THE SAGA CONTINUES - WADA APPEALS

[John Crow Batty 8,863]

From John Pierek in THE AGE today.

A previously unknown legal expert in Warsaw gives his take. Straight out of the Hird Propaganda team it appears. The "Un Australian" theme was always going to pop up. And the players were not educated enough. The rare overturned CAS case example brought up for soccer player Mr Da SIva had nothing to do with drugs.

"An international arbitration counsel has opened up the unlikely but possible scenario where a Swiss court could strike down any adverse finding against the 34 Essendon players on public policy grounds as being an "over-reach of Australian domestic jurisdiction".

James Rowland, an international arbitration counsel who lives in Warsaw, has penned an exposition suggesting players, should they be suspended after appearing before the Court of Arbitration for Sport in Lausanne, Switzerland, could have any punishment revoked. As it stands, any ruling by CAS on whether the players were administered the banned drug thymosin beta 4 is final.

Rowland has written that as natural justice and procedural fairness is a public policy issue, the players' consent to the World Anti-Doping Agency's appeal against the findings of the AFL anti-doping tribunal could be relevant. The argument is based on a Swiss court determining whether more should have been done educating players about CAS before they agreed to the anti-doping process.

"Because WADA has decided to exercise its 'right' to go straight to head office without the intervening step of a hearing before the AFL appeals board, the 34 players are denied an intermediate step in the appeal process. Should the CAS panel make an adverse finding, its decision on sanctions will be both first instance and final appeal," Rowland said.

"Can this be right? Might there be the prospect of the ultimate irony, namely, a Swiss Court - after any adverse finding against the players - striking down WADA's appeal for being distinctly un-Australian?

"Whilst it would take an unlikely chain of events for this to occur, the question leads to some philosophical 'big picture issues' about the role of the Court of Arbitration for Sport, the functions of the Swiss Federal Tribunal and the limits of player contracts."

Another lawyer contacted by Fairfax Media agreed the Swiss court could have an, albeit unlikely, opportunity to "strike down" a WADA appeal against the AFL anti-doping tribunal's decision that, to its comfortable satisfaction, the 34 players were not administered a banned drug.

Writing for legal website, social litigator, Rowland highlights a 2012 financial case involving Brazilian soccer player Matuzalem da Silva as an example of how a CAS decision can be overturned on appeal to the Swiss Federal Tribunal. It's understood this is the only case CAS has had annulled by the tribunal, which would only hear a case if there was "specified procedural irregularity".

Rowland, who is not involved in the Essendon case, also points to comments made by Justice Clyde Croft during the Australian Sports Anti-Doping Agency's hearing in the Victorian Supreme Court last year, questioning whether an AFL contract could be upheld in a WADA case.

"He noted that the terms of clause 4 of the AFL Anti-Doping Code acknowledge agreement between the AFL and ASADA, which players and support persons incorporate into the contractual framework," he said.

"Justice Croft stopped short of concluding that, among what he described as the 'web of contractual provisions' binding the players, support persons, the AFLPA, clubs, the AFL and ASADA, there is a legitimate, enforceable arbitration agreement between the players and WADA.

"Accordingly, it remains an open question as to whether the contract between the players and the AFL is an enforceable one.

"The Court of Arbitration for Sport (CAS) has its seat in Lausanne, Switzerland. The 'seat' is a very important legal concept when it comes to arbitration. It means a panel with its seat outside Australia can make an award enforceable here under the New York Convention. The award cannot be appealed on a question of law to Australian courts.

"Is it possible that an onerous sanction, if made, against 34 Essendon players who likely never thought their case would be heard in Switzerland, could violate Swiss public policy on the grounds that this is an over-reach of Australian domestic jurisdiction? Only time will tell."

WADA's case before CAS a date has yet to be set will be led by prominent US anti-doping lawyer Richard Young, who played a key role in the prosecution of cyclist Lance Armstrong.

Neil Clelland QC, who had represented Western Bulldog Stewart Crameri and Footscray VFL player Brent Prismall, will represent the Essendon 34.

The case will be heard by ABC chairman James Spigelman, Belgium-based barrister Romano Subiotto and a third, as yet unnamed, person."

Edited June 28, 2015 by america de cali

[sue 9,106]

You have to hand it to them. It's like a burglar being convicted and then having someone suggest he should get off because his mother brought him up well but neglected to read him the penal code as a child even though she told him not to steal.

[jnrmac 20,065]

Foxtel just showed the hird post match. Hird saying maybe people are believing the media's propaganda about the drug issue, crossed back to the studio and dwayne came up with this ripper:

"Hird fighting the medias propaganda with his own. Maybe there were no injections after all?"

Haha

He is still delusional about it! Called Sam idiotic! The nerve of the man!

Bwah ha ha hah hahhh

Comedy gold!

[faultydet 7,594]

The whole defence has been based on delaying tactics, and technicalities.

