Play Nice The CAS Appeal thread - update: appeal fails (11/10/16)

[Eagle-Eye]

Just where was the AFL tribunal "scathing" of the ASADA investigation? If anything the tribunal praised ASADA for conducting an investigation in difficult circumstances, the AFL tribunal also highlighted a number of times on its lack of powers in compelling witnesses to attend and be cross examined. They also commented many times that ASADA explanation was possible in each of the examples you highlight, they just were not comfortably satisfied it was. They certainly did not dismiss ASADA's explanation of the evidence as implausible.

It may have found that the evidence did not meet the level of proof they required, but this is far from scathing.

The only real thing the AFL tribunal was scathing about was the EFCs poor goverance and lack of records.

I wish I could like this more than once. I am so fed up with hearing about how "inept" ASADA was. They had a difficult job to do and faced legal challenges (and bullying) all the way.

 

[LeakyValve]

War and Peace never went this long.

I believe a provisional plot for TV has been placed in the hands of the folk who brought us the
Mahabharat but they are said to be baulking at the scale of it all.

 

[Toump Ass]

the worst extended period of on-field performances in the history of the club. In the six seasons between 2002 and 2007, Carlton finished last three times, and five times in the bottom two.

Ahhh... to be back in the good old days!

 

[LeakyValve]

The "Essendon supporters say the darnedest things" thread should be getting a serious bump from this one.

 

[NoAFLinmycomp]

I've read the CAS findings sheet. It's actually disgraceful.

I've read the CAS findings sheet. It's actually accurate.

 

[DonsRule]

On the balance of probabilities, not only did the players get injected with TB4, but also a number of other banned substances. On the balance of probabilities, it looks like Essendon deliberately destroyed evidence. Or dank did, but it matters not as he was working for Essendon. On the balance of probabilities, Hird was in it up to his eyeballs. ASADA couldn't prove any of that beyond the balance of probabilities so didn't pursue it further (specifically, the multiple substances that there were no records for). The AFL Tribunal chose to use beyond reasonable doubt, which is incorrect in this setting. CAS chose to use the burden of proof of comfortable satisfaction - not as high as beyond reasonable doubt, but higher than balance of probabilities. That you and your mate Bruce refuse to see that is mind boggling.

\

ON what basis do you say the AFL tribunal used beyond resemble doubt?

The tribunal used comfortable satisfaction, as did CAS. This the AFL tribunal used beyond resemble doubt is a low of shyte.

WADA through Young I'll admit nailed the case against the players.

The AFL bad may have been set a little too high that does not equal it was set at beyond resemble doubt though,

WADA and ASADA chose a different way for presenting the case, that I think went a fair way to making the difference in the end.

 

[compact72]

AFL to wait until Jobe Watson officially appeals drug ban before making decision on Brownlow Medal
THE AFL says it will wait until Jobe Watson appeals his drug ban before considering a postponement of a ruling on his Brownlow Medal.

The AFL Commission was expected to decide whether to strip his Brownlow Medal on Monday, February 15.

But Watson is understood to be one of the Essendon players who will join the Bomber-funded appeal at the Swiss Federal Court.

The AFL cannot rule on the Brownlow Medal until all rights of appeal are exhausted.

It is not known what affect the mooted Swiss appeal would have on the Essendon 34’s compensation claim against Essendon.

Essendon has confirmed it has the standard insurance coverage plan of many AFL clubs, with that insurance to fund the Swiss appeal.

The club is expected to pay at least half of the wages of its five ex-players at other clubs this year in addition to its own 12 players.

http://www.heraldsun.com.au/sport/a...l/news-story/2dfd5cb959c871994b31711c6348e250

 

[imperial_oz]

\

ON what basis do you say the AFL tribunal used beyond resemble doubt?

The tribunal used comfortable satisfaction, as did CAS. This the AFL tribunal used beyond resemble doubt is a low of shyte.

WADA through Young I'll admit nailed the case against the players.

The AFL bad may have been set a little too high that does not equal it was set at beyond resemble doubt though,

WADA and ASADA chose a different way for presenting the case, that I think went a fair way to making the difference in the end.

The AFL Tribunal set 'comfortable satisfaction' at or near 'beyond reasonable doubt'. That was an argument examined by CAS and specifically rejected. I think you'll find that maybe they over applied Briginshaw but thats a guess on my part. I couldn't comment on most of their decision processes but the emphatic rejection of the material supplied by GL Biochem because it didn't come with independent testing to verify the material supplied was as advertised struck me as being far too hard to a hurdle to overcome. I thought that part was set higher than 'beyond reasonable doubt' and I note a number of other sources, including CAS took the same view.

