Just flabbergasted that the players don't see that getting off on a technicality without overturning the evidence is great for staying out of jail but does nothing for your reputation.

  On 07/02/2016 at 03:42, beelzebub said:

Strangely it is exactly that...a case of right or wrong. It's just that Essendon and the players aren't right.

exactly. but i was highlighting his claim of no emotion involved on his part, lol

  On 07/02/2016 at 03:46, sue said:

Just flabbergasted that the players don't see that getting off on a technicality without overturning the evidence is great for staying out of jail but does nothing for your reputation.

The players have yet to show any capacity for clear thinking or acting within the rules. I'm hardly flabbergasted...its unfortunately what I've come to expect.

  On 07/02/2016 at 03:46, sue said:

Just flabbergasted that the players don't see that getting off on a technicality without overturning the evidence is great for staying out of jail but does nothing for your reputation.

i guess the players see it as no risk. it is all organised and paid for by others. all they have to do is sign on the line, not think about it.... much like dank's waivers

It's just the Lawyers wanting to drag it on & on & on

ching ching

jab. Just hand back the medal back. 

Mark Robinson...SHUT THE.F..K.UP

you are an entire disgrace. To think that fool just turned 49. He has years of bile to write yet..

  On 07/02/2016 at 03:58, Sir Why You Little said:

It's just the Lawyers wanting to drag it on & on & on

ching ching

jab. Just hand back the medal back. 

Mark Robinson...SHUT THE.F..K.UP

you are an entire disgrace. To think that fool just turned 49. He has years of bile to write yet..

49! Really!

I swear I thought he was in his 60's...he certainly looks it!

  On 07/02/2016 at 04:01, Lucifer's Hero said:

49! Really!

I swear I thought he was in his 60's...he certainly looks it!

Yeah i know. He is younger than me. But he will go senile first. 

The articles he wrote this week are the worst i have ever

at least he has been hammered on social media

Robbo, the gift that keeps on giving for another 20 years.

  On 07/02/2016 at 04:17, DemonFrog said:

Robbo, the gift that keeps on giving for another 20 years.

Doubt he'd last til then !

So, if the appeal proceeds (and I have no idea whether it will or not) and the players win on the argument of de novo versus review of the merits of the AFL Tribunal decision, does that mean CAS has to re-hear it but this time do it the way the superior court determines? If so, I suppose it would have to be a completely new panel as the ones who have already heard it will be considered to be prejudiced by the evidence they heard but shouldn't have.  

  On 07/02/2016 at 03:26, daisycutter said:

i can see a walkley in the tea leaves

Yeah, Johnny Walkley.

And those tea leaves are really cigarette ash.

  On 07/02/2016 at 06:14, La Dee-vina Comedia said:

So, if the appeal proceeds (and I have no idea whether it will or not) and the players win on the argument of de novo versus review of the merits of the AFL Tribunal decision, does that mean CAS has to re-hear it but this time do it the way the superior court determines? If so, I suppose it would have to be a completely new panel as the ones who have already heard it will be considered to be prejudiced by the evidence they heard but shouldn't have.  

that sounds like a possibility if the only grounds for appeal being accepted are the de novo legitimacy

but, we don't even know what are all the actual grounds of appeal are, if they in fact lodge one next week

all will become clearer murkier then no doubt

Puzzling that the insurers are stumping up $500k.

Are these the same insurers (Chubb Insurance IIRC) that St. James is suing?

If so, why would they put the$500k up for the banned 34 when it was reported that the principal reason they refused to indemnify Hird was because he had instituted the action himself (as opposed to defending an action brought against the insured)?

Presumably the insurer takes the view that ASADA and CAS 'instituted' the action against the banned 34 and therefore the terms of the policy oblige the insurer (upon request) to fund the cost of an appeal?

 

  On 07/02/2016 at 03:46, sue said:

Just flabbergasted that the players don't see that getting off on a technicality without overturning the evidence is great for staying out of jail but does nothing for your reputation.

If the Swiss court upholds the players' appeal, all that happens is it goes back to CAS to hear again. Procedure perhaps slightly different, but same case, same evidence, presumably, same result.

Seriously.

http://www.eurosport.com/tennis/atp-tour/2006-2007/cas-reject-canas-appeal_sto1190935/story.shtml#com-tw-sh

  On 07/02/2016 at 06:48, daisycutter said:

that sounds like a possibility if the only grounds for appeal being accepted are the de novo legitimacy

but, we don't even know what are all the actual grounds of appeal are, if they in fact lodge one next week

all will become clearer murkier then no doubt

Indeed. As Shakespeare never said, "Oh, what a tangled web we weave when first we practice to deceive".

