THE SAGA CONTINUES - WADA APPEALS

[Whispering_Jack 27,960]

WADA to lodge appeal against AFL Anti-Doping Tribunal decision on 34 current and former Essendon players

[deanox 8,565]

To be honest, after 3 weeks I wasn't expecting it any more. But bam. Woo be interested to hear how Essendon and the afl respond.

[Dinosaur Rover 197]

Get into them wada!

[CBDees 3,162]

Bring it on! The AFL won't emerge smelling like roses any more than Hird or EFC!

[Gorgoroth 12,308]

I did not expect this. I thought it was done and dusted, I was just enjoying seeing Essendon lose with no excuses.

[beelzebub 22,225]

No I wasn't on the WADA site all night..lol .... Happened to been roads works going on all night outside... at about 4.30 had enough , made a cup of tea, checked the news...and woohoo

LATEST: ESSENDON chairman Paul Little has expressed his shock over the World Anti-Doping Agency’s decision to lodge an appeal on the AFL Anti-Doping Tribunal’s decision regarding 34 former and current Essendon players.

or as his little mate Neeldy would put it...."Geez, I didnt see that one coming !! "

Shock Paul ? Really... me think you protest too much!! Tis time your felonious lot got their come uppance

[beelzebub 22,225]

I did not expect this. I thought it was done and dusted, I was just enjoying seeing Essendon lose with no excuses.

ye of 'little' faith !!

[Gorgoroth 12,308]

I'm an atheist, I have zero faith!

[Whispering_Jack 27,960]

It didn't take long for the Essendon propaganda machine to go into overdrive:-

A source close to the investigation told the Herald Sun this morning: I dont think there will be a different outcome since they still dont have a witness.

What is their case. It is more politics. They (ASADA) are a disgrace.

I can just imagine Warner waking "a source close to the investigation" at sparrows for a quote. The mind boggles.

[whatwhat say what 18,897]

how can little express 'shock' at the appeal? god they must be naive down there at bomberland.

[beelzebub 22,225]

It didn't take long for the Essendon propaganda machine to go into overdrive:-

I can just imagine Warner waking "a source close to the investigation" at sparrows for a quote. The mind boggles.

And they still dont get it..the morons....They will soon enough ...lol

[Whispering_Jack 27,960]

I'm going to re-post Dees2014's thoughts from a few weeks back on the possibility of a WADA appeal. Although long, it should answer a few questions:-

I know a number of you have expressed, both here and privately by email to me, doubts about my contention that WADA will get Essendon and Hird in the end. I thought it might be useful if I set out a bit more of what I know and why I am confident of an eventual fair outcome now that we are at the point of decision by WADA to refer the Essendon case to CAS.

First, lets explore what WADA attitude might be in the Essendon case. The unofficial spokesperson for WADA in Australia (and a member of its inner circle) is its former global President, and ex NSW Premier John Fahey. After the AFL Tribunal decision was handed down, he had this to say in an interview in The Age in Melbourne.

Former WADA boss says Essendon should not feel exonerated by drug ruling Date March 31, 2015 The Age by Samantha Lane Sports Writer

Former WADA president John Fahey says Essendon should not feel exonerated by the ASADA ruling.

If Essendon feels exonerated by a favourable ruling for its players, it should re-read the scathing assessment published about its experimental 2012 regimen, according to former World Anti-Doping Authority president John Fahey.

As Australian Sports Anti-Doping Authority boss Ben McDevitt lambasted Essendon's injection program as "absolutely and utterly disgraceful" on Tuesday despite an anti-doping tribunal ruling that did not find banned drug use Fahey's criticism of the AFL club was that the protracted saga could have been handled much better.

"Essendon's behaviour though this was almost un-Australian," Fahey, who was WADA chief from 2007 to 2013, said.

"To effectively shoot the messenger, and prevent a proper examination of what everybody knows occurred and everybody knows that what occurred was, to say the least, strange if not a breach of anti-doping rules.

"It is still extraordinarily strange that players could be given thousands of needles, off site.

"Every attempt was made to prevent an independent tribunal examining all the facts. That has cost literally millions of dollars and put the future sporting careers of many young footballers in jeopardy. It should have been dealt with long ago, and that is the tragedy of the whole case that it wasn't allowed to proceed in a reasonable time to a proper conclusion.

"I can understand the players' relief. From the club's point of view, if they feel jubilant today then my advice is that they should re-read Ziggy Switkowski's report and then examine their own behaviour in this whole process. It has left a lot to be desired."

Soon after ASADA launched a joint investigation with the AFL into Essendon, in February 2013, then-Bomber chairman David Evans commissioned former Telstra boss Switkowski to review the club's supplements program.

