Essendon CAS verdict: Dons seek appeal loophole

Essendon CAS verdict: Dons seek appeal loophole

Bitterly disappointed by season-long suspensions, current and former Essendon players have their lawyers exploring avenues for legal action that might overturn the verdict.

While it is far from certain that a legal challenge will be mounted against a Court of Arbitration for Sport verdict, the legal teams that acted for the 34 players are seriously investigating those options given the disastrous result and what some feel were errors in the judgment.

The avenues that are being investigated include the Swiss Federal Court, the Supreme Courts of the Victoria and NSW and the Federal Court of Australia.

Cases from the CAS have an automatic right of appeal to the Swiss Federal Court on a point of law. There is a view from within the players' legal camp that the case erred in its judgment on a number of grounds, including the devasting finding that the players were significantly at fault and could not receive a discount.

Devastated: Essendon captain Jobe Watson.

Devastated: Essendon captain Jobe Watson.

Photo: Pat Scala

Tony Hargreaves, the solicitor who handled the 32 players (not Bulldog pair Stewart Crameri and Brent Prismall) is canvassing the legal avenues and has already identified areas in which he believes the CAS judgment was flawed.

The view of Hargreaves and others in the players' defence was that the CAS set the bar for comfortable satisfaction too low.

This was in contrast to the AFL anti-doping tribunal, which WADA savaged for setting the standard of proof too high.

One point Hargreaves has noted is that the players were treated by the CAS as a collective and the differences in circumstances and individual evidence were not taken into account in either the verdict or the sentence.

Another objection and even a point that could be challenged was that the CAS did not take into account the delay caused by Essendon's Federal Court action when setting out the sentences. As the players' lawyers pointed out, the players were not part of the action taken by Essendon and James Hird against ASADA in the Court.

The players' lawyers also noted that there was dissent among the three-man panel, with one judge not comfortably satisfied that some players – the number is not specified but has to be at least two – took thymosin beta-4, although the dissenting panellist was satisfied that players did take TB4.

Legal sources with a knowledge of the case speculated that the dissent would likely have been based on the timing of injections in 2012.

Meanwhile, Essendon players who are suspended cannot train separately with AFL players under the terms of their season-long ban.

For example, David Zaharakis, who is not one of the 34, cannot train with suspended Dyson Heppell under the terms of Heppell's ban. If Zaharakis did train with a suspended teammate he would risk penalties under the AFL doping code.

GWS assistant coach Mark McVeigh is expected to be shifted into a different role at the club but cannot be involved in football operations. Prismall, however, can remain in his current role in welfare at the Western Bulldogs since his position does not involve specific football duties.

These and other rules were outlined at a meeting of the AFL Players Association and agents acting for the suspended players on Wednesday, where a possibility of collective legal action against the club was also discussed.

Opinions vary on whether legal avenues are realistic, but the length of the bans has prompted parties to consider the options.

Jake Niall

Jake Niall is a senior sports writer at 'The Age' specialising mainly in coverage of the AFL. He writes a weekly column for 'The Sunday Age' and has been on staff with 'The Age' or 'Sunday Age' since 1995. Jake, who combines original news with commentary, match-based writing, features and analysis, has won a number of awards, including the Alf Brown award for the best performer in AFL media in 2012, the Melbourne Press Club's 2007 Quill award for best sports story in any medium and a Walkley award, shared with colleagues Richard Baker, Nick McKenzie, Caroline Wilson and John Silvester, for best coverage of a major issue (Essendon scandal) in 2013.

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