It must have been a bruising task appearing before Justice Croft in the Supreme Court of Victoria about whether the AFL Tribunal hearing concerning anti-doping rule violations against 34 players and a support person at Essendon Football Club can be described as a “commercial arbitration”.
That said, the judge made every effort to keep laypeople in the Court up to speed. During the technical process of objections to affidavits, he told the assembled gathering that when an affidavit is “not read” it means it is “not relied upon”.
The task before Justice Croft is to decide whether ASADA can issue subpoenas compelling Shane Charter, Nima Alavi and “a support person” to attend the AFL Tribunal to give evidence in relation to the Essendon Football Club’s supplements saga. Documents in relation to the “support person’s” companies are also sought.
Justice Croft only has power and jurisdiction to do this if he finds that the AFL Tribunal hearing is a commercial arbitration.
According to ASADA, Mr Charter and Mr Alavi had agreed to give evidence and were cooperating until 28 November, but they no longer want to help.
Shane Charter’s public statements and photos outside various court buildings in Melbourne had not gone unnoticed to the judge who said: “If the photos in the Age on 2 Dec are relevant, Mr Charter is not here either.”
They, and the support person, are considered to be important witnesses to a circumstantial case by which ASADA seeks to prove:
- Mr Charter procured the raw materials
- He provided them to Mr Alavi who compounded the materials
- Mr Alavi gave the substance to the support person
- The support person injected this substance into the 34 players
- In addition to administering Thymosin Beta 4 to the players (a prohibited substance), the support person administered other prohibited substances as well, and trafficked a number of prohibited substances
Of the novel matters Justice Croft had to deal with, none was more novel than the awkward matter of how to call for the appearance of an anonymous person in Court. It was easy enough for the Associate to call outside the courtroom for Mr Charter’s attendance. No one expected him to appear, and he did not.
It was an entirely different matter in the case of said support person, when the identity of said support person must be kept anonymous for confidentiality reasons. The judge mused: “He knows who he is“, and then hastily added “or she” to muffled laughter in the courtroom. Accordingly, it was decided that the Associate would call outside the courtroom: “The court calls the support person in (Title of the Proceeding).” This was done. There was no appearance.
The question of whether the AFL Tribunal hearing constitutes a commercial arbitration sounds deceptively simple.
After all, there is a Commercial Arbitration Act 2011 (Vic.). This leads one nicely to ask: “Is it commercial?” and “Is it an arbitration?”
Justice Croft’s in depth knowledge of the subject led to Counsel being peppered with musings and anecdotes drawn from a long line of authorities and legislation. A notable example came just before lunch when ASADA’s Counsel was asked: “Would you enforce the determination under the New York Convention?” Potentially flummoxing, the question was deftly handled on the basis that Counsel would return to it after lunch.
After lunch, ASADA’s Counsel observed that “CAS” (an ultimate appeal body for this type of anti-doping matter) did have determinations registered under the New York Convention. Helpfully for CAS, its full name is the Court of Arbitration for Sport, whereas the AFL Tribunal is, well, the ‘AFL Tribunal’.
Because there is no statute (e.g. the ASADA Act) deeming or mandating these proceedings as a commercial arbitration, Justice Croft noted that he must “work out what animal it is”.
By no means a comprehensive list, the Court was required to consider:
- What does “commercial” mean for this type of case?
- What would constitute the arbitration agreement?
- Have the various factors been met indicating this is an arbitration? (e.g. enforceability, availability of particular types of relief?)
- If satisfied that the proceeding is an arbitration, have the discretionary factors justifying subpoenas been satisfied?
On the question of commerciality, ASADA’s Counsel referred at length to a plethora of material showing that the AFL is big business indeed. His aim was to show that “the League and Clubs are engaged in the business of public entertainment”. For the players, their participation also goes beyond playing the game. For instance, without players, how could one profit from players’ cards?
The judge was not, however, satisfied that a general description of the AFL’s operations was sufficient for the purposes of the Act. He directed attention to the precise nature of the dispute before the Tribunal. No one disputes BHP is big business, he said. However, the relevant dispute might concern employment issues incapable of satisfying the criteria for a commercial arbitration.
As for the content of the ‘arbitration agreement’ this led to the court being taken on a tour of a bewildering array of documents (otherwise called “a suite of interlocking documents” by ASADA) including registration forms, rules and registration requirements, the standard player contract and the laws of Australian football picking up the AFL Anti-Doping Code). The purpose was also to show that the AFL is not a sole party to the standard player contract, and that the primary employment relationship is between the Club and the player, or so ASADA claimed.
Justice Croft appeared in no doubt that the AFL Tribunal “is a well constituted domestic tribunal”. However, the line is amorphous between that and a tribunal with an arbitral function. He doubted openly whether the functions of the AFL Tribunal went that far. Noting the apparent lack of enforcement capability of the AFL Tribunal he said to Counsel for ASADA: “You can’t get there on res judicata and estoppel.”
It goes without saying that Mr Alavi’s Counsel did everything to show that employment is the “epicentre” of the dispute. Those in the body of the court now know all of the topics covered by the Collective Bargaining Agreement between the AFL and the Players’ Association.
In homage to the alleged non-commercial essence of the game, Counsel for Mr Alavi’s submissions were replete with “Jimmy Stynes”, and folkloric recollections of past player transfers (leading one journalist behind me to mutter “St Kilda”, correcting any suggestion a particular player had moved to “South”). So too Counsel said:
“Consider a rookie player who cannot yet play senior football but may end up before the AFL tribunal on an anti-doping rule violation. Is this “professional”? Is that what UN Working Group had in mind? To drag the rookie into the Commercial Arbitration Act?”
The judge appeared most attracted to the idea that any anti-doping rule violation finding would result in a restraint of trade. An inability for a player to work, seemed a matter “with respect to” employment, the judge mused.
Towards the close of proceedings yesterday, ASADA asked for swift written reasons following a determination, referring – generally (of course) – to the fact that one of the parties might seek to appeal an adverse determination (we will not guess who). The hearing continues today, and the tea leaves might have changed. They often do.