Should the charges be heard by an "independent body"?

[The_Wookie]

So much of what the AFL does wouldn't hold up in a court if someone took it that far from tribunal hearings, to the draft, salary cap, trade restrictions, use of images etc etc

The competition exists on the basis that the clubs collectively agree to abide by the rules of the AFL and that includes having the commission rule on cases like this. It's flawed no doubt but unless their decision is patently unfair it should stand

Actually Tribunal hearings have been upheld by the courts EVERY SINGLE TIME after the initital injunctions - part of which lead to the establishment of an appeals process in 1997-98 (the Greg Williams 9 match suspension that the AFL lost in the Supreme Court, but won 2-1 before the Court of Appeal).

This is covered in another thread here, but the Victorian Court of Appeal basically said that the AFL had the right to look after its own affairs without court interference. Further the draft has never actually been ruled illegal, every time it has been ruled upon both here and in America, the judge of the case said he suggested modifications - which were undertaken in the case of the NFL - but drafts have never been ruled illegal themselves. Salary caps have never been ruled on in Australian Sport, and theres a fairly even split over how that would go in court. In any case everything the AFL does is signed off on by the Clubs (which gave them the power to do pretty much whatever they wanted in 1993), the Players under Collective Bargaining Agreements beginning in 1999, and the Coaches Association.

As long as Essendon are given the right to appeal Penalties - the AFL has an Appeals Board which could handle this as it does tribunal decisions - then this wont get very far in the courts.

 

[Tigerland]

If they are granted their wish, Essendon or Hird's lawyers will then want a say in who is on this independent panel.

I find it baffling that Hird is telling the AFL how and when to run this process. Control freak.

 

[moogerfooger]

how about the AFL just expel Essendon from the competition and Hird and his team of lawyers and spin doctors can go and argue the semantics among themselves in perpetuity, while the rest of us get back to watching some good clean drug free footy each weekend?

you want to be part of the AFL, you abide by AFL rules - simple as that.

 

[The_Wookie]

how about the AFL just expel Essendon from the competition and Hird and his team of lawyers and spin doctors can go and argue the semantics among themselves in perpetuity, while the rest of us get back to watching some good clean drug free footy each weekend?

you want to be part of the AFL, you abide by AFL rules - simple as that.

needs a club vote - majority would have to vote to remove the club from the comp

 

[moogerfooger]

needs a club vote - majority would have to vote to remove the club from the comp

can the commission de-register a club for a finite period, the same way it can de-register a player?

 

[Asty]

When you are employed by a company there are conditions around that employment (code of conduct etc) and if you break that code your employer can take action ... The decision on if you did breach any conditions and the punishment is managed internally by the employer. After that as an employee if you think outcome was incorrect or too harsh then you can take to independent (labor courts) to have your case heard.

In the same way at the moment this is a internal matter for afl to manage. If essendon is found not guilty then great no punishment ... If guilty and essendon believe punishment is to harsh then they can look at options to take to court.

Personally I think the approach some have of essendon is one of big clubs and afl cant punish us wouldn't fly with me too much ... I may be more harsh than afl but as a manager if you are critical there may be some bending in your favor but push that to far and I will still cut my losses. Afl still control club licenses, fixtures, drafts, money so I think best option is to work with afl and only escalate as last option if result is beyond reason.

 

[The_Wookie]

can the commission de-register a club for a finite period, the same way it can de-register a player?

unsure, clubs retain specific powers regarding explusion, but i cant categorically say the Commission couldnt suspend a club.

 

[Howard Littlejohn]

I understand what you're saying, but it does require some re-writing of the organisation rules on-the-fly. Not sure that is an ideal situation either.

I guess nobody anticipated that there would such a serious potential breach. It was assumed just the fact of having a strict anti-doping code in writing would be enough to scare the vast majority into compliance, and that any violations would be limited to the odd naive or silly individual.

The anti-doping codes seem to have been written much more with individual athletes in mind, rather than systemic violations set up by team administration. The possibility of that having occurred is partly what sets this apart from other scandals, outside East German and Chinese swim teams.

Even with cycling while some team officials have also copped penalties, most of it has been at an individual level and not an organisational one (I thnk there have been team penalties applied though). And cycling hardly sets a good precedent, Contador didn't exactly serve two years for his two year ban and some offences only came to light years after a long period of cheating.

 

[Colonial]

how about the AFL just expel Essendon from the competition and Hird and his team of lawyers and spin doctors can go and argue the semantics among themselves in perpetuity, while the rest of us get back to watching some good clean drug free footy each weekend?

you want to be part of the AFL, you abide by AFL rules - simple as that.

