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THE SAGA CONTINUES - WADA APPEALS



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Ol' Jakey isnt't exactly batting `1000 on this topic over the distance. If your read the Aged article there's a plethora of detail errors. There are elements that are pure conjecture and much of it is no more than an Essendon fanfare.

An interesting summation of it all can be read here

WADA pursues ‘appropriate sanctions’ for Essendon FC players accused of doping

A particular extract :

A crucial issue facing WADA is whether it has the power to compel these individuals to give evidence at the appeal. Neither the WADA Code nor the CAS Code confers an express power on WADA to compel witnesses by way of subpoena. In addition, a recent decision of the Victorian Supreme Court [1], in which it was held that ASADA did not have power to compel witnesses to appear at the AFL Tribunal hearing, may be applicable to the same effect in the appeal hearing before CAS. However, the possibility of WADA having the power to issue subpoenas to witnesses to give evidence in the appeal cannot yet be conclusively excluded.

So there ...clear as mud

after all this time......still clear as mud

surely there has been enough time to establish a yes/no and if necessary to bring about legislative change

easy to understand why the public gets so exasperated and why asada/wada's modus operandi gets criticised

sometimes it just seems to be like a kindergarden. danks still hasn't been interviewed or submitted a statement

there is an obvious course of action being spelt out here for future miscreants to avoid sanction, virtually a roadmap

Edited by daisycutter
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Its curious eh DC.

Youd think one or the other side would be saying something.

If its nay...then the Fanboy press would be all over it surely ?

If its a Yes.. then maybe they have already served them. None of that lot would be keen to advertise it youd think.

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If WADA intended to subpoena witnesses surely they would have by now, to allow time for appeals.

As bb said if 'witnesses' were subpoenaed it would have been leaked somewhere.

Also, I assume an appeal would need to be published in the daily 'business of the Court' in whichever jurisdiction an appeal was lodged.

I doubt the CAS hearing would start if subpoenas were still pending. (It started today and will end within a week).

So either WADA don't need the witnesses (or can't rely on their testimony) or thought subpoenas would fail or the witnesses will willingly appear.

It seems most unlikely any of the key players will appear before CAS.

Edited by Lucifer's Hero
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Or....playing it to the wire.. has history there.

Whatever WADA is or has done since being out manouvred by the opposition when lil ASADA was at the helm, it has done knowing how this end game plays out.

Wada knows this 'neighbourhood'.

Very little has leaked since the EFC has NOT been party to proceedings much to the chagrin of club and fanboy brigade alike. Now they just make it up and repeat ad nauseum pretending this alone makes it correct !

This is unfamiliar territory for all other than WADA. I reckon they know how to play the game :rolleyes:

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I don't think it's evidence per se. I think it's alternative corroboration of existing known transgressions.

Where the CAS hearing is bound to ( and historically likely ) differ from its' predecessor is how even the 'knowns' are listened to. A differing weight and , dare i suggest, a predisposition to a willingness to understand the 'probabilities' as opposed to lumping the already sizable wad of paper-trails with neccesity to meet more stringent interpretation of qualification as might be expected by say, learned men of a judicial lifetime :rolleyes:

They might even take Dank at his word. He made interesting admissions during various TV shows when big noting self. A different ear might 'hear' that for what it is.

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It will all come down to CAS's view on the new TB4 tests and their interpretation of 'comfortably satisfied'.

I'm not sure on what grounds you're making the assertions you are LH.

It's a completely new hearing, starting from zero, so there's neither new or old evidence. It's all just evidence. While its an appeal, they don't refer back to the original hearing in any way, shape or form.

As for the question of "their interpretation of comfortably satisfied", this goes to the essence of the appeal:

There is no interpretation of "comfortably satisfied". The legal guidelines as to what it entails are clearly laid out. The appeal is not because the evidence wasn't there in the first case, it's because that yardstick of what "comfortably satisfied" entails was not correctly applied.

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They must have something, whether that be overlooked emails, verbal corroboration or different views that he panel didn't take into account. Or even further interviews that ASADA ignored.

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They must have something, whether that be overlooked emails, verbal corroboration or different views that he panel didn't take into account. Or even further interviews that ASADA ignored.

They may have something, they also may have nothing new. They don't need anything new although it wouldn't hurt.

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Could subpoenas have been served and (not knowing the correct terminology)"filed away" for production to be heard at this appeal as evidence

for one reason or another?

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I'm not sure on what grounds you're making the assertions you are LH.