 

[DonsRule]

The AFL Tribunal set 'comfortable satisfaction' at or near 'beyond reasonable doubt'. That was an argument examined by CAS and specifically rejected. I think you'll find that maybe they over applied Briginshaw but thats a guess on my part. I couldn't comment on most of their decision processes but the emphatic rejection of the material supplied by GL Biochem because it didn't come with independent testing to verify the material supplied was as advertised struck me as being far too hard to a hurdle to overcome. I thought that part was set higher than 'beyond reasonable doubt' and I note a number of other sources, including CAS took the same view.

I'm happy to accept they they set the bat too high especially with the tested Tb4 - I always thought that that was Tb4.

but their were other elements on the AFL tribunals verdicts too that they were not comfortably satisfied dank was acting in his role as an Essendon in some elements (as opposed to his business iirc) as an example as i recall, some of the emails with dank with some of these substances refereed to ed. McDevitt signed off on ed referring to Essendon. And not Danks business partner named Ed - who if you check Danks website Ed is the contact with all of things things like that are a bit stretch.

As I have said elsewhere. My feeling is this. The appeal has little to no chance of over turning the CAS decision. The lawyers I gave talked too have had the opinion that their appears very little appealable with the CAS findings to the, They were of the view an Australian court would not likely have found the plays guilty, if they had that verdict with their client they would strongly advise then to appeal.

But arbitration has no real rules of evidence and generally their reasoning has to stabd up to less scrutiny that a court. Arbitration is used to avoid coirt. It's covered within arbitration acts within Australian law,

WADA, and CAS are essentially written within Australian legislation within the ASADA act. The AFL is a signatory to WADA, and in turn CAS who sees CAS as the final arbiter in anti doping matters.

He's looked a lot of Essendon supporters views on an appeal angle, and has been largely critical of them as having very little legal merit, especially within the grounds of appeal of a CAS decision.


TO be clear in all that I accept the CAs decision in all of that, questions a few areas, But that is the decision made.

 

[NoAFLinmycomp]

AFL to wait until Jobe Watson officially appeals drug ban before making decision on Brownlow Medal
THE AFL says it will wait until Jobe Watson appeals his drug ban before considering a postponement of a ruling on his Brownlow Medal.

The AFL Commission was expected to decide whether to strip his Brownlow Medal on Monday, February 15.

But Watson is understood to be one of the Essendon players who will join the Bomber-funded appeal at the Swiss Federal Court.

The AFL cannot rule on the Brownlow Medal until all rights of appeal are exhausted.

It is not known what affect the mooted Swiss appeal would have on the Essendon 34’s compensation claim against Essendon.

Essendon has confirmed it has the standard insurance coverage plan of many AFL clubs, with that insurance to fund the Swiss appeal.

The club is expected to pay at least half of the wages of its five ex-players at other clubs this year in addition to its own 12 players.

http://www.heraldsun.com.au/sport/a...l/news-story/2dfd5cb959c871994b31711c6348e250

So that's what they were stalling for. The delay in the decision made no sense had the AFL wanted to be "tough on drugs".

Planned all along then. String it out, get past the immediate media exposure and then we all forget that it ever happened, nudge nudge, wink wink. And jobs for all the boys!

 

[jenny61_99]

So that's what they were stalling for. The delay in the decision made no sense had the AFL wanted to be "tough on drugs".

Planned all along then. String it out, get past the immediate media exposure and then we all forget that it ever happened, nudge nudge, wink wink. And jobs for all the boys!

Makes sense to wait to see if he appealed. Can't make a decision until then. Shouldn't have set the meeting until AFTER the appeal deadline, though, not just before it. Idiots.

 

[Hearts to hearts]

I'm happy to accept they they set the bat too high especially with the tested Tb4 - I always thought that that was Tb4.

but their were other elements on the AFL tribunals verdicts too that they were not comfortably satisfied dank was acting in his role as an Essendon in some elements (as opposed to his business iirc) as an example as i recall, some of the emails with dank with some of these substances refereed to ed. McDevitt signed off on ed referring to Essendon. And not Danks business partner named Ed - who if you check Danks website Ed is the contact with all of things things like that are a bit stretch.

