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

[StabbytheRabbit]

Last week a Spanish cyclist successfully sued the Spanish asada equivalent for a doping suspension imposed as result of a positive test which was later exposed as having significant procedural irregularities.

 

[imperial_oz]

Last week a Spanish cyclist successfully sued the Spanish asada equivalent for a doping suspension imposed as result of a positive test which was later exposed as having significant procedural irregularities.

The relevance to this case is???

Essentially nil, correct.

Bruce, try to argue the facts and leave out the smoke and mirrors ok

 

[DonsRule]

The relevance to this case is???

Essentially nil, correct.

Bruce, try to argue the facts and leave out the smoke and mirrors ok

I think all could be accused of that. I've mentioned before in Chris's analsys of the CAS verdict he cites Renee Ann Shirley's tweets Jamican athletes finding CAS athlete friendly in a tweet to support CAS nothing to do with Essendon does it?

But when it came to Renee's tweets critical of the decision...they seem to be missing. The ones more relivent to the case.

I think all have a certain bias in their views. As I've said, it's hard to pick any real flaws in Chris's rundown of the saga.


I've found the wrong way sometimes of being sucked into ones persons views a little too much. That goes for anyone too really.

 

[imperial_oz]

I think all could be accused of that. I've mentioned before in Chris's analsys of the CAS verdict he cites Renee Ann Shirley's tweets Jamican athletes finding CAS athlete friendly in a tweet to support CAS nothing to do with Essendon does it?

But when it came to Renee's tweets critical of the decision...they seem to be missing. The ones more relivent to the case.

I think all have a certain bias in their views. As I've said, it's hard to pick any real flaws in Chris's rundown of the saga.


I've found the wrong way sometimes of being sucked into ones persons views a little too much. That goes for anyone too really.

I think with the mention of those tweets, it was a direct response to some somewhat silly accusations of CAS bias against athletes and being in WADAs pocket. The comments were relevant in that they directly undermined a nonsensical allegation.

Bruce's repeated efforts are just not the same. He refuses to debate the merits but instead repeated material that has already been shown to be incorrect and he tries to ypass that by making his posts extremely long and filled with almost incoherent ramblings. As a result, you can point to what you see as a flaw in KC's posts yet nobody can effectively deal with Bruce's due to the size and lack of coherent structure.

I prefer KCs approach as you can debate the merits fairly easily. With Bruce, wait a few posts and he repeats himself from scratch as though he intervening comments didn't exist. Plus Bruce refuses to acknowledge any evidence exists that doesn't suit his agenda.

You can have differing opinions, as some on here do but if you can form a coherent argument most people will accept what you say and respect your point of view. Ask Lance or Dapperjong. Many people disagree with some of their arguments but almost will grant them due respect and listen to what they say

 

[DonsRule]

I think with the mention of those tweets, it was a direct response to some somewhat silly accusations of CAS bias against athletes and being in WADAs pocket. The comments were relevant in that they directly undermined a nonsensical allegation.

Bruce's repeated efforts are just not the same. He refuses to debate the merits but instead repeated material that has already been shown to be incorrect and he tries to ypass that by making his posts extremely long and filled with almost incoherent ramblings. As a result, you can point to what you see as a flaw in KC's posts yet nobody can effectively deal with Bruce's due to the size and lack of coherent structure.

I prefer KCs approach as you can debate the merits fairly easily. With Bruce, wait a few posts and he repeats himself from scratch as though he intervening comments didn't exist. Plus Bruce refuses to acknowledge any evidence exists that doesn't suit his agenda.

You can have differing opinions, as some on here do but if you can form a coherent argument most people will accept what you say and respect your point of view. Ask Lance or Dapperjong. Many people disagree with some of their arguments but almost will grant them due respect and listen to what they say

I haven't bothered to read a BF piece in months. A few snippets that people bring up. But never the whole thing and agree there is a lot of nonsense.

I'm happy to listen to anyone willing to heat both sides. Some, even like Armchair Critic I disagree with at times. But he will argue both sides well if he sees that angle.

I think the HTB is largely a captive audience too. The popular opinion was always Essendon were guilty.