It's a completely new hearing, starting from zero, so there's neither new or old evidence. It's all just evidence. While its an appeal, they don't refer back to the original hearing in any way, shape or form.

As for the question of "their interpretation of comfortably satisfied", this goes to the essence of the appeal:

There is no interpretation of "comfortably satisfied". The legal guidelines as to what it entails are clearly laid out. The appeal is not because the evidence wasn't there in the first case, it's because that yardstick of what "comfortably satisfied" entails was not correctly applied.

1. On 'new' and 'old' evidence:

Even tho this appeal starts from zero, parties can only use evidence that was available as at the time of AFL Tribunal ie using your words they can only use 'old' evidence but if it was unavailable at the time of the Tribunal it is 'new' evidence.

There appears to be 'new' evidence in relation to 'abnormally high' levels on tests of TB4 for two players.

CAS will need to form a view on the admissibility of any 'new' evidence.

2. On 'comfortably satisfied':

I think we are saying the same thing but your wording is more precise than mine.

Edited by Lucifer's Hero
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LH.. I'm not sure about those evidence guidelines.This isnt a rehearing per se...its a new hearing. My understanding is they CAN introduce whatever they wish. Happy to be corrected. Cheers

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LH.. I'm not sure about those evidence guidelines.This isnt a rehearing per se...its a new hearing. My understanding is they CAN introduce whatever they wish. Happy to be corrected. Cheers

They can introduce what they want that is new but they introduce evidence that wasn't previously presented but was available at the last hearing hen the judges can choose not to accept, but they can also choose to accept it.

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Being a de novo hearing - i.e starting afresh, the WADA team would be trying to introduce evidence in areas in which the AFL Tribunal indicated that the ASADA case failed the test of comfortable satisfaction. If they know how to run a case and want to win, then they will be producing evidence from the Chinese supplier of the raw materials used by Dank. They will also no doubt seek orders compelling some of the main players in the supplements programme to give evidence. The Supreme Court last year refused an application to compel Shane Charter and Nima Alavi from giving evidence at the original tribunal hearing. There have also been suggestions of a substantial body of additional forensic evidence. I'm sure WADA will be well prepared for this hearing knowing the shortcomings in the case before the original tribunal.

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So Jack. What couldn't they submit as evidence, as in nature thereof.

Seems a rather murky delineationre 'was available' not presented etc.

If a new hearing why is there any limits ?

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Being a de novo hearing - i.e starting afresh, the WADA team would be trying to introduce evidence in areas in which the AFL Tribunal indicated that the ASADA case failed the test of comfortable satisfaction. If they know how to run a case and want to win, then they will be producing evidence from the Chinese supplier of the raw materials used by Dank. They will also no doubt seek orders compelling some of the main players in the supplements programme to give evidence. The Supreme Court last year refused an application to compel Shane Charter and Nima Alavi from giving evidence at the original tribunal hearing. There have also been suggestions of a substantial body of additional forensic evidence. I'm sure WADA will be well prepared for this hearing knowing the shortcomings in the case before the original tribunal.

Can witnesses be compelled to answer questions? Even if Charters and Alavi were to appear, couldn't they refuse to answer?

Earlier in this thread someone mentioned that WADA would only be appealing because they think they can win. I thought there was a school of thought that WADA might be appealing as a test case to get direction from CAS as to how to handle team sport transgressions. It's possible both reasons are true, but it wouldn't surprise me if WADA is not as confident as Beelzebub and a few others on Demonland.

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Even if as a test case you'll want to be pretty confident of winning....else the test is a failure .

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They must have something, whether that be overlooked emails, verbal corroboration or different views that he panel didn't take into account. Or even further interviews that ASADA ignored.

They have new evidence. They will also take a different view on previous evidence as well as comfortable satisfaction. Be patient grasshoppers....

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I thought there was a school of thought that WADA might be appealing as a test case to get direction from CAS as to how to handle team sport transgressions.

WADA don't need to get directions from anyone. They make the rules.

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Here are the procedural rules for CAS

I can see no where amongst them any particular or specific limitations on evidence'

I would presume as a Hearing ( novo ..so new ) then R44.2 applies R44.3 goes to Evidentiary Proceedings.

Maybe Im missing something

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Rule 57 bb. "The Panel has discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered. Articles R44.2 and R44.3 shall also apply".

So any 'new' (ie newly available) evidence can help WADA's cause for a 'comfortable satisfaction' decision, IF the CAS panel admit it.

You can bet the players lawyer's will go hell for leather and challenge 'new' evidence, using Rule 57.

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