As I have said elsewhere. My feeling is this. The appeal has little to no chance of over turning the CAS decision. The lawyers I gave talked too have had the opinion that their appears very little appealable with the CAS findings to the, They were of the view an Australian court would not likely have found the plays guilty, if they had that verdict with their client they would strongly advise then to appeal.

But arbitration has no real rules of evidence and generally their reasoning has to stabd up to less scrutiny that a court. Arbitration is used to avoid coirt. It's covered within arbitration acts within Australian law,

WADA, and CAS are essentially written within Australian legislation within the ASADA act. The AFL is a signatory to WADA, and in turn CAS who sees CAS as the final arbiter in anti doping matters.

He's looked a lot of Essendon supporters views on an appeal angle, and has been largely critical of them as having very little legal merit, especially within the grounds of appeal of a CAS decision.


TO be clear in all that I accept the CAs decision in all of that, questions a few areas, But that is the decision made.

Thoughtful and fair posting, as always.

I have to agree that, while it seems unarguable that TB4 was used at Essendon (which is why the AFL Tribunal decision made no sense - no-one thought it was anything other then TB4, but the evidence of it coming out of Biochem somehow wasn't comfortably satisfying), the jump from that to finding all 34 players used it and should be banned doesn't seem similarly supported by clear evidence - its the feels based on the nature of the program, the players' secretive behaviour at the time, and the perceived unreliability of their later statements, and their choice to argue as a group. If a bar has been lowered, it is solely on that aspect of the decision.

It's easy for me to say - I'm not sitting out of my profession on full pay with extensive (if often slightly unhinged) public support - but I would rather see WADA successful in a prosecution like this, no matter what the sport, than see their case fail based on the destruction of records and energetic political and media spinning by the sport's governing body. And I am glad their processes mean limited avenues for appeal. It's so hard to get a case up in the first place, and a lot of work has been done to make the CAS process operate appropriately, you don't want every person found guilty to be able to keep fighting indefinitely just because they don't like their verdict.

Obviously I can see that if I was emotionally invested I would feel differently about the big picture versus the interests of the particular individuals - although I'd hope I'd still be Donsrule about it.

Setting aside the ongoing hypocrisy of the boys just wanting "closure", when they clearly only want it all to end on their chosen terms, of course they have a right to whatever appeals are available. They aren't playing, there's now no rush, so Brownlows and everything else can wait.

I will be interested as a layperson in the law to see how - when the judgement specifically and obviously deliberately covered how all parties were fine with the process - the appeal could be based on any procedural issues.

 

[imperial_oz]

I'm happy to accept they they set the bat too high especially with the tested Tb4 - I always thought that that was Tb4.

but their were other elements on the AFL tribunals verdicts too that they were not comfortably satisfied dank was acting in his role as an Essendon in some elements (as opposed to his business iirc) as an example as i recall, some of the emails with dank with some of these substances refereed to ed. McDevitt signed off on ed referring to Essendon. And not Danks business partner named Ed - who if you check Danks website Ed is the contact with all of things things like that are a bit stretch.

As I have said elsewhere. My feeling is this. The appeal has little to no chance of over turning the CAS decision. The lawyers I gave talked too have had the opinion that their appears very little appealable with the CAS findings to the, They were of the view an Australian court would not likely have found the plays guilty, if they had that verdict with their client they would strongly advise then to appeal.

But arbitration has no real rules of evidence and generally their reasoning has to stabd up to less scrutiny that a court. Arbitration is used to avoid coirt. It's covered within arbitration acts within Australian law,

WADA, and CAS are essentially written within Australian legislation within the ASADA act. The AFL is a signatory to WADA, and in turn CAS who sees CAS as the final arbiter in anti doping matters.

He's looked a lot of Essendon supporters views on an appeal angle, and has been largely critical of them as having very little legal merit, especially within the grounds of appeal of a CAS decision.


TO be clear in all that I accept the CAs decision in all of that, questions a few areas, But that is the decision made.

Agree with some of that and disagree with other parts. The TB4 should have been accepted, there was no valid reason to doubt it. Had they gone from there and not been satisfied it reached the players, then that would have been a completely understandable position.

I'm not sure I agree with your comment on an Australian court not finding them guilty. I think with the evidence that we know, there was always that possibility based on a standard lower than 'reasonable doubt'. Having somebody as knowledgeable as Colin Young presenting the case would have helped considerably. My view on that is based on what appears to be what 'comfortable satisfaction' seems to mean. It certainly seems to be set lower than I had previously anticipated but I have to qualify that by saying I don't know all of the evidence that was presented.

