Studying Classics many years ago, I had a romantic desire to read Homer in the original Ancient Greek. This enthusiasm lasted for one year and six months. After struggling to compete with native Greek speakers and mature age students with priorities other than endless liquid Carlton pub lunches, my very kind lecturer sat me down and said, ‘Do you want to do this anymore?’. Taking the hint, I withdrew from Ancient Greek, its only legacy being ‘ton ploion’ which I recall means, ‘the ship’.
I was reminded of this experience two days into the laborious exercise of manually typing by hand into a Word document the full reasons for decision, in German, of the Swiss Federal Tribunal (Schweizerisches Bundesgericht) (SFT) made in Lausanne on 27 September 2016, so that Google Translate could weave its magic and turn ‘the Australian Football case’ into some semblance of English. Google Translate does not work on PDF documents, hence the need for this task. A very helpful website offering English translations of these opinions (Poncet Website) remains at ‘March 2016’, hence the need to engage in some self-help.
In deference to the parties I do not intend to reproduce the Google Translate version in full. It goes without saying that Google Translate is not the most reliable of translation methods, and I do not consider it wise to have this version of the decision in the ether of the World Wide Web. What follows is my interpretation of the decision having regard to the automated translation algorithm and some inference. I also note that it is the convention of the Poncet Website to offer translations that de-identify the participants. In this case, and having regard to the CAS Press Release below, reference to the Essendon 34 is clearly in the public domain. Other than that, no more need be said about the identity of the players involved.
The CAS Press Release is not the judgment
What media outlets have referred to as an official translation of the judgment (for an example, see here) is, in fact, a Court of Arbitration for Sport (CAS) press release (CAS Press Release) providing a synopsis of the reasons why the SFT decided that it had no basis to disturb the sanctions against the players.
This misapprehension is understandable, because the CAS database is notorious amongst lawyers for being less than user friendly.
How I wish the CAS Press Release was the judgment. The Google Translate process would have taken much less time.
The judgment is many pages long. The CAS Press Release is about half a page. The CAS Press Release captures the essence of the judgment in that:
- the SFT decided not to entertain the players’ appeal;
- this is because the players did not formally challenge the jurisdiction of CAS during the arbitration procedure and accepted the application of the CAS Rules (including that providing for a de novo hearing); and
- even if CAS’ jurisdiction had been properly challenged, CAS jurisdiction in this matter would have been confirmed and the appeal dismissed.
However, it is also fair to say that the CAS Press Release does not capture the nuance of the SFT judgment. For example, the ASADA press release suggests that the players agreed to the rules and then expected them to be changed because they did not like the outcome. Lawyers for the Essendon 34 have criticised this as an overstatement, because the players did actually complain about the process.
In fact, it seems that both perspectives are right. The SFT judgment acknowledges there was an initial complaint on behalf of the players about the breadth of CAS’s jurisdiction. However, by subsequently participating in the process without further complaint, the SFT found that the players either indirectly agreed to all aspects of the arbitration, and/or forfeited their right to complain about it down the track.
Why did the SFT deliver its reasons in German?
The SFT justified its decision to publish the reasons in German on the basis that:
- English is not an ‘official’ language for the purpose of the Tribunal; and
- it decided to deliver its judgment in the language of the appeal, namely, German, after it had been provided with documents by the parties in both French and German.
It is common for European jurisdictions to confront this language issue given the cross-border nature of litigation and the variety of languages involved. Accordingly, recourse to an ‘official’ language is an understood method by which the judicial umpire makes a language call.
At first blush, this approach appears somewhat absurd when all concerned speak English. It appears high-handed and biased towards home ground advantage, particularly when we remind ourselves that the core objective of any judgment is to inform the parties who won, who lost, and why.
However, one can also understand that the decision maker will want to provide reasons in the language with which he or she feels most comfortable, to help limit the risk of being misunderstood. In Australia, we deliver judgments in English, even though as a multi-cultural society, there will be occasions when the parties would be more comfortable reading the decision in their own language.
The language problem does highlight though the elephant in the room. That is, this was a case concerning a team sport (Australian Rules Football) in a domestic league in a foreign land (Australia), where incidentally everyone speaks English. The one-size fits all nature of the WADA Code, having regard to its Olympic sports heritage, does not neatly apply to a domestic, team sport situation.
Key concepts relevant to appeal
A de novo hearing essentially means ‘a fresh hearing’. The decision-makers are not constrained by the factual findings made below. They can essentially substitute their own decision for that of the previous tribunal, and fresh evidence can often be allowed.
In terms of the story so far, the AFL Tribunal hearing was a ‘new’ hearing, the CAS hearing was a ‘de novo’ (fresh) hearing, and the SFT hearing was more in the realm of a constrained appeal.
