THE SAGA CONTINUES - WADA APPEALS

[Chris 2,892]

firstly, can I welcome you back to the debate. I applaud your courage in finally addressing actual points raised, whilst noting your distinct lack of acknowledgement about your fundamental error.

But you're doing it again. Appeals at CAS are held according to the relevant NADA agreement, and by the laws of the country where the dispute stems from. I find it slightly concerning that such a self-professed expert gets such basic, fundamental concepts wrong so consistently.

Allow me to quote from the CAS website:

http://www.tas-cas.org/en/general-information/frequently-asked-questions.html

In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the body concerned by the appeal and, subsidiarily, the law of the country in which the body is domiciled. The procedure itself is governed by the Code of Sports-related Arbitration.

http://www.tas-cas.org/en/general-information/frequently-asked-questions.html

as for what Chris posted (a poster who, for what it's worth, I respect considerably as a smart operator and courteous debater, despite our disagreements), that assumes that Dank will actually follow through on his threats. I have no idea how anyone could think that will actually occur, given what we've seen so far...

Lance, you seem to have forgotten the part of the quote that says the law could be heard under which ever law the CAS panel wish it to be heard under. If you quote at least do so completely. Edited June 27, 2015 by Chris

[Lance Uppercut 10]

Lance I suggest you read WJ's post after yours. You might learn something, although I somehow doubt it

is that seriously the best you can do?

So you make another erroneous assertion. I correct it, referencing the black and white content of the actual CAS website, and all you've got is some kind of [censored] playing the man response?

That's not even taking into account that I clearly read it, given I responded to it.

[Lance Uppercut 10]

Lance, you seem to have forgotten the part of the quote the days the law could be heard under which ever law the CAS panel wish it to be heard under. If you quote at least do so completely.

I haven't forgotten at all. I quoted verbatim from the CAS website.

All legislation will try to cover all bases. So there are various mechanisms to allow outcomes in extreme circumstances. But it clear that the intent of the policy and the absolutely overwhelmingly likely outcome as a result is exactly what I've just quoted.

People are welcome to make a considered argument against this assertion if they wish and are able to. By all means.

[Whispering_Jack 30,173]

I respect your opinion but I personally have a lot of trouble with the concept that such eminent legal professionals could find themselves so enmeshed and unable to carry out the most fundamental part of their role, on such a basic concept as the distinction between comfortable satisfaction and reasonable doubt.

For me it's an Occam's Razor scenario where it's far more likely that when they take into account the entirety of the evidence they came up with the conclusion they did

As difficult as you might find it Lance, it happens often in the world of litigation and, when appealed to higher courts, decisions in the courts below are often overturned. The CAS hearing will be different and, as you pointed out in the Q&A response, the procedure adopted will be different i.e in accordance with "Code of Sports-related Arbitration". I believe that in itself represents a departure from the AFL Tribunal hearing which might be significant and which, I suspect might lead to a different outcome in CAS.

I guess we'll find out in 6 to 12 months.

[Ethan Tremblay 30,861]

Disappointingly apparently he has apologised for it, to Fox Footy.

He said he wouldn't do it again if he could go back (more so because instead of talking about the win they were talking about his air jab).

[Lance Uppercut 10]

As difficult as you might find it Lance, it happens often in the world of litigation and, when appealed to higher courts, decisions in the courts below are often overturned. The CAS hearing will be different and, as you pointed out in the Q&A response, the procedure adopted will be different i.e in accordance with "Code of Sports-related Arbitration". I believe that in itself represents a departure from the AFL Tribunal hearing which might be significant and which, I suspect might lead to a different outcome in CAS.

