announcement "The appeal has been made on the ground that the CAS erred in determining that the WADA appeal should be conducted as a de novo hearing. That is, WADA should only have been allowed to appeal the unanimous decision of the AFL Anti-Doping Tribunal on grounds of either legal error or that it was grossly unreasonable." - this has nothing to do with the changes in anti-doping code in 2015?

That right there is why I think the appeal has a snowballs chance in hell of succeeding.

 

[Mammoth]

Well no player was charged with the 2015 policy; the offence occurred when the 2010 policy applied.

Even if the AFL anti-doping code in 2010 said that the case can not be heard 'de novo'. The code is based on the WADA code, the AFL has signed up the the WADA code. If the WADA code hasn't changed much from 2010 and 2015, which I don't think it has. Then unfortunately, the WADA code has to be applied as the document of highest hierarchy and therefore the 'de novo' stands.

 

[Jade]

Even if the AFL anti-doping code in 2010 said that the case can not be heard 'de novo'. The code is based on the WADA code, the AFL has signed up the the WADA code. If the WADA code hasn't changed much from 2010 and 2015, which I don't think it has. Then unfortunately, the WADA code has to be applied as the document of highest hierarchy and therefore the 'de novo' stands.

Incorrect.

If the AFL anti-doping policy had dictated that a case could NOT be heard de novo before CAS, then it could not - very simple.

 

[imperial_oz]

Incorrect.

If the AFL anti-doping policy had dictated that a case could NOT be heard de novo before CAS, then it could not - very simple.

Absolutely incorrect. Parties who sign up to the WADA code are required to implement the WADA code 'without significant change' If there is 'significant change' those changes are disregarded. You need to do better research. This is a matter already decided in the Swiss Federal Supreme Court.

This point has been discussed a great many times on this board already.

edit: The AFL code can also not have any control over the operations of CAS. Once the matter is referred to CAS it is outside any area that the AFL can express any form of control.

 

[Mammoth]

Incorrect.
If the AFL anti-doping policy had dictated that a case could NOT be heard de novo before CAS, then it could not - very simple.

As soon as the case went to an International tribunal the 'AUSTRLIAN' football league anti-doping policy has little weight in comparison to the WADA code, an international policy that the AFL has to abide by.

 

[Mammoth]

Absolutely incorrect. Parties who sign up to the WADA code are required to implement the WADA code 'without significant change' If there is 'significant change' those changes are disregarded. You need to do better research. This is a matter already decided in the Swiss Federal Supreme Court.

This point has been discussed a great many times on this board already.

edit: The AFL code can also not have any control over the operations of CAS. Once the matter is referred to CAS it is outside any area that the AFL can express any form of control.

Thanks imperial_oz, at least someone understands policy hierarchy.

 

[Jade]

Absolutely incorrect. Parties who sign up to the WADA code are required to implement the WADA code 'without significant change' If there is 'significant change' those changes are disregarded. You need to do better research. This is a matter already decided in the Swiss Federal Supreme Court.

This point has been discussed a great many times on this board already.

edit: The AFL code can also not have any control over the operations of CAS. Once the matter is referred to CAS it is outside any area that the AFL can express any form of control.

Absolutely, categorically INCORRECT.

I repeat, IF (and it does not) the 2010 AFL anti-doping policy had dictated that appeals could not be heard de novo by CAS, then they could not.

 

[Jade]

As soon as the case went to an International tribunal the 'AUSTRLIAN' football league anti-doping policy has little weight in comparison to the WADA code, an international policy that the AFL has to abide by.

Totally incorrect.

 

[Jade]

Thanks imperial_oz, at least someone understands policy hierarchy.

And you're both wrong.

 

[imperial_oz]

Thanks imperial_oz, at least someone understands policy hierarchy.

 

[Jade]

I still laugh at how some of the AFL community think that the AFL and EFC are on the same sports ladder rung as WADA and CAS.

You can laugh all you want, you don't know what you're talking about.

 

[Mammoth]

And you're both wrong.

The AFL has to abide with the WADA code no matter what. The WADA code is world wide. If there is discrepancy between the local policies and the WADA policies CAS follows the international policies.

 

[imperial_oz]

Absolutely, categorically INCORRECT.

I repeat, IF (and it does not) the 2010 AFL anti-doping policy had dictated that appeals could not be heard de novo by CAS, then they could not.

Why do you insist of promoting rubbish like this.

The AFL has never had any control over how CAS operates. CAS operates under Swiss Admin law, not on how the AFL would like things.

The WADA code is the deciding factor, not the AFL's implementation of it. Where they conflict the WADA code holds sway. The AFL has signed a contract that requires it to implement the WADA code without 'significant change'. Trying to places restrictions on how CAS operates is way out of their level of control and contrary to their stated obligations.

You are absolutely wrong again

edit:

Go and read para 114 of the CAS Arbitral Award. It discusses this very issue with case law references and points out that everything you have stated is utterly wrong

 

[Jade]

The AFL has to abide with the WADA code no matter what. The WADA code is world wide. If there is discrepancy between the local policies and the WADA policies CAS follows the international policies.

Incorrect.

The AFL Anti-Doping policy is God. It is what is enforced, and it is enforced by the AFL.

Now WADA may decline to endorse the policy, but once it is in place, it is the effective rule until such time that it is amended or updated.