 

[imperial_oz]

I haven't bothered to read a BF piece in months. A few snippets that people bring up. But never the whole thing and agree there is a lot of nonsense.

I'm happy to listen to anyone willing to heat both sides. Some, even like Armchair Critic I disagree with at times. But he will argue both sides well if he sees that angle.

I think the HTB is largely a captive audience too. The popular opinion was always Essendon were guilty.

I'd agree. Some of that popular opinion was driven by idiots, actually idiots on both sides. However, the overwhelming tone of the evidence did lean in that direction. The real question that most even handed commenters dealt with was the evidence sufficient to make that determination and given the different results in the two panels, its a fair question.

Back to Bruce, he would be one of the proponents on the lowest rung of credibility

 

[StabbytheRabbit]

Is the AFL’s arbitration agreement binding the players to the arbitration regime a misuse of the AFL’s market power and/or an unlawful restraint of trade on the players? Yes.
The arbitration agreement is unlawful under Australian law.

 

[compact72]

Is the AFL’s arbitration agreement binding the players to the arbitration regime a misuse of the AFL’s market power and/or an unlawful restraint of trade on the players? Yes.
The arbitration agreement is unlawful under Australian law.

Luckily the players agreed to the arbitration and didn't have any issues during it. Bruce, perhaps they should of hired you to represent them

 

[StabbytheRabbit]

Further, the Competition and Consumer Act 2010 prohibits a corporation with substantial power in a market from taking advantage of that power to deter or prevent a person from engaging in competitive conduct.

 

[StabbytheRabbit]

Luckily the players agreed to the arbitration and didn't have any issues during it. Bruce, perhaps they should of hired you to represent them

Not so, in Australia, a contract that restricts a person from carrying on a trade or profession is invalid.

 

[StabbytheRabbit]

The relevance to this case is???

Essentially nil, correct.

Bruce, try to argue the facts and leave out the smoke and mirrors ok

Im glad you asked. Source: Alister Twigg. 21 Jan 2016 who says:

In 2009, Claudia Pechstein, a German police officer and speed skater, was found guilty of blood doping on the basis of changes in readings of samples taken over a period of time and noted in her Athlete Biological Passport; effectively, on circumstantial evidence (like the Essendon 34).

The International Skating Union (ISU) banned her from all competitions for two years. She exhausted the appeals process at the CAS, who upheld the ban.

She subsequently appealed this decision to the Swiss Federal Tribunal (on the basis that the CAS is a Swiss legal body) and was rejected twice.

Her defence was that the abnormal blood values were caused by a disorder which she had inherited from her father, and she produced experts who testified to that effect.

For a number of reasons, including that her employment was put at risk by such findings, Pechstein sued the ISU in a German court, asking that the doping ban be overturned because of a breach of the applicable competition law and seeking compensation of €4.4 million in damages.

To the apparent dismay of the CAS, the Munich Higher Regional Court decided that her claim that her doping disqualification was unlawful could be tried within the German jurisdiction. It found that the ISU had a degree of market power, as against the athletes, and that requiring them to submit completely to the jurisdiction of the CAS without further recourse, whilst not necessarily coercion and therefore unenforceable per se, could amount to an abuse of that market power and be in breach of German competition law.

This decision appears to be fortified by an earlier decision of a German Court of Appeal (in SV Wilhelmshaven), where another CAS decision had been questioned for breaching relevant competition law and was not automatically thrown out by the German court. This was a case relating to an EU treaty regarding the free movement of workers within the European Union.

 

[ChrisKaias]

I think all could be accused of that. I've mentioned before in Chris's analsys of the CAS verdict he cites Renee Ann Shirley's tweets Jamican athletes finding CAS athlete friendly in a tweet to support CAS nothing to do with Essendon does it?

But when it came to Renee's tweets critical of the decision...they seem to be missing. The ones more relivent to the case.

As someone else said, the point being addressed by those tweets is the idea that CAS are horribly biased and in WADA's pocket. I thought it was fairly obvious why I was using it:

"While some have suggested that the CAS is unfriendly to athletes, the ex-Executive Director of the Jamaican Anti-Doping Commission, Renee Anne Shirley, noted that Jamaican athletes ‘find CAS rather “athlete friendly”’."