Things like the experts for both sides agreeing that the material tested was 98 - 99% certainly TB4. Where that was not accepted at the AFL Tribunal, it 'seemed' to have substantial impact at the CAS hearing. Things like that can sway a decision in one direction, sometimes by a large degree.

I'd agree that arbitration is different but at the same time, no Australian court would have anywhere near the same level of experience in applying the anti-doping rules to different situations so its hard to make a case that Australian courts would be a better environment to est this case.

Either way, I'd have to say I hope that the players are not being used as patsies in somebody else's agenda because I just don't see why any half way knowledgeable person would try to appeal on grounds that have been previously determined. Thats always a losing argument.

 

[DonsRule]

Agree with some of that and disagree with other parts. The TB4 should have been accepted, there was no valid reason to doubt it. Had they gone from there and not been satisfied it reached the players, then that would have been a completely understandable position.

I'm not sure I agree with your comment on an Australian court not finding them guilty. I think with the evidence that we know, there was always that possibility based on a standard lower than 'reasonable doubt'. Having somebody as knowledgeable as Colin Young presenting the case would have helped considerably. My view on that is based on what appears to be what 'comfortable satisfaction' seems to mean. It certainly seems to be set lower than I had previously anticipated but I have to qualify that by saying I don't know all of the evidence that was presented.

Things like the experts for both sides agreeing that the material tested was 98 - 99% certainly TB4. Where that was not accepted at the AFL Tribunal, it 'seemed' to have substantial impact at the CAS hearing. Things like that can sway a decision in one direction, sometimes by a large degree.

I'd agree that arbitration is different but at the same time, no Australian court would have anywhere near the same level of experience in applying the anti-doping rules to different situations so its hard to make a case that Australian courts would be a better environment to est this case.

Either way, I'd have to say I hope that the players are not being used as patsies in somebody else's agenda because I just don't see why any half way knowledgeable person would try to appeal on grounds that have been previously determined. Thats always a losing argument.

I think some of the doubt comes frfom a few things, thee was not a signed statement against the players. There was no positives test (caught in the act more in law, no witnesses came under cross examination.

I've made the point of a local lady here that was charged with defrauding a govt agency. There were a lot of articles about her dealings that made her look very dodgy. There were some dealing that were in the local media that were legit, some that were not.

It got to the court case, it was a few days into a trial expected to last 4 weeks. The prosecutors key witness came undone lying under cross examination - they were the ones that defrauded the agency and tried to blame this other person.

Without the key witness giving evidence the prosecutor was unlikely to have a case. Most likely because it was court, that person would have been compelled to testify, which CAS couldn't have caught that kind of thing out. There were pages of newspaper articles and conversations in the public domain that made her look guilty. Plenty of locals still thing she is guilty. Pitty the prosecutor withdrew the case a few days in after the key witness was bought undone.

I think the players legal team was caught out big time. I think it was said somewhere the players lawyers originally did not opposed the change to strands in the cable method. As things unfolded they begun to see what was happening. By then it was very difficult to argue that the change in approach was wrong.
Muggs pointed out that that the players legal team relied on the AFL submission for a reduction in penalty. He's pointed out a lot of cases where some pretty odd excuses have been accepted (one was iirc my brother gave it to me and said it would be fine.)

 

[Glenhope]

Hope they don't discover a Galactic Court. This thing might be still going next century. Enough already.

 

[imperial_oz]

I think some of the doubt comes frfom a few things, thee was not a signed statement against the players. There was no positives test (caught in the act more in law, no witnesses came under cross examination.

I've made the point of a local lady here that was charged with defrauding a govt agency. There were a lot of articles about her dealings that made her look very dodgy. There were some dealing that were in the local media that were legit, some that were not.

It got to the court case, it was a few days into a trial expected to last 4 weeks. The prosecutors key witness came undone lying under cross examination - they were the ones that defrauded the agency and tried to blame this other person.

Without the key witness giving evidence the prosecutor was unlikely to have a case. Most likely because it was court, that person would have been compelled to testify, which CAS couldn't have caught that kind of thing out. There were pages of newspaper articles and conversations in the public domain that made her look guilty. Plenty of locals still thing she is guilty. Pitty the prosecutor withdrew the case a few days in after the key witness was bought undone.