Pretty sure a club can be merged or moved, but there would be no way known a club would be booted, not with all the contracts (tv etc) calling for an 18 team competition.

The AFL will sack everybody involved and basically turn them back to the stone ages making the Bombers crap for 20 years, but they wont boot the club itself.

 

[Caesar]

This is covered in another thread here, but the Victorian Court of Appeal basically said that the AFL had the right to look after its own affairs without court interference.

Yes and no. It's not really that black and white.

As long as Essendon are given the right to appeal Penalties - the AFL has an Appeals Board which could handle this as it does tribunal decisions - then this wont get very far in the courts.

Admittedly I am not an expert, but this is a very sweeping statement to make. Previous challenges to tribunal decisions in the courts have been dismissed (I believe) on the basis that the AFL tribunal system has operated in a way that is robust and independent enough to provide natural justice, in accordance with the terms of the plaintiff's contract. The existence of an appeals system, etc. assists with that.

However a legal challenge in this case would be based on the idea that for a matter of such magnitude, with such a massive impact on the AFL itself, there is no possibility of an internal process being independent enough to provide that sort of natural justice. If that was found to be the case, it would be irrelevant whether an internal appeals process exists.

What the outcome of such a challenge would be, I have no idea and am certainly not qualified to offer an opinion. But there do seem to be at least a couple of experts floating around who think it is a position with no small element of credibility. I certainly wouldn't be dismissing it out of hand.

 

[Baldur]

.

As long as Essendon are given the right to appeal Penalties - the AFL has an Appeals Board which could handle this as it does tribunal decisions - then this wont get very far in the courts.

My personal opinion in the case, influenced I admit by my opinion that the AFL has gone about this arse backwards is that a Court would grant an injunction pending the handing down of the final report from ASADA. Basically the court would be concerned at the process.

But when it came to the substantive case as to if the AFL can jolly roger Essendon and the 4 amigos out of existance as AFL entities, I would back the AFL. The judge would be very concerned at what was done to young men under the care of the club. The newspaper reports are proof in relation to disrepute and they paint a nasty picture of the 4 amigos and the Essendon football club.

The Essendon football club and the 4 amigos should be doing their best to ensure that sanctions are not decided by an independant body, one that was no interest in keeping Essendon alive. But they are so deluded that they are asking to be invited to their own auto de fe.

 

[Monkey King]

If EFC wanted to charge one of their own for bringing the club into disrepute imagine the outcry if someone proposed that the club board couldn't make a determination on whether the reputation of the club had been impaired.

Oh hell yeah. Coach: "Sorry son, you broke the team rules, we're going to fine you". Player: "Well sorry coach, but as part of the team, you've got a conflict of interest and I'd like an independent body to make a determination of guilt and set my penalty thanks or I'm gonna take you to court".

Wouldn't that go down well.

 

[SwampRat]

I think Essendon should be careful what they wish here. The AFL has shown a great willingness to negotiate here. They're not stupid. They know it's in their interests to have a healthy Essendon in the long term, but in the interests of justice, there needs to be short term pain. Each day that passes, the chance of Essendon cutting a reasonable deal lessens. At an AFL Commission hearing punishments will be greater, but not contrary to the AFL's interests. A truly independent body might recommend Essendon's suspension from the competition, and worst case, deregistration. The AFL and Essendon don't want that.

 

[FootyGeek]

Expulsion is a 75% vote of clubs IIRC.

 

[The_Wookie]

Expulsion is a 75% vote of clubs IIRC.

The AFL in its 1996 Annual Report specifically says

• A two thirds majority of clubs is required to reverse any decision by the Commission
• Any decision by the AFL Commission to expel a club must be ratified at a general meeting of the clubs by a simple majority
• ref the 1996 AFL Annual Report, Page 35

 

[FootyGeek]

The AFL in its 1996 Annual Report specifically says

• A two thirds majority of clubs is required to reverse any decision by the Commission
• Any decision by the AFL Commission to expel a club must be ratified at a general meeting of the clubs by a simple majority
• ref the 1996 AFL Annual Report, Page 35

Amazing that the full Crawford report or the full details of the AFL constitution are not available online.

 

[The_Wookie]

Amazing that the full Crawford report or the full details of the AFL constitution are not available online.

Ive never been able to find either - and Ive looked. The best i can find on the Crawford report was contained in the 1993 AFL Annual Report, and repeated in the 1996 Annual Report. That is all summed up here:

http://www.worldofwookie.com/footywiki/index.php/AFL_Commission

 

[carlton2dabone]

Oh hell yeah. Coach: "Sorry son, you broke the team rules, we're going to fine you". Player: "Well sorry coach, but as part of the team, you've got a conflict of interest and I'd like an independent body to make a determination of guilt and set my penalty thanks or I'm gonna take you to court".

