The Essendon verdict: the debate continues

The Essendon verdict: the debate continues

Two AFL club chairmen – one past, one current – both prominent Melbourne lawyers with polar opposite views of the CAS judgment on the Essendon players?

Legal debate around the judgment has not subsided, with former Fitzroy chairman and Melbourne barrister Dyson Hore-Lacy SC taking issue with comments made by Western Bulldogs chairman and lawyer, Peter Gordon, last week.

Hore-Lacy takes issue with Gordon's statement that the overall judge count in the two cases was 4-2, based on the 3-0 decision of the AFL Tribunal that the 34 past and present Essendon players had no case to answer and a 2-1 opposing view in the CAS judgment.

CAS cases have always been de novo, meaning all issues are examined anew.

Dyson Hore-Lacy

Dyson Hore-Lacy

Photo: John Woudstra

"The reported claim by Mr Gordon that out of the six judges who had adjudicated on the case, four had ruled against banning the players is not an accurate reflection of what actually occurred," Hore-Lacy says.

Furthermore, he argues that a reading of the CAS judgment does not support the view its decision was 2-1.

He quotes para 151 of the panel finding which reads:

"(i)The majority of the panel is comfortably satisfied that all players violated clause 11.2 of the Anti Doping Code and were significantly at fault in doing so;

(ii) One member of the Panel agrees with that conclusion save in the case of several players in respect of whom he is not comfortably satisfied that such use is made out."

Hore-Lacy says: "Exactly who the players were or how many were identified is not spelt out.

"In fact, 18 witnesses gave evidence before the panel. This includes six players who had not given evidence before the AFL Tribunal, although they had been interviewed by ASADA.

"The CAS panel observed [para119] that 'it was an odd feature of the case that – it may be for perceptible tactical reasons — no party actually sought to call any of the players to give oral testimony, and those who in the event did appear did so on the initiative of the panel.'

"The fact that the panel heard additional significant evidence to what was presented to the AFL Tribunal can explain any apparent conflict in the two decisions.

"The sole question should be whether the Essendon players were proved to have taken a banned substance. And if that involves the panel utilising all evidence it had available to it regardless of whether that evidence had been given before the tribunal or not, so be it."

While an appeal to the Swiss Federal Tribunal is an option for the 34 players, it must be based on the grounds of lack of jurisdiction (which was not contested during the hearing), or violation of elementary fairness. In the history of CAS, there have been around 110 such appeals, with less than 10 per cent succeeding.

Despite the legal furore around the CAS judgment, Hore-Lacy says, "No legal experience is required to digest the factual matters. Dank, a sports scientist, was the architect, instigator and operator of the Essendon Injection program, and who in fact gave the injections to the players. In an interview with Mr Nick McKenzie of The Age, he admitted the use of TB-4 on the players. Some time later he sought to retract it once it had been pointed out to him that TB-4 was a prohibited substance.

"That evidence constituted only one strand in the evidence relied upon by the panel. It would be difficult for objective readers of the panel decision to come to the view that it was not open to the panel to decide as it did."

CAS sources point out Essendon could have been punished more severely, if the AFL was not its own international federation.

WADA rules allow for an international federation to suspend an entire team from competition if three or more players from the one team had been found guilty of a doping violation, as occurred with the Korean women's soccer team barred from a FIFA World Cup.

Because the AFL is a one-country sport, it is not answerable to international federations like the other football codes.

This has prevented Essendon from being stood down, as a club, in 2016, rendering the AFL a 17-team competition with significant ramifications for broadcasters, sponsors and, importantly, fans.

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