The most infamous line from the damning report was Switkowski's finding of "a disturbing picture of a pharmacologically experimental environment never adequately controlled or challenged or documented within the club".

Fahey has been consistently scathing of the move last year by Essendon, and its coach James Hird, to take their grievances with elements of the process to the Federal Court.

"Clearly the case was taken to prevent the [AFL anti-doping tribunal] inquiry occurring, They sought injunctions to prevent any information gathered by ASADA being used for purposes of examining anti-doping rule violations. They sought injunctions through the Federal Court and then Hird appealed the original decision.

"There were four judges that had to look at it in a proper court of law before the inquiry could proceed to conduct the examination of evidence, which it has done in the last couple of months."

Fahey was unprepared to forecast whether ASADA or the world authority on sports anti-doping would appeal Tuesday's decision.

"They [WADA] look at all decisions ... and they'll satisfy themselves one way or the other relating to the proper application of the (WADA) code"

I dont think Fahey could have been any more specific about WADAs intentions here, without actually saying the world body is about to act.

With the announcement yesterday that Ben McDevitt, boss of ASADA, is in Montreal now, a week or so before the announcement whether WADA will appeal the AFL Tribunal decision, this situation is clearly coming to a head.

There now seems a high likelihood the appeal will be launched in the near future, at least that is what my contacts are telling me, although in all honesty no-one, except the inner circle, actually knows as yet. The institution itself though seems in no doubt an appeal will be launched is my information, and in all likelihood McDevitt is in Montreal on a range of sports doping matters, amongst which is planning for the Essendon appeal.

ASADA boss Ben McDevitt to meet with WADA bosses in Montreal

Lets assume there is a case launched appealing the AFL Tribunal ruling. Where to from here? Lets first explore what CAS is. On CASs website, the following information is given about appeals to CAS which I think clarifies a lot of questions on here over the last 12 months or so:

What is the Court of Arbitration for Sport?

The Court of Arbitration for Sport (CAS) is an institution independent of any sports organization which provides for servic­es in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the­ specific needs of the sports world.

The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS).

The CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law. Around 300 cases are registered by the CAS every year.

What is the function of the CAS?

The CAS has the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgements of ordinary ­courts.

What kinds of dispute can be submitted to the CAS?

Any disputes directly or indirectly linked to sport may be submitted to the CAS.

These may be disputes of a commercial nature (e.g. a sponsorship contract), or of a disciplinary nature following a decision by a sports organisation (e.g. a doping case).

Who can refer a case to the CAS?

Any individual or legal entity with capacity to act may have recourse to the services of the CAS. These include athletes, clubs, sports federations, organisers of sports events, sponsors or television companies.

What are the CAS procedures?

For disputes resulting from decisions taken by the internal bodies of sports organisations, the appeals arbitration procedure is applicable.

How does one set the arbitration in motion?

The party wishing to submit a dispute to the CAS must send the CAS Court Office a request for arbitration (ordinary procedure) or a statement of appeal (appeals procedure), the contents of which are specified by the Code of Sports-related Arbitration.

In the case of the appeals procedure, a party may lodge an appeal only if it has exhausted all the internal remedies of the sports organisation concerned.­

How are the arbitrators chosen?

Generally speaking, the arbitration is submitted to a panel of three arbitrators. Under the appeals procedure, each party chooses an arbitrator, and the president of the panel is selected by the President of the Appeals Arbitration Division. If the parties agree, or if the CAS deems this appropriate, a sole arbitrator may be appointed, depending on the nature and importance of the case. The arbitrators must be independent, that is to say have no particular connection with any of the parties, and must not have played any role in the case in question.­

How does CAS arbitration procedure work?

Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the CAS. After any additional exchange of statements of case, the parties are summoned to a hearing to be heard, produce evidence and argue their case. The final award is communicated to the parties some weeks later, unless it is pronounced the same day (under the appeals procedure).­

How long does CAS arbitration last?

For the appeals procedure, an award must be pronounced within three months after the transfer of the file to the Panel. In urgent cases and upon request, the CAS may, within a very short time, order interim measures or suspend the execution of a decision appealed against.­

What is the scope of an award pronounced by the CAS?

An award pronounced by the CAS is final and binding on the parties from the moment it is communicated. It may in particular be enforced in accordance with the New York Convention on the recognition and enforcement of arbitral awards, which more than 125 countries have signed.­

Is it possible to appeal against a CAS award?

Judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.­­­

CAS has their courts in the world in Switzerland, New York and Sydney perhaps putting paid to those of you who do not believe Australia is a superpower not only in sports but also Sport Governance. The President of the Board of CAS is also Australian, John Coates (vice President of the IOC, and President of the AOC).