Maximum bans for everyone. That stinking cesspit of a club makes my guts churn.

Edited June 28, 2015 by faultydet

[Macca 16,969]

This absolute rot that the players are innocent victims needs to stop ... it's a crock of ...

They agreed to be injected thousands of times and it was up to every single player to know what was being injected into their bodies - no excuses.

I've believed from day 1 that the players are complicit and there's been nothing said or done to change my mind - maybe if it was 1 or 2 injections but thousands of injections? (outside of the club, across the road at a dodgy anti-aging clinic) Everything points towards guilt in my opinion.

The lack of records should have made things worse but somehow become their ally. If this was an overseas club in another code that club would have very little support in Australia. Of course, the love of the code of footy in this country has also been a strong ally for the Bombers as well (also from day 1)

I believe there's a very good chance that the players will be found guilty but the penalties may not be all that draconian. 12 months maximum is my best guess.

I do have sympathy for their supporters however - they're stuck in a no-win situation with regards to their own opinions - pronounce innocence and they look delusional ... pronounce guilt and they'd struggle to continue to support their club in a normal way.

Blaming their supporters is unnecessary and in many ways, wrong - it's not like their fans ever made the choice for the players to transgress the drug code. They are trying to deal with the aftermath like many fans of any other club would.

[Willmoy1947 4,088]

"what we have here is a failure to communicate"

[Chris 2,892]

"what we have here is a failure to communicate"

Some men you just can't reach, so you get what we had here last week, which is the way Hird wants it, well he (doesn't) get it!

[jnrmac 20,065]

This is a team that came out and smashed other teams with their physicality. Ratten and Carlton were gobsmacked at how they transformed their bodies over one summer. They even complained to the AFL.

This stinking carcass of a club tried to get an advantage and they have ben caught out. No sympathy. Not now, not then, not ever. To say the players are innocent is the biggest load of crap to come out of this saga. Apparently not one player checked with their manager, parents, doctor etc etc about what they were taking. Sayonara fools.

Oh yeah but its media propaganda. The end is near for Hird. He'd go well in Greece. They like delusional people there.

[Lucifers Hero 39,806]

This is an excellent article by Tim Lane and looks at what the 'administrators' were up to during the ASADA/AFL investigation. http://www.theage.com.au/afl/afl-news/the-media-is-the-massage-the-mindboggling-truth-on-the-supplements-scandal-20150627-ghz7gx.html

The AFL, Mike Fitzpatrick, John Wylie and the Canberra bureaucrats do not come out of it looking too good!

Adruska comes out of it squeaky clean.

My favourite line in the article: "Modern politicians, on the other hand, are pathological practitioners of spin".

Of course, the same can be said of the AFL, Hird and EFC.

[Mazer Rackham 14,971]

Doesn't that article merely back up what everyone (even Hirdites) thought was happening?

But don't let that distract us from the main game. They drugged up; what with; who is reponsible; why aren't the players marching on Tulla with pitchforks?

And, goodbye Brownlow.

[DemonFrog 1,354]

Hird is a f!og of the highest order.

He is offended by Mitchels gesture, but fine with actually injecting players thousands of times with substances he has no knowledge of...

Such a hypocrite!

The sooner he is gone from the AFL the better, actually the quicker he leaves the country the better.

Did you hear the comments about paying the reporter that was saying something positive about his team?

Do we still have cash for comments in the Australian media?

The Essendon FC pockets are very deep indeed.

[rjay 24,928]

This is an excellent article by Tim Lane and looks at what the 'administrators' were up to during the ASADA/AFL investigation. http://www.theage.com.au/afl/afl-news/the-media-is-the-massage-the-mindboggling-truth-on-the-supplements-scandal-20150627-ghz7gx.html

The AFL, Mike Fitzpatrick, John Wylie and the Canberra bureaucrats do not come out of it looking too good!

Adruska comes out of it squeaky clean.

My favourite line in the article: "Modern politicians, on the other hand, are pathological practitioners of spin".

Of course, the same can be said of the AFL, Hird and EFC.

...and we are to trust the integrity of the AFL???

I think not...this is maybe part of the reason why Hird feels hard done by, however he can't get away from the fact that on his watch players were injected with unknown substances.

As 'Macca' has pointed out above it also doesn't absolve the players of their responsibly in the whole affair.

[John Crow Batty 8,863]

This is an excellent article by Tim Lane and looks at what the 'administrators' were up to during the ASADA/AFL investigation. http://www.theage.com.au/afl/afl-news/the-media-is-the-massage-the-mindboggling-truth-on-the-supplements-scandal-20150627-ghz7gx.html

The AFL, Mike Fitzpatrick, John Wylie and the Canberra bureaucrats do not come out of it looking too good!

Adruska comes out of it squeaky clean.

My favourite line in the article: "Modern politicians, on the other hand, are pathological practitioners of spin".

Of course, the same can be said of the AFL, Hird and EFC.

