THE SAGA CONTINUES - WADA APPEALS

[dworship 3,342]

and we should add that whilst the social litigator is interesting reading, she is just a junior lawyer

i'm sure if we could get 10 legal opinions they would all differ in interpretation and detail to some extent

I'm pretty sure that's what we have Judges for.

[Lance Uppercut 10]

I was warned that you pick and choose quotes to suit your purpose. Thanks for proving it!

Can I suggest you read the whole thing and not just pick the bits you like. You may also note, she is not absolute in this and leaves doubt, as I say. The link you include is also not absolute, and leaves the door open to Swiss Law, and it doesn't actually provide any discussion in the seat of law etc as the litigator does.

Nice try though

it's not picking and choosing. It's just pointing out that the article you are referring to is focused on procedural law, because that is the area of law that pertains to compelling third party witnesses to appear. The procedural law is a completely different thing to the proper law which is what we're discussing when we're talking about whether the case will be held under Swiss or Australian law. Surely you can understand the difference between procedural law as it pertains to compelling witnesses, and the proper law by which the case is held? That's why I quoted the article because she explicitly points this out. She actually doesn't say there's doubt about it, she says she expects the merits of the case to be held under Australian law.

Procedural law is different from the substantive or proper law (the applicable law on the merits). The law applicable to the merits for a CAS appeal will be the AFL Ant-Doping Code and, subsidiarily, “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”: see Rule 58 CAS Rules. Given Australian Rules Football is not an international sport, one expects the merits of the case will, to the extent relevant, be governed by Australian law.

I'm happy to concede that I could be wrong. But given what Hickey has clearly and plainly stated above, and the other lawyers that I quoted agree, and no-one has been able to find a single opposing viewpoint, and the CAS website itself states plainly that appeals are held under the law in which the sporting body is domiciled; then sorry but I think the chances of me being wrong are rather slim.

Edited June 7, 2015 by Lance Uppercut

[bing181 9,328]

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

Edited June 7, 2015 by bing181

[Lance Uppercut 10]

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

exactly

[Willmoy1947 4,140]

WADA hasn't gone to CAS to lose the case. It is just not going to happen!

The wheels are falling off all over the place and its only gunna get better

Like an old union mate of mine was told one day after negotiations fell apart

............... so you may as well lie down and enjoy it"

[Lance Uppercut 10]

WADA hasn't gone to CAS to lose the case. It is just not going to happen!

The wheels are falling off all over the place and its only gunna get better

Like an old union mate of mine was told one day after negotiations fell apart

............... so you may as well lie down and enjoy it"

the only two Australian cases that WADA have appealed to CAS they've lost.

Here's some other cases WADA have taken to CAS, that have quite a lot of similarities

1) Mark French

Mark French was found with syringes in the room he stayed in, with his DNA on the needle. According to this forum he would be hung, drawn and quartered. Easily comfortably satisfied.

http://autobus.cyclingnews.com/news/?id=2005/jul05/jul12news2

The CAS today released its findings from a hearing on May 19, 20 and 21. Terminating French's two-year ban and ordering the return of the $1,000 fine imposed by a previous hearing, the CAS found that there was no scientific evidence that the Testicomp French had admitted to using contained a prohibited substance; and insufficient evidence "to conclude to the necessary degree of satisfaction that the knowing use of eGH has been proven."

In its highly-detailed, 24 page ruling, the CAS points to two major problems with the case against French. The allegation that French used corticosteroids by injecting Testicomp fails because there is no scientific evidence that Testicomp contains corticosteroid. Testicomp is a homeopathic supplement, which is claimed on its accompanying literature to contain corticosteroid, but analysis of Testicomp failed to find corticosteroids in the product. "An admission to use of Testicomp does not amount to an admission that there has been use of a prohibited substrance unless the product used is shown by chemical analysis to contain that which it purports to contain by its product leaflet," says the judgment.

Regarding the accusation of use and trafficking in eGH, the ruling finds problems with what would in a criminal case be termed the chain of custody of the waste bucket found in French's room. Other riders at the AIS facility in Adelaide had access to French's room and therefore "we cannot conclude that there is sufficient evidence to to lead to a conclusion that use of eGH by French is proven."

The ruling then addresses the DNA evidence against French, concluding that the DNA recovered from a needle in the waste bucket and alleged to have been French's may have come from another source.