I guess we'll find out in 6 to 12 months.

fair enough. You are correct, appeals based on points of law do occur and are successful. And I'm not trying to say it's impossible that CAS might apply a different interpretation of comfortable satisfaction

[titan_uranus 25,020]

The AFL Tribunal had on it lawyers who came from an adversorial criminal and corporate law background and therefore follow the British legal practice of innocence until proven guilty. And that is the way the case was conducted even though it was nominally under a comfortable satisfaction criteria. Lance Armstrong was also judged supposedly under comfortable satisfaction criteria but in a European sport environment, and as Gerard Whately rightly pointed out during his chat with Hird after the WADA appeal was announced, that if the criteria applied by the AFL tribunal was applied to the Armstrong case, Armstrong would have got off.

I haven't read this thread in months (I have no idea why I'm here now), so I'm not proposing to jump into the debate (or whatever is taking place here).

However, what you've said here appears to me to be misguided.

The concept of 'comfortable satisfaction' has nothing to do with the concept of 'innocent until proven guilty'.

The latter says that the person bringing the charge/complaint is the one who has the onus of proof (i.e. ASADA/WADA have to make their case). The former dictates the extent to which that person (i.e. ASADA/WADA) have to prove it - either on the balance of probabilities, or to a comfortable satisfaction, or beyond reasonable doubt.

The two are not mutually exclusive and you seem to be saying here that the Tribunal's use of innocent until proven guilty was an error (at least that's how I read your post).

[Chris 2,892]

I haven't forgotten at all. I quoted verbatim from the CAS website.

All legislation will try to cover all bases. So there are various mechanisms to allow outcomes in extreme circumstances. But it clear that the intent of the policy and the absolutely overwhelmingly likely outcome as a result is exactly what I've just quoted.

People are welcome to make a considered argument against this assertion if they wish and are able to. By all means.

That part of the quote is prefaced by an 'or'. The intent of that section of the rules may be one thing, and is open to interpretation. The intent of the panel is another, if the CAS member and WADA member want it in swiss law then I can see no way it will be heard in anything but. Edited June 27, 2015 by Chris

[Lance Uppercut 10]

That part of the quote is prefaced by an 'or'. The intent of that section of the rules may be one thing, and is open to interpretation. The intent of the panel is another, if the CAS member and WADA member want it in swiss law then I can see no way it will be heard in anything but.

that may well be the case but the key question is why would CAS want it heard in Swiss law when the clear policy of CAS, as quoted in their FAQ section, is that it's held applicable to the law of the country in which the sporting body is domiciled?

Is there any feasible reason you can come up with?

[Chris 2,892]

that may well be the case but the key question is why would CAS want it heard in Swiss law when the clear policy of CAS, as quoted in their FAQ section, is that it's held applicable to the law of the country in which the sporting body is domiciled?

Is there any feasible reason you can come up with?

The comfort and experience of the sitting members, along with any extra powers they will be afforded. The tribunal members did express dissatisfaction in their inability to hear all the evidence. If Swiss law provides this, as some people say, then they may wish to use it.

The specific section you refer to also contains 'or' between the options. It does not mention if this doesn't happen then this should, just or. This leaves the option open to however they wish to proceed.

[Lucifers Hero 39,826]

I cant post the fox footy subscriber link (not a subscriber) but Bomber Thompson is quoted as saying that "Hird's coaching career at Essendon is doomed."

Music to my ears!

CAS will deal with the players but for mine Hird getting his just desserts is the main game.

Being sacked for 'incompetence' as a coach would be poetic justice....a mighty fall from grace for the smug one.

I don't care how Hird falls as long as he leaves AFL forever.

[beelzebub 23,378]

Herald sun comments on Mitchell's sledging all so typically one sided (edited)

Laughable .

So he called him a '[censored]-er'......eh......whatever it takes !!!

[Ted Lasso 19,518]

I seriously hope Mitchell doesn't miss games for what he did, it's a [censored] look but seriously blokes sledge each other every single game, i've got no doubt we cop being called tankers, he's said sorry i think everyone should just move on because it's just a heat of the moment thing.

[Willmoy1947 4,091]

One should remember the Status of this particular Coach and take into account all the side issues unfolding.

Should, or have many senior coaches in the AFL ever, after a "suitable" period of time, had their careers resurrected.

