Play Nice The "can CAS do a de novo hearing" even if the AFL code said it couldnt thread

[Jade]

You're wrong. Where rules conflict, a decision is made as to which takes precedence.

EDIT: I've just realised you've been going on about this for 9 pages and have had the references placed in front of you and are still arguing. Leave me out of it. Waste of time. You're wrong.

Actually I'm accurate, but thanks anyway.

 

[gutsroy]

Just joking, it's an interesting hypothetical. Carry on.

 

[Tiger7374]

I reckon Jade had a damn good point actually.

Doesn't the legal authority to enforce the suspensions come from the ASADA Act?

In a policy sense, doesnt WADA prepare the base version and all signatories ratify under national law?

The ASADA Act gives legal authority to the AFL Code...and the AFL Code in 2010 said WADA can retry. It didn't go into the form and definition, just said it could and that it would abide by it. That WADA goes denovo wasn't an issue worried about. More so, if the AFL Code had tried to restrict WADA, then it would not have been considered as compliant.

But I'm seeing the point.

Signatory isn't the issue. The appeal is actually saying WADA operated outside its native Swiss Law by going denovo as the Australian law was silent on the form of appeal.

Edit: The appeal is trying to argue that WADA operated...

 

[Tiger7374]

One of the real interesting aspects of this tho is the ASADA chain link vs WADA cable approach. The AFL happily called ASADA on the lack of a positive test. I'm sure I read that the Tribunal, the Players and ASADA all agreed this was the best way to try the case. Who set this approach up...why was this approach taken? Is it possible ASADA were well aware that the AFL were going to trash the case over the lack of a positive and simply ran deliberately a losing hand knowing they had the WADA option to run a different approach in line with the work scheduled with Cox? ASADA already had won big time...it's actual authority was ratified throughout the land at the EFC and Hird's expense.

 

[mxett]

Haha. Terry admits no such thing.

Terry admits his purpose is to help shine a light on the attempted cover-up of a team doping regime that was uncovered by the Australian Crime Commission.

Terry also admits that he has a bit o fun along the way. How can he not, with the material the cover-up proponents dish up?

Terry looks like a douche referring to himself in 3rd person. Mxett doesnt do that shit

 

[Belnakor]

One of the real interesting aspects of this tho is the ASADA chain link vs WADA cable approach. The AFL happily called ASADA on the lack of a positive test. I'm sure I read that the Tribunal, the Players and ASADA all agreed this was the best way to try the case. Who set this approach up...why was this approach taken? Is it possible ASADA were well aware that the AFL were going to trash the case over the lack of a positive and simply ran deliberately a losing hand knowing they had the WADA option to run a different approach in line with the work scheduled with Cox? ASADA already had won big time...it's actual authority was ratified throughout the land at the EFC and Hird's expense.

the way the case was run meant Lance Armstrong wouldn't have been found guilty. So it was a nonsense that was always going to go the AFL's way. ASADA didn't plan that, they simply got out played the AFL. They were just lucky the CAS took on their appeal later.

 

[Tiger7374]

the way the case was run meant Lance Armstrong wouldn't have been found guilty. So it was a nonsense that was always going to go the AFL's way. ASADA didn't plan that, they simply got out played the AFL. They were just lucky the CAS took on their appeal later.

Disagree mate...I know I read the CAS document and it said specifically that all 3 parties agreed to the chain approach. The AFL Tribunal was not comfortably satisfied because they didn't have the 100% guarantee of TB4. This is the burden of proof that failed...a link in the chain didn't exist.

 

[mxett]

i think the no spamming rule went out the door after about Rainman mxett's 18,000 post on this subforum.

I'm staggered people are still responding to him

Ive been a member of this forum 4 years less than you and have 4000 less posts than you......

Funny enough, my team is central to this saga, so why wouldnt I post about it?

 

[Crankyhawk]

amazing catch Jade, absolutely astonishing.

I cannot believe how much people will argue and argue and argue about made up issues! It's like a Monty Python sketch ffs.

Jade: if there was a reality that doesn't exist, then some of this reality might be different
HTB: NO IT WOULDN'T!!!! IT CAN'T!! THIS REALITY IS THE ONLY REALITY
Jade: yes but if reality was slightly different, then reality would be slightly different
HTB: NO! I'M TELLING YOU THAT CAN'T HAPPEN
repeat apparently ad infinitum

Incredible

Suspect it is an ad infinitum response to poster (variant of ad hominem?)

