Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

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Malifice said:
Intresting from the decision there is a glaring error that I noticed. In debating the reduction of sanctions, CAS mentioned that one of the reasons for the delay was the 'Players' seeking to appeal the infraction notices at the Federal Court. As this contriubted to the delay, the players bear some responsibilty for the delay.

The players did no such thing. It was the EFC that appealed the decision. The players intentionally did not join the proceedgings for this very reason.

Not much weight was put on this, but it could be grounds for an appeal to have the length of suspension reduced IMO.
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Were the players invited to join by the court or was that the initial Federal Court case?

And even though they refused were they considered to be an interested party?

Would that have some bearing on that area?
 
blackshadow said:
Were the players invited to join by the court or was that the initial Federal Court case?

And even though they refused were they considered to be an interested party?

Would that have some bearing on that area?
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They didnt instigate the case, were offered to join the proceedings and declined. There is no way the Federal court appeals by EFC and Hird can be held against them in my view.

Yesterdays CAS decision said it was the players that appealed, and this was one of the reasons the case was delayed. Ergo this counted against them for any reduction in sentence (although they still reduced the sentence for other reasons).

That's a mistake of fact by CAS, and in an Australian court, would make the decision appealable. It only goes to the question of sentence however, not the question of culpability.

Its not a biggie, but an appeal here could get a few months shaved off possibly.

Thats if the appeal court can hear an appeal based on a mistake of fact (Common law like Australia countries generally can). Beats me about Swiss courts. There was some commentary about an appeal only being allowed if there was a 'manifestly unjust' result (which I am taking on face value). You could argue that a decision based on a mistake of fact creates just such a result.

I was eyeing off 12 months myself personally, due to reductions for substantial delays (and possibly substantial assistance) coming into play. The decision was the correct one IMO. I dont think the players can be held responsible for what EFC did in threatening ASADA (forcing ASADA to call in a Federal court judge to review the SC notices and evidence before issuing them) nor can they be held responsible for EFC or Hirds appeal.

I was initially of the view that they might be able to have availed themselves of substantial assistance reduction, but then I read yesterdays transcript (which shed light on their complicity and obfuscation during the process) and I recant that position in light of that evidence.

The AFL dont want an appeal either. Their preferred position is for the players to take their medicine and to prop up the Bombers this year, and then finally the whole thing will be behind them. They'll likely mediate any financial settlement between the affected players (and Players association) and the EFC, and throw a carrot or two on the table to encounrage the players to move on.
 
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Malifice said:
They didnt instigate the case, were offered to join the proceedings and declined. There is no way the Federal court appeals by EFC and Hird can be held against them in my view.

Yesterdays CAS decision said it was the players that appealed, and this was one of the reasons the case was delayed. Ergo this counted against them for any reduction in sentence (although they still reduced the sentence for other reasons).

That's a mistake of fact by CAS, and in an Australian court, would make the decision appealable. It only goes to the question of sentence however, not the question of culpability.

Its not a biggie, but an appeal here could get a few months shaved off possibly.

Thats if the appeal court can hear an appeal based on a mistake of fact (Common law like Australia countries generally can). Beats me about Swiss courts. There was some commentary about an appeal only being allowed if there was a 'manifestly unjust' result (which I am taking on face value). You could argue that a decision based on a mistake of fact creates just such a result.

I was eyeing off 12 months myself personally, due to reductions for substantial delays (and possibly substantial assistance) coming into play. The decision was the correct one IMO. I dont think the players can be held responsible for what EFC did in threatening ASADA (forcing ASADA to call in a Federal court judge to review the SC notices and evidence before issuing them) nor can they be held responsible for EFC or Hirds appeal.

I was initially of the view that they might be able to have availed themselves of substantial assistance reduction, but then I read yesterdays transcript (which shed light on their complicity and obfuscation during the process) and I recant that position in light of that evidence.

