if that is the sophistication level of analysis and debate you are capable of then probably best you quit now
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Appeal ASADA v Dank (AFL) WADA V Players CAS(Nov), WADA v Dank? New evidence players tested TB4
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But that's what you've been saying for the last two pages. 'Faulty code' means anyone can not keep records and therefore, no evidence can come out of it. Dank and Co not talking, how can that be used as evidence, right? That's what you're basing your argument around. It's a bit rich when you question my analysis when you quickly dismiss anything that is not in favor of your argument.
- Jun 17, 2014
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I agree 100% what you say. But what would the flaw be? It's an extremely difficult thing to rule out. I'm not crying about the precedents, just figuring what is the flaw and how can it be fixed.
CAS is completely independent, but I do agree, people need to realise it's just another AFL tribunal but with 3 different judges. How will they view Essendon with no records? They may be more critical or even lower the proof, who knows. People need to stop thinking that because it's at CAS, that Essendon are screwed because it's not true.
it's definitely complicated. It's attractive to think that you can merely say something like "if you consume a substance (non-food) then you must have a record of exactly what that was, or you will be deemed to have committed an ADRV", and have a whole new ADRV based on that concept.
Now, I can immediately think of a number of issues with that. How do you define substance? How much unreasonable obligation are you placing on the athlete? How is it the players fault if their doctor/sports scientist goes rogue for eg? How do you prove the substance is the one recorded? etc etc.
But I reckon you'd have a fair case to overcome a lot of them, and let's face it, it would be no more draconian than much of the current anti-doping policy.
As I said, in essence it's what the HTB are crying out for. But it's actually written into the code and is a part of the code, not just a wishful thinking of aggrieved masses. As it stands, it appears there is a flaw in the WADA code, whether EFC players are guilty or not. Sure, people can and will repeatedly moan that it's EFCs fault for being dirty stinking rotten cheats and we should all feel sorry for the hurculean efforts required by the heroic WADA to bring them to justice; but at the end of the day that's actually irrelevant if you're talking global anti-doping. WADA, and only WADA, are responsible for their code. IF there's a flaw, it's there fault. Simple as that. You need to keep up. Find a flaw? Fix it.
jenny61_99
Premium Platinum
Reckon we need to see the outcome of the appeal to CAS before we need to examine the flaws.
So we still let individuals dope, just because there is a loop hole?
no, I'm saying that what you're saying is quite likely a well-meaning figment of your imagination. What I'm saying is that instead of being a figment of anyones imagination WADA can write it into their code and not have to rely on getting the right people in the chair at a particular time to interpret it as hoped for
reckon you're right. Shall we close the thread and the board down then for a few months?
apart from that being the exact opposite to what I have been saying, sure, if you like
- Jun 17, 2014
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To be fair, there are already flaws that need to be addressed.
IMO if ASADA want to do their job properly, they need more powers.
There should be no AFL tribunal, there should be 1 tribunal that represents Australia across all codes.
- Sep 22, 2011
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About time this peanut got suspended.
Take your sweet time, WADA.
When is your weekly suspension due?
jenny61_99
Premium Platinum
If you want.
Yeah, Nah.
I can only assume you feel there is a flaw in the Code because you believe Essendon have no way of proving they didn't dope their players and that is due to a lack of any significant records. If you think your guys are innocent, wouldn't you think the code and process has worked so far?
jenny61_99
Premium Platinum
Yeah I agree there are flaws at the national/local level. What remains to be seen if the actual WADA code is flawed.
Dan Cooper
Victory Salute
It's a very solid assumption there will be no witnesses testifying against the Essendon 34. ASADA couldn't provide any and nothing suggests WADA will be able to either.
To assume WADA do have witnesses amounts to nothing more than guesswork.
See the Social Litigator's take on witnesses below.
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If WADA does go down the path you've suggested it will be a bad day. Evidentiary standards and the burden of proof are long established standards that aren't based on whimsy, they're based on hundreds of years of law. Sometimes the wrong guy goes down, sometimes the bad guy doesn't get punished, but in the majority of cases the established standards will get the right result.
Whatever was happening at Essendon, it didn't push the limits far enough that a positive test or an outlandishly high blood indicator was present, so it's at the lower end of the scale if doping happened at all. In anti-doping code the positive test is analagous with a body in a murder case. Without the body, it's very difficult to prove that anything happened. You've traditionally needed the body because without the body it's hard to prove, outside of being speculative, that anyone actually died.
Hence in the absence of a positive test, in the current system, the prosecution must be required to present a very strong circumstantial evidence chain that is preferably supported by forensic evidence. The prosecution has a lower burden of proof which I think is fine given we're not talking about incarceration.
If you weaken these standards then it's going to enable witch hunts and other corner cases - for instance an athlete that hasn't kept meticulous records, has lost them due to force majeure, or due to the malicious acts of an ex-partner or malicious rival could be found guilty of doping.