The fight before the SFT was whether or not the CAS hearing should have been ‘de novo’ or not. Representatives of the 34 Essendon players argued that the AFL Anti-Doping Code had been conveniently amended prior to the handing down of the AFL Tribunal Decision to facilitate a fresh hearing. They argued that the functions of CAS should have been more confined.
For an in depth look at the arguments made on behalf of the Essendon 34, see here:
Before turning to why the appeal failed, it is relevant to consider how the SFT regarded its own functions. The SFT regarded them as pretty narrow:
- The SFT based its judgment on the facts established by CAS.
- These included ultimate findings, and also procedural decisions along the way.
- Even if such factual findings are manifestly incorrect, the SFT cannot set them aside.
- However, it may review the factual findings of the arbitration only in exceptional cases or otherwise in accordance with Swiss law.
- Anyone who seeks to disturb any factual findings must state these concerns precisely.
It follows that it would take a lot for the SFT to set aside a CAS decision in favour of the Essendon 34.
As indicated above, the Essendon 34 complained that by delivering a de novo judgment, CAS exceeded its jurisdiction. This is because, it was alleged, CAS was not competent for a de novo assessment. The substantive law in the present case, the AFL Anti-Doping Code, did not permit this, so it was said, at the relevant time.
To examine this question, the SFT considered the scope of the arbitration agreement between the parties. In other words, what was the basis upon which the parties agreed to submit to the CAS jurisdiction, as evidenced by the AFL Anti-Doping Code and other relevant conduct?
The SFT defined an arbitration agreement as one where two or more specific or determinable parties agree to impose one or more, initial or future disputes, to an arbitral tribunal in a legal manner that is either direct or indirect. What is crucial, it stated, is the parties’ will to be subject to an arbitration, namely, a non-government court.
The SFT emphasised that it did have power to strike down an arbitration agreement if the relevant clauses were incomplete, unclear, contradictory or impossible. However, it added that it would be unlikely to strike down the whole contract in most cases. The existence of such a clause would not easily lead to the invalidity of the whole contract, something which Australian lawyers will readily understand.
The SFT stated that it was prepared to give a significant role to ‘indirect’ evidence of an agreement, if there was sufficient direct evidence of the agreement’s terms. This was referred to as the “presumed will”. Relevant to this exercise were principles such as “good faith”.
To apply the principle of good faith, one must object to the relevant tribunal. If no objection is taken, one cannot later rely on the tribunal’s lack of jurisdiction, the SFT stated.
In common law systems such as Australia, the concept of ‘good faith’ as applied by the SFT seems akin to estoppel, waiver, acquiescence or forfeiture.
Was there a single reason why the appeal failed?
“Your complaint regarding this matter is forfeited and the appeal is not acted upon.” So, says Google Translate of the SFT’s relevant reasons.
If there was a single reason for losing, it appears to come down to this: the players ultimately submitted to CAS’ jurisdiction with insufficient complaint.
It is somewhat ironic, after the delivery of a judgment in German, that what is in English matters most. These were the portions of the decision that the SFT chose to extract in their original language.
Before turning to them, the SFT acknowledged that on 31 July 2015 and 28 August 2015, the Essendon 34 said in their initial submissions that the arbitration should not involve a fresh hearing but should be constrained to deal only with matters such as error of law.
It is what happened after then that became relevant.
By letter dated 10 September 2015, the Arbitration Panel informed the parties that it would decide the case de novo and was therefore prepared to take into account any new evidence.
The SFT found that, after this, the Essendon 34 no longer questioned the status of the appeal but submitted to the jurisdiction without reservation. Examples of this conduct identified in the decision are set out below.
A. Signing procedural documents submitting to all elements of the CAS jurisdiction
Such documents incorporated provisions such as:
“[…] the appointed Panel shall decide this matter as an Arbitral Tribunal and render an award in compliance with the Code [the Code of Sports-related Arbitration, 2013 edition] and the terms and conditions set out in this document” – reproduced in judgment in English
“the Panel has full power to review the facts and the law” – reproduced in judgment in English.
B. Seeking to adduce fresh evidence in accordance with a fresh hearing
The SFT judgment observed that the Essendon 34:
- sought to interrogate various witnesses at the hearing;
- prior to the hearing submitted to CAS new evidence, including expert opinions; and
- sought background information about certain laboratory tests.
C. Failure to oppose submissions confirming de novo status of CAS appeal
The SFT judgment noted that the Essendon 34 did not oppose arguments made on behalf of WADA at the hearing, such as:
“Given the centrality of this evidence, and given that this is an appeal, we would suggest – we’re conscious that it’s de novo of course, […]. WADA exercises a right to bring the players, notwithstanding that outcome, before CAS by way of a de novo appeal. The complaint we make is, obviously it’s de novo so the matter is able to be considered afresh by this panel […].” – reproduced in judgment in English containing italics as specified.