For those of you who have doubts about the attitude of CAS to doping cases, let me quote none other than John Coates himself from this Age report in 2013 Australian Olympic Committee chief John Coates has expressed some sympathy for ASADA as the anti-doping body comes under fire from the AFL players for its laborious investigation into the 2012 Essendon drugs program.

Australia's most senior Olympic official reinforced his view that all athletes remained responsible for the substances they ingested whether or not they intended to cheat.

"I can understand this view from the big team sports and from what we've seen from Cronulla and Essendon that the clubs needed to show a greater duty of care to their athletes," Coates told Fairfax Media. "But these are professional athletes and they are responsible for what they ingest. They have got enough advice.

They make the decision ultimately to take the substance.

"At the 2000 Sydney Games, we had a 16-year-old gymnast Andreea Raducan, who took a tablet from her team doctor for a cold and tested positive. She was stripped of her gold medal. Everyone should be well aware of the rules."

Coates said another lesson from the AFL and NRL scandals was that the club's and support staff involved had not taken enough responsibility for those scandals.

"The clubs should and the coaches and the doctors should accept a greater responsibility for what they allowed to take place," he said.

"The new rules to soon be enforced will help change that. The sports here might be saying they will no longer deal with Stephen Dank, but from January 1 the situation will be more definitive."

This to me seems to set the bar pretty high for CAS in terms of personal responsibility by athletes as to what they take and what they dont take. It certainly leaves no doubt as to what CAS views as permissible behaviour to do with Essendon and James Hird. The question though remains one of proof, with CAS settling on a "balance of probabilities" rather than the AFL Tribunal approach of "comfortable satisfaction".

I have examined the last 20 cases before CAS and all except Australian cases have been arbitrated by non nationals. There are three Australian cases in that Group and all have been Arbitrated by Australian Arbiters, two of which were by a single Arbiter, although in view of the importance of this case, and its high profile, I am advised a single Arbiter is unlikely in this case.

So who are these people?

The Hon. Justice Annabelle Claire Bennett (1950)

Judge (Australia) Eng Sydney / Australia

PhD (biochemistry - based). Judge of the Federal Court of Australia. Additional Judge of the Supreme Court of the ACT. Presidential Member of the Administrative Appeals Tribunal. Pro-Chancellor of the Australian National University. President of the Australian Academy of Forensic Sciences (2003-2005).

Mr David Harold Bloom (1948)

Barrister (Australia) Fr/Eng Sydney / Australia LL.B; LL.M, Sydney; practicing barrister; admitted to the bars of NSW, Victoria, the ACT, Queensland, Western Australia and of New York State.

Mr John Francis Boultbee (1950)

Lawyer (Australia) Fr/Eng/Deu Sydney / Australia

LL.M. Master of laws, London University; Barrister; Director of the Australian Institute of Sport; former Secretary General of the International Rowing Federation (FISA). Former Head of National Teams, Football Federation Australia. Former Director of the Australian Institute of Sport.

Mr Bruce W. Collins (1948)

Queens Counsel (Australia) Eng Sydney / Australia

Q.C.; Practising Member New South Wales Bar Association Professional Conduct Committee. Australian Olympic Appeals Consultant. New South Wales Bar Association Advisor to the Faculty of Law, University of Wollongong. Chairman New South Wales Rugby League Appeals Committee 1995-1996. Chairman Sydney Cricket Association 2001-2007; Australian Olympic Appeals Consultant Summer 2008 and Winter Olympics 2010.

Mr Brian William Collis (1943)

Chairman Australian Footbal League Tribunal (Australia) Eng Melbourne / Australia

Queens Counsel. Vice Chairman - Australian Football League Appeal Board. Chairman - Harness Racing Victoria Racing Appeals and Disciplinary Tribunal.

The Hon. Jerrold Cripps (1933)

Barrister (Australia) Eng Sydney / Australia

Queens Counsel; Chairman Australian Commercial Dispute Centre; Chairperson National Electricity Tribunal; member of the Independent Pricing Regulatory Tribunal (NSW) Panel of arbitrators; Chief Counsel, Allen Allen & Hemsley, lawyers, Australia; former judge of the NSW Court of Appeal.

The Hon. Robert J. Ellicott (1927)

Barrister (Australia) Eng Sydney / Australia

Barrister B.A.; LLB; Australian Solicitor General and Attorney General; former Judge at the Federal Court; member of the International Amateur Athletic Federation (IAAF) Panel of arbitrators. Member of the CAS ad hoc Divisions at the Commonwealth Games, Kuala Lumpur, 1998, and at the Summer Olympic Games, Sydney, 2000 and at the Winter Olympic Games, Salt Lake City, 2002.