Similar problems with the evidence and chain of custody issues caused the CAS to find that it was not proven that French had been involved in trafficking eGH.

http://autobus.cyclingnews.com/news/?id=2005/jul05/jul12news2

2) In this one they pinged 2 athletes for use because they tested positive after taking some pills. The whole team were alleged to have taken the exact same pills, so WADA said that in that case they are obviously guilty too and took the appeal to CAS. No brainer eh? Here's what the CAS found:

The Panel notes that WADA offers, in support of its claim against the Other Players, a line of reasoning based on logic as follows: Mr Eranosian administered some pills to Mr Marques and Mr Medeiros containing a prohibited substance; Mr Eranosian administered the same pills to the Other Players; therefore the Other Players used a prohibited substance. In other words, WADA is basing its allegation on a presumption:

starting from two established facts, it infers a conclusion with regard to a third, uncertain fact.

The Panel is not convinced to its “comfortable satisfaction” that such conclusion – failing additional corroborating evidence – can be accepted.

http://www.centrostudisport.it/PDF/TAS_CAS_ULTIMO/64.pdf

WADA may well win, but thinking they are infallible probably isn't wise

Edited June 7, 2015 by Lance Uppercut

[Chris 2,892]

it's not picking and choosing. It's just pointing out that the article you are referring to is focused on procedural law, because that is the area of law that pertains to compelling third party witnesses to appear. The procedural law is a completely different thing to the proper law which is what we're discussing when we're talking about whether the case will be held under Swiss or Australian law. Surely you can understand the difference between procedural law as it pertains to compelling witnesses, and the proper law by which the case is held? That's why I quoted the article because she explicitly points this out. She actually doesn't say there's doubt about it, she says she expects the merits of the case to be held under Australian law.

I'm happy to concede that I could be wrong. But given what Hickey has clearly and plainly stated above, and the other lawyers that I quoted agree, and no-one has been able to find a single opposing viewpoint, and the CAS website itself states plainly that appeals are held under the law in which the sporting body is domiciled; then sorry but I think the chances of me being wrong are rather slim.

Once again you have picked the bit you want. The littigator has clearly written about the situation with which law the case will be heard in, not justs in the context of compelling witnesses.

[beelzebub 23,382]

Lance let's cut to the chase for you're hiding behind inferences.

Just as WADA will suggest I also believe that the EFC set about a programme with two particular qualities.

Firstly it was to use amongst many other substances TB4.

Secondly it was done covertly and in such a fashion as to avail many of plausible debniability.

Can you provide a reasoning as to what else other than Thymosin Beta 4 was used and how it was sourced. Also if anything else was used why can't the EFC show such ?

[Lance Uppercut 10]

Once again you have picked the bit you want. The littigator has clearly written about the situation with which law the case will be heard in, not justs in the context of compelling witnesses.

Procedural law matters here because it is under this ‘heading’ that we consider things like the compulsion of witnesses to attend a hearing.

Procedural law is different from the substantive or proper law (the applicable law on the merits). The law applicable to the merits for a CAS appeal will be the AFL Ant-Doping Code and, subsidiarily, “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”: see Rule 58 CAS Rules. Given Australian Rules Football is not an international sport, one expects the merits of the case will, to the extent relevant, be governed by Australian law.

It's there in black and white mate. Couldn't be plainer. If choose to pretend it doesn't say what it says or you can't understand it then there's nothing to be done about it I guess.

[Chris 2,892]

Procedural law matters here because it is under this ‘heading’ that we consider things like the compulsion of witnesses to attend a hearing.

Procedural law is different from the substantive or proper law (the applicable law on the merits). The law applicable to the merits for a CAS appeal will be the AFL Ant-Doping Code and, subsidiarily, “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”: see Rule 58 CAS Rules. Given Australian Rules Football is not an international sport, one expects the merits of the case will, to the extent relevant, be governed by Australian law.

Two parts you seem to ignore in the passage you post. One, it may be up to the panel, they could choose South sfrican if they wish, two, it may be what the parties agree too. Is this a majority situation or does it need unanimous agreement?

It is all up in the air, as I have said before. I do lean towards it being swiss though. Can't see WADA and CAS not doing as they please.

It's there in black and white mate. Couldn't be plainer. If choose to pretend it doesn't say what it says or you can't understand it then there's nothing to be done about it I guess.

