I think MiRandB covered this in October 2016 as below. The lawyers tried to protest the change of rules and were told the case could proceed without them. It would have been a massive call to walk out on CAS at that point.
PETITION UPDATE 18 OCT 2016
“If he didn’t sign, the hearing will proceed without him and his clients.”
That’s how CAS warned Tony Hargreaves, a highly experienced criminal lawyer representing 32 of the Essendon players, when he raised concerns with CAS about a document setting out ground rules for the CAS hearing.
Hargreaves had no choice and signed the document but set out his concerns in a sworn affidavit.
A CAS media release later stated that the Swiss Federal Tribunal “decided not to entertain the appeal.”
The Appeal’s full judgement is in German and is still being translated.
On 12 October 2016, Chip Le Grand, a Walkley-winning journalist, wrote “Appeal documents reveal that -
• former High Court judge Kenneth Hayne,
• former Federal Court judge Ray Finkelstein,
• former Federal Court judge Neil Young and
• former Victorian Supreme Court judge Jack Rush
- all submitted legal opinions in support of the players’ case to the Swiss court.”
Hayne: WADA’s right of appeal should have been limited to demonstrating that the AFL tribunal, which previously heard the case, either made an error of law or came to a manifestly unreasonable decision.
Young: CAS’s decision to conduct a second, full hearing of the case exposed the players to a form of double jeopardy and offended “fundamental principles of justice and fair dealing.’’
Rush: WADA was not entitled to appeal and the CAS panel was not entitled to review the merits of the AFL tribunal decision.
The players’ lawyers argued that according to the AFL rules and players rules, appeals against a decision of an AFL tribunal are limited. Australian contract law had precedence over CAS’s usual way of doing things.
Chip Le Grand revealed that “The appeal was argued entirely by written submissions, submitted to the Swiss court in French and German.”
On 13 October 2016, Chip Le Grand wrote that a “six-page document, ‘Order of Procedure’, set out the ground rules for the CAS hearing; the jurisdiction, the panel of arbiters who would hear the case, the lawyers who would be appearing for the parties and who would be called as witnesses.”
“The document also contained a single, contentious phrase: “The jurisdiction of CAS is not contested by the affected players.’’
But everyone involved in the case knew the question of jurisdiction had already been fiercely contested in multiple written submissions several months earlier, by two groups of players’ lawyers.
The Appeal ruling has dismayed the AFL Players Association and the lawyers of the 34 players. The lawyers believe the players have been done over once again.
Jack Rush said the Swiss court’s decision was “appalling’’ and the treatment of the players unfair during the drugs scandal.
Rush pointed out it was the AFL that changed the rules governing appeals to CAS — a change made after the case against the players had been heard by an AFL tribunal but before a decision had been handed down.
He added “What is obvious to those who have read the submissions concerning the appeal to the Swiss Federal Supreme Court — if the matter had been decided according to Australian law in an Australian court the decision would have been different.’’
The code in force at the time of alleged offences and the start of the anti-doping proceedings did not provide for a de novo appeal to CAS. The revised anti-doping code did.
“It doesn’t sit well for McDevitt to be coming out and talking about change of rules,’’ Rush said. “The rules changed mid-process. That is one of the primary, unacceptable parts of what has gone on here.’’
The Essendon Football Club stated “We maintain our view that the decision and penalty handed down by the Court of Arbitration for Sport was manifestly unfair on our players.”
Former Senator John Madigan added his support. “ASADA may think it’s been vindicated. Why have Australian Sportsmen and sportswomen right to a fair trial under law been handed to foreign bodies?”
On the ABC NewsRadio program, The Ticket (14 October 2016), Tracey Holmes’ guests were Chip Le Grand, international lawyer and barrister Paul Hayes and Brendan Schwab, human rights lawyer and head of Uni World Athletes.
• “A review of the sports justice should, at least, be considered.”
• “One wonders if the truth will ever be known.”
• “Rules are being developed by sporting organisations such as WADA which is overriding national law.”
• “The people who represented them [the players] have excellent reputations and they certainly know what they were doing.”
• “WADA is to be given stronger authority of national anti-doping organisations such as ASADA.”
Listen to the full program here - from 3’50”.
A final note - WADA is now pursuing private funding from the pharmaceutical industry. What influence will drug companies have in the future?