Player’s lawyers calling the Panel out “This is absolute Bull5hit Your Honour”
"The submissions of Crameri & Prismall adopted the submissions of the 32 Players but made
discrete points based on circumstances particular to each in respect of the issues of use and
sanction. Their request for relief, however, was as follows:
“…the Tribunal should determine that it is NOT satisfied to the requisite standard that the players used a prohibited substance Thymosin Beta 4 during the relevant period”.
As to the AFL role this version of the report exposes the fact that the AFL - their employer - gave no support to the players before CAS, other than in regard to sanctions.
In para 88 of this version the report states that apart from that the AFL acted as amicus curae. Friend of the court indeed, also friend of WADA with Gleeson’s evidence cited in para 136 to support WADA and accepted by CAS
Having read this longer version, I can understand why the shorter version was released. This one has more holes than Swiss cheese.
When CAS arbitrators cite the opinion of two CAS employees to justify their reasoning - not even obiter - it is pretty shabby ( para 116) .
The justification for admitting evidence - that WADA was not a party to the AFL tribunal - in para 116 needs to be read together with the players request for the prior relationship between WADA and its lawyers and ASADA ( para 58). This suggests that ASADA did a little more than just fund WADA for the CAS appeal . The players lawyers would know where that body is buried but may be worth an FOI asking for communications between WADA and ASADA between certain dates .
BTW: Did anyone notice that Aly Gonow ( of Simkiss fame) was one of the AFL lawyers.
CAS is selective and inconsistent in deciding which version of the AFL Code to apply. In relation to the right to conduct a de novo review ( one of the strongest defences of the players) in para 3 the note states that de novo is the cornerstone of CAS review of appeals. First, it only became a cornerstone in 2015; second , to apply de novo to what CAS calls an appeal is nonsense. If it is de novo, it can’t be an appeal. Yet the Swiss Federal Tribunal dismissed that claim of the players on appea
As to CAS claims that the players were remiss in not establishing what they were taking, emphasising that they did not do an internet search or check with responsible sources . If they had?
Yet , as stated in para 158(iv) CAS considers that it was irrelevant that ASADA did not have a clue of the WADA status of thymosin/ TB4.
The strict liability rule is absolute nonsense in situations where the substance is not even specified in the WADA banned list. What is the rationale for WADA failing to identify TB4 as banned until the 2018 list?
Arbitrators all over the shop on the standard and burden of proof.
It incorrectly applies a standard of “ possibility” to Dank’s purported use of TB4 at other clubs and to supply of TB4 to the club.
As to the burden of proof it is basically saying that the players cannot prove that they did not take TB4, incorrectly reversing the burden of proof.
Kim Sawyer’s forensic analysis of the standard of proof says it all.
And obviously very close to Government, considering that the Australian Government funded his personal expenses as WADA chief. Could it be said that the Australian Government bought Fahey’s election to head WADA.? The one and same who used Government money to encourage two African countries to vote for Sydney in the 2000 Olympics. We won by two votes.
Nothing to see here,
This version of the report includes far more of the players counsels defence than the original report, mostly in regard to procedural matters linked to due process / natural justice and as to what constitutes reasonable behaviour by the players.( as well as to false, fabricated or misleading evidence). The only quibble I have is their acceptance that there were no matters of Australian substantive law at issue and that they were given a fair hearing. As to the latter they of course did not say that the report was fair. As some in the process involved have said, it was a miscarriage of justice.
Further, the justification for applying a low standard of proof for non -analytical cases ( McDevitt’s variable percentage rubbish) is a load of hogwash. In para 103, they cite the Montgomery case as justification.
First that case relied on a whistleblower ( curiously absent in the Essendon case in spite of ASADA inducements) ; second the Montgomery case was driven by rock hard factual evidence of BALCO involvement with athletes and supply ( even if it was not used in the CAS case).
I don’t want his old mate Nick Warner ( pa of Hun journo Mick) to offer him a job after Nick was recently given the job as the overlord of Australian Intelligence