[Chris 2,892]

Procedural law matters here because it is under this ‘heading’ that we consider things like the compulsion of witnesses to attend a hearing.

Procedural law is different from the substantive or proper law (the applicable law on the merits). The law applicable to the merits for a CAS appeal will be the AFL Ant-Doping Code and, subsidiarily, “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”: see Rule 58 CAS Rules. Given Australian Rules Football is not an international sport, one expects the merits of the case will, to the extent relevant, be governed by Australian law.

Two parts you seem to ignore in the passage you post. One, it may be up to the panel, they could choose South sfrican if they wish, two, it may be what the parties agree too. Is this a majority situation or does it need unanimous agreement?

It is all up in the air, as I have said before. I do lean towards it being swiss though. Can't see WADA and CAS not doing as they please.

It's there in black and white mate. Couldn't be plainer. If choose to pretend it doesn't say what it says or you can't understand it then there's nothing to be done about it I guess.

Somehow I embeded my comment into yours. Must be fat fingers on little phone keyboard.

[Jara 1,153]

Lance let's cut to the chase for you're hiding behind inferences.

Just as WADA will suggest I also believe that the EFC set about a programme with two particular qualities.

Firstly it was to use amongst many other substances TB4.

Secondly it was done covertly and in such a fashion as to avail many of plausible debniability.

Can you provide a reasoning as to what else other than Thymosin Beta 4 was used and how it was sourced. Also if anything else was used why can't the EFC show such ?

Ah BB, you have a lovely way of cutting to the chase!

[Lance Uppercut 10]

Lance let's cut to the chase for you're hiding behind inferences.

Just as WADA will suggest I also believe that the EFC set about a programme with two particular qualities.

Firstly it was to use amongst many other substances TB4.

Secondly it was done covertly and in such a fashion as to avail many of plausible debniability.

Can you provide a reasoning as to what else other than Thymosin Beta 4 was used and how it was sourced. Also if anything else was used why can't the EFC show such ?

you're always entitled to an opinion. But two points.

1) ASADA attempted to prosecute the exact same case you're alleging. They were unable to. Does that carry no weight with you? Do you just think the AFL and former county court judge John Nixon are corrupt?

2) Why even ask me to prove something like that? I am not associated with the EFC. I don't have access to the evidence. I've said the whole time if EFC players are proven to have cheated then they should be punished. I've said that WADA absolutely should have appealed if they felt it was right, because that's what the process says. A fair few people here just don't seem to like dissenting opinions and, strangely enough, opinions that are actually backed up with evidence and reference to correct procedure

[Lance Uppercut 10]

Somehow I embeded my comment into yours. Must be fat fingers on little phone keyboard.

the key there is "applicable regulations". The absence of a choice is because of reasons generally like this, where it's pretty clear cut. The AFL Anti Doping code is the legislation by which it will be prosecuted, and Australian law is what empowers the ASADA act which allows anti-doping in Australia.

I think you're right in that if they all agreed they possibly could have it heard under Swiss law, although I'm not completely convinced about that to be honest, but it's probably right. It's just that that won't happen, and in the absence of an agreement the default is the law of the place where the sporting body is domiciled

[sue 9,126]

LU if I was an EFC supporter I'd take less comfort than you from the cases WADA has lost on appeal. WADA will be more aware than any of us of the strength of their EFC case compared to the ones they lost. They must have added all that up and decided to appeal nevertheless. I'd start worrying more if I was you.

Edited June 7, 2015 by sue

[Chris 2,892]

the key there is "applicable regulations". The absence of a choice is because of reasons generally like this, where it's pretty clear cut. The AFL Anti Doping code is the legislation by which it will be prosecuted, and Australian law is what empowers the ASADA act which allows anti-doping in Australia.

I think you're right in that if they all agreed they possibly could have it heard under Swiss law, although I'm not completely convinced about that to be honest, but it's probably right. It's just that that won't happen, and in the absence of an agreement the default is the law of the place where the sporting body is domiciled

I obviously read 'or' very differently to you

[Lance Uppercut 10]

LU if I was an EFC supporter I'd take less comfort than you from the cases WADA has lost on appeal. WADA will be more aware than any of us of the strength of their EFC case compared to the ones they lost. They must have added all that up and decided to appeal nevertheless. I'd start worrying more if I was you.