 

[Sydney Bloods]

That's an interesting thought.

No one is currently 'forced' to adhere to the WADA code in Australia (though effectively any Olympic sport is basically choosing not to compete if they don't).

Obviously, the AFL would be the closest sport in Australia to the American sports which are not WADA compliant.

BUT I'm interested in this idea of a government actually legislating to in effect FORCE compliance with WADA.

How does that actually work? What constitutes a professional sport? Hell, what constitutes a sport?

To answer your questions: the Minister for sport defines what is and isn't a sport and the tax code already defines what a professional sportsperson is based on their employment by a sporting organisation and their income, you simply make it law that any sport club that employs professional sportspersons has to register with the new definition of a "professional sporting organisation" (which would would literally just be a sporting club which pays players over a certain amount)

you don't give them a choice you make it automatic, it would be like a restaurant trying to claim it doesn't have to comply with the health code, be they aren't registered as an official restaurant. not being registered is a violation in and of itself.

and you tie their employment by a sporting organisation to new OH&S standard of WADA compliance. Being in violation now carries strick tax penalties for the organisation and individual penalties for those who will fully violate the tax code.

 

[Sydney Bloods]

Disagree with part of this.

The AFL would be contractually bound to enforce the CAS Ruling. Even if the AFL tried to introduce rules that conflict substantially with the WADA Code, they would have had to remove them to be compliant with the WADA code. Australian courts would have no role as contractually they have assigned their rights to resolve the matter to CAS as an arbitrator.

The scenario that Jade is constantly putting up, while ignoring the massive amount of factual material that contradicts him, is just not a possible scenario. He completely fails to acknowledge that any rules along those lines could not be in the AFL Anti-Doping Code, even if they were, contractually this is controlled via Swiss Admin Law, not Australian and CAS would still continue as per normal.

What Jade refuses to acknowledge is the CAS ruling is binding on the AFL and they would have to enforce it. All this malarkey about the AFL Code is god and CAS has no authority over Australians are the rantings of somebody who is ignoring the wealth of information pointing out what he has wrong.

Its a fools errand discussing it with as he consistently refuses to consider the information handed to him. Anything that prevents him from talking up his fantasy he dismisses as irrelevant and then continues. He's had relevant case law pointed out to him and he makes up stuff to try and 'win' a stupid argument. Until he can show how the AFL can avoid its contractual responsibilities, he has no argument.

Jade is putting forth a fantasy not reality in this disneyland hypothetical it becomes a purely australian contract law case, You would need to satisfy an australian judge that the AFL's own anti doping code means they were unable to legally sign up to WADA in the first place. just because you sign a document doesn't make it legally binding.

Jade's' scenario is that the AFL anti drug code renders the WADA code void from the start. what a judge needs to decide is whether the AFL's anti-code has any legal recognition in australia. If it does then it means it was never legal to sign up to WADA at all.

to use an analogy say i signed up for a car loan which prevented me from on selling my car and at the exact same time, signed a contract to on sell my car. these to contracts conflict with one another, One of them cannot be legal, a judge must decide which contract is not valid.

In this hypothetical it becomes quite easy: the AFL's drug code at the time of signing, had a clause preventing a de novo case from being heard. But the WADA code stipulates they have the right to. This would mean that from the get go the AFL had not met the conditions of being signatories of the WADA code. So if the AFL's anti-code has any legal recognition in australia, then it was illegal to sign up to the WADA in the first place.

This means from a legal standpoint contract with WADA is never valid. It's also the reason it's purely hypothetical, it's practically impossible. As it would show gross negligence by the AFL, ASADA and WADA and would open up a shit ton of lawsuits to lawyers that went over the contracts and signed them off as legal and as ASADA is a government organisation those forms would have to have been lodged in a bunch of places with at least a few public officials stamps attached to them meaning their would be an investigation by the AG office.

Jades scenario is insane. by the internal logic follows.

 

[Eagle-Eye]

Your 'factual' material is completely unenforceable.

The CAS cannot make the AFL enforce a penalty in contravention of its own rules.

You are right, to a degree. The CAS cannot enforce a penalty to be made by any other sporting body. It can only judge either for or against the parties that appeal to it. Judgement and penalties are then ruled by the verdict. What the heck is your point here?

 

[Laphroaig]

Your 'factual' material is completely unenforceable.

The CAS cannot make the AFL enforce a penalty in contravention of its own rules.

