There is a scene a third of the way into The Godfather, just after the Tattaglia family deliver arch-nemesis Sonny Corleone the "Sicilian message", two fish wrapped in a bulletproof vest. The memo plain - Luca Brasi, the Corleone family's muscle, sleeps with the fishes.
In parallel, Don Vito Corleone lays in hospital, at the portal of death; victim of a failed assassination. Cloaked under the blackest sky, The Don's youngest son Michael arrives to visit, only to discover the hospital room unguarded. Appreciating it ineluctable the assassins shall soon arrive to finish the job, Michael enlists a nurse to shift The Don to another room, before heading out to guard the hospital's entrance.
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Essendon 34 want to clear their names
The Essendon 34 are appealing the Court of Arbitration for Sport's decision in order to clear their names, but they don't expect to play in 2016. (Vision courtesy ABCNews24)
On reaching the door Michael encounters Enzo, the baker; wielding only a flower bouquet, arriving to pay "respect" to the moribund Don. Michael conscripts Enzo to stand guard; "put your hand in your pocket like you have a gun, you'll be alright". And together they bluff the Tattaglia assassins when they do drive by, moments later. The moral: a finger might deter the underprepared; but bullets trump fingers.
Let's play devil's advocate. Specifically, let's examine the (supposedly) primary weapon used in the appeal case, brought in the Swiss Federal Tribunal by Essendon's 34 current and former players who are the subject of lengthy doping bans.
A principal argument propounded by the three dozen players is that the Court of Arbitration for Sport's decision, to grant the World Anti-Doping Authority an opportunity to re-prosecute the entire doping case brought and lost by Australian Sports Anti-Doping Authority in the AFL's anti-doping tribunal, was both contrary to the applicable anti-doping rules, and unfair.
Put another way, the players argue WADA should have been limited to appealing against the specific findings of the AFL's tribunal. If you believe those who seemingly speak for the players, the rules changed unfairly, halfway through the process. Fact, or convenient fantasy?
There is a utilitarian tool which exists in cyber-land, called The Wayback Machine; a DeLorean for propeller-heads and anyone wanting to examine a website as it existed months, or years prior. The Wayback Machine is a vault, storing 464 billion website archives. Included therein are around 1,900 versions of the AFL's website, captured on specific days during the last 20 years.
A copy of the AFL's anti-doping policy downloaded from its website circa November 2009 is marked as being last reviewed on 1 January 2008. This version still refers to Australia's national anti-doping regulator as "ASDA", despite the fact ASADA succeeded the Australian Sports Drug Agency in 2006. Moreover, the 2009 rules are deathly silent on WADA having any appeal rights in respect of AFL doping cases. Which itself reflects poorly on the AFL, in circumstances where it is a WADA signatory, or at least promotes itself as being WADA-compliant. Compliance at the time required WADA appeal rights to be included in the AFL's anti-doping rules, as per the WADA Code.
The shenanigans that took place inside the Essendon Football Club began in late 2011 and ran through 2012. Consider then the AFL anti-doping rules in force and published on its website on 31 December 2011 and 30 January 2013 - the latter date a week before the proverbial hit the fan. Relevantly, each set of rules is identical. What these rules say is that, among other things, a decision by the AFL's doping tribunal that no doping violation was committed, may be appealed. A party expressly entitled to appeal such a decision is WADA.
The rules further state that WADA can appeal directly to CAS, without first exhausting the intermediate step of proceeding before the AFL's appeals board. These anti-doping policies contain no restriction as to the scope of any such appeal, by WADA to CAS. The AFL's rules remained as such until the end of 2014.
At the start of 2015 the rules changed, in line with the new revision of the WADA Code. Added words state that the scope of review on any appeal includes all issues relevant to the matter, and that appeals are not limited to the issues and scope of the case presented before the AFL Tribunal. In another section, the AFL's rules say that any doping case pending at January 1, 2015 is governed by the substantive anti-doping rules in force when the alleged infraction occurred.
So the AFL rules did change, but can any amount of legal hocus-pocus give the players any sound basis of appeal? The short answer is, no; such an appeal will fail. The mere fact the AFL's rules did not expressly state WADA had untrammelled appeal rights does not mean WADA's rights were limited.
Rule 57 of the CAS's Code of Sports-related Arbitration, in force at the time the CAS heard WADA's appeal in late 2015, states any CAS appeal panel has full power to review the facts and the law of cases. Panels can issue new decisions replacing the judgment challenged, or annul that decision and refer the case back to the initial tribunal. Moreover, the CAS code provides that panels must decide appeals according to the applicable sporting regulations - the AFL's rules. The AFL's rules have not at any relevant time limited WADA's appeal rights.
What does all this mean? Prior CAS appeal decisions are instructive. Such a judgment, handed down in 2008, involved the German showjumper Christian Ahlmann and his doped horse, Cöster. The substantive facts of that case are unimportant; but on the question of the scope of an appeal, the CAS determined itself "fundamentally unrestricted", the CAS code permitting a full hearing anew. Put simply, a CAS appeals panel is not required to abide by any restrictions placed on the evidence and arguments in the first proceedings. The CAS code contains other provisions expressly allowing for new evidence to be adduced, in certain circumstances.
The judgment went on to say - relevant to the Essendon matter - that national and international sporting bodies may freely decide to accept the arbitral jurisdiction of the CAS; but once they do, they accept the basic principles of the CAS Code, including de novo appeals. A much earlier, 1998 CAS decision concerning the Irish swimmer Michelle Smith highlighted the importance of de novo appeals for all parties, because complete re-hearings best ensure that defects or any unfairness occurring the first time round will likely fade into the periphery.
Any Essendon player appealing to the Swiss Federal Tribunal will fail, to whatever extent he suggests the CAS could not conduct a de novo hearing. The players appear involved in a futile game with an unloaded gun, if they are brandishing weapons at all.
Darren Kane is a Sydney sports lawyer