Simply a general point that athletes themselves that have been involved at CAS have in fact found CAS to be athlete friendly (ie not in WADA's pocket). I haven't mentioned Renee's view of the Ess case either way.

 

[The_Wookie]

Is the AFL’s arbitration agreement binding the players to the arbitration regime a misuse of the AFL’s market power and/or an unlawful restraint of trade on the players? Yes.
The arbitration agreement is unlawful under Australian law.

It would if it was found to be an arbitration. In the case of the AFL and the ASADA investigation, I believe the Victorian Supreme Court ruled that it was categorically not an arbitration.

68 Critically, in terms of these supplementary submissions, and the issues now before the Court, none of the provisions of the ASADA Act or the ASADA Regulations with respect to the NAD scheme to which ASADA has referred make any reference to the procedure before the tribunal, or under the NAD scheme, as being an arbitration of any kind. Neither have either of the applicants, ASADA or the AFL, pointed to any other provision in the ASADA Act or the ASADA Regulations which provide that the NAD scheme is an arbitration scheme of any kind.[168] Consequently, on the face of these provisions, the ASADA Act does not constitute an Act which could be said to create a position that proceedings before the Tribunal are an arbitration or arbitrations “provided for” for the purposes of sub-s 1(6) of the domestic Victorian arbitration legislation, the Act. The position is, in my view, that the provisions of the ASADA Act and the ASADA Regulations with respect to the NAD scheme leave matters in the same position as considered previously. It is necessary to consider the nature of the proceedings and, for the preceding reasons, they are not properly characterised as arbitration proceedings.[169]

http://www.austlii.edu.au/cgi-bin/s...35.html?stem=0&synonyms=0&query=title(ASADA )

Note: entirely possible Ive misread this.

 

[imperial_oz]

It would if it was found to be an arbitration. In the case of the AFL and the ASADA investigation, I believe the Victorian Supreme Court ruled that it was categorically not an arbitration.


http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/635.html?stem=0&synonyms=0&query=title(ASADA )

Note: entirely possible Ive misread this.

My understanding was it didn't meet the criteria to be a 'commercial arbitration' as defined in Australian law. I may well be wrong in my recollection but thats as I recall it.

 

[Malifice]

Not so, in Australia, a contract that restricts a person from carrying on a trade or profession is invalid.

The players are perfectly free to ply their trade elsewhere. No one forces them to play in the AFL's competition.

It would if it was found to be an arbitration. In the case of the AFL and the ASADA investigation, I believe the Victorian Supreme Court ruled that it was categorically not an arbitration.


http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/635.html?stem=0&synonyms=0&query=title(ASADA )

Note: entirely possible Ive misread this.

I think Bruce has an issue with the players being 'forced' via their playing contract to agree to CAS arbitration.

I have no idea how he thinks that such a term in the contract (requiring an athlete to comply with the WADA code, and making them be subject to CAS arbitration) is either a 'misuse of the AFL’s market power' and/or 'an unlawful restraint of trade' (as he puts it) on the players.

It sounds to me to be quite the opposite in fact. Its an entirely reasonable and necessary term of a playing contract required to protect the legitimate business intrests of the AFL (ensuring a transparent independent arbitration process independent of the AFL, and seeking to ensure a doping free sporting competition). Any challenge on those grounds (arguing an unfair restraint of trade) would be rejected by a court out of hand in my view.

Here is a discussion why (caveat: it's outside my general area of expertise):

Reasonableness and legitimate interests
All agreements in restraint of trade are void unless:

• they are reasonable in the interest of the parties (onus on party relying on restraint); and
• they are reasonable in the interest of the public (onus shifts to person seeking to strike down restraint to demonstrate they are not reasonable in the interest of the public)

When assessing reasonableness the courts will first consider whether there is a 'legitimate interest' or interests that require protection and, if so, will assess whether or not the restraint does not more than is necessary to protect that interest; if the restraint goes beyond what is necessary then it will not be considered reasonable.

