If you thought Fifty Shades of Grey flew off the shelves quickly, wait until you see The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, by Despina Mavromati and Matthieu Reeb. Rocketing up the Google organic search result charts, legal publisher Kluwer is likely counting its Swiss Franc royalties and potential movie deals as we speak.
Those interested or involved in the Essendon Football Club supplements saga might well reach for their credit card to buy this comprehensive text, having received the news overnight that the World Anti-Doping Authority (WADA) is appealing the Australian Football League (AFL) Tribunal’s decision concerning 34 former and existing players of the Club to the Court of Arbitration for Sport (CAS). The Tribunal had declared itself not comfortably satisfied that those players committed anti-doping rule violations in breach of the AFL Anti-Doping Code.
Whilst we may not have before us “relevant doctrine, case law and materials from internal CAS practice”, let us stand in the shoes of the parties for a moment. How would you go about the process leading up to a CAS appeal?
Here are a few things to help you get organized:
- Head to the CAS website which has a lot of good information about how the process works.
- Check whether WADA has yet actually lodged its Statement of Appeal (Art. R48) and whether a case number has been allocated, or whether it is in the process of preparing these documents. Having regard to its press release by which WADA announced it has “decided to lodge its independent right of appeal”, it is likely these steps have not yet been taken.
The Statement of Appeal is essentially a formal document attaching a copy of the decision, relevant statutory provisions and WADA’s nominated arbitrator.
- Whilst the idea of jumping on a plane to Lausanne, Switzerland to discuss the matter with Head Office might sound attractive (CAS even has a Google maps link providing directions to get there), you do in fact have the option of picking up the phone to talk to the Australian CAS Permanent Secretary, Jim Dwyer. The Oceania office of CAS (there is another permanent office located in North America) is located at Level 28, Deutsche Bank Place, Corner Hunter & Phillip Streets, Sydney.
- So too, whilst French lessons at Alliance Française might yield the benefit of delicious croissants on Bastille Day, you do not need to announce your appearance as “Je m’appelle [insert your name]” at the appeal. English is the other official language of CAS.
- Given you will need to file plenty of documents, it is also a good idea to register on the e-filing facility. Whilst the parties might be in heated disagreement about the outcome of the AFL Tribunal, cooperating on administrative matters is always a sensible option. For instance, in bolded text, CAS notes that the service is only available “if all parties to the proceedings agree to use it”.
UPDATE: The Statement of Appeal has now been lodged with CAS, which has issued a press release to that effect. The press release notes that ASADA and the AFL have been nominated as interested parties and may participate in the appeal.
The press release further states: “WADA requests that the CAS issue a new decision based on an appropriate burden of proof and evidentiary standards.” This implies that WADA will submit at the hearing that the AFL Tribunal set the bar too high on the comfortable satisfaction test. I have previously considered this question here.
One other matter to note in this context is that the AFL Tribunal appeared to apply the comfortable satisfaction test to each ‘link’ in the circumstantial ‘chain’. See my previous blog post for examples. Such an approach may not be correct. That is, it is more often the case that the test will be applied to the totality of evidence, not to its constituent parts. In other words, even if some links in the chain are weaker than others, having regard to the totality of evidence it can often be the case that the burden of proof is satisfied to the appropriate standard.
Your first important decision – picking the arbitrator
CAS has close to 300 arbitrators on its books. There are two divisions, the “Ordinary Arbitration Division” and the “Appeals Arbitration Division”.
The first division deals with first instance disputes submitted to CAS, such as contractual disputes concerning sponsorship, the sale of television rights, the staging of sports events, and player transfers. Disputes relating to civil liability issues also come under this category (e.g. an accident to an athlete during a sports competition), as do employment disputes.
CAS describes these as “commercial disputes…handled by the CAS acting as a court of sole instance”. [emphasis added]
The second division (which we are concerned with here) relates to “disciplinary cases”. A large number of these are doping-related. In addition to doping cases, CAS is called upon to rule on various disciplinary cases (violence on the field of play, abuse of a referee). Such disciplinary cases are generally dealt with in the first instance by the competent sports authorities (such as the AFL Tribunal), and subsequently become the subject of an appeal to CAS, which then acts as a court of last instance (in other words, there is nowhere to go from here).
We will reflect on the distinction between commercial and disciplinary cases shortly when considering whether there is scope to compel witnesses to attend the hearing.
The arbitrators are not attached to a particular CAS division, and can sit on panels called upon to rule under the ordinary procedure as well as those ruling under the appeals procedure.