Dan Cooper
Victory Salute
If you want.
Yeah, Nah.
I can only assume you feel there is a flaw in the Code because you believe Essendon have no way of proving they didn't dope their players and that is due to a lack of any significant records. If you think your guys are innocent, wouldn't you think the code and process has worked so far?
You are starting to sound like Bec Wilson
The onus is not on the players to prove innocence. It is on WADA to prove guilt.
Dan Cooper
Victory Salute
The Social Litigator looking at the practicality of witnesses attending/appearing at a hearing in Switzerland >
http://sociallitigator.com/2015/05/25/essendon-supplements-saga-is-it-up-up-and-away-to-switzerland/
You could ask the third party witness to appear by video link. However, that would mean getting the witnesses to turn up to a conference room in, say, Melbourne CBD, so that their image and voice can be transmitted to a hearing room designed by Ferrari Architects in Lausanne, Switzerland. Swiss people, however good their chocolate and fondue, and whatever the decision of a Swiss Court, do not have jurisdiction to force someone to go from their home in Melbourne’s suburbs to that conference room in Melbourne’s CBD without Australian help.
It follows that even if an order were made in a Swiss Court compelling a witness to attend the CAS appeal, a process would then likely be required involving an Australian Court to require the third party witness to make the train / tram / car trip to that conference room in Melbourne’s CBD.
Here is another option. With the ruling of a Swiss Court in hand, one could look to the extradition treaty between Australia and Switzerland (in force since the early 1990s) to seek that those reluctant witnesses board a flight from Australia so that they can arrive at Château de Béthusy at 9.30 am on an appointed day.
However, the last time I looked, however seriously we take our sport, the failure to turn up to a sporting tribunal appeal is not an offence punishable by imprisonment or other deprivation of liberty for a maximum period of at least one year (the minimum requirement under the Treaty).
In short, on a ‘first principle’ basis, it appears plain that a Lausanne, Switzerland hearing does not mean it would be smooth sailing in assuring witness attendance.
http://sociallitigator.com/2015/05/25/essendon-supplements-saga-is-it-up-up-and-away-to-switzerland/
You could ask the third party witness to appear by video link. However, that would mean getting the witnesses to turn up to a conference room in, say, Melbourne CBD, so that their image and voice can be transmitted to a hearing room designed by Ferrari Architects in Lausanne, Switzerland. Swiss people, however good their chocolate and fondue, and whatever the decision of a Swiss Court, do not have jurisdiction to force someone to go from their home in Melbourne’s suburbs to that conference room in Melbourne’s CBD without Australian help.
It follows that even if an order were made in a Swiss Court compelling a witness to attend the CAS appeal, a process would then likely be required involving an Australian Court to require the third party witness to make the train / tram / car trip to that conference room in Melbourne’s CBD.
Here is another option. With the ruling of a Swiss Court in hand, one could look to the extradition treaty between Australia and Switzerland (in force since the early 1990s) to seek that those reluctant witnesses board a flight from Australia so that they can arrive at Château de Béthusy at 9.30 am on an appointed day.
However, the last time I looked, however seriously we take our sport, the failure to turn up to a sporting tribunal appeal is not an offence punishable by imprisonment or other deprivation of liberty for a maximum period of at least one year (the minimum requirement under the Treaty).
In short, on a ‘first principle’ basis, it appears plain that a Lausanne, Switzerland hearing does not mean it would be smooth sailing in assuring witness attendance.
LukeParkerno1
Post-Human
So what? They deserve to be able to build their case. Has been that way for years actually.
I agree totally that the code will need to be re-written if the case goes the same way. Morally we cannot have athletes say they have no idea of what was injected.
I just think on this occasion, if all that the players have is that, they are morally corrupt and we all are worse off for it.
jenny61_99
Premium Platinum
You obviously didn't read through to the end:
It is a tangled web of procedural rules indeed. Therefore, if you have made it to the end of this post and you think you have a clear view of what might happen next, all one can say is: “Bravo!”.
What happens next will be a surprise for us all.
jenny61_99
Premium Platinum
Did you even bother to read what I wrote?You are starting to sound like Bec Wilson
The onus is not on the players to prove innocence. It is on WADA to prove guilt.
Dan Cooper
Victory Salute
Another wild assumption on your part. I read the article 2 hours ago and specifically posted it for the benefit of our friend thinking WADA were suddenly going to pluck witnesses out of fresh air
jenny61_99
Premium Platinum
Well you certainly read to the bit that you liked.Another wild assumption on your part. I read the article 2 hours ago and posted it for our friend thinking WADA were suddenly going to pluck witnesses out of fresh air
Dan Cooper
Victory Salute
Did you even bother to read what I wrote?
Yes, and nothing personal, but I doubt I'll be reading much more of what you post.