I dont think the AFL would struggle to establish the first element (its not unreasonable to require an athlete to submit to the jurisdiction of CAS having regards to the intrests of the AFL to ensure the integrity of the competition, and the fact Australian Commonwealth ratified the The International Convention against Doping in Sport which establishes WADA and legitimises CAS in the first place) and the players would struggle to get the second element up (its clearly in the public interest to ensure doping free sport - ASADA exists for a reason after all).

 

[Muggs]

The players are perfectly free to ply their trade elsewhere. No one forces them to play in the AFL's competition.



I think Bruce has an issue with the players being 'forced' via their playing contract to agree to CAS arbitration.

I have no idea how he thinks that such a term in the contract (requiring an athlete to comply with the WADA code, and making them be subject to CAS arbitration) is either a 'misuse of the AFL’s market power' and/or 'an unlawful restraint of trade' (as he puts it) on the players.

It sounds to me to be quite the opposite in fact. Its an entirely reasonable and necessary term of a playing contract required to protect the legitimate business intrests of the AFL (ensuring a transparent independent arbitration process independent of the AFL, and seeking to ensure a doping free sporting competition). Any challenge on those grounds (arguing an unfair restraint of trade) would be rejected by a court out of hand in my view.

Here is a discussion why (caveat: it's outside my general area of expertise):



I dont think the AFL would struggle to establish the first element (its not unreasonable to require an athlete to submit to the jurisdiction of CAS having regards to the intrests of the AFL to ensure the integrity of the competition) and the players would struggle to get the second element up (its clearly in the public interest to ensure doping free sport - ASADA exists for a reason after all).

Considering the AFL was effectively forced to sign upto WADA code to secure government funding, and the same applies to all sports in Australia the second step would be easy to establish.

Would also think it be had to prove there is any abuse of market power if following WADA is a common expectation of sports, the same restraints would apply if a player decided to play in another league, or even play another sport in Australia, this is at both the amateur and professional level.

 

[Malifice]

Considering the AFL was effectively forced to sign upto WADA code to secure government funding, and the same applies to all sports in Australia the second step would be easy to establish.

Would also think it be had to prove there is any abuse of market power if following WADA is a common expectation of sports, the same restraints would apply if a player decided to play in another league, or even play another sport in Australia, this is at both the amateur and professional level.

For the life of me I cant see an Australian court ruling that a domestic sporting entity is acting 'unreasonably' by requiring its athletes to conform to the WADA code, or to submit to CAS arbitration as part of any restraint of trade argument.

If that isnt a legitimate buisiness intrest (considering the impact of the AFL being forced to employ non WADA compliant athletes in its sporting competition, and in light of the Commonwealth not only ratifying the WADA treaty, but also giving it domestic 'teeth' by virtue of the ASADA Act) I dont know what is.

Its clearly a legitimate intrest of the AFL to ensure a clean sport. I cant see how it could be ruled differently. Even reading the clause down wouldnt happen (i.e. reading the clasue down that the AFL should have enforced the WADA regime by a method other than WADA/ ASADA/ CAS). All the AFL have required athletes to do is to comply with the WADA code, and submit to CAS arbitration, which is clearly something forseen by the Commonwealth in ratifying the treaty, implementing the NAD scheme and creating ASADA (via the ASADA Act) in the first place.

 

[Muggs]

For the life of me I cant see an Australian court ruling that a domestic sporting entity is acting 'unreasonably' by requiring its athletes to conform to the WADA code, or to submit to CAS arbitration as part of any restraint of trade argument.

If that isnt a legitimate buisiness intrest (considering the impact of the AFL being forced to employ non WADA compliant athletes in its sporting competition, and in light of the Commonwealth not only ratifying the WADA treaty, but also giving it domestic 'teeth' by virtue of the ASADA Act) I dont know what is.

Its clearly a legitimate intrest of the AFL to ensure a clean sport. I cant see how it could be ruled differently. Even reading the clause down wouldnt happen (i.e. reading the clasue down that the AFL should have enforced the WADA regime by a method other than WADA/ ASADA/ CAS). All the AFL have required athletes to do is to comply with the WADA code, and submit to CAS arbitration, which is clearly something forseen by the Commonwealth in ratifying the treaty, implementing the NAD scheme and creating ASADA (via the ASADA Act) in the first place.