The bottom line is that this issue would have been resolved a couple of years ago with players taking Micky Mouse suspensions and ring leaders removed from the game. That would have satisfied all parties bar one. Hird takes the blame for he was not prepared to take responsibility for what he created and fall on his sword.

[deefrag 277]

"what we have here is a failure to communicate"

Hird should be forced to eat 50 hard boiled eggs!

[biggestred 5,088]

Royal commission time.

This whole episode has been a disgrace to australian sport and australia as a whole.

Systematic doping

Protection from governing body

Government interference and protection

A failure by worksafe to do anything

It is the sort of thing we expect from the east germans.

[faultydet 7,594]

Royal commission time.

This whole episode has been a disgrace to australian sport and australia as a whole.

Systematic doping

Protection from governing body

Government interference and protection

A failure by worksafe to do anything

It is the sort of thing we expect from the east germans.

I think points 2 and 4 are the big issues here.

It shouldn't really be a surprise that the AFL if feathering its own nest, but, my god, what has happened to Worksafe? Surely it's political interference? I just dont understand the complete lack of media scrutiny of the lack of action, in what is surely a clear part of Worksafes brief?

[monoccular 17,428]

Don't get to excited about Petracca yet. Remember he had a limited tank when he joined us. Imagine what his tank is now after 6 months on the sideline.

He will have a mountain to climb to get his tank some up to AFL Standard let alone learn the game plan, running patterns, improve his skillset ect.

Royal commission time.

This whole episode has been a disgrace to australian sport and australia as a whole.

Systematic doping

Protection from governing body

Government interference and protection

A failure by worksafe to do anything

It is the sort of thing we expect from the east germans.

And AHPRA seem very quiet re the club doctor, who has violated ethical responsibilities

[beelzebub 23,376]

Hird is a f!og of the highest order.

He is offended by Mitchels gesture, but fine with actually injecting players thousands of times with substances he has no knowledge of...

Such a hypocrite!

The sooner he is gone from the AFL the better, actually the quicker he leaves the country the better.

he doth protest too much !!!

[Mazer Rackham 14,971]

Royal commission time.

This whole episode has been a disgrace to australian sport and australia as a whole.

Systematic doping

Protection from governing body

Government interference and protection

A failure by worksafe to do anything

It is the sort of thing we expect from the east germans.

No. No. Aussies don't cheat and especially not with drugs.

Imagine what would would happen if we did. We wouldn't be able to get on our high horse and point the finger at those other despicable drug cheating countries.

The edifice of sport would fall apart.

So, no, we don't cheat and no, we definitely don't need a royal commission. Or inquiry of any sort.

Aussie Aussie Aussie!!!

[John Crow Batty 8,863]

No. No. Aussies don't cheat and especially not with drugs.

Imagine what would would happen if we did. We wouldn't be able to get on our high horse and point the finger at those other despicable drug cheating countries.

The edifice of sport would fall apart.

So, no, we don't cheat and no, we definitely don't need a royal commission. Or inquiry of any sort.

Aussie Aussie Aussie!!!

You forgot the...... oi oi, oi! Edited June 28, 2015 by america de cali

[Lance Uppercut 10]

I think points 2 and 4 are the big issues here.

It shouldn't really be a surprise that the AFL if feathering its own nest, but, my god, what has happened to Worksafe? Surely it's political interference? I just dont understand the complete lack of media scrutiny of the lack of action, in what is surely a clear part of Worksafes brief?

Actually don't be surprised if you hear some news from worksafe sooner rather than later. And, as is only appropriate, I don't expect it will be great news for my mob. Not catastrophic, but not a free pass by any means Edited June 28, 2015 by Lance Uppercut

[beelzebub 23,376]

Actually don't be surprised if you hear some news from worksafe sooner rather than later. And, as is only appropriate, I don't expect it will be great news for my mob. Not catastrophic, but not a free pass by any means

its a very interesting and important sideshow to this debacle.

Worksafe is all about the employers/environment (work wise) and business responsibilities so this is the other side of the coin.

[sue 9,106]

Actually don't be surprised if you hear some news from worksafe sooner rather than later. And, as is only appropriate, I don't expect it will be great news for my mob. Not catastrophic, but not a free pass by any means

Doesn't sound like you are speculating, so would love you to explain how you have such inside information.

[faultydet 7,594]

Actually don't be surprised if you hear some news from worksafe sooner rather than later. And, as is only appropriate, I don't expect it will be great news for my mob. Not catastrophic, but not a free pass by any means

Lance, based on what is in the public forum so far, any news from Worksafe in relation to your mob should be nothing but catastrophic.

I think to this point, Worksafe has been an embarrassing joke.

[Lance Uppercut 10]

Doesn't sound like you are speculating, so would love you to explain how you have such inside information.

I'm not speculating, no, but you can appreciate I'm not about to explain much more. I know it's annoying when posters do this but I thought you'd rather know scraps than nothing. Just a wait and see I guess