But as we know from our own pre-season training, practice does not always make perfect.

  On 07/02/2016 at 03:46, sue said:

Just flabbergasted that the players don't see that getting off on a technicality without overturning the evidence is great for staying out of jail but does nothing for your reputation.

While I would normally agree with you, in this case I think it will make a difference. Only because the ignorati who write for the Herald Sun and work in radio will keep saying "the players are innocent, the players are innocent" over and over to the extent that many will just believe it to be true.  

  On 07/02/2016 at 07:09, mdemon said:

Puzzling that the insurers are stumping up $500k.

Are these the same insurers (Chubb Insurance IIRC) that St. James is suing?

If so, why would they put the$500k up for the banned 34 when it was reported that the principal reason they refused to indemnify Hird was because he had instituted the action himself (as opposed to defending an action brought against the insured)?

Presumably the insurer takes the view that ASADA and CAS 'instituted' the action against the banned 34 and therefore the terms of the policy oblige the insurer (upon request) to fund the cost of an appeal?

 

The insurance covers employes against legal actions that may be taken against them for whatever reason relating to their professional situation. In Hirds case no legal action was ever taken against him and it was him taking legal actions as a private individual and not as a representative of the club.  He is not a defendant. I reckon he has Buckley's chance of winning his case. 

  On 07/02/2016 at 03:19, Lucifer's Hero said:

http://www.theaustralian.com.au/sport/afl/essendon-players-to-fight-on-against-cas-judgment/news-story/9893d062863029eedb3b153f5ab052e9

According to ChipLG the players did raise the question of CAS's right to hear the case 'de novo' before it considered the evidence:  "An objection to CAS hearing the case de novo, or anew, was raised in lengthy pre-hearing submissions by the players and dismissed by CAS in a single-page letter. In its judgment, CAS noted that its principal task was not to review the merits of previous decisions but to determine for itself whether an athlete had doped". 

I couldn't find a copy of that letter on line to see what it says.  I guess it comes down to the basic role of CAS: To review a previous decision or decide for itself!  

Even Chip acknowledges it is a highly technical area:  "The case before the Swiss Federal Supreme Court pits Australian contractual law against a guiding principle of the World Anti-Doping Code. The case will turn on a fine legal point; whether the changes to the 2015 AFL anti-doping code were procedural or substantial." 

The downside of this is that the saga re Jobe's brownlow will go on for another year...the AFL won't take it from him while an appeal is pending.  Maybe they hope we will all forget about it.

Paragraph 114 of the Arbitral Award deals with the de novo question. There is precedent which supports the proposition that CAS hearings are always de novo.

A quick search on the road to Lausanne:

Under article 90(2) PILA, an award may be challenged only (a) if the sole arbitrator was designated or the arbitral tribunal was constituted in an irregular way, (b) if the arbitral tribunal wrongfully accepted or declined jurisdiction, (c) if the arbitral tribunal decided on points of dispute which were not submitted or left undecided prayers for relief which were submitted, (d) if the principle of equal treatment of the parties or the right to be heard was violated or, (e) if the award is incompatible with public policy.

(Meinrad Vetter Sports Law eJournal [24.10.2008])

 and:

The stages of the proceedings are usually: the submission of a written appeal, an invitation to the respondent to present his or her position (first exchange of written submissions), and the ruling. If necessary, a second exchange of briefs may be ordered before the final ruling is rendered.

(The Paths to the Swiss Federal Supreme Court: An Outline of Switzerland’s Judicial Structure [2013])

 

Presumably jurisdiction is the only possibility. And not much opportunity for posturing.

  On 07/02/2016 at 07:37, Dr John Dee said:

A quick search on the road to Lausanne:

Under article 90(2) PILA, an award may be challenged only (a) if the sole arbitrator was designated or the arbitral tribunal was constituted in an irregular way, (b) if the arbitral tribunal wrongfully accepted or declined jurisdiction, (c) if the arbitral tribunal decided on points of dispute which were not submitted or left undecided prayers for relief which were submitted, (d) if the principle of equal treatment of the parties or the right to be heard was violated or, (e) if the award is incompatible with public policy.

(Meinrad Vetter Sports Law eJournal [24.10.2008])

 and:

The stages of the proceedings are usually: the submission of a written appeal, an invitation to the respondent to present his or her position (first exchange of written submissions), and the ruling. If necessary, a second exchange of briefs may be ordered before the final ruling is rendered.

(The Paths to the Swiss Federal Supreme Court: An Outline of Switzerland’s Judicial Structure [2013])

 

Presumably jurisdiction is the only possibility. And not much opportunity for posturing.

