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THE SAGA CONTINUES - WADA APPEALS



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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.

Discretion... Its not absolute. Itll depend on what the panel wants to understand. Here we have CAS who DO want to get to the bottom of it as opposed the AFL who wanted it all shoved in the the cupboard

Theres nothing to say you CANT....It will be taken upon its merit and relevance. This I feel has been misconstrued...and of course no guessing by whom.

Much I would say rests ( even in worst case scenario ) to the idea of "reasonably" Nothing that Essendon has done performs to the ideal of reasonably

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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.

interesting

however, as this case is being run as a new trial rather than an appeal trial, does this make a difference re rule 57bb?

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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.

I think there are two types of new evidence being spoken about and it would help to clear it up.

From my understanding the two types are:

1 - Evidence which was not presented at the last hearing as it was not available, or could not be reasonably known at the last hearing. This could be results of tests performed since the hearing etc.

2 - Evidence that was not presented at the last hearing but could have been reasonably known (so would be new evidence to the hearing but not new in that it was not known). This could be emails or documents that were not presented.

The rules treat these differently.New evidence type 1 is admissible no matter what, new evidence type two is not automatically admissible but can be presented if the panel choose to hear it, they may also choose not to, it is up to them.

Edited by Chris
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Discretion... Its not absolute. Itll depend on what the panel wants to understand. Here we have CAS who DO want to get to the bottom of it as opposed the AFL who wanted it all shoved in the the cupboard

Theres nothing to say you CANT....It will be taken upon its merit and relevance. This I feel has been misconstrued...and of course no guessing by whom.

Much I would say rests ( even in worst case scenario ) to the idea of "reasonably" Nothing that Essendon has done performs to the ideal of reasonably

Hey, bb...I am your side!! I was simply answering your previous post...

I always said 'new' evidence can be presented and it is up to the panel to accept it...yes on its merit and relevance and whatever other criterias they generally use. Rule 57 however, is silent on what the criterias for acceptance by the Panel

interesting

however, as this case is being run as a new trial rather than an appeal trial, does this make a difference re rule 57bb?

My understanding is (and I'm not a legal person) that appeals to CAS are always run as 'de novo' ie a 'new trial' so not sure there is a distinction between 'appeal trial' and 'new trial'. In which case Rule 57 applies.

A general comment: This panel is the creme de la creme of CAS panelists, ultra professional and very experienced. I doubt they will let either party play games and will apply Rules (incl Rule 57) as intended and as they have been applied in other cases.

WADA lawyers will know what they have to do to get 'new' evidence accepted.

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I think there are two types of new evidence being spoken about and it would help to clear it up.

From my understanding the two types are:

1 - Evidence which was not presented at the last hearing as it was not available, or could not be reasonably known at the last hearing. This could be results of tests performed since the hearing etc.

2 - Evidence that was not presented at the last hearing but could have been reasonably known (so would be new evidence to the hearing but not new in that it was not known). This could be emails or documents that were not presented.

The rules treat these differently.New evidence type 1 is admissible no matter what, new evidence type two is not automatically admissible but can be presented if the panel choose to hear it, they may also choose not to, it is up to them.

You might have to point out the Rule that covers the type 2 evidence as I could only find Rule 57 in bb's CAS link

Not doubting your distinctions and conclusions...just would like to get the whole picture.

Cheers,

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You might have to point out the Rule that covers the type 2 evidence as I could only find Rule 57 in bb's CAS link

Not doubting your distinctions and conclusions...just would like to get the whole picture.

Cheers,

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.

This covers it. It basically says that the panel can exclude anything that was available or could reasonably be known at the last hearing, but it doesn't say they must.

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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.

This covers it. It basically says that the panel can exclude anything that was available or could reasonably be known at the last hearing, but it doesn't say they must.

I think the point of this rule is to exclude evidence from defendants. IE We found our missing records that say we only administered Vitamin C

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LH..not having a go..all good.

Just keeping ball rolling :)

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I think the point of this rule is to exclude evidence from defendants. IE We found our missing records that say we only administered Vitamin C

Or equally from WADA going down the lines of 'we didn't try this angle last time, lets give a go now and see what happens' (i.e. wasting everyone's time)

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Discretion... Its not absolute. Itll depend on what the panel wants to understand. Here we have CAS who DO want to get to the bottom of it as opposed the AFL who wanted it all shoved in the the cupboard

Theres nothing to say you CANT....It will be taken upon its merit and relevance. This I feel has been misconstrued...and of course no guessing by whom.

Much I would say rests ( even in worst case scenario ) to the idea of "reasonably" Nothing that Essendon has done performs to the ideal of reasonably

CAS is a court, not investigators. I don't think it's correct to say that CAS wants "to get to the bottom of it". That's WADA's job. WADA has to convince an independent court, ie CAS, that what they found at the bottom requires CAS to take action. CAS should be dispassionate and come to the matter with an open mind.

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CAS is a court, not investigators. I don't think it's correct to say that CAS wants "to get to the bottom of it". That's WADA's job. WADA has to convince an independent court, ie CAS, that what they found at the bottom requires CAS to take action. CAS should be dispassionate and come to the matter with an open mind.

What makes you think a court never want to get to the truth ? This isnt a court of law...is a court for arbitration in sport. LDVC.. CAS has a distinct history of looking a bit deeper, especially when encouraged to do so by the likes of WADA.

My understanding of the CAS is it is built upon the Inquisitorial System of Courts as per the French System , NOT the adversarial system we are used to. CAS wlll as such quite possibly look to what is in its interests calling for accounts and relevant facts even if not presented.

Shouldnt matter where this Court is held or even that the Laws ( as Im given to understand will be our own Oz ) the Court will function as it does as though it were still in Switzerland.

I think this is very much a mistaken idea that the Fanboys etc have fallen into believing.

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My understanding of the CAS is it is built upon the Inquisitorial System of Courts as per the French System , NOT the adversarial system we are used to. CAS wlll as such quite possibly look to what is in its interests calling for accounts and relevant facts even if not presented.

I'd like to see them doing it Spanish Inquisition style... bring in the comfy chair!!

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I'd like to see them doing it Spanish Inquisition style... bring in the comfy chair!!

that made me laugh :) thanks

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Well that explains the lack of leaks as well.

Poor Essendon, it must be gnawing at their guts the poor sods ( not ) :)

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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.

Oh I am pretty sure they are very confident.

It is true that in theory they could try to not answer or evade questions, but by turning up they will still have to be present in the witness box and in the face of the highly skilled American counsell l would suggest they would be "putty in his hands", that is of course supposing that they get there in the first place. My read on that is that for ASADA/WADA all throughout this episode a lot of it has been in the timing. They left it until the last minute to hand the case over from ASADA to WADA to make a decision about the appeal, and WADA left it to the last couple of hours to actually lodge the appeal to CAS. Likewise, l seem to remember (although I could be wrong on this), that ASADA did not get their case to the Victorian Supreme Court about subpoenaing Dank, Charters and Alvi until the case actually started at the AFL Tribunal. As I said, for them a key tactic appears to be timing.

As far as their confidence in the outcome is concerned, as has been said by a number of others on here, WADA doses not make trivial appeals to CAS. Their record of success in team sports worldwide has been very almost impeccable , although it is true that the three Australian appeals to CAS by WADA have only a 33.33% success rate, but they were individuals in very different circumstances than Essendon.

I think we are in good hands and all the public noises coming from WADA over the last week have been extremely confident about a positive outcome for their case.

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