The Bombers ASADA/WADA Saga

[M Malice]

http://shglawyers.com.au/news/legal-news/article/?id=the-essendon-34-a-new-perspective

Essendon might be able to get off their bans because of #restraintoftrade.

Who's pumped?

i am comfortably satisfied with the decision of CAS, but if there are legal avenues open to anybody in any situation re. sports tribunals, civil or criminal they are within their rights to pursue it to its conclusion, that is the system.

 

[Dutch Wink]

In Australia, prima facie, all restraints of trade are unlawful as contrary to public policy and therefore void. This general rule has exceptions. Restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. But in all cases, such restriction must be reasonable: that is, in reference both to the interests of the parties concerned and to the public interest. And the person seeking to rely upon the restraint must show that it is no more than reasonably necessary to protect its legitimate commercial interests.

This seems pretty straightforward? The AFL, in seeking to rely upon the restraint, can show that this is in the public interest by way of competitive sport being expected to be a fair and equal platform, within a set of governing rules. AFL players choose to participate according to such. Further, it is in the AFL's legitimate commercial interests to have a fair and equal platform on which matches are played, otherwise fans just won't be interested, ergo the competition would be worth less as a thing to sell various rights to.

Seriously, who is this guy? Is he fishing for work?

And, at the end of the day, if the players really want to insist on their livelihoods being at stake, etc, we could always go back to it being an amateur competition, where you still needed a day job to keep yourself fed, and remove these silly arguments completely.

 

[dlanod]

http://shglawyers.com.au/news/legal-news/article/?id=the-essendon-34-a-new-perspective

Essendon might be able to get off their bans because of #restraintoftrade.

Who's pumped?

I love that their "overseas example" about how you could sue (in Germany) re: restraint of trade...

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.

...doesn't mention that she lost and sat out her ban.

Players can absolutely sue about restraint of trade as you can sue for just about anything - it's just whether they actually have a chance of winning.

Their own article lists reasons when restraints of trade can be considered lawful:

In Australia, prima facie, all restraints of trade are unlawful as contrary to public policy and therefore void. This general rule has exceptions. Restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. But in all cases, such restriction must be reasonable: that is, in reference both to the interests of the parties concerned and to the public interest. And the person seeking to rely upon the restraint must show that it is no more than reasonably necessary to protect its legitimate commercial interests.

They then choose to handwave around that:

It is strongly arguable that, given the way the whole saga has played out, the finality of the CAS's decision is neither in the players' best interests nor in the public's interest. It is arguable that the AFL and WADA might have difficulty in showing that the bans on the players are no more than is reasonably necessary to protect their legitimate commercial interests.

I suspect the AFL will find it remarkably easy to show that signing up to WADA in order to exclude drug cheats and gain access to extra government funding only available to WADA-signatory codes in Australia satisfies "protection of its legitimate commercial interests" given the backlash in other sports where doping was discovered.

 

[Judge]

I love that their "overseas example" about how you could sue (in Germany) re: restraint of trade...



...doesn't mention that she lost and sat out her ban.

Players can absolutely sue about restraint of trade as you can sue for just about anything - it's just whether they actually have a chance of winning.

Their own article lists reasons when restraints of trade can be considered lawful:



They then choose to handwave around that:



I suspect the AFL will find it remarkably easy to show that signing up to WADA in order to exclude drug cheats and gain access to extra government funding only available to WADA-signatory codes in Australia satisfies "protection of its legitimate commercial interests" given the backlash in other sports where doping was discovered.

That SHG article just looks like more waffle to me.

Like you say dlanod, just because something might be "arguable" doesn't meant that it should be argued before a Court.

I'm sure the 34 guys banned can/will get much better legal advice than that, but you'd think that by now most, if not all, of them have had enough of litigation such that there probably won't be any appeals against the CAS decision.

 

[POBT]

Reads like a university exam response.

 

[Ray Button]

i am comfortably satisfied with the decision of CAS, but if there are legal avenues open to anybody in any situation re. sports tribunals, civil or criminal they are within their rights to pursue it to its conclusion, that is the system.

I'm not comfortably satisfied with comfortable satisfaction.

But I'll be happy to see the end of this episode!