Justice Arthur Emmett (1943)

Judge (Australia) Eng Sydney / Australia

Doctor of Laws. Queens Counsel. Judge of the Federal Court of Australia. President, Copyright Tribunal of Australia. Commissioner, Australian Law Reform Commission. Lecturer, University of Sydney Law School. Conduct Commissioner, NSW Cricket Association, 1990 to 2007.

Mr Noah David Grace (1953)

Barrister and Solicitor (Australia) Eng Melbourne / Australia

Master of laws; Queens Counsel; Barrister; Co-Chair Criminal Law Committee Law Council of Australia; Member Court of Honour, and formerly Vice-President, Maccabi World Union. Director Athletics Australia; Team Advocate Australian Olympic Team Athens 2004; Member CAS ad hoc Divisions Commonwealth Games Melbourne 2006 and Winter Olympic Games Vancouver 2010. President Athletics Australia.

Mr Malcolm Holmes (1948)

Barrister (Australia) Eng Sydney / Australia

B.A., LLB Sydney University, BCL, Oxford University; appointed as the athletes advocate to the Australian Olympic Team at Atlanta in 1996. Member of the CAS ad hoc Division at the Summer Olympic Games, Athens 2004 and at the Winter Olympic Games, Turin 2006.

Mr David Ipp (1938)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of Western Australia; Commissioner of Independent Commission Against Corruption (ICAC); former barrister, solicitor in Australia and in South Africa.

Mr Mark Mangan (1974)

Attorney-at-law (Australia) Eng London / United Kingdom

Solicitor, England and Wales. Solicitor, Australia. Partner, Dechert LLP Singapore. Formerly senior associate, Freshfields Bruckhaus Deringer LLP. Acting as counsel and arbitrator in international arbitration. In-house counsel for the International Cricket Council.

Judge Henric Nicholas (1941)

Judge (Australia) Eng Sydney / Australia

Judge of the Supreme Court of New South Wales since Feb. 2003. Barrister-at-law 1966 - 2003, appointed Queens Counsel in Oct. 1981.

Mr Hayden Opie (1953)

Solicitor, Senior Lecturer/Director of Studies (Australia) Eng Melbourne / Australia

His Honour Judge Rauf Soulio (1957)

Judge (Australia) Eng Adelaide / Australia

Judge; Supreme Court of South Australia 1981; High Court of Australia 1984; Roll of Solicitors, England and Wales 1990. Judge - District Court of South Australia (appointed 2006) - administrative, civil, commercial and criminal jurisdictions. Judge - Equal Opportunity Tribunal. Judge - Licensing Court of South Australia. 1981-1988 Solicitor. 1988-2006 Barrister. 2009-present President - Football Federation of South Australia.

The Hon. James Spigelman (1946)

Retired Judge (Australia) Eng Sydney / Australia

Arbitrator. Barrister, Australia 1980-1998, QC 1986-1998. Chief Justice, Supreme Court of New South Wales 1998-2011.

Mr Alan John Sullivan (1951)

Lawyer (Australia) Eng Sydney / Australia

Queens Counsel; Barrister; former Chairman, Australian Rugby League Judiciary Panel; Commissioner, Code of Behaviour, Australian Cricket Board.

Mr Neil John Young (1952)

Barrister-at-law (Australia) Eng Melbourne / Australia

LL.M.; Queens Counsel; Barrister; past President, Australian Bar Association; former Chairman Victoria Bar.

I have looked at last four or five CAS cases in Australia, and it seems that most are presided over by an Australian Arbiter (perhaps tyranny of distance, I dont know), whereas the last ten non Australian cases, there were no arbiters of the same nationality as the appellants.The list above is understandably dominated by the legal profession, but if they follow the CAS guidelines, no one can be chosen as an Arbiter if they have previously had anything to do with the case. This would seem to rule out Gordon Collis for instance, now Vice President of the AFL Appeals Tribunal, David Grace who has acted for both James Hird and the players association, John Boultbee, formerly 2IC at the FFA, and Alan Sullivan, the former chairman of the NRL Judiciary Panel. The remainder, are heavily connected to Olympic sports (where most disputes of this sort arise), so it could be expected their attitudes will be heavily influenced by the attitudes of those sports which as we all know generally feel aggrieved that wealthy Australian football codes seem to be getting a free ride when it comes to drugs in sport.