The AFL dont want an appeal either. Their preferred position is for the players to take their medicine and to prop up the Bombers this year, and then finally the whole thing will be behind them. They'll likely mediate any financial settlement between the affected players (and Players association) and the EFC, and throw a carrot or two on the table to encounrage the players to move on.
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Were CAS obligated to cut the sentence further if the players aren't considered to have caused any substantial delays? It is backdated to March 2015 as it is. Is 2 years a substantial delay?

We know they won't get the no significant fault discount so that sits okay.

The can of worms if your club or coach can hold things up in court because the players received infraction notices, but that time wasted can come off your sentence is a precedent nobody would want to set.

Error of fact aside, you'd have to think 2 years backdated so it is effectively 10 months is not a bad outcome if someone is guilty.
 

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The Old Dark Navy's said:
Were CAS obligated to cut the sentence further if the players aren't considered to have caused any substantial delays? It is backdated to March 2015 as it is. Is 2 years a substantial delay?

We know they won't get the no significant fault discount so that sits okay.

The can of worms if your club or coach can hold things up in court because the players received infraction notices, but that time wasted can come off your sentence is a precedent nobody would want to set.

Error of fact aside, you'd have to think 2 years backdated so it is effectively 10 months is not a bad outcome if someone is guilty.
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Yeah, Id take it and run personally. Duking it out in a Swiss court of appeal for a month or two off at best isnt worth it.

Get the EFC to pay all your bills (and salary, and loss of reputation and endorsements and other contractural stuff) for your 10 months off, and go backpacking while youre still young. Come back fresh next year.
 
Lebbo73 said:
http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ESSENDON.pdf

"14.4 Mr Dank administered Thymosin Beta-4 to the players;"

What proof is there to prove that 14.4 satisfies the test of comfortable satisfaction? I haven't seen any proof that says the players were given TB4!
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Most importantly, there was a deplorable failure to keep comprehensive records of the supplement program and its administration.”

To assess the case the parties agreed there were three indispensable elements or links:

(a) TB4 was procured from sources in China; and

(b) TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and

(c) Mr Dank administered TB4 to each Player

The Tribunal comfortably accepted:

Charter purchased what he believed to be TB4 and arranged to have it sent to Alavi;

Alavi believed that what he was compounding was TB4;

Alavi dispensed 26 vials of a substance he believed to be TB4 to Dank;

Correspondence between Alavi and Dank regarding “thymosin” refers to TB4;

And Alavi’s lab technician Vania Giordani compounded 15 vials of a substance she believed to be TB4 for Mr Dank."

The players samples will be kept for 10 years, hopefully a test will have been developed by then.
 
Norwood1878 said:
Most importantly, there was a deplorable failure to keep comprehensive records of the supplement program and its administration.”

To assess the case the parties agreed there were three indispensable elements or links:

(a) TB4 was procured from sources in China; and

(b) TB4 was obtained by Mr Alavi, compounded and provided to Mr Dank in his capacity as Sports Scientist at Essendon; and

(c) Mr Dank administered TB4 to each Player

The Tribunal comfortably accepted:

Charter purchased what he believed to be TB4 and arranged to have it sent to Alavi;

Alavi believed that what he was compounding was TB4;

Alavi dispensed 26 vials of a substance he believed to be TB4 to Dank;

Correspondence between Alavi and Dank regarding “thymosin” refers to TB4;

And Alavi’s lab technician Vania Giordani compounded 15 vials of a substance she believed to be TB4 for Mr Dank."

The players samples will be kept for 10 years, hopefully a test will have been developed by then.
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You do know that Dank had his own private business! Where is the proof he gave TB4 to the Essendon players and not other clients?
 
Lebbo73 said:
You do know that Dank had his own private business! Where is the proof he gave TB4 to the Essendon players and not other clients?
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Where is the proof he gave it to other clients?

How do you prove a negative? How would you prove a negative?

In the absence of evidence to the contrary, Essendon received the TB4 and not other clients.
 
blackshadow said:
Were the players invited to join by the court or was that the initial Federal Court case?