It ain't going to happen eh SJD

  On 07/02/2016 at 07:24, Whispering_Jack said:

Paragraph 114 of the Arbitral Award deals with the de novo question. There is precedent which supports the proposition that CAS hearings are always de novo.

Lost on some...(with a penchant for black and red )

  On 07/02/2016 at 07:24, Whispering_Jack said:

Paragraph 114 of the Arbitral Award deals with the de novo question. There is precedent which supports the proposition that CAS hearings are always de novo.

Thanks WJ.

Is it correct to conclude that Chip LG's comment: "The (appeal) case before the Swiss Federal Supreme Court pits Australian contractual law against a guiding principle of the World Anti-Doping Code. The case will turn on a fine legal point; whether the changes to the 2015 AFL anti-doping code were procedural or substantial."  means that the appeal will be against the conclusions in para 114, precedents notwithstanding?

  On 07/02/2016 at 07:15, bing181 said:

If the Swiss court upholds the players' appeal, all that happens is it goes back to CAS to hear again. Procedure perhaps slightly different, but same case, same evidence, presumably, same result.

I'm wonder about this.  In the extremely unlikely event the appeal is upheld it would mean a CAS rehearing could not consider it de novo.  This would throw into doubt the calling of witnesses and possibly require the panel to stick to the AFL Tribunal case of 'links in the chain'.  Even if the latter wasn't a requirement in the new hearing the players would strongly object to the 'threads in the rope' approach...something they failed to do last time, with fatal consequences for the player's case.

WADA would be in a really tough spot to make their case under those circumstances.

I'm with beezlebub...if there is an 'appeal' it won't get as far as the Swiss Federal Court. 

  On 07/02/2016 at 03:33, Lucifer's Hero said:

For what it is worth I wonder if the result was any different if CAS only reviewed the decision of the AFL Tribunal ie it wasn't 'de novo' at all.  From what I can tell there was no new material as evidence. 

I don't think this is the case. Chris Kais covers this question in his excellent piece WJ has previously provided a link to. He says:

'It is also not true to say that no new evidence was produced.

First, WADA submitted new analytical evidence showing elevated TB-4 readings in the urine samples taken from two Essendon players in 2012. For the reasons listed in Point 1 above, WADA wisely did not rely on this evidence in its closing submissions (CAS Decision [150]) and the CAS Panel rejected this evidence.

Secondly, and more importantly, new evidence was provided which fundamentally changed the approach of the panel. This new evidence came from one of WADA’s experts, Dr James Cox. Dr Cox ‘wholly convinced’ the CAS Panel that the substance compounded by Nima Alavi’s assistant—and tested at the Bio21 laboratory—was TB-4 (CAS Decision [132]). It was due to this new evidence from Dr Cox that ASADA made a submission abandoning its previous ‘links in the chain’ approach as the presence of TB-4 at the Como pharmacy meant it was no longer necessary to prove the source of the TB-4 (CAS Decision [115]).'

A terrific piece and i've been reflecting that the best information about this whole saga has been via new media: Demonland, blogs, twitter etc. The worst information has almost all been provided by the mainstream media.

  On 07/02/2016 at 03:19, Lucifer's Hero said:

http://www.theaustralian.com.au/sport/afl/essendon-players-to-fight-on-against-cas-judgment/news-story/9893d062863029eedb3b153f5ab052e9

According to ChipLG the players did raise the question of CAS's right to hear the case 'de novo' before it considered the evidence:  "An objection to CAS hearing the case de novo, or anew, was raised in lengthy pre-hearing submissions by the players and dismissed by CAS in a single-page letter. In its judgment, CAS noted that its principal task was not to review the merits of previous decisions but to determine for itself whether an athlete had doped". 

I couldn't find a copy of that letter on line to see what it says.  I guess it comes down to the basic role of CAS: To review a previous decision or decide for itself!  

Even Chip acknowledges it is a highly technical area:  "The case before the Swiss Federal Supreme Court pits Australian contractual law against a guiding principle of the World Anti-Doping Code. The case will turn on a fine legal point; whether the changes to the 2015 AFL anti-doping code were procedural or substantial." 

The downside of this is that the saga re Jobe's brownlow will go on for another year...the AFL won't take it from him while an appeal is pending.  Maybe they hope we will all forget about it.

This whole thing about 2010 vs 2015 seems misguided. The only cahnge i can find gives the players the right to appeal to CAS which they previously didn't have, there is no change as per what WADA could and couldn't do that i could find. Maybe i am missing something or it is all a red herring.