Desperate dancing on the head of a pin right there. A shred of technical truth in it, but diametrically opposite to reality.

Anyone who's still remotely interested in this dumb theory should read WADA vs BOA. Which covers all we need to know.

In summary:

• The British Olympic Associaton had within its by laws (it's own rules) a by law that was not consistent with the WADA code. This rule was not even in the BOA anti doping code. It was in a another part of their own rules.
• The CAS ruled that the issue was an anti-doping matter and ruled that the BOA was not entitled to have a by law in its own rules which was contrary to the WADA Code.
• While not empowered to enforce it's judgement, the CAS ordered the parties to go away and resolve the matter in a maneer consistent with the CAS judgement. This resolution was: the BOA changed its own rules. WITH RETROSPECTIVE EFFECT. Had they failed to do so, the BOA would have been made a non-compliant organisation until such time as the rule was eventually changed.

So here we have a case which directly refutes every single imagined foundation of your fantasy. Can WADA force a compliant organisation to change it's own rules? YES. Can that change be retrospective? YES.

That's all she wrote. The very things you insist are impossible are indeed possible. And not only are they possible, they have happened.

 

[Jade]

Desperate dancing on the head of a pin right there. A shred of technical truth in it, but diametrically opposite to reality.

Anyone who's still remotely interested in this dumb theory should read WADA vs BOA. Which covers all we need to know.

In summary:

• The British Olympic Associaton had within its by laws (it's own rules) a by law that was not consistent with the WADA code. This rule was not even in the BOA anti doping code. It was in a another part of their own rules.
• The CAS ruled that the issue was an anti-doping matter and ruled that the BOA was not entitled to have a by law in its own rules which was contrary to the WADA Code.
• While not empowered to enforce it's judgement, the CAS ordered the parties to go away and resolve the matter in a maneer consistent with the CAS judgement. This resolution was: the BOA changed its own rules. WITH RETROSPECTIVE EFFECT. Had they failed to do so, the BOA would have been made a non-compliant organisation until such time as the rule was eventually changed.

So here we have a case which directly refutes every single imagined foundation of your fantasy. Can WADA force a compliant organisation to change it's own rules? YES. Can that change be retrospective? YES.

That's all she wrote. The very things you insist are impossible are indeed possible. And not only are they possible, they have happened.

Hahaha.... What you don't realise is you have reinforced the factual accuracy of my assertion.

The CAS cannot enforce a rule change upon the AFL. They CAN declare that the AFL is non-compliant if they do not do so.

The AFL cannot retrospectively apply a rule that will have detrimental effects due to promissory estoppel - thus they would have no choice but to accept being non-compliant.

Thanks for helping prove the factual accuracy of the situation.

 

[Ancient Tiger]

Hahaha.... What you don't realise is you have reinforced the factual accuracy of my assertion.

The CAS cannot enforce a rule change upon the AFL. They CAN declare that the AFL is non-compliant if they do not do so.

The AFL cannot retrospectively apply a rule that will have detrimental effects due to promissory estoppel - thus they would have no choice but to accept being non-compliant.

Thanks for helping prove the factual accuracy of the situation.

The AFL can do anything it likes. Just like BOA it can make the rule retrospective. It may choose not to and jump out of the WADA code, but just like BOA, can make retrospective changes if it so wishes. If you disagree, show me where in its (AFL's) constitution, it says it cannot do that.

 

[Jade]

The AFL can do anything it likes. Just like BOA it can make the rule retrospective. It may choose not to and jump out of the WADA code, but just like BOA, can make retrospective changes if it so wishes. If you disagree, show me where in its (AFL's) constitution, it says it cannot do that.

Actually what the AFL wants is irrelevant in this case.

It cannot retrospectively change a rule that is detrimental to one or more parties - quite simple.

 

[Ancient Tiger]

Actually what the AFL wants is irrelevant in this case.

It cannot retrospectively change a rule that is detrimental to one or more parties - quite simple.

If BOA can, why can't the AFL? You have not shown me the evidence why they cannot. Just saying so is not evidence. You need to show me where in the AFL's own constitution, it prohibits the ability to apply retrospective change.

 

[gavaniacono]

If you don't leave food out, the ants will find it elsewhere.

 

[Baltimore Jack]

Actually what the AFL wants is irrelevant in this case.

It cannot retrospectively change a rule that is detrimental to one or more parties - quite simple.

You're not Stephen Peak are you?