I'm not taking comfort, I'm pointing out relevant situations. Both of those examples demonstrated CAS not coming to comfortable satisfaction in the face of evidence people around here would call a slam dunk. And I'm not sure what you mean with this comment broadly - do you think WADA knew they'd lose those other cases? Or they didn't mind?

The opinion that WADA appealing means that WADA will win is just self-evidently false, I would have thought

[Lance Uppercut 10]

I obviously read 'or' very differently to you

Chris you're clearly an intelligent guy and you've demonstrated a capacity to actually read the relevant documents and present them to back up your opinion. I respect that. I've said a few times I'd be happy to read some opinions from others that fly in the face of what I'm claiming. Every single legal opinion I've read on this says that it is overwhelmingly likely the case will be heard according to the afl anti doping code under australian law. I am more than happy to be presented with some opinion that doesn't agree with that, but nobody has so far been able to deliver on that. As a result, I tend to think my analysis is correct.

If you can show me any evidence I'll read it, and heck, I've even been known to change my opinion in the face of evidence and yes, even admit I'm wrong.

All I won't do is take on face value people who throw opinions around with no evidence or backing, by people who claim to have an advanced understanding of these issues but then go on to make repeated errors of such a fundamental nature I am bemused that some people keep slurping it up. And I'm not referring to you in any of this by the way.

[sue 9,126]

I'm not taking comfort, I'm pointing out relevant situations. Both of those examples demonstrated CAS not coming to comfortable satisfaction in the face of evidence people around here would call a slam dunk. And I'm not sure what you mean with this comment broadly - do you think WADA knew they'd lose those other cases? Or they didn't mind?

The opinion that WADA appealing means that WADA will win is just self-evidently false, I would have thought

Re your last sentence : Of course - I hope you are not basing that self-evident statement on what I wrote. We are all talking about probabilities.

But to counter your line in bold above, do you think WADA has learnt nothing from those losses? Do you think they haven't taken the result in those cases into account when appealing now? Do you not think they rate their chances higher? Of course they do or they wouldn't do it.

So thank you for bringing to my attention those cases WADA has lost. It is good to know they won't be entering uncharted waters.

It is sad to think that an EFC supporter who shows so much intelligence would take so much trouble to try and justify his team getting off when it is clear they were up to no good. I'd put my head in the sand and wait for it all to go away. The few EFC supporters I know are disgusted and are now following soccer. I don't think reading your posts would change their minds. What may change their minds is a thorough purge of Hird and co. Put your efforts into that if you really want to help the club and the AFL.

[beelzebub 23,382]

No evidence or backing

Sounds like the recipe devised by Essendon to obscure what happened.

The EFC can't prove innocence and you'd think that the easiest thing to do....if you could.

The fun is only beginning

Obsfucation, must be the way of the world, more pity us.

[Cards13 9,117]

What a way to send your long weekend, on another teams forums arguing about your club being taken to CAS. Family must be proud.

[biggestred 5,125]

Trollololol

[xarronn 384]

What a way to send your long weekend, on another teams forums arguing about your club being taken to CAS. Family must be proud.

What does it matter who LU supports or even what their motive is. S/He has put forward cogent, coherent opinions based on reading the relevant articles. I have found it interesting to read an alternative view. Furthermore these have been put forward in a respectful and non-abusive manner. Why do you feel the need to disparage LU for doing this?

Irrespective of what people want the outcome to be, we all know that none of the views expressed here will influence the final verdict.

It will however certainly be interesting to bump this thread in due course.

[Cards13 9,117]

What does it matter who LU supports or even what their motive is. S/He has put forward cogent, coherent opinions based on reading the relevant articles. I have found it interesting to read an alternative view. Furthermore these have been put forward in a respectful and non-abusive manner. Why do you feel the need to disparage LU for doing this?

Irrespective of what people want the outcome to be, we all know that none of the views expressed here will influence the final verdict.

It will however certainly be interesting to bump this thread in due course.

I personally find it odd that you would bother heading across to another Fan forum at all let alone to spend hours on it defending your team for a black ops drug program. Glad you enjoy it X.

[M_9 2,091]

Apologies if this has been mentioned.

It appears that the title of Chip Le Grand's (aka Large Fries) upcoming book on the ASAGA has got Martin Hardie's nose out of joint:

https://twitter.com/TraceyLeeHolmes/status/606389586869157889