Does the finding of guilt of the 34 Essendon players by the Court of Arbitration for Sport (CAS) mean that they are forever drug cheats?
Commentators seem to see only two ways for the players to go from here: they can either appeal the CAS’s findings to the Swiss Federal Tribunal or sue the Essendon Football Club for breach of the club’s duty of care to them.
The commentators seem pessimistic about the likely outcome of the first option and the second option is fraught with difficulties, not the least of which is: even if the players are successful in obtaining judgments for their loss of earnings, reputation, etc, will Essendon be able to survive the financial onslaught? Either way, the players are unlikely to get back on the field anytime soon.
But there may be a third way: to apply to an Australian court to set aside the CAS’s decision.
The CAS process and decision are regarded as international arbitration and are subject to the International Arbitration Act 1974 (IAA). Under the IAA, the decision of an arbitrator such as CAS is final, save for a few narrow exceptions that allow the decision to be set aside. Those exceptions apply when the arbitration agreement is not valid under the law of Australia or the decision is in conflict with Australia’s public policy.
It is possible that the Essendon 34 could rely on those exceptions and make an application to set aside the decision of CAS.
The argument would be that the AFL’s arbitration agreement binding the players to the arbitration regime was either a misuse of the AFL’s market power or an unlawful restraint of trade on the players which makes the arbitration agreement unlawful under Australian law or which makes the decision of CAS against public policy.
First possible argument: Misuse of market power
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.
It could be argued that the AFL has misused its market power to force every one of its players into highly restrictive arbitration agreements which give the CAS the power that it has exercised in this particular case, preventing the Essendon players from playing professional football.
If this argument is successful, then the exceptions in the IAA could be used to set aside the decision of the CAS because the arbitration agreement is not valid under Australian law and/or the decision is against Australia’s public policy.
Second possible argument: Unlawful restraint of trade
In Australia, a contract that restricts a person from carrying on a trade or profession is invalid, unless the restraint is reasonable and not against the public interest. The arbitration agreement that binds the players can be said to constitute an unlawful restraint of trade because it gives the CAS the power to unreasonably prevent players from pursuing their livelihood under certain circumstances.
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 also 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.
Again, if this argument is successful, then the exceptions in the IAA could be used to set aside the decision of CAS because the arbitration agreement is not valid under Australian law or the decision is against Australia’s public policy.
Overseas examples
There are two overseas examples supporting the suggestion that the recent decision by CAS might be appealed in an Australian court.
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.
If German courts are prepared to accord its athletes justice, why not Australian courts?
This article was co-authored by Allistar Twigg and Katerina Pshenichner, and originally published to shglawyers.com.au.
northerner
Guest
Every one of the 34 was individually responsible for what went into his body. That's the fundamental principle of anti-doping regulations.
Alf Merck
Guest
Wrong again.
Alf Merck
Guest
Nope, Mr Gordon was as ignorant as the rest of you.
Alf Merck
Guest
Typical ignorant comment from Mr F.
Alf Merck
Guest
Looks like you were clutching at straws and 100% wrong wrong wrong on everything. Better luck next time.
mdso
Guest
Ask the AFLPA they arranged the player's legal team? Obviously, the players legal team were unaware of the changes as well in the AFL Tribunal and then in the CAS appeal.
Aransan
Guest
Oh yes, there can be an appeal which should draw things out until 2017. It wouldn't be worth it even if you won. Resort to the law takes years and certainly costs a lot of money -- so it doesn't matter whether you are innocent or guilty. Essendon did the wrong thing but I believe the players are largely innocent. I don't accept Hird's version that he was a powerless innocent bystander. I believe at the same time he has been scapegoated to some extent as to what happened, on the other hand he had enormous power through Essendon's supporters and I think he did have major input in fighting to the bitter end.
db swannie
Guest
Do any of the pro Essendon camp on here ever ask themselves who was the big winner out of this . The players ....lol no . The Club....lol no The legal firms who have had the big $$$$$$$ rolling in for the last 3 years ...oh yeh . & it is mind boggling that there are still fans hanging on every statement made by These legal experts lol lol . Experts . They are telling the fans & players what they want to hear,but alas they can't see it . Just look at MF & his excitement & over the top elation at Gordon big noting . One day they will see that there was a far better way of handling this than the pathetic ....very very costly way it has been for a terrible result . But wait there's more . We can appeal .
Mikey
Guest
At the time Ben McDevitt stated very explicitly to the media that a deal was on the table. He was criticized heavily on forums such as this for trying to pressure the players into a guilty plea. Many in the media and bloggers had the view that this was a sign ASADA had no evidence and the offer was a sign of desperation. Here is a paragraph from a Caroline Wilson article in Sept 2014: "The players were offered a deal from ASADA boss Ben McDevitt in June which would have led them to serve a suspension involving four home-and-away games and finals in 2014, returning for round one next season. That deal expired in July and was taken off the table."