 

[ChrisKaias]

The AFL cannot retrospectively apply a rule that will have detrimental effects due to promissory estoppel - thus they would have no choice but to accept being non-compliant.

It wouldn't be an estoppel most likely. The principles of lex mitior which I discussed above would apply, though.

 

[Proper Gander]

I'm just checking on this thread to see how it's performing and I must say it is still exceptional.

 

[Jade]

It wouldn't be an estoppel most likely. The principles of lex mitior which I discussed above would apply, though.

Between AFL/WADA/CAS? Absolutely, I agree with you. Much as I don't expect you to read every post in the thread, I have stated over and over again that I fully agree that CAS COULD hear the case de novo and COULD rule in this hypothetical scenario where the AFL anti-doping code expressly forbid a de novo hearing.

What I have consistently stated is that the AFL would be unable to enforce a ruling from said hearing that was detrimental to a player/s, because such retrospective changes would lead to promissory estoppel, and would seem to easily indicate unconscionability on the behalf of the AFL.

Yes, it means the AFL is stuck between the proverbial rock and a hard place, with both player and WADA able to claim they have breached their agreements - but they simply could not enforce a penalty under this circumstance.

 

[Chameleon75]

Between AFL/WADA/CAS? Absolutely, I agree with you. Much as I don't expect you to read every post in the thread, I have stated over and over again that I fully agree that CAS COULD hear the case de novo and COULD rule in this hypothetical scenario where the AFL anti-doping code expressly forbid a de novo hearing.

What I have consistently stated is that the AFL would be unable to enforce a ruling from said hearing that was detrimental to a player/s, because such retrospective changes would lead to promissory estoppel, and would seem to easily indicate unconscionability on the behalf of the AFL.

Yes, it means the AFL is stuck between the proverbial rock and a hard place, with both player and WADA able to claim they have breached their agreements - but they simply could not enforce a penalty under this circumstance.

BTGID, I find you to have not doped, now here is your penalty.

 

[Howard Littlejohn]

Absolutely, categorically INCORRECT.

I repeat, IF (and it does not) the 2010 AFL anti-doping policy had dictated that appeals could not be heard de novo by CAS, then they could not.

That would be an interesting point, IF it had said that. That would mean WADA had explicitly signed off on that as applying to the CAS.
My underatsnding (and I don't follow it as close as many nor have legal training) is it did not say it; and the players are attempting to apply AFL appeals Tribunal rules to the CAS based on the AFL Code saying it applies to appeals.

That seems a step too far, in that without it explicitly stating an ordinary reading would mean the AFL's rule applied to appeals only under the AFL's jurisdiction - in essence, its appeals tribunal.

The second point, whether it would be such a substantial change to the WADA code which did not state the nature of appeals (at the time) in any way is more arguable.
Ruling out the most widely used appeals process at the CAS could certainly be seen that way, but the WADA at the time did not state anything and other methods of appeals have been used by the CAS. If WADA had explicity signed off on such a thing, and they didn't, it might be allowed to stand on the basis that it did not go against anything explicit in the WADA Code at the time.

Of course, the CAS pretty much addressed such matters in saying that the procedural nature could be dealt with under the new code provided the substantial matters were dealt with under the code at the time of the purported offence. So, even if WADA had signed off on such a thing, it would be hard to see an appeal getting up unless that was deemed false by the body hearing the appeal, which the players might just have an arguable case on.

 

[ChrisKaias]

Between AFL/WADA/CAS? Absolutely, I agree with you. Much as I don't expect you to read every post in the thread, I have stated over and over again that I fully agree that CAS COULD hear the case de novo and COULD rule in this hypothetical scenario where the AFL anti-doping code expressly forbid a de novo hearing.

What I have consistently stated is that the AFL would be unable to enforce a ruling from said hearing that was detrimental to a player/s, because such retrospective changes would lead to promissory estoppel, and would seem to easily indicate unconscionability on the behalf of the AFL.

Yes, it means the AFL is stuck between the proverbial rock and a hard place, with both player and WADA able to claim they have breached their agreements - but they simply could not enforce a penalty under this circumstance.

No, I'm saying CAS would apply the principles of lex mitior and not enforce a substantive change that was detrimental to the athlete. It's an equitable doctrine used in sports law.

But I think your legal reasoning is shaky on an estoppel, an estoppel is a lot harder to make out than you're thinking. If there had been a promise not to change the rules and it was reasonable to rely on that promise and all the other requirements were met, then possibly an estoppel might arise.