Many of the present players could be construed as being tainted to an extent and are not going to be around forever one way or another.

A more pragmatic point of view of a Committee under "superior advice" could lead to a purported demise (for the moment) of a Coach thus appeasing the AFL

and any worried Feds about Aussie sporting reputation going through the mill.

The question is who would and who wouldn't "buy it"

[Lance Uppercut 10]

I seriously hope Mitchell doesn't miss games for what he did, it's a [censored] look but seriously blokes sledge each other every single game, i've got no doubt we cop being called tankers, he's said sorry i think everyone should just move on because it's just a heat of the moment thing.

there's no way in the world he will miss games. Nor should he. He'll get a fine at worst

[deefrag 277]

I think he is telling them to watch ABC's Outsiders tomorrow morning! Something about Peppytides!

[Ted Lasso 19,518]

there's no way in the world he will miss games. Nor should he. He'll get a fine at worst

Here's hoping you're right Lance, but the AFL have a history for not including common sense in their decision making processes.

[Lance Uppercut 10]

The comfort and experience of the sitting members, along with any extra powers they will be afforded. The tribunal members did express dissatisfaction in their inability to hear all the evidence. If Swiss law provides this, as some people say, then they may wish to use it.

The specific section you refer to also contains 'or' between the options. It does not mention if this doesn't happen then this should, just or. This leaves the option open to however they wish to proceed.

It is clear the default option is as I've quoted. The EFC rep will say Australia. Wada might try Swiss. There is no reason to think cas would go against the clear default option.

Certainly it is ridiculous to claim that Swiss law is what will prevail. It's theoretically possible, sure, but highly unlikely. I know you personally have taken him to task in the past, but it seems to me the poster who asserted that would benefit from a more sceptical reception in general given there is a distinct pattern of misconceptions developing.

Here is the full section I quoted previously:

I­n the context of ordinary arbitration, the parties are free to agree on the law applicable to the merits of the dispute. Failing such agreement, Swiss law applies.

In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the body concerned by the appeal and, subsidiarily, the law of the country in which the body is domiciled. The procedure itself is governed by the Code of Sports-related Arbitration.

They specifically say in the context of an arbitration, Swiss law can apply in the absence of an agreement. Yet in an appeal it is the law of the country in which the body is domiciled. You can't take that any other way other than it is set out in black and white. Further, the CAS laws say that in the absence of an agreement for an appeal, the result is the local law of the country in which it's domiciled. The theoretical option of the panel choosing differently explicitly needs to be given an explanation. Again - what would an explanation be?

Edited June 27, 2015 by Lance Uppercut

[Ted Lasso 19,518]

It is clear the default option is as I've quoted. The EFC rep will say Australia. Wada might try Swiss. There is no reason to think cas would go against the clear default option.

Certainly it is ridiculous to claim that Swiss law is what will prevail. It's theoretically possible, sure, but highly unlikely. I know you personally have taken him to task in the past, but it seems to me the poster who asserted that would benefit from a more sceptical reception in general given there is a distinct pattern of misconceptions developing

One thing i am curious to hear your opinion on Lance is the impact of the Dank verdict, surely his life ban would add significant weight to what may well be a circumstancial case from WADA?

[Lance Uppercut 10]

One thing i am curious to hear your opinion on Lance is the impact of the Dank verdict, surely his life ban would add significant weight to what may well be a circumstancial case from WADA?

sure. Actually it's quite the opposite. The reason is that he was found not guilty of administering tb4 to EFC players. So the only possible impact it could have would be in defence of the players.

The AFL Anti Doping Code explains that the decision of a previous tribunal is irrefutable proof UNLESS it is subject to appeal. If it's subject to appeal, it can't be referred to at all. Given WADA have said Dank's appeal, should it proceed, will be held concurrently with the players, then there is absolutely no way it can have any negative impact on the case of the players. As I said, quite the opposite applies.