Arbitrators are appointed because they are people with legal training who possess recognised competence with regard to sport. On a continuum, expect that some arbitrators are more at the legal training end, and others are at the sporting competence end. Areas of sporting competence (e.g. Olympic athletes vs team sport participants) will also vary.
Arbitrators have been appointed to the CAS Panel from all around the world.
The appointed arbitrators must be independent, that is to say have no particular connection with any of the parties, and must not have played any role in the case in question.
The Age has suggested that David Grace QC, because he is on the CAS Panel, will be unable to represent the 34 players at the hearing, as he has done before. Certainly, such a connection would preclude him from sitting as arbitrator (see above test). However, unless there are other factors unknown to the public, it is hard to see how his ability to continue to represent the players would be compromised. UPDATED:Section 18 of the CAS Code holds the answer, in that “CAS arbitrators and mediators may not act as counsel for a party before the CAS“. [HT to the Herald Sun and here is a link to the relevant part of the Code.]
In a case such as the present one, assume there are three arbitrators. The process works like this:
- You will pick one arbitrator
- Your opponent will pick the other arbitrator
- Under ordinary procedure, the two arbitrators then pick the third arbitrator, who becomes the President (there is a procedure if the two cannot agree). However for the appeals procedure, which applies here, the President of the Division appoints the President of the Panel following nomination of the arbitrator by the Respondent and after having consulted the arbitrators.
It is now time to pick your arbitrator. Here is the list of arbitrators.
You will note with immediate delight that there is a separate category of arbitrators for “football”. Sorry people, this is a reference to the world game. CAS has had a special relationship with football since it set up an ad hoc division governing the UEFA Champions League years ago, shortly followed by the FIFA World Cup, and so on.
For argument’s sake, assume you want an Australian arbitrator from the general list. The person need not live in Australia though:
- There are 20 nominated Australians on the list
- Two will be obviously conflicted out: Hayden Opie (sat on Anti-Doping Rule Violation Panel which led to infraction notices against the players), Neil Young QC (represented Essendon Football Club in related litigation concerning ASADA’s powers with respect to the investigation)
- Brian Collis is said to be the Chairman of the Australian Football League Tribunal although he was replaced by David Jones
- Dr Tricia Kavanagh was formerly the Deputy Chair of ASADA
- The list is replete with past and present Australian judges, and practising barristers
- If interested in gender balance (if two woman in a list of 20 people can be called ‘balance’), current Australian Federal Court Judge, Annabelle Bennett, rather stands out
- Depending on ‘which side you’re on’, you may elect for – say – someone affiliated with the Australian Institute of Sport or International Athletic Federation or Athletics Australia (well accustomed to the concept of athlete responsibility for substances they ingest or otherwise take), or you may prefer someone affiliated with the International Cricket Council or Australian Rugby League Judiciary Panel (well accustomed to the challenges faced by young men in a team sport environment)
Ultimately, the decision is yours to make.
You may challenge the other party’s choice of arbitrator if circumstances give rise to legitimate doubts over his or her independence or impartiality. Any challenge should be brought within seven days after the ground of the challenge has become known.
Your second important decision – Whether to try to compel witnesses
On 19 December 2014, in the case of ASADA v 34 Players and One Support Person  VSC 635, Justice Croft decided that ASADA did not have power to compel witnesses to appear at the AFL Tribunal hearing the subject of WADA’s announced appeal. For my report on that hearing, see here.
Accordingly, your immediate task is to delegate to someone (which makes you feel much more important) the task of reading the case and reporting to you on whether witnesses can be compelled to attend the CAS hearing.
Assume I am the lowly young graduate who has just read the case for you.
Here is what I would report:
- The prospect of compelling witnesses to appear at the appeal looks low to me.
- If this matter were in the Ordinary Arbitration Division of CAS we would have a chance of being able to compel witnesses. This is because CAS describes such subject matter as “commercial”.
- However, because we are in the Appeals Arbitration Division where the character is “disciplinary”, a basis for compulsion likely does not exist.
- Why does this distinction matter? It was at the heart of a key aspect of Justice Croft’s decision.
- ASADA had to prove that the AFL Tribunal hearing was capable of attracting the jurisdiction of the Commercial Arbitration Act 2011 (CAA) (hint!).
- Justice Croft held that proceedings before the AFL Anti-Doping Tribunal were not properly characterized as arbitration proceedings, and that if he was wrong about this, they were not of the necessary “commercial” kind.
- Consequently, Justice Croft found that the provisions of the CAA do not apply to a proceeding before the AFL Anti-Doping Tribunal, hence the provisions of s.27A of the CAA – relied upon in support of ASADA’s application for the issue of subpoenas – had no application.
