WADA appeals AFL decision.

Acronyms-a-plenty, so make notes if you need to:

  • Australian Football League (AFL)
  • Australian Sports Anti‑Doping Authority (ASADA)
  • Court of Arbitration for Sport (CAS)
  • World Anti-Doping Agency (WADA)

The future of 34 AFL footballers again hangs in the balance. WADA has appealed the decision of the AFL Appeals Board to CAS. The hearing will be a de novo hearing, which essentially means a re-hearing. Let’s take a look at some of the evidentiary and process related issues this saga now faces.

From the beginning

Unless something new is uncovered, the CAS hearing will involve the same evidence and the same arguments of the AFL Appeals Board. WADA or CAS cannot compel witnesses to give evidence at the hearing and WADA will be given the unenviable task to try and prove that Essendon players were given banned substances.

Hard to convince?

One of the most poignant quotes from the whole saga is from ASADA CEO, Ben McDevitt, after AFL Appeals Board decision, where he said ‘we still have young men not knowing what was injected into them’.

If ASADA does not know what was injected into the players and the result of the hearing is dependent on ASADA proving that Essendon players were given banned substances, it seems unlikely that anybody will be able to convince an independent panel of this allegation. WADA now carries this burden.

CAS will now be the latest destination for the Essendon players to once again confirm their innocence and for WADA to take the lead in proving they are guilty of taking a banned substance.

Let’s examine some of the legal considerations for CAS.

Jurisdiction of CAS

The AFL rules prescribe that appeals from the AFL Appeals Board can be sent to CAS. Pursuant to AFL Anti-Doping Code Rule 20.2 (e) ‘ASADA, WADA and a Player shall also have the right to appeal to CAS with respect to the decision of the Appeal Board.’

Time limit to appeal

On 20 April 2015, ASADA decided against appealing to CAS. From that day, WADA had 21 days to lodge an appeal. The final day of the 21-day window was 11 May. WADA exercised its right of appeal on the final day.

Appointment of arbitrators

CAS will appoint a President of the Panel and either side will chose their preferred arbitrator (comprising a panel of 3 arbitrators). Interestingly, Rule 34 of the CAS Code allows an arbitrator to be challenged ‘if the circumstances give rise to legitimate doubts over his independence’.

Hearing

CAS hearings generally take place in Lausanne, Switzerland, but the President may decide to hold the hearing at an alternate location given the location of the parties and economic factors involved in the hearing.

Dragging out the saga even longer

Rule 59.5 of the CAS Code dictates that a decision will be issued within 3 months of the conclusion of the hearing. Given it will take months before the hearing begins, a decision is unlikely to be given before the end of the AFL season, let alone 2016.

Appeal of CAS award

Appeals of the decisions of CAS are restricted. For example, appeals to the Swiss Federal Tribunal must be under specific grounds such as the right to be heard and due process.

That’s a wrap

Everything points to this being the final episode in the Essendon saga. The result at the final siren will have huge implications for the players, the club, the sport and the triumvirate of anti-doping bodies. Whilst this may be the final episode, we are sure, once again, that the curtain will not fall for some time yet.


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Posted on: 12 May 2015