How would YOU approach a WADA appeal to the Court of Arbitration for Sport?
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.
25 Responses to “How would YOU approach a WADA appeal to the Court of Arbitration for Sport? ”
Great work (as always)
Natalie you are going to be so bored when this case is over…..
I thought it was likely over until yesterday! My list of other topics has been pushed down the batting order, but only momentarily.
A probable case against 34 players is not the same as a provable case against one player. That was the message delivered by the AFL Tribunal.
Although the CAS appeal may be de novo, appeals are always about greater focus. WADA should not repeat the mistake of running a case against 34 players at large. It should prioritise the evidence it has against each player from strongest to weakest and prosecute the one player against whom it has the strongest case. If that appeal were to fail, it should give up. If it were successful WADA should keep going sequentially until it loses a case.
It sounds like the long way around but I’m sure it is the shortest and best for everyone.
Nice article, thanks. One thing that troubles me though is if the proceedings are not considered “commercial” and therefore not subject to the CAA then what power will there be to enforce the finality of any decision by CAS?
I suggest a contractual one. Any failure to enforce could be regarded as a breach of contract by reason of the parties’ agreement to comply with the AFL Anti-doping Code.
That sounds right of course. Problematic however for WADA who are not a party to any contract with the players.
I have an inkling that there is old Australian case law somewhere where decisions of CAS in anti-doping proceedings were considered binding under the CAA, albeit not directly relevant to the question of issuing subpoeanas to witnesses. Of course that may now be overturned or at least subject to considerable doubt given the reasoning in the Victorian Supreme Court.
Thanks again for the article and your response.
Thanks for that Natalie. As usual it’s nice to have things presented clearly without the hype we get from media reports.
One question: I presume ASADA prosecuted the case of “Use or Intended Use” in the AFL tribunal on the basis of the drug TB4. As this is a de novo hearing, is it possible for WADA to include other drugs in their prosecution?
Hi Gary, for two reasons the answer is likely ‘no’. First, it is an appeal even though the initial decision carries little weight for the Panel. Secondly, the Panel has discretion to reject fresh evidence which could have been adduced below. Unless there were new circumstances, it is therefore unlikely it could be adduced.
With the involvement of Montreal based WADA, this might not be a DOMESTIC Commercial Arbitration within the scope of the Australian state Commercial Arbitration Acts – I thought Croft J might have mentioned something about this question in his judgment when he considered the nature of the parties to the arbitration agreement but he didn’t actually go as far as to analyse a CAS appeal scenario. This CAS appeal arbitration might be covered by the Cth International Arbitration Act – which includes a subpoena power – but still the “commercial” problem…
Great summary, thanks Natalie. Is it usual that an appeal can be done like this, that is, without having to actually show an error or concern with the original judgment? What has surporised me is that the anti doping tribunal hearing seems to become pretty much meaningless now – in footballing terms, its like a ‘practice match’, with the real match now about to kick off!
One other question – do ou think this whole compelling of witnesses issue is being overplayed? based on what i read about the original judgment, having Charter and Alavi atetnd might help ASADA / WADA say TB4 was imported from China, but how do they then get to show it went from there, to Dank, into Essendon players, without an admission or positive test?
Overall, i am truggling to see how WADA think they will get up and win this one, unless something was radically wrong with the original anti doping approach or there is a new smoking gun! Any thoughts?
Let me answer your question generally, because I don’t think I can sensibly speculate about the outcome without having seen the evidence. Yes – it is quite common to have de novo appeals of administrative decisions. The rationale lends itself more readily to court hearings of administrative decisions by statutory bodies. That is, an administrative body might hear a case without the stringency of rules of evidence, whereas a court has these extra checks, with a corresponding broad discretion to re-consider the matter. As you say, it becomes a little more challenging when one administrative body is assessing the decision of another, although here it can likely be justified on the basis that CAS operates in a different jurisdiction with different procedures (and it is called a ‘court’!).
As for compelling witnesses, I’m not sure if the issue is overplayed. Perhaps best if I simply say that it is always preferable to have parties appear so their evidence can be examined and tested. But if they don’t choose to appear when they are otherwise available to do so, inferences are capable of being drawn from that as well.
CHOICE OF ARBITRATOR
WADA might be looking to appoint an arbitrator with experience in TB4 cases (regardless of nationality, linguistic or legal background).
CAS might be looking to appoint a President with experience in managing complex cases where how to manage burden of proof in team situations is the central issue (regardless of nationality, linguistic or legal background).
Therefore, the ESS 34 should consider whether it is more advantageous to appoint an AFL/Australian/sympathetic neutral or someone with the international/complex/TB4 experience necessary to balance a similarly qaulified international tribunal (otherwise the voice of their arbitrator might be marginalised).
Doesn’t look like there are many arbitrators out there with TB4 experience so could be a case of first in best dressed. What you don’t want is WADA’s international TB4 expert arbitrator dominating the tribunal.
The decision of the AFL tribunal is, unfortunately, open to the interpretation that the ESS 34 were ‘proven innocent’ (Hird, May 12). For most people this doesn’t seem right. Is one hundred hypodermic needles and ninety-nine medical records the new innocent?
ASADA couldn’t prove to a standard of higher than 50 % that any player took TB4. But what’s the real probability when the group is looked at as a whole? If the probability that any 1 of the 34 players took TB4 is, for example, as low as 6% (1 in 17) that means that in a run of 34 players two of them took it.
So a fair outcome might see all of the players penalised with a small fraction of the penalty for taking TB4 (a compromise between ASADA not being able to prove the violation against any one individual – due to their lack of records – but being able to prove the likelihood in the whole factual scenario that one or more ESS 34 players did get TB4 into their bloodstream during the competition).
Should the burden of proof shift to individual players if it is proven against the team that someone must have taken some of the TB4 that was present in the club’s supply chain? (i.e. should an individual player have some responsibility to show that they were not one of the statistically probable 2 in 34 TB4 injectors?)
Maybe an imaginative international tribunal will be able to devise a procedure for dealing with this issue.
Of course arbitrations create great frameworks for deals. What would you rather: accept responsibility for your role in the whole debacle and take a two month suspension now or maintain your innocence to a British, French or Italian decision maker, who’s an expert on TB4, during this year’s AFL finals?
(Excuse the long reply)
Great analysis again Natalie.
On Twitter Chris Kaias used a term describing what I suspect describes the AFL tribunal’s view of the evidence – “atomised”. To me, not involved in the legal field but in statistics, this is clearly an invalid method of inference. Surprisingly I found (through Google) that judges in other jurisdictions struggle with this concept as well. Good discussion is had on this topic in the document “Mosaic Theory, Conditional Probability, and the Totality of the Evidence” (found at http://www.brookings.edu/~/media/Research/Files/Reports/2011/5/guantanamo-wittes/05_guantanamo_wittes_chapter_8.pdf)
Some reasoning, which I can’t fault, from an appeals court overturning lower court decisions:
The key consideration is that although some events are independent (coin flips, for example), other events are dependent: “the occurrence of one of them makes the occurrence of the other more or less likely . . . .”
. . . .
Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist.
Merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence “may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.” The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof
I think that is very elegantly put. And not being a lawyer I like it a lot! If you can somehow quantify the links and their probabilities you end up with an ability to reach an informed position rather than a gut feeling. If this approach were to be adopted by the courts I would see as much argument about the relationships and probabilities between pieces of evidence as the evidence itself! Unfortunately I don’t think the legal profession is ready, or able, to embrace this methodology!!!!
Yep, exactly Fred. Is seems the panel was looking at the evidence as single events. Essendon claimed the substance was Thymousin A1 but the experts agreed that the substance definitely was not Thymousin A1. So the the fact that Essendon lied or misled the tribunal should have increased the probability of guilt!
Fantastic article Natalie. I would like to raise three points.
Firstly, the Essendon Football Club was not a party to the proceedings in the AFL Anti Doping Tribunal. The 34 players were, but the Club was not.
Secondly, the Tribunal’s findings have not been published, so it’s problematic to guess about the assertions made by the players’ defence, or what ‘the experts’ agreed to.
Thirdly, what I would suggest are plausible scenarios such as Thymosin Beta 4 actually being imported, but then being diverted to the ‘anti-ageing’ clinic operated by Mr Dank and the players being injected with saline solution would need to be taken into account in any probabilistic assessment of the evidence. I am not clear how this would be done.
Disclosure…yes, I am an Essendon supporter.
CHOICE OF ARBITRATOR
If it is true what Richard Ings suggests (Twitter, 20 May) that Wada has appointed Romano Subiotto, then the players could do worse than choosing Lucio Colantuoni from the CAS list.
Subiotto and Colantuoni have four spoken languages in common (an important consideration if you don’t want your arbitrator to be marginalised), they are roughly the same age and Colantuoni has all the right qualifications: he is on the disciplinary panel of the Italian professional football leagues, he is a member of the scientific board of the international association of sports law and he has a post graduate diploma in international sports law from Griffith University in Australia.
A good trifecta – disciplinary, scientific and Australia credentials.
There has been some speculation in the press that one of the reasons WADA asked for the hearing to take place in Switzerland is that Swiss law makes it easier to subpoena witnesses like Alavi and Charters. I know we have an extradition treaty with Switzerland, but would this extend to witnesses in a sporting tribunal?
Stay tuned in the next few days! I’ve been looking into it.
Great. Looking forward to it.
[…] a previous post, the Supreme Court of Victoria’s decision not to grant subpoenas compelling witnesses to testify […]
What seems to be completely overlooked in these summations is that all of the drug tests carried out in Switzerland could find no traces of illegal substances in the blood tests of all of the Essendon Players… The legal arguments and suppositions have a vertical hill to climb with no positive drug tests. Essendon have already been fined by the AFL Stood Down from the Pre Season and then found Not Guilty, do we really think they are going to impose any other penalties or sanctions. More likely the ramifications of this will be the actions after a failed WADA Appeal.
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