[Ted Lasso 19,518]

sure. Actually it's quite the opposite. The reason is that he was found not guilty of administering tb4 to EFC players. So the only possible impact it could have would be in defence of the players.

The AFL Anti Doping Code explains that the decision of a previous tribunal is irrefutable proof UNLESS it is subject to appeal. If it's subject to appeal, it can't be referred to at all. Given WADA have said Dank's appeal, should it proceed, will be held concurrently with the players, then there is absolutely no way it can have any negative impact on the case of the players. As I said, quite the opposite applies.

Ah, that does make things far less interesting than i'd hoped, personally i think that the bombers did the wrong with regardless of TB4, to have an injection program of this scale and no records/ way of confirming 100% on request what was given should to me be a life ban,

imagine if you got an injection from a doctor and a month later he couldn't tell you what you were given? i know i'd be fuming, and this is even worse because of it being professional sport and the players being well aware of their responisibilities in terms of knowing what they're taking.

[Chris 2,892]

It is clear the default option is as I've quoted. The EFC rep will say Australia. Wada might try Swiss. There is no reason to think cas would go against the clear default option.

Certainly it is ridiculous to claim that Swiss law is what will prevail. It's theoretically possible, sure, but highly unlikely. I know you personally have taken him to task in the past, but it seems to me the poster who asserted that would benefit from a more sceptical reception in general given there is a distinct pattern of misconceptions developing.

Here is the full section I quoted previously:

I­n the context of ordinary arbitration, the parties are free to agree on the law applicable to the merits of the dispute. Failing such agreement, Swiss law applies.

In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the body concerned by the appeal and, subsidiarily, the law of the country in which the body is domiciled. The procedure itself is governed by the Code of Sports-related Arbitration.

They specifically say in the context of an arbitration, Swiss law can apply in the absence of an agreement. Yet in an appeal it is the law of the country in which the body is domiciled. You can't take that any other way other than it is set out in black and white. Further, the CAS laws say that in the absence of an agreement for an appeal, the result is the local law of the country in which it's domiciled. The theoretical option of the panel choosing differently explicitly needs to be given an explanation. Again - what would an explanation be?

Interestingly you have provided a quote in the past the had a sentence near the end that was along the lines of 'or at the discretion of the panel members'. Where has that gone?

You also miss the required agreement. If WADA want it in Switzerland and under swiss law it will happen. For it not to would rely on them agreeing for it not to be, if they agree on that then they obviously didn't want it in Switzerland under swiss law.

Edited June 27, 2015 by Chris

[Red and Bluebeard 2,084]

Great theatre!. I'm sure there's nothing in the rules which outlaws sledging about taking performance enhancing drugs.

But are we comfortably satisfied that that was what he was doing?

[Lance Uppercut 10]

Ah, that does make things far less interesting than i'd hoped, personally i think that the bombers did the wrong with regardless of TB4, to have an injection program of this scale and no records/ way of confirming 100% on request what was given should to me be a life ban,

imagine if you got an injection from a doctor and a month later he couldn't tell you what you were given? i know i'd be fuming, and this is even worse because of it being professional sport and the players being well aware of their responisibilities in terms of knowing what they're taking.

I am currently reading The Straight Dope and frankly a lot of it makes my blood boil. What happened to the players and their families is an utter disgrace, regardless of what happens at CAS

[Lance Uppercut 10]

Interestingly you have provided a quote in the past the had a sentence near the end that was along the lines of 'or at the discretion of the panel members'. Where has that gone?

I don't think I have. I think you are referring to this, which is straight from the CAS procedural section:

http://www.tas-cas.org/en/arbitration/code-procedural-rules.html

R58 Law Applicable to the merits

The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.

http://www.tas-cas.org/en/arbitration/code-procedural-rules.html

As I said previously, it says the laws will be chosen by the parties or in the absence of that default to local law. So, even if WADA wanted Swiss, EFC member would say Aus and then with no agreement it is default Aus.

If the panel "deems appropriate" it's swiss, they'd obviously need a darn good reason and would have to publish such