IF the AFL anti-doping policy had expressly forbidden a de novo hearing, then it simply could not be enforced.

It's as simple as that, and you are incorrect.

 

[Satan]

Another week another piece of fodder

 

[Jade]

Why do you insist of promoting rubbish like this.

The AFL has never had any control over how CAS operates. CAS operates under Swiss Admin law, not on how the AFL would like things.

The WADA code is the deciding factor, not the AFL's implementation of it. Where they conflict the WADA code holds sway. The AFL has signed a contract that requires it to implement the WADA code without 'significant change'. Trying to places restrictions on how CAS operates is way out of their level of control and contrary to their stated obligations.

You are absolutely wrong again

The CAS can do whatever the hell it likes, but if it is written in to the AFL Anti-Doping Policy that a de novo hearing is forbidden (and it is not) then that is quite simply the end of it.

No de novo hearing, or any judgement of a hearing, could be enforced because it breached the very policy that dictates the rules.

You are flat out, stone cold incorrect.

 

[Slartibartfast]

Incorrect.

If the AFL anti-doping policy had dictated that a case could NOT be heard de novo before CAS, then it could not - very simple.

Incorrect, the moment they signed on to the WADA code they are the rules. The AFL did not have to but it did.
Essendon agreed to this , Essendon are doomed.

 

[Mammoth]

Jade, you are the only one that thinks that AFL anti-doping policy is more powerful than the WADA code on this forum at the moment. Do see the common variable.

 

[Jade]

Incorrect, the moment they signed on to the WADA code they are the rules. The AFL did not have to but it did.
Essendon agreed to this , Essendon are doomed.

You don't understand the relationship.

 

[imperial_oz]

The CAS can do whatever the hell it likes, but if it is written in to the AFL Anti-Doping Policy that a de novo hearing is forbidden (and it is not) then that is quite simply the end of it.

No de novo hearing, or any judgement of a hearing, could be enforced because it breached the very policy that dictates the rules.

You are flat out, stone cold incorrect.

Quote from CAS Arbitral Award:

In short, and is well established in CAS jurisprudence, the right of appeal to CAS by reason of Article R57 of the Code necessarily carries with it subordination to the de novo principle irrespective of any purported restrictions in the regulations of the body from which such an appeal is brought (see eg WADA v. IIHF & Busch (CAS 2008/A/1564), para. 79), as is vouched for by Article 182 paragraphs 1 and 2 of Swiss PILA (see generally Reeb and Mavromati op. cit. pp 505-508).

There it is in black and white, including 'irrespective of any purported restrictions in the regulations of the body'

You are just making up rubbish now and you've been found out. The AFL is NOT god and is subordinate to the WADA Code. I certainly hope the players are getting better advice than this

 

[Jade]

Quote from CAS Arbitral Award:

In short, and is well established in CAS jurisprudence, the right of appeal to CAS by reason of Article R57 of the Code necessarily carries with it subordination to the de novo principle irrespective of any purported restrictions in the regulations of the body from which such an appeal is brought (see eg WADA v. IIHF & Busch (CAS 2008/A/1564), para. 79), as is vouched for by Article 182 paragraphs 1 and 2 of Swiss PILA (see generally Reeb and Mavromati op. cit. pp 505-508).

There it is in black and white, including 'irrespective of any purported restrictions in the regulations of the body'

You are just making up rubbish now and you've been found out. The AFL is NOT god and is subordinate to the WADA Code. I certainly hope the players are getting better advice than this

I think you are failing to understand WHY in the hypothetical I'm presenting that any judgement from a de novo hearing is utterly irrelevant.

The AFL CAN NOT enforce a penalty that breaches it's own rules.

If the AFL Anti-Doping Policy specifically refuses the right of a de novo hearing (and I repeat it does not), then no such hearing could result in an enforceable undertaking.

The CAS has no authority to overrule this, and neither does the Swiss Federal Tribunal.

WADA could of course demand that the AFL CHANGES the policy, or it would be non-compliant, but it cannot retrospectively change the policy.

So if you assume the hypothetical scenario where an AFL anti-doping policy specifically denies this course, you are completely incorrect in that the CAS, WADA, or the Swiss Federal Trinunal could overrule this - they can not.

 

[Ancient Tiger]

I think you are failing to understand WHY in the hypothetical I'm presenting that any judgement from a de novo hearing is utterly irrelevant.

The AFL CAN NOT enforce a penalty that breaches it's own rules.

If the AFL Anti-Doping Policy specifically refuses the right of a de novo hearing (and I repeat it does not), then no such hearing could result in an enforceable undertaking.

The CAS has no authority to overrule this, and neither does the Swiss Federal Tribunal.

WADA could of course demand that the AFL CHANGES the policy, or it would be non-compliant, but it cannot retrospectively change the policy.

So if you assume the hypothetical scenario where an AFL anti-doping policy specifically denies this course, you are completely incorrect in that the CAS, WADA, or the Swiss Federal Trinunal could overrule this - they can not.

I think you are splitting hairs now Jade. If the AFL did have this policy in 2010 (no de novo) and CAS still punished the players, by not going ahead with the verdict, it is contravening the contract it has with WADA. Most here are saying that that overrides contravening its own Anti Doping rules. I suspect you are wrong. The higher authority always overrides the lower. Of course if the AFL decided to dump WADA that is another story, and then they could do what they wanted.