Sport is nothing, if not a contest. Absent confrontation and struggle sport becomes amusement; recreation. Naturally, the contest can materialise in many forms - duels between individuals; competition among teams; the struggle between athlete and the elements. Whatever the precise form, one element is universal: contests produce winners, and losers.
So sport shares something in common with the law. Court cases are adversarial, by necessity - for every winner, there's a loser. Yet litigation isn't sport: anyone sufficiently bruised by the legal system will tell you the court process is horrendously expensive, enormously stressful and terribly uncertain. That neatly explains why nine in 10 commercial cases settle, prior to a judge adjudicating. The consequences of losing are too great.
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But there's another crucial difference between legal and sporting contests. Subject to ridiculously exceptional caveats, results achieved on-field remain final. Sport would be farcical if in-competition results were exposed to post-match review at the behest of the loser. Conversely, it's the common reflex of a party, aggrieved by a court judgment, to herald an intention to appeal.
A difference, but not black-vs-white contrast. You see, the law also seeks finality. It's ubiquitous that any appellant litigant will be motivated by dissatisfaction - mild or morbid - with the decision appealed against. But balancing the principles of fairness, correctness and finality invariably requires an appellant demonstrates a substantial argument - more than mere unhappiness - in order to seek further redress. Curiously, WADA's unfettered right to appeal any doping decision for whatever reason is a contradistinction in point – but WADA's powers are not a recent invention.
It's this importance of finality that renders mighty difficult the task of appealing decisions of the Court of Arbitration for Sport. An appeal by some, or all, of the 34 current and former Essendon footballers, suspended for season 2016 by the CAS, is distinctly possible. A successful appeal is improbable if underpinned only by rabid displeasure.
The CAS's Code of Sports-Related Arbitration provides that the decision concerning the 34 footballers is final and binding on WADA, ASADA, the AFL and the players; subject to recourse available in certain circumstances under Swiss law.
Although at first blush it seems incongruous, that the peculiarities of the Swiss legal system should govern matters involving Australian athletes playing a wholly domestic sport such as AFL, this is the reality. The CAS code expressly states the "seat" of CAS and each arbitration panel is in Lausanne, where the CAS is headquartered. The "seat" of an arbitration is important in a procedural sense, because it decides what law determines the grounds that may be invoked to challenge an arbitral award. We'll come back to the vagaries of Swiss law later.
Australian athletes have attempted to overturn CAS decisions before. Prior to the Sydney Olympic Games in 2000, the judoka Angela Raguz commenced proceedings in the NSW Court of Appeal, seeking to overturn a CAS decision "de-selecting" her from Australia's Olympic team.
Both athletes and the national judo federation all were domiciled in Australia; the CAS hearing took place in Sydney. Yet the court (headed by Chief Justice James Spigelman, who coincidently sat as an arbitrator in the Essendon CAS case) decided it lacked jurisdiction to entertain the appeal. The reason being that the parties had, through a matrix of team agreements and selection policies, committed to an arbitral regime excluding Australian courts. Relevantly, the AFL's rules aren't different.
The laws in Australia governing international arbitration have since changed, yet the task of having the CAS decision involving the 34 players set aside by an Australian court is no easier than Raguz's assignment was 16 years ago.
This leads us back to Swiss law. As already stated, CAS awards are final and binding, with the qualification that Swiss law may in certain circumstances allow a party to have an award annulled. Relevant to the Essendon case, under Swiss law the CAS proceedings are considered an "international" arbitration because at least one party (all of the parties, actually) is domiciled or ordinarily resident outside Switzerland. Accordingly, the Swiss Federal Statute on Private International Law applies.
Under this Swiss law, a party wishing to challenge a CAS decision has 30 days, from receiving the decision, to commence proceedings in the Swiss Federal Tribunal – Switzerland's highest court. There have been more than 130 such cases brought since 1992; only a handful succeeded. Commencing such proceedings does not suspend the CAS judgment, unless the tribunal otherwise orders.
The only five grounds on which CAS awards can be challenged are listed in the statute. Some bases for appeal – including where the CAS panel was improperly constituted; where the CAS lacks jurisdiction to hear a dispute; or where the CAS makes orders not sought by the parties - are irrelevant. Moreover, no such issues were raised by the parties before the CAS panel last November. It's too late to agitate such issues now.
The remaining procedural basis on which the Swiss tribunal can annul a CAS decision is where the CAS affords the parties unequal treatment, or violates a party's right to be heard. By way of example, a 2007 appeal by the Argentinian tennis player Guillermo Canas, against a CAS decision, was upheld by the Swiss Federal Tribunal because the CAS didn't deal with all the various arguments Canas submitted in response to a doping charge. The tribunal's reasoning being that treating a party in such a way is akin to preventing him from submitting his arguments at all.
There's no suggestion in the Essendon decision that the players were given less preferential treatment than WADA, or that they objected on that basis during the proceedings. 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.
The final ground of appeal to the tribunal - and the only basis on which the merits of the Essendon decision are reviewable - is where a CAS award is incompatible with public policy. To this point, the Swiss concept of "public policy" is narrower than Australia's. Only the most exceptional cases, where an award violates fundamental Swiss legal principles and values - not Australia's - will enliven the power to annul the CAS decision.
Fundamental principles of Swiss law include those of good faith, anti-discrimination and prohibiting the abuse of powers. Previous decisions of the tribunal say that the principles of strict liability, and the automatic disqualification periods in doping cases, don't violate Swiss public policy. Good faith principles might be offended if - as has been suggested - WADA's right to appeal the AFL doping tribunal's decision was materially broadened after the fact, to permit an appeal previously forbidden. But this wasn't the effect of the 2015 changes to the AFL's doping rules. CAS has ALWAYS had a right to conduct an entirely new hearing.
The Essendon players succeeding in an appeal requires more than violent disagreement. That is why the CAS must get it right first time round.
Darren Kane is a Sydney sports lawyer