I think the players legal team was caught out big time. I think it was said somewhere the players lawyers originally did not opposed the change to strands in the cable method. As things unfolded they begun to see what was happening. By then it was very difficult to argue that the change in approach was wrong.
Muggs pointed out that that the players legal team relied on the AFL submission for a reduction in penalty. He's pointed out a lot of cases where some pretty odd excuses have been accepted (one was iirc my brother gave it to me and said it would be fine.)

The change from 'cables' to 'strands' was always on the cards when the hearing was 'de novo'. The players would have had no grounds to oppose it as it is up to the 'prosecution' and to a much smaller extent, the judges (panel) to decide how to present the evidence.

 

[Baltimore Jack]

A big assumption to make on such a weak and flawed case against them

Read the CAS findings again, you missed most of the evidence the first time

 

[ScallyWag1]

I've heard it a few times now... has it been mentioned who the legal minds are that have "shredded" the CAS verdict?

 

[DonsRule]

The change from 'cables' to 'strands' was always on the cards when the hearing was 'de novo'. The players would have had no grounds to oppose it as it is up to the 'prosecution' and to a much smaller extent, the judges (panel) to decide how to present the evidence.

Not disputing that point.

My point if, the players lawyers seemed caught out by it. Natalie Hickey made comments from WADA's submissions they also seemed to be taking the links in a chain strategy used by ASADA, the strands method did not really come until the hearing.

My point it, yeah ultimately it is up to the prosecution and judges on what they accept. But that the players lawyers seemed so accepting in the change in strategy until it was too late was not a good look. If you had a defense up at the beginning of why their should not have been a change, than you may have persuaded the judges during the hearing to stay with the links in a chain.

That side of things isn't something even close to appealable.

 

[DonsRule]

I've heard it a few times now... has it been mentioned who the legal minds are that have "shredded" the CAS verdict?

Robbo, overheard it at the pub.

 

[imperial_oz]

Not disputing that point.

My point if, the players lawyers seemed caught out by it. Natalie Hickey made comments from WADA's submissions they also seemed to be taking the links in a chain strategy used by ASADA, the strands method did not really come until the hearing.

My point it, yeah ultimately it is up to the prosecution and judges on what they accept. But that the players lawyers seemed so accepting in the change in strategy until it was too late was not a good look. If you had a defense up at the beginning of why their should not have been a change, than you may have persuaded the judges during the hearing to stay with the links in a chain.

That side of things isn't something even close to appealable.

There is no chance of that occurring. The panel would have no grounds to force WADA to adopt any desired approach.

I'd also say to you that any defense should be based on the truth. You shouldn't need to be able to restrict WADA and how they present their evidence if you are defending yopur players by telling the truth.

 

[DonsRule]

Either way, I'd have to say I hope that the players are not being used as patsies in somebody else's agenda because I just don't see why any half way knowledgeable person would try to appeal on grounds that have been previously determined. Thats always a losing argument.

I missed this before. But wanted to bring this up.

No matte\r what I don't rate the chances of success all that good. Seems their is more to the appeal than just the jurisdiction talked about so far.

Lawyers for the players are expected to argue CAS made factual errors, and the initial hearing should not have been conducted as a fresh case. The three-man CAS panel found the players were significantly at fault. Appeal costs will be covered by the Bombers' insurance.

 

[imperial_oz]

I missed this before. But wanted to bring this up.

No matte\r what I don't rate the chances of success all that good. Seems their is more to the appeal than just the jurisdiction talked about so far.

You would hope so. What they've said publicly so far isn't worth a plugged nickel

 

[DonsRule]

There is no chance of that occurring. The panel would have no grounds to force WADA to adopt any desired approach.

I'd also say to you that any defense should be based on the truth. You shouldn't need to be able to restrict WADA and how they present their evidence if you are defending yopur players by telling the truth.

You can not restrict WADA on how to present the case no. Again am not opposing that. I am saying you could have had the judges more willing to accept the links in a chain method. That as a defense counsel you did not attack that method change really until things were too far down the river (the judges seems to be on board with the change in stratagy) you don't have much chance of convincing them of using the links in a chain.

I think in the end, Young nailed the case well.A prosecutor isn't their to make it easy for a defense team

 

[DonsRule]

You would hope so. What they've said publicly so far isn't worth a plugged nickel

One thing drummed into me over this all is, don't trust associated legal representation about talking publicly about a strategy Sometimes they do, but by and large any connected lawyers will not talk about those details with a good legal team.

Lawyers aren't like the AFL and media in liking of leak strategy details of their cases. most of the time.