Aransan
Guest
Mikey, I know it is the common belief that the players rejected an offer by ASADA to settle this case with an early plea but I have my doubts about that. Can you give a specific reference to the offer made? Mind you, I have no doubt that if this had been done then the penalty would have been much less, however I don't believe an offer was ever agreed to by ASADA.
Mikey
Guest
MF - the most pertinent comment Darren Kane made was the following: "That neatly explains why nine in 10 commercial cases settle, prior to a judge adjudicating. The consequences of losing are too great." We can debate till the cows come home whether or not the evidence presented was strong enough to convict the players. But one thing I think we can all agree on is that none of us know for certain exactly what the players were injected with. And the only person who does know is not helping anybody. So the players elected to fight this case in the knowledge that the one person who could prove their innocence was not likely to help. And this persons reputation was already in spiralling south when this all began. So the questions that the players should have asked themselves (or been asked by their legal team) were as follows: Q: Are there verifiable records to support my case A: NO Do I know exactly what I was injected with? A: NO Q Is the honesty, integrity and competency of the person who injected me under question A: YES Q: In any case is this person likely to provide me any help in trying to prove my innocence A: NO Q: At the end of this, even if ASADA/WADA can't prove anything illegal was injected into me will the stain of possible cheating be completely removed? A: UNLIKELY (Because we still won't know what exactly was injected) In most legal cases with those factors against you then the most pragmatic/realisitic option would be to settle. And in this case the settlement offer was extremely attractive. If the players had taken the deal offered by ASADA, most reasonable people would have viewed the players as victims and not as cheats. The smear on their reputations would have been quickly forgotten (as it has for the NRL players). But the same could not be said for the EFC and club officials involved with implementing the supps program. Which begs another question - Was the decision to fight really in the best interests of the players or the club heavies who were advising them? The answer looks pretty obvious to me.
Mister Football
Roar Guru
A good article by Darren Kane this morning on the difficulties of an appeal: http://www.smh.com.au/afl/essendon-bombers/why-essendon-34-could-have-a-chance-if-they-appealed-cas-decision-20160128-gmgfdt.html Quite properly, Kane gives a balanced view, but every now and then he lets his guard down and tells us what he truly thinks of the CAS judgement: " But a case based on the CAS not properly considering ALL the players' arguments might hold water. The CAS decision frames the panel as manifestly untroubled in finding all the players guilty, in spite of a lingering, material confusion as to how that conclusion was reached. " And you're not the only one Darren!
Mister Football
Roar Guru
So what.
Alf Merck
Guest
For those still in denial: On the question of whether TB-4 was administered to the players, the players' own lawyer, Jeff Gleeson QC admitted to CAS: ".... that it is ‘difficult to resist the inference that he’s [Dank] been giving it to some players' (Section 5 of the link). Read into that what you like. https://chriskaias.wordpress.com/2016/01/25/the-essendon-cas-verdict-your-top-15-questions-answered/
Alf Merck
Guest
Nope. There was no change in the rules regarding substantive appeals. The claim is bogus, and just more desperation.
Alf Merck
Guest
For those still in denial: On the question of whether TB-4 was administered to the players, the players' own lawyer, Jeff Gleeson QC admitted to CAS: ".... that it is ‘difficult to resist the inference that he’s [Dank] been giving it to some players' (Section 5 of the link). Read into that what you like.
Alf Merck
Guest
The CAS decision can only be tried in Switzerland. Australian Courts have no jurisdiction because all parties agreed to the WADA code.
Alf Merck
Guest
For those still in denial: On the question of whether TB-4 was administered to the players, the players' own lawyer, Jeff Gleeson QC admitted to CAS: ".... that it is ‘difficult to resist the inference that he’s [Dank] been giving it to some players' (Section 5 of the link). Read into that what you like.
Dok
Roar Rookie
Most people would no have seen or read the verdict in full, most people are just happy that Essendon got smacked, most people would not have a clue or at any rate care about the evidence the discrepancies of same and a whole host of other factors, most people would not care that 4 out the 6 judges found in favour of the players, etc etc etc etc etc etc. Most people would not care that no whistleblowers, no confessions and no real proof has been offered up. Most people would not care that CAS said the Players were said to have delayed process by court action: wrong. They specifically didn't They said players should have pleaded guilty and that goes against them in sentencing: how is that reasonable to plead guilty in front of a tribunal that cleared them They said more players should have given evidence: all players who were asked gave evidence, and it was a 5 day window at the request of the panel Players who didn't mention thymosin on forms: many of them didn't and got done anyway Panel found players insisted Dank didn't travel interstate, which was used to impugn players: players weren't named and that was for good reason, because that's not what the players actually said, and how do they know every single club official who's there? Panel have used that one answer by one player, by Jobe, to impugn all players The fact that the de novo appeal option didn't exist under the 2010 rules, and it changed after the tribunal sat, and they changed the rules mid-course Unsure why they suppressed details on the dissenting panel member and why
db swannie
Guest
Nailed it . & it comes as no surprise they are looking for a LOOPHOLE . That's all they've done since this saga began .