 

[alscotoz2]

Someone (surely) on the wind up on the essendon board:

There's an article on the AFL site about how Ryan Crowley might be a suitable top up player.
I don't want that dirty cheater at our club, he'll ruin our reputation.

 

[3KZ is Football]

As far as I am concerned Essendon can

in their

 

[Kevvo]

As far as I am concerned Essendon can

in their

Magical post! I wish I could like it more than once.

 

[carnthemlions]

Reads like a university exam response.

I love how people who've only just discovered anti-doping approach as they would other areas of the law as if no one's thought of that before.

 

[Judge]

Reads like a university exam response.

By a try-hard honours student.....

 

[matwt73]

As far as I am concerned Essendon can

in their

yep, they can all just Barrel in their Sporrans for all I care

 

[Viceregal]

My Hawthorn supporting mate is married to an Essendon supporter. His version of 'comfort' over the news was to tell her she could barrack for the Hawks for the year that way she could enjoy watching a team that wins.

I am assuming he slept on the couch that night ...

That logic apparently did not work for her ... she is picking up the Saints as her alternate team this year!

 

[blynd_freddie]

As far as I am concerned Essendon can

in their

And for those playing at home the correct answer is either/and/or

 

[Dom PC]

Ian Robson is a smart man. Listening to his SEN interview this morning, he is doing what Hird should have done from the start. You can see why he is still employed in his preferred profession.

 

[Clarkythelion]

As more people start to speak about what went on it does seems to be a comedy of errors, bad judgements, poor advice, trust gone wrong and simple a lack of education but no one was really setting out to cheat.

The thing that get me most now is that supposedly when 12 of the players were asked, "are you taking any supplements/medications" despite being regularly injected the players chose to say NO. (the rest of the players were not tested that year). Hird himself said there was no advice from the club to remain silent, he even said this was a mistake by the players. If as the club has said and the coaching staff have said, they all believed it legal, then why did the players remain silent to the drug testers who are bound by a level of non-disclosure anyway. Essendon weren't and rant the only clubs with a supplements program, I wonder how many other clubs had players being injected and were their players telling the testers what they were having.

 

[jackchaff]

What more can I say.........................(image)

 

[Skoob]

As more people start to speak about what went on it does seems to be a comedy of errors, bad judgements, poor advice, trust gone wrong and simple a lack of education but no one was really setting out to cheat.

The thing that get me most now is that supposedly when 12 of the players were asked, "are you taking any supplements/medications" despite being regularly injected the players chose to say NO. (the rest of the players were not tested that year). Hird himself said there was no advice from the club to remain silent, he even said this was a mistake by the players. If as the club has said and the coaching staff have said, they all believed it legal, then why did the players remain silent to the drug testers who are bound by a level of non-disclosure anyway. Essendon weren't and rant the only clubs with a supplements program, I wonder how many other clubs had players being injected and were their players telling the testers what they were having.

Only if you believe what they are saying.

 

[blynd_freddie]

Obviously not the first time the company has taken this marketing plan.

*edit - and are offering all Essendon fans a 10% discount. [on costs not bans]

 

[Kojihama]

Head in sand these guys... I hope they appeal, get an injunction.. Play for 10 matches... Win 8+ so they don't get wooden spoon... Then when they lose the appeal the ban stands and they fk up two seasons and then some.

Take your medicine boys.

 

[M Malice]

it may not be over???
http://www.afl.com.au/news/2016-02-...ppeal-to-federal-supreme-court-of-switzerland

 

[ZoBlitz]

I look forward to the media ripping into the players for keeping this going, like they did to ASADA and WADA in previous years.

 

[Hollow Knight]

I look forward to the media ripping into the players for keeping this going, like they did to ASADA and WADA in previous years.

Am I right in assuming that any such appeal would probably not be finalised for quite some time meaning the players will still be wiped out for this season, and the best possible outcome for the players would be a "name clearing"?

 

[lionbear]

Am I right in assuming that any such appeal would probably not be finalised for quite some time meaning the players will still be wiped out for this season, and the best possible outcome for the players would be a "name clearing"?

I think they think they are allowed to play whic means if it fails this goes into 2017.

 

[WA Lion]

Am I right in assuming that any such appeal would probably not be finalised for quite some time meaning the players will still be wiped out for this season, and the best possible outcome for the players would be a "name clearing"?

They can apparently seek some form of injunction against the suspension