- ASADA did not appeal this decision.
That this judgment concerned the very AFL Tribunal hearing from which WADA seeks to appeal makes the task hard enough.
Could it be said though, that a Court of Arbitration for Sport de novo appeal (i.e. a fresh hearing even if about the same subject matter) has a different character capable of attracting the CAA? The answer is likely ‘no’, given that CAS itself describes the appeal as disciplinary in nature, distinguishing it from the commercial nature of matters heard in its other Division. Therefore, even if the hearing is arbitral within the meaning of the legislation, it would be unlikely to get over the ‘commercial hurdle.
When trying to work out the most important portion of a case, look no further than the next case in which the presiding judge considers a similar point. In this regard, see Esposito Holdings Pty Ltd v UDP Holdings Pty Ltd (08 May 2015)  VSC 183 . There, Justice Croft referred to his passage at  from the ASADA case. That passage indicates that whilst the Court will assist the efficient flow of the arbitral process, to permit subpoenas is a serious matter for the Court:
“It is quite clear from the provenance of [Commercial Arbitration Act 2011], internationally and domestically, that the emphasis sought to be achieved by the legislature is court assistance and support for arbitral processes, and not “heavy handed” intervention or, in effect, duplication of the functions of the arbitral tribunal…
Since the Commercial Arbitration Act 1984 in Victoria, the trend in legislative developments and court decisions has been to constrain merits appeals and the consequent cost and delay that flows from duplication of the proceedings in this process…. The sanctions for a breach of a court issued subpoena are potentially very serious indeed.
Consequently, the basis upon which these powers are sought to be invoked must be established to the satisfaction of the court. Nevertheless, this process should, naturally, occur as expeditiously and cost effectively as possible; but it must be balanced against the seriousness associated with subpoenas and their possible breach.” (emphasis added)
UPDATE: In circumstances where arbitration laws are State based laws and CAS has an office in Sydney, WADA might consider whether there is merit pursuing a hearing in Sydney (c.f. Melbourne where the parties and witnesses are largely based) if, say, NSW laws would make it easier to compel witnesses to appear. This concept is called ‘forum shopping’ in the legal industry.
The Croft J cases discussed above concern Victorian legislation and, should there be competing NSW legislation which is differently worded, his decisions would have less persuasive force.
However, there would likely be no advantage to having a hearing in Sydney for this reason. Australia’s arbitration legislation, whilst State-based, is essentially uniform in nature. The introduction of the legislation followed the Standing Committee of Attorneys-General’s proposal in 2010 for a nationally-adopted framework for domestic commercial arbitration in Australia based on the UNCITRAL Model Law.
For the 34 Essendon players and their representatives, here is what to expect next:
- WADA after filing its Statement of Appeal must file with the CAS Court Office a brief stating the facts and legal arguments giving rise to the appeal, together with all exhibits and specification of other evidence upon which he intends to rely. ASADA must also specify the names of any witnesses, including any experts to be called, as well as any other evidence relied on. The witness statements, if any, should be filed together with the appeal brief.
- The CAS Court Office shall send a copy of the statement of appeal and appeal brief to the AFL Tribunal, for information.
- The players will have 10 days to nominate an arbitrator after receipt of the statement of appeal from WADA.
- Within twenty days from the receipt of the grounds for the appeal, the 34 players shall submit to the CAS Court Office an answer containing a statement of defence, as well as material similar to that contained in WADA’s appeal brief.
- Upon transfer of the CAS file to the Panel, the President of the Panel shall issue directions in connection with the hearing for the examination of the parties, the witnesses and the experts, as well as for the oral arguments. The aim (often a ‘stretch goal’) is for a decision to be rendered three months after the file’s transfer.
The Panel has full power to review the facts and the law. It may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance.
Hearings will take place in private, unless the parties agree otherwise.
Fresh evidence can be admitted although the Panel has discretion to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered.
If any of the parties, or any of its witnesses, having been duly summoned, fails to appear, the Panel may nevertheless proceed with the hearing and render an award.
The AFL Anti-Doping Code will apply.
What happens if the arbitrators disagree? Majority decisions are acceptable, and if everyone goes flying off in different directions, the President alone can render a decision. Dissenting decisions are not supplied to the parties.
CAS will make public the result, a summary and/or a press release unless both parties agree they should remain confidential. The other elements of the case record will remain confidential.
With the formalities completed, let your arm chair ride through the WADA / CAS appeal process commence.