So what does WADA now do? Do they pursue the Essendon players (and/or Dank), believing there is sufficient evidence that the Tribunal got it wrong. By passing to WADA now, as McDevitt has done, the World body can take the matter directly to the Court of Arbitration for Sport with the appeal almost certainly to be held in Sydney. Most anti-doping cases are based on positive A and B samples, which if correctly tested are almost incontrovertible evidence of a violation. With a test for Thymosin Beta-4 said to be less than 12 months away, and all 34 Essendon footballers having had their A and B blood samples safely stored away by ASADA, ASADA have recently stated publicly that they will re-test these samples once a test becomes available.

The trouble with ASADAs case right now is that it draws on the more general provision in the AFL Anti-Doping Code (identical to the relevant section of the WADA World Anti-Doping Code) prohibiting Use or Attempted Use. For the AFL Tribunal, ASADA needed to prove the violation to the comfortable satisfaction of the Tribunal this is unhelpfully said to be a greater standard of proof than a balance of probability (>50% chance), but less than proof beyond reasonable doubt (the criminal standard of guilt).

Quite possibly, Essendons administrative and governance failings have thus far saved them, although there are provisions in the WADA code if the accused party is interpreted as indulging in criminal behavior. It is a moot point whether destruction of evidence is criminal in this case, and that also needs to be proven. The lesser standard of proof about balance of probabilities may help WADA\ASADA in this case. There was no audit trail of what was administered as part of the injections program, when, or to whom. This is why Essendon fought so hard to throw out evidence based on witness statements given to the AFL with ASADA in the room, but this same evidence may well be sufficient to convict under CAS provisions.

All now hinges on WADAs reading of the brief of evidence. But given the focus on personal responsibility, as expressed by John Fahey, and John Coates, and the lack of steps taken by Essendon players to question what was happening, and the lesser standard of proof required by CAS than the interpretation settled on by the AFL Tribunal, it is hard to see the Essendon players, and indeed the administration and coaches, getting off.

Once CAS pronounces on the players, then the coaches and administration will follow if what happens in cycling is any guide.

[FarNorthernD 5,839]

Wow. Well that is unexpectently good news to wake up to

[Trisul 636]

No I wasn't on the WADA site all night..lol .... Happened to been roads works going on all night outside... at about 4.30 had enough , made a cup of tea, checked the news...and woohoo

Nepean resurfacing inconveniencing you too?

Interesting Gaze on SEN the only one asking questions versus slagging ASADA/WADA.

Edited May 11, 2015 by Trisul

[beelzebub 22,225]

how can little express 'shock' at the appeal? god they must be naive down there at bomberland.

all part of the self-righteous , ( we're the victims really ) spin !!

[beelzebub 22,225]

Nepean resurfacing inconveniencing you too?

Interesting Gaze on SEN the only one asking questions versus slagging ASADA/WADA.

yeah...just a tad

[biggestred 4,280]

So can the CAS subpoena witnesses to appear under oath?

Seems to me if they can then the bombers will be up the proverbial creek sans paddle

[KingDingAling 3,593]

Anything that destabilizes Essendon is good news to wake up to.

[Dr John Dee 1,057]

It didn't take long for the Essendon propaganda machine to go into overdrive:-

I can just imagine Warner waking "a source close to the investigation" at sparrows for a quote. The mind boggles.

If the hird-mentality view is that the absence of witnesses is somehow going to be decisive (like they've been braying about the absence of records ... just where do things disappear to out there? Is Windy Hill an extension of the Bermuda Triangle?) it would be useful if one of the legal fraternity here can confirm that CAS proceedings will allow WADA to subpoena Charter, Alavi and Dank.

Of course I expect Dank to be announcing soon that he's going to sue WADA as well.

[Sir Why You Little 34,432]

Listening to SEN this morning has been most humorous

[beelzebub 22,225]

So can the CAS subpoena witnesses to appear under oath?

Seems to me if they can then the bombers will be up the proverbial creek sans paddle

certainly can ollie...via the Supreme Court Different ball game now huh !!!

This is what all the lobbying and propaganda shenanegans was all about....avoiding this at all costs.

This is no longer the EFC/AFL corrupt little caper. This is where they have NO sway at all !! diddums

[Sir Why You Little 34,432]

Dank and Charters under oath...

YES

[TRIGON 4,715]

Where's Sanity Prevails?, who was courteously thanked for his input and I believe an appointment was made for Tuesday?

[beelzebub 22,225]

anyone see a scramble for plane seatst near Windy Hill this morning?????

[beelzebub 22,225]

Where's Sanity Prevails?, who was courteously thanked for his input and I believe an appointment was made for Tuesday?

irony...Sanity HAS Prevailed !!!!