Wouldn't that go down well.

This is a great post.

A court will not side with EFC in this case, as I will crumble the fabric of organizations being able to police themselves.

We have players getting fined by their club for staying out to late, we have players missing games because their clubs don't like certain behaviour, we have players getting sacked if they do anything that contravenes their clubs policies, YET EFC are trying to argue that they should not be punished by their own bosses in the AFL.

If EFC wNT n independent body to decide its fate, then it will mean that a individual clubs would never be able to discipline their own players without an independent body. FFS, it would set a precedent that any boss anywhere cannot decide how to discipline their employees.

 

[FootyGeek]

Ive never been able to find either - and Ive looked. The best i can find on the Crawford report was contained in the 1993 AFL Annual Report, and repeated in the 1996 Annual Report. That is all summed up here:

http://www.worldofwookie.com/footywiki/index.php/AFL_Commission

Just had a look and found it. Just downloaded the original Crawford Report. Took a few minutes to find but it is all there. Feel free to contact me to see it.

 

[ABRL]

This is a great post.

A court will not side with EFC in this case, as I will crumble the fabric of organizations being able to police themselves.

We have players getting fined by their club for staying out to late, we have players missing games because their clubs don't like certain behaviour, we have players getting sacked if they do anything that contravenes their clubs policies, YET EFC are trying to argue that they should not be punished by their own bosses in the AFL.

If EFC wNT n independent body to decide its fate, then it will mean that a individual clubs would never be able to discipline their own players without an independent body. FFS, it would set a precedent that any boss anywhere cannot decide how to discipline their employees.

That's a sound legal argument right there. LLM? LLD?

 

[Tiger71]

Simple question, and one that has been mooted by several people, some lawyers in particular, already including David Galbally QC, a sports lawyer from Lander & Rogers I heard on 774 this morning etc.

1. Should the charges be heard by an "independent body" rather than the AFL Commission? And why/why not?

2. If so, of whom should this "body" be comprised?

3. Whether it is an "independent body" or not, should the hearing be open?

My prediction: Essendon supporters will want an independent body, Essendon haters will be happy to see AD sit in judgement.

My own opinion:

1. I don't think the AFL Commission can possibly be independent on this, particularly now that AD himself has been dragged into the mire. It goes both ways too - Linda Dessau, a retired Fed Family Court judge with "strong links to the club" is also on the Commission.

It is key not only that those judging the charges are independent but almost is important that they are seen to be independent. Otherwise supporters of either side will never accept the outcome if it goes against them.

2. The "Independent Body" should be comprised of a mix of retired Judges/Justices/QCs/SCs and a few learned and intelligent ex-sportspeople from other codes, and possibly the AFL itself.

3. I believe that the hearing should be open only to the point it can be, given privacy considerations (believe it or not, but medical records are extremely important stuff and should be protected).

Bullshit and here is the reasons why.

1. Essendon like the other 17 clubs agreed that the AFL can govern and run the game. You are not special, just because you have been naughty you cant change the rules to suit yourselves.

2.nobody refer 1.

3. Oh Yes, ofcorse due to privacy we will get the lite version but we deserve to know why the commission made the decisions they have.

My prediction - Essendon supporters want to change the rules that they have benefited from for 100 plus years just because they think in a natural court of law they can expose then use a loophole. They know they wont be able to do that under the AFL structure. What is sad in all this, Essendon is so arrogant they think if they push it they will get there way BUT what they don't if they try this they wont get resistance just from the AFL but also the other clubs.

 

[TwiceDisrepute]

If a player gets 4 weeks for punching someone - I don't see why they should accept the AFL punishment if they don't agree with it.They should tell the AFL in a highly egotistical fashion they do not agree and take it to the courts of the land.

 

[Caesar]

Oh hell yeah. Coach: "Sorry son, you broke the team rules, we're going to fine you". Player: "Well sorry coach, but as part of the team, you've got a conflict of interest and I'd like an independent body to make a determination of guilt and set my penalty thanks or I'm gonna take you to court".

Wouldn't that go down well.

Conflicts of interest have varying degrees of materiality. The logic here is overly simplistic.

 

[Run n Spread]

A joint investigation took place between the AFL and ASADA. The AFL based on their investigations charged Essendon. In what other field of law does the charging body and members of the investigative team have a seat deciding the verdict? Especially when said charging body has leaked more than Niagara Falls. I would love to see Demetriou answer some real questions under oath in a real court room and finally see just how this investigation has really played out.

 

[Peacock]

Essendon told their staff to co-operate 100% with ASADA investigators.

All along they have said the truth will come out.

The truth has come out and they don't like it so now they are off to court.