Here's a bit more details on Perschstien,
https://groups.google.com/forum/embed/#!topic/rec.games.go/-WxjSPIUAOA

While she argued via restraints of trade rules, it was actually much more specific than that.. It was actually based on the arbitrator selection and her choice of possible arbratiors. The restraint was in the way arbitrators are selected to the list of approved arbratiors being dominated by sporting bodies nominating them and not allowing her freedom of choice in arbitration NOT a restraint in trade per say in signing up to the WADA code.

I also believe that this had been addressed by CAS in the years since her case (this was not a new argument for her, just a new court), allowing more bodies to nominate and a larger pool of arbitrators. CAS also now ensures as part of the award that the parties are happy with the choice of arbitratiors and the panel.

 

[Malifice]

Here's a bit more details on Perschstien,
https://groups.google.com/forum/embed/#!topic/rec.games.go/-WxjSPIUAOA

While she argued via restraints of trade rules, it was actually much more specific than that.. It was actually based on the arbitrator selection and her choice of possible arbratiors. The restraint was in the way arbitrators are selected being dominated by sporting bodies nominating them and not allowing her freedom of choice in arbitration NOT a restraint in trade per say in signing up to the WADA code.

I also believe that this had been addressed by CAS in the years since her case (this was not a new argument for her, just a new court), allowing more bodies to nominate and a larger pool of arbitrators. CAS also now ensures as part of the award that the parties are happy with the choice of arbitratiors and the panel.

Explains why the players got to nominate their own member for the panel doesnt it?

 

[Muggs]

Explains why the players got to nominate their own member for the panel doesnt it?

Yep, but Pecichsiten did to. The more important point is the players had a much bigger pool to chose from including people not nominated by sporting bodies.

He's a quote from CAS about her case.

"The CAS notes that the findings of the Munich Appeals Court are based on the CAS rules and organization in force in 2009, when Claudia Pechstein appealed before CAS, and do not take into account the changes leading to the current organization, with amended procedural rules regarding the nomination of arbitrators, development of the legal aid program and the appointment of new ICAS Members not active in or connected to sports-bodies."

Thus her case unlikely to provide the same grounds for a local challenge...

 

[StabbytheRabbit]

As someone else said, the point being addressed by those tweets is the idea that CAS are horribly biased and in WADA's pocket. I thought it was fairly obvious why I was using it:

"While some have suggested that the CAS is unfriendly to athletes, the ex-Executive Director of the Jamaican Anti-Doping Commission, Renee Anne Shirley, noted that Jamaican athletes ‘find CAS rather “athlete friendly”’."

Simply a general point that athletes themselves that have been involved at CAS have in fact found CAS to be athlete friendly (ie not in WADA's pocket). I haven't mentioned Renee's view of the Ess case either way.

 

[Gavstar]

Yep, but Pecichsiten did to. The more important point is the players had a much bigger pool to chose from including people not nominated by sporting bodies.

He's a quote from CAS about her case.

"The CAS notes that the findings of the Munich Appeals Court are based on the CAS rules and organization in force in 2009, when Claudia Pechstein appealed before CAS, and do not take into account the changes leading to the current organization, with amended procedural rules regarding the nomination of arbitrators, development of the legal aid program and the appointment of new ICAS Members not active in or connected to sports-bodies."

Thus her case unlikely to provide the same grounds for a local challenge...

Supporting your argument part 81 of the award says players were happy with the composition of the panel and they received a fair hearing.

 

[ChrisKaias]

<irrelevant quotes>

I don't understand what the point of that was? I used Renee's old position at JADCO to prove that it was reasonable that she would know Jamaican athletes, and it was their opinions that I was getting at. Not hers.

 

[The_Wookie]

StabbytheRabbit - you've been told about posting content wholesale and without context. This is spam and will be deleted - particularly when its across multiple threads. Consider this a formal warning.

 

[StabbytheRabbit]

StabbytheRabbit - you've been told about posting content wholesale and without context. This is spam and will be deleted - particularly when its across multiple threads. Consider this a formal warning.

Understood. My Apologies.