And even though they refused were they considered to be an interested party?

Would that have some bearing on that area?
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Players weren't parties but

"The 34 Players have a significant interest in these proceedings and the relief sought, particularly in setting aside the Notices which directly impact upon them"
 
Lebbo73 said:
You do know that Dank had his own private business! Where is the proof he gave TB4 to the Essendon players and not other clients?
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Yes i'm well aware...

Conversely, where are the records that show he didn't and where is the proof he gave TB4 to other clients? Presumably we would be aware of this by now don't you agree?
 
Norwood1878 said:
Yes i'm well aware...

Conversely, where are the records that show he didn't and where is the proof he gave TB4 to other clients? Presumably we would be aware of this by now don't you agree?
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Players could be found guilty even if there was reasonable doubt about the proof, only comfortable satisfaction was required.

They didn't know what they took and they knew they could be found guilty were reasonable doubt existed and still they didn't think they should take a Cronulla like deal. Crazy!
 
Gavstar said:
Players could be found guilty even if there was reasonable doubt about the proof, only comfortable satisfaction was required.

They didn't know what they took and they knew they could be found guilty were reasonable doubt existed and still they didn't think they should take a Cronulla like deal. Crazy!
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Yep, seems Lebbo can't grasp the concept though.
 

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Lebbo73 said:
Look, I know what you, Gavstar and others are saying. I actually think they are guilty and naive. However, I have read most of the finding and I still think they should of been cleared by CAS.
It doesn't matter now anyway!
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You think they are guilty and naive but you think they should've been cleared by CAS? Why?
 
Lebbo73 said:
http://www.tas-cas.org/fileadmin/user_upload/Arbitral_Award_WADA_ESSENDON.pdf

"14.4 Mr Dank administered Thymosin Beta-4 to the players;"

What proof is there to prove that 14.4 satisfies the test of comfortable satisfaction? I haven't seen any proof that says the players were given TB4!
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I think a closer look at the document might help?

131. The Panel is also comfortably satisfied that references to Thymosin in the documents (emails, consent forms, ...) discussed above were reference to TB-4. [...]

There is many pages of discussion why the panel reached that conclusion. And once they are comfortably satisfied of that, the consent forms cover the rest ...
 
Lebbo73 said:
Not confusing it at all. What is comfortable satisfaction? If I say they must of taken illegal drugs, case closed! :rolleyes:
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A standard higher than that used in civil courts, but lower than that used in criminal courts, as is befitting a doping case. Don't attempt to bamboozle here, and don't think you have a magical gotcha. This is all very plain and straightforward.
 
Malfice et al, given the players elected to run the case as a collective (a small number had separate council) surely there is no leg to stand on to try and run a case saying their human rights had been impinged because they were judged as part of a collective case? Does a Swiss appeals court hear that sort of argument?

All 34 admitted to being injected by Dank and signing consent forms for Thymosin, which the Tribunal and CAS were of the opinion that the"Thymosin" referred to by Dank and which he admitted to giving to EFC players was Thymosin beta 4.

Is it likely that the players with separate legal counsel were the "several" referred to that one panel member had doubts over?
 
Gavstar said:
Malfice et al, given the players elected to run the case as a collective (a small number had separate council) surely there is no leg to stand on to try and run a case saying their human rights had been impinged because they were judged as part of a collective case? Does a Swiss appeals court hear that sort of argument?

All 34 admitted to being injected by Dank and signing consent forms for Thymosin, which the Tribunal and CAS were of the opinion that the"Thymosin" referred to by Dank and which he admitted to giving to EFC players was Thymosin beta 4.

Is it likely that the players with separate legal counsel were the "several" referred to that one panel member had doubts over?
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Paragraph 81 of the Arbitral Award says hi:

At the start of the hearing, the Parties confirmed that they had no objection to the composition of the Panel. At the conclusion of the hearing, the Parties confirmed that their right to be heard had been fully respected.
 

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Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

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