D. Order of Procedure signed by Essendon 34
It was found that, even if there were valid grounds for challenging the de novo jurisdiction of CAS by reference to the AFL Anti-Doping Code, by signing the CAS Order of Procedure without reservation, the Essendon 34 submitted to the CAS jurisdiction.
It is unclear to me from the (pretty average) Google translation whether point D. is intended to reinforce or add to the discussion in point A. above.
For lawyers, the SFT approach seems similar to a person filing an unconditional appearance for a court hearing (as distinct from a conditional appearance), or to a person paying a sum of money without mentioning that the payment is only made under protest.
Crucially, the SFT regarded the CAS Order of Procedure as authoritative. The SFT stated that it was not possible to deduce from the CAS Code some reservation of rights by the corresponding national federation rules.
This is important to the ‘vibe’ of the judgment. In other words, if you agree to go to CAS (to be inferred at least from your conduct in participating in the process), then CAS reigns supreme. According to the SFT, it followed that the national rules of a sporting organisation (like the AFL Anti-Doping Rules) then essentially fell away.
The appeal would nevertheless have failed
Most of the SFT judgment was devoted to whether or not CAS had exceeded its jurisdiction. Only if CAS had exceeded its jurisdiction does it appear that the SFT would have been prepared to contemplate substituting its own decision for that of CAS.
The SFT finding of ‘you would have lost anyway’ only involves a few paragraphs. I have also found this part of the Google translation pretty suspect so will deal with this issue generally.
Plainly, it would have taken a lot for the SFT to overturn the CAS decision based on its earlier remarks that it takes a very narrow view of its own appellate function.
There might also have been a circularity in the Essendon 34 reasoning that the SFT was not prepared to entertain.
That is, any skulduggery concerning changes to the AFL Anti-Doping Code appeared to fall into the ‘procedural basket’ already dealt with by the SFT in the previous section of its reasons. The SFT confirmed that it regarded the Code as only relevant to appeal procedure. The AFL Anti-Doping Code therefore had no apparent bearing, to the SFT anyway, on substantive arguments such as whether a breach of the Code meant that the ultimate CAS decision was contrary to public policy.
As for substantive arguments, it was Swiss law that was held to be operative, not Australian law. The SFT position appeared to be, ‘we see nothing wrong with what CAS did’. The reasons here lack detail. That said, the SFT appeared to suggest that because CAS is permitted such an unrestricted approach to the facts and law under the WADA Code and its own Codes, it would not be easy for the SFT to assess whether or not CAS decisions are justified.
In other words, the SFT would be reluctant to touch the merits of a CAS anti-doping decision unless there were exceptional circumstances.
The SFT decision then appeared to endorse the breadth of power available to CAS.
The SFT judgment referred to the fact that CAS is tasked with ensuring compliance with international standards within the scope of the worldwide anti-doping regime. The SFT appeared to suggest that the uniform application of this regime could not be accomplished if national federations were permitted to proceed with a different examination of the relevant rules.
Policy questions will remain about whether or not the WADA Code should apply to domestic, team-based sports or, perhaps better expressed, whether domestic, team-based sports should agree to sign up to the WADA Code in the first place.
In the ‘Australian Football case’, the SFT appeared in no doubt that there is room for an international tribunal to have oversight over all sports, whatever their nature, because this permits a more uniform approach than one where each sport or country ‘looks after their own’.
Accordingly, that Australian law or procedure should be preferred – in any way – over CAS’s existing procedures was met with a distinct lack of enthusiasm by the SFT.
As for whether or not the Essendon 34 agreed to a CAS de novo hearing, the SFT view was that ‘actions speak louder than words’. ‘Who cares what the AFL Anti-Doping Code said?’, appears to be the suggestion, and ‘If you wanted to argue that CAS lacked jurisdiction, you needed to do more than make a momentary complaint at the beginning of the process’.
In other words, by agreeing to turn up, and not announcing at every turn that they were there under protest, the Essendon 34 were found by the SFT to have essentially forfeited their right to later complain.
In truth, this is a conundrum most litigation lawyers (whatever their nationality) will be faced with on numerous occasions. When your task is to make the decision maker prefer your case to that of the other side, it does not help your cause to protest about every issue along the way. You have to pick your battles or risk putting the decision-maker offside. However, if you don’t protest enough, or on the right occasions, you can prejudice your ability to complain later. Getting the right balance is, to be frank, a stretch goal because many of these fine judgments can go either way.
Accordingly, whilst the Essendon 34 might have lost this (likely) final battle, it would be unwise to criticise the lawyers who made judgment calls on their behalf along the way, including at CAS and for the SFT appeal. A successful appeal was inevitably an uphill climb, but the stakes certainly made it worth the effort.
For further reading about similar issues on this blog, see: