I am very sorry that this note is so long, more than 16,000 words or forty pages, but this is a very big mess. I am not so much concerned with what the players did, as with what others have done to them. For the most part, I deal with the process rather than the issues themselves. I have tried to avoid or to explain legal terms. I have referred to one reported case and to the writings of two jurists (that are part of my legal fabric). I would ask people, and especially lawyers, to think about the issues. After looking hard at this case over some days, I have come to a clear and settled view, grounded in long experience, that something very bad has happened here, and that the players have been very badly wronged.
Ray Groom is lawyer who was a first class AFL player. He is a member of the tribunal that hears appeals from the relevant anti-doping body. He was Premier of Tasmania. He is uniquely placed to assess these issues. I have seen a memorandum from him expressing similar views on some of these points but in shorter, simpler, and more magisterial terms.
Nevertheless, I commend my own note to your earnest attention.
1 The law (the Code) is bad – innocent but guilty
Under our law, you do not commit a crime simply by performing some act. If my fist connects with your head, I have not committed the crime of assault if it happened by accident. The law requires a guilty mind before my act makes me liable to be found guilty of and punished for committing a crime. It would be monstrous if my accidental punching of someone led to their death and I was found guilty of murder.
That is the general position at our common law. You can get an argument about whether that was the case a thousand years ago, but our parliaments have created more and more exceptions in areas like workplace safety or environmental protection. For policy reasons that seemed to be good at the time, these offences, which are called offences of strict liability, can lead to your being found liable just for your action or inaction – and regardless of your state of mind. You can therefore be found guilty of committing a crime without having a guilty mind. You can, if you like, be an innocent criminal, because you can be found to be guilty of a crime even though your mind was innocent.
Such a result is not just anomalous – it is very dangerous and potentially very wounding. It is one thing to allow guilty innocence or innocent guilt in some welfare or environmental cases where ordinarily the targets are large, wealthy, and inviting corporations. It is altogether a different thing to do this where the reputation and livelihood of the working man are on the line. Such a course of law is very wrong.
Thirty-four players of the Essendon football club are being called cheats. They are being called cheats on a finding made under a law that does not require proof of dishonesty or any other form of criminal intent. This is the fatal vice of the law of this Code. People who ask why the players insist on proclaiming their innocence simply do not understand that no one has ever made a finding of dishonesty against them. They have been left by their betters on a conveyor belt that will lead to their unjustified harm unless they can find a way to get off it.
The Panel said there are two kinds of anti-doping rule violations. One is the presence of a prohibited substance in an athlete’s sample. That was not alleged here. The other is the strict liability model. That was invoked here, and it specifically says that the prosecution does not have to prove intent or fault.
It is each Athlete’s personal duty to ensure that no Prohibited Substance enters his or her body. Accordingly, it is not necessary that intent, fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation for Use of a Prohibited Substance or Prohibited Method……The success or failure of the Use or attempted Use of a Prohibited Substance or Prohibited Method is not material. It is sufficient that the Prohibited Substance or Prohibited Method was Used or Attempted to be Used for an anti-doping violation to be committed.
So, here we have a rule or a law that specifically rules out what has been the basic principle of our relevant common law for a millennium. There does not have to be a guilty mind. The mind might be innocent or just blank. The law then goes on to say that it does not matter if the criminal derived no benefit from the breach. (You might imagine a stern ruler or a totalitarian state saying that that is the law on the question of guilt or innocence; you would know that you are in cloud cuckoo land if it has no effect on the penalty. Yet that, we are told, is the case here.)
Since this innocent but guilty law is at the heart of this controversy, let me set out at some length some observations made by the great American jurist Oliver Wendell Holmes in the first chapter his work The Common Law.
It is commonly known that the early forms of legal procedure were grounded in vengeance… Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done. It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked…..
My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge. In the sphere of contract the fact will hardly be material outside the cases which have been stated in this Lecture. But in the criminal law and the law of torts [civil wrongs] it is of the first importance. It shows that they have started from a moral basis, from the thought that someone was to blame.
Thus the punishment must be equal, in the sense of proportion to the crime, because its only function is to destroy it. Others, without this logical apparatus, are content to rely upon a felt necessity that suffering should follow wrong-doing…..
The degree of civilisation which a people has reached, no doubt, is marked by their anxiety to do as they would be done by.…
It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilised community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.
Criminal law, and a large extent the civil law, looks for someone, in the words of Justice Holmes, to blame. Who should be blamed for what happened at Essendon?
Since this point is fundamental, and it has not been made by any press commentary that I have seen, I may repeat it. These players are being called cheats on the basis of a finding by a tribunal that did not call for a finding of dishonesty. In a civilised nation with rational laws that would be enough to end this discussion.
Now, I am not an expert in this part of our law. You will see that I have a lot of trouble following it. I infer that the scheme is that WADA (the World Anti-Doping Authority) says that you can trust us to identify those substances that we can properly impose a blanket ban on. We will be the judge and jury on the question of what types of substance may give athletes an advantage over others such that ordinary people would consider that their conduct was dishonest – that is, they would think that an athlete using such a substance was a cheat. And you can trust us that it is reasonable to have a blanket ban that does not require us to show an intent to cheat. And then you can trust us to provide the means by which the proved presence of that prohibited substance can be made the basis of an offence irrespective of the intent of the player or the effect of the substance.
That is three big chunks of trust in WADA. Are they worth it? I will come back to that. But, at least as presently advised, two things look clear to me about the proceedings before the Panel. First, there was no allegation, and therefore no finding, that the players intended to breach the rules or gain any unfair advantage. Secondly, there was no allegation, and therefore no finding, that any player did obtain an unfair advantage.
If I am right about that, and this point is fundamental, the Panel finding, even if it were admissible in court, does not in my view warrant a finding that any player cheated. But those propositions do lead to the conclusion that this whole process and its results have been manifestly unjust to the players.
You can see why regulators may want to impose strict liability in some areas of sports business. We are coming to terms with the fact that betting leads to match fixing. That has now reached Wimbledon. The regulators might wish to make a law saying that a player is guilty no matter what his state of mind is if his phone records reveal contact with a bookie. You are strictly liable for what happens on your phone and you cannot even talk to a bookie. They might say that you can have red tomatoes but not green tomatoes, and that if they find green ones in you, or if it is proved that you have taken them, then you are strictly liable no matter how careful or innocent you were in your choice of food.
These are all serious policy issues in a business that is going under on dope and betting. That leaves at least three questions. Who decides these policy issues, and who formulates the law? If the strict liability model is adopted, what safeguards to prevent injustice do you build in to allow for exoneration or amelioration as a defence, and also on penalty whether or not the defence is made out? And, who decides whether the law has been infringed, and what the sanction should be?
One object of this note is to show that AFL players generally have been handed the three worst possible answers to those questions.
2 The second flaw in the Code – the grounds of exemption
So, the first point I seek to make is that the Code is viciously bad for the players because it imposes strict liability in an area of conduct that should require a positive finding of guilt. As a result, they are being accused of doing something wrong under a finding under a Code that does not require proof of wrongdoing. Imagine suggesting to one of our cabinet ministers or bank directors that they could be rubbed out for a year just for doing a prohibited act even though their mind was quite innocent. Put differently, how would you like to live in a regime where you had to prove your innocence?
The next problem follows on from that, which as we will see happens all the time. If you are going to have blanket guilt, irrespective of individual fault, you will need to have some sensible and workable exemptions. You see this all the time in tax laws and corporate governance and anti-trust laws. The government stamps its foot, and makes a blanket law; that law is very unfair, until a body of jurisprudence develops around the exemptions. Then some wealthy and cleverly advised people find ways to exploit the exemptions; the government stamps its foot again, and says that these ‘loopholes’ are being exploited and must be closed, and then sends in the steam roller to crush a couple of walnuts, and the whole cycle starts again.
The first problems with the exemptions here is that they only go to the consequences of a finding of guilt and they do not go to the finding of guilt itself. In other words, you are stuck with being found guilty, but you can just try your luck to get a lesser penalty. You might on a good day keep your ticket, but your record has gone for life. Now, you might want to do this to a polluting company, or a bank laundering money for terrorists, but not for someone trying to make a living. If you want it in political colour, you might do it to a BHP, Telstra, Mr Murdoch, or a bank, but not to a working man.
3 Fixed penalties are obviously wrong here
You might have a fixed scale of penalties for speeding offences or parking tickets, or for, say, rough or dangerous tackles in football, but not where you are cancelling someone’s meal ticket.
Fixed penalties are provided because the lawmakers do not trust their tribunals. They fear that their chosen agents will be too soft or too dumb. The whole function of fixed penalties is to take away any discretion or judgement from the tribunal when it comes to penalty. You see this with some governments imposing mandatory imprisonment for third offences, and we know the trouble that this can give in administering justice among the indigenous peoples.
Because those who formed this Code did not trust the people who would sit on their tribunals to administer it, the players in this case have been exposed to the injustice of a scatter-gun, in circumstances where it is utterly inappropriate that they should be so exposed.
There is another problem with the fixed penalties. You will recall that the Code says that for the purpose of establishing liability, it does not matter if the substance does not work or lead to an unfair advantage. Two players at the one club take the same prohibited substance from the same crook. They are both detected and found liable. For one it worked like a charm and he went from zero to hero and won a Brownlow. It did not work for the other. He got cancer and left a widow and five children. The same penalty?
4 The penalties are demonstrably unjust
As Justice Holmes observed ‘even a dog distinguishes between being stumbled over and being kicked’. If some of the players were to be found liable under the Code, there would obviously be a huge difference in the range of personal culpability and there would therefore be a huge difference in the range of penalties to be imposed to mirror or reflect the different kinds of culpability or guilt.
A 20-year-old will be in a very different position to a 40-year-old player. Someone who has played a few games will be in a very different position to one who has played 400 games. Someone with scientific training or a tertiary degree will be different to someone who got thrown out of school very young, or someone who is a brick shy of a full load. We are talking about footballers and not professional people in the usual sense of that term.
The reasoning of the Panel does not descend to the educational accomplishments and knowledge of the world of any of these young men. But we know that some players did make enquiries and that some did not. All presumably wondered how anything could be wrong when the whole regime was subject to scrutiny by the club doctor, and they had a written assurance from their employer that WADA was OK with it all.
So, the range of penalties should be great – from a slap to a belting. What happens if one of the group has form? Does his penalty get upped, or do they all just get the same whack anyway?
But, no, the Code strips the players of their right to be judged as individuals. The word for this is barbarism. This is one of the main reasons why the conduct of the AFL fixing its players with this denial of basic human rights will call for scrutiny by a court. If a lawyer or agent advised a player to sign up to this Code one-on-one, they would be having a very short and very embarrassed confession session with their PI insurer.
Before the Panel, the AFL may have felt some embarrassment on this. The AFL submitted to the Panel that if it were to uphold the appeal it should note ‘there is no suggestion that any Player intended to use a prohibited substance’ and that ‘if the Panel finds that any Player did use a prohibited substance, it was because he was the unwilling and unwitting victim of the gross negligence of others.’ They might also mentioned that there was a gross breach of trust committed against the players for which the term ‘errant fiduciaries’ would be far, far too light.
There is another equally comprehensive objection to this penalty scheme of the Code in this case. I have a very clear view that if left at large on penalty on a finding of liability against these players, most Australian judges or magistrates, and almost certainly any Australian jury, would take the simple and obvious position that these poor bastards have already suffered enough, and that all those who had been chasing after them for so long had learned enough from their own frightful mistakes, and that it was time to stop damaging the very source of the players’ business, and let everyone get on with their lives. That is the course which common sense and ordinary humanity and decency cries out for in this case. It was also the course that the Australian nation, except for the paid assassins in the press, called out for.
There may, I suppose, be some argument about that, but I find it very hard to envisage a worse result for football or for professional sport in Australia than that which has been arrived at by this Panel. The other footy codes must be doing handsprings.
5 The breach of the double jeopardy rule was unjustifiable
This objection also follows on from the last. Because of the way that ASADA (the Australian Anti-Doping body) presented its case before the original tribunal, it lost. As I follow it – and I may be wrong because I have not seen the original decision – ASADA had therefore proceeded in such a way that that tribunal did not have to consider the culpability of the players – with results that I will come to.
The Panel said that before it, ASADA adopted the submissions of WADA. It changed its case by doing that. When ASADA fought its own case it lost; when it fell in behind WADA, it won. It changed its case in light of its failure the first time round. It looks like ASADA was just inept. Whatever epithet you choose to apply to the failure of ASADA, you will not find one that is complimentary – more importantly, all of these players have had to suffer because of the failings of this Australian regulator. That proposition seems to me to be indisputable. It must weigh heavily on the question of penalty. It did not. That and the issue of delay were two other issues that the players went down on.
Just as badly, because of the failure of ASADA before the original tribunal, that tribunal did not, as I follow it, have to go into the question of the culpability of individual players. If I am right about that, the new foreign tribunal was deprived of the opinion of people who had knowledge of the relevant conditions of employment and the relevant Australian law. This is just another ugly morsel in an ugly dog’s breakfast.
People in business should not underestimate just how threatening this departure from the double jeopardy rule is. Most people in business have had to confront brutish regulators who seem determined to pursue a course against people who regard themselves as ordinary citizens in a way that lacks any relation to common sense and decency. If you fight them, and win, fair and square, you do not expect to have to do it again – a year or so later, against a new prosecutor, a new case, and before an imported bench that brings its own laws, and which does not have the knowledge or experience of the first tribunal. It just stinks.
It is I suppose at least consistent that ASADA was seen positively to glow when they learned that their imported superiors had extricated them from their own squalid mess. ASADA would finish as it started – dumb and ugly.
6 The findings of the Panel on culpability do not accord with the facts of life
This flaw is obviously connected with the previous flaw, because the blundering of ASADA denied the new Panel the benefit of local knowledge on this issue. The Panel decision is written by lawyers for lawyers. The decision must look at best unworldly to many ordinary people, and it is I think a great shame that these lawyers did not address the people that they were putting down in terms that they could understand.
This is also just another case where the Code is a disastrous mine-field for the players. Their name and future is on the line, but once the tribunal finds as a brute fact use of a prohibited product, the onus is on the accused to exculpate themselves. They must suffer the prescribed penalty unless, relevantly:
If a Player….establishes an individual case that he….bears No Significant Fault or Negligence, then the otherwise applicable period of Ineligibility may be reduced….
Do you see what WADA have done to our players? The coppers do not have to show any fault, but to get fair treatment, the players, the accused, have to prove that they acted without significant fault. Can you imagine a more vicious rule for the players?
For people reading this who are not lawyers, you should know that this kind of provision might fairly be called anathema to people who are. It must revolt any fair minded common lawyer. I had to deal with reverse onus laws in a tax tribunal for eighteen years. Governments, like sports administrators, like to look after their own interests and for that purpose they are prepared to make, and commonly get away with, outrageous laws like these. I was always very uncomfortable and from time to time I would publish my disquiet in reported decisions. I can recall on one occasion saying that I now understood how the Stamp Act had cost George III the American colonies. There is not one word from this Panel about the sheer rigour of this law. They stay loyal and faithful to their Code to the bitter end.
Let us just look at two complaints of the Panel against these players. The players made false statements and they did not make enough enquiries. They signed forms and said things in those forms that they should not have said.
Is the Panel aware that about nine out of ten Australians sign tax returns in reliance on their advisers and that whether or not they have advisers, they will almost certainly have no understanding of most of the contents of the forms? What point is there in my reading a form I do not understand? I have had to sign US tax forms for overseas transactions. The forms were horrendous and utterly incomprehensible. But my bank here just told me what boxes to tick, because otherwise they, the bank, could not handle the transaction at all, even though it may as well as been written in Mandarin. It is my way or the highway sport – stop being a neurotic fop.
I also ticked a box that said I would tell Uncle Sam if there was any change in my material circumstances. Now, I suppose that if the refuse hits the regenerator, I may be in a little trouble as a lawyer – but should footballers lose their livelihood because they have been loose in forms?
Our laws are notoriously difficult and the regulations and red tape are notoriously difficult and heavy. But, it is one thing for bureaucrats to make all these laws and make life impossible for ordinary people; it is another thing for people to be penalized in their livelihood and reputation if they get their forms wrong.
Very many Australians have their own superannuation funds. The Panel is probably not aware of this. Most Australians who have these funds will have accountants who use software that generates a small pile of documents each year, about six months after the event, that have to be signed in about 20 different places. Most taxpayers will just sign up – like I do – and because the revenue is involved, the relevant policing is done by the Australian Taxation Office.
If you stop to read these documents, which I would think most people would not, you might find something that might be either hilarious or embarrassing depending on your mood – you might, for example, find that one of the twenty or so documents you have signed says that you called a meeting of yourself and appointed yourself chairman of the meeting and then passed a resolution. That of course just did not happen, and the statement is false. On a bad day, someone might charge you with trying to obtain financial gain by deception. That is theft, and slammer territory.
That is just one example of why these laws, and our laws at large, have to be administered by people who have common sense, knowledge of what goes on in this our world, and a full understanding of the proposition that there but for the grace of God go I.
It is a fact of life, is it not, that we are surrounded by things that we do not fully understand or cannot verify, and that we have to take on trust – like the state of our bank balance, our demerit points for driving, our superannuation entitlements, our rights at work, and so on. It strikes me as very sad and unreal that these young men are being held accountable because they trusted their employer – and their employer disastrously betrayed that trust.
Some of the comments of the Panel are so puerile that you wonder whether they know anything about the real world at all. Some of them look like rote particulars of negligence in a third rate running down case before the justices at Broadmeadows – ‘The Players have all received education in anti-doping’, ‘No Player appears to have made use of the WADA hotline,’ and ‘No Player appears to have conducted internet searches for Thymosin or to have made any other inquiry as to its elements or properties.’
In the name of heaven, how many people ring up the wallopers to ask them a legal question? What kind of answer would they expect? What if the players had the same view about WADA that most Australians do? And what do the doctors who look after these learned lawyers say about the sense of lay people consulting the internet about drug use? How would the AMA react to the suggestion that foreign lawyers are telling Australians how to deal with their doctors?
These errors show how wrong it is to ask outsiders to assess conduct by reference to standards that they neither know nor understand.
It may be instructive to compare the duty that the Panel imposed on these young men to make enquiries of their employer with the duty that the parliaments of this country put upon the directors of public companies like the big banks, BHP, or Telstra. Under what is called the ‘business judgment rule’, directors are not liable for a business judgment if they make the judgment in good faith for a proper purpose, if they do not have a material personal interest in the subject matter of the judgment, and if they ‘inform themselves about the subject matter of the judgment to the extent they reasonably believed to be appropriate’, and they reasonably believed that the judgment is in the best interests of the corporation.
These company directors are excused if they informed themselves about the subject matter of the judgment ‘to the extent they reasonably believed to be appropriate’. That, I infer, is what the relevant players did at Essendon in this case. If that is so, this Code and this Panel have imposed on these footballers at Essendon duties in their affairs that are more onerous than the duties imposed by our parliaments on the directors of BHP, Telstra, and the banks. That result, if it follows, would be hilarious if it were not so tragic.
To go back to this case and what lawyers call the ‘merits’. Is it the fact that these guys would have walked away unless these three lawyers had found these footballers told porkies to the wallopers? And for that they lose a year’s work? If so, the average Australian would say ‘Tell ‘im ‘e’s dreamin’.’ And none of the Panel would understand that.
Now, these are all matters of degree. People will have different views on how far these players should have trusted their employer back in 2012 before this sordid little mess became a national cause célèbre. I know some people who are very keen to scold the players. That is a matter for them. They may care to reflect on the advice that the narrator in The Great Gatsby says that he got from his father at the very start of that book.
Whenever you feel like criticising anyone, just remember that all the people in this world haven’t had the advantages that you’ve had.
You can conduct your own experiments about this. Are those who condemn the players more likely to come from the jet set – like the CAS crowd – than those who incline to be more understanding?
7 Aren’t they guilty anyway?
This is a furphy, and a bad one. When you look at how these young men have been worked over, this point is as important as the problem of being found guilty while you are innocent, or being innocent but guilty.
Our legal system is not concerned with absolute truth. We leave that to God, the Fourth Estate, and to invincible gossips – and there is a lot of overlay in the three categories. We only say that someone is guilty when that decision has been made after due process. The need for due process is so much clearer when a finding of dishonesty is made that reflects on a person’s reputation and livelihood. For the reasons I have endeavoured to spell out, I do not believe that due process was accorded here.
The people at the pub, or over the back fence, or vindictive journalists or regulators, can pontificate as much as they like. Under our legal system, we are presumed to be innocent until a finding is made against us of guilt with due process of law. Since I do not believe that has happened here, the Essendon players remain in my eyes innocent.
This proposition may conceivably be tested in court. If, say, a newspaper alleged that these men were cheats, and the players challenged that allegation in court, the publishers would want to consult some very good lawyers and experts before determining to resist that challenge on the ground that the allegation is true, that is, on the ground that they will contend in court that the players are cheats – where the onus of proof is squarely on the publisher, and where the consequences of failing in that plea are in the Hiroshima category.
In short, the findings of the Panel on personal culpability look to me to be the soulless constructions of eminent black letter lawyers rather than the findings of sensible people of the world. It really does look like bullshit to me. They have failed to learn the facts of life Down Under.
8 The problem with the standard of proof
In the previous note, I referred to the difference in the standard of proof in civil cases (the balance of probabilities) and in criminal cases (beyond reasonable doubt). Both of those tests are well understood by lawyers and juries, and the lawyers and judges are firmly discouraged from flirting with the wording or trying to prepare a gloss. But in some civil cases, the consequences of an adverse finding may be so serious that the law imposes an intermediate level of proof which is somewhere between 50/50 and beyond reasonable doubt.
This law has always caused me problems on tribunals. No one has been able to explain it to me satisfactorily. All I do, I think, is try to ensure that in such cases that any finding I make which may, say, cost someone their job, is one that I can sleep with as not being unfair to a person who enjoys the presumption of innocence.
There is no science or formula in that – you just have to make a decision and be able to live with it. I referred to the comment of Chief Justice Latham about needing more evidence to convict for murder than to hand out a parking ticket. I suspect that my approach is similar to that which the Panel invoked, but in light of their actual decision, I cannot be sure.
The name of the Court of Arbitration for Sport (CAS) is a characteristically arrogant misnomer. Arbitrators are not judges, and their tribunals are not courts. The whole bloody point of arbitration is to get away from courts and strict procedures, and to operate in confidence behind closed doors. One of our great constitutional cases saw the High Court slap down industrial arbitrators getting ideas above their station and acting like judges or courts. Two of the Panel would not know that, and the third may have forgotten it, but this little grab for power and respectability by this foreign outfit says a lot about its sponsors and champions. The CAS is not within a bull’s roar of a court, and those who sit on it know it. Or they bloody well ought to.
The CAS panels have nevertheless evolved their own standard of proof. They have made their own law. In these cases, the standard is ‘comfortable satisfaction.’ We are told that this is a term of art, but the Panel did not seek to elucidate the meaning or indicate the reach of that term. It is not part of Australian law, and it is important for people to understand that the most important aspect of this case – the degree of satisfaction before a finding of guilt can be made – is not made according to the law of Australia, but a doctrine developed by an international arbitral body – by gaggles of unelected foreign lawyers. It is made under a law that the Panel did not elaborate on. The Panel asked us to take this law on trust. Should we do that? Is it safe? Can we rely on them? Should we interrogate them?
There you have another reason why the AFL was very wrong to have adopted this process.
The Panel did not say whether the CAS doctrine was better or worse for the players or if it was different to the Australian law. It merely said that it was satisfied to the required level. You might in a bad dream put the required level somewhere between 51% and 99% and just say that at whatever point you draw the line, this Panel was satisfied that it had been reached.
In the course of its reasons, the Panel said expressly that ‘In so far as the Panel is sitting in Sydney, nonetheless, it is deemed to be sitting in Lausanne, and Swiss procedural law applies.’ I gather that that means that they apply the Swiss laws of evidence. I know as much about those laws as a majority of the Panel knows about the laws of evidence of Australia. Perhaps they are not bound by any rules of evidence. There is nothing in the decision that suggests that they are, and there is a lot of hearsay and other material that would not be acceptable in a court. These charges would never have got off the ground in a real court under our law. This is another reason that this process is potentially diabolical for Australians.
It is not hard to come unstuck with these foreign arbitration agreements. I heard a case in California about twenty years ago. It involved a very large armaments contract. The American buyer had allowed the Australian contractor to say that the contract would be governed by the laws of Australia, or the principal state where the contractor resided. When the Americans applied for an interlocutory injunction, I wondered whether they were aware of our practice and procedure on such applications relating to what are called undertakings as to damages. (The party asking for the temporary holding order has to promise to compensate the party restrained if it loses the case at the end.) It became apparent in the course of the argument in Los Angeles that they were not. They lost, and I did not have to deal with any complaints that were no doubt forthcoming about the drafting of this arbitration agreement that left the Americans exposed to findings under foreign laws that they did not properly understand. (I might say that that clause was far more expeditious and lawyer-throttling than the Byzantine affair here. The dispute had to be notified in five days and heard within ten days. The hearing had to finish in a day, and the arbitrator had to give a decision that day or the next. I commend this derailing of gravy trains.)
The Panel did however reject the proposition that the prosecution is obliged to ‘eliminate all possibilities’ which could point to innocence. This is not my area of practice, and I do not know to what extent this means that the prosecution has to exclude any hypothesis consistent with innocence, or the like. That is to say, I do not know whether this restriction makes the relevant Swiss law different to ours and if so how or why.
But the proposition remains. The Panel says that the standard of proof imposed by the relevant foreign law is that of ‘comfortable satisfaction’ and then says, without more, that that standard has been reached in this case.
That mode of reasoning is hardly satisfactory intellectually to lawyers. It will be even worse for the parties, because they are left up in the air about just how the process has been applied. Has this Panel discharged its legal obligation to articulate fully and fairly the premises on which they hang their conclusion?
I must say that at best I am left in doubt on this question, and I notice from the press that I am not alone in feeling like being left up in the air. The members of the first tribunal who knew more about the matters in issue were not so satisfied. This panel was. I am in trouble detecting the grounds of the distinction. And if independent journalists are not convinced, where does that leave the players or Essendon supporters?
For my own part, I cannot understand how experienced lawyers could sleep easily after subjecting these players to these consequences on this evidence. I find it very hard to resist the inference that it was WADA who got the benefit of the doubt, and not the players. Well, Gentlemen, that is not the way we lawyers do things down here.
That brings me to another point. In my view, the Code and this procedure are shockers for the players. They are unduly loaded against the players. As I said, someone advising the players independently would never have advised them to agree to anything like this. I find it almost impossible to imagine a decent independent lawyer coming to a different view.
This Code looks to me to have been prepared for individual sports where cheating by drug use was out-of-control – like cycling, swimming, weightlifting, or athletics. This Code is utterly inappropriate for people playing team sports in Australia. It was developed where a very hard line could be and was taken and not resisted by those running the relevant sports – who have their own problems with corruption anyway.
I can say with considerable confidence that most independent lawyers on being briefed to conduct a hearing in a case like this against a whole team who were in substance being accused of cheating would, after about five minutes with the brief, have said to themselves: ‘Shit. Who signed these poor bastards up to this?’ There is after all something odd about a jurisdiction that depends upon contract being exercised against people who have not separately, so far as I can see, agreed to the relevant arrangement.
There is simply no argument that this was a very bad wicket for the players to bat on. Yet not once does the Panel make any comment about that fact, or show any morsel of sympathy, or one isotope of mercy. They just sit on the conveyor belt and coldly and clinically take it to its destination. The players do not take one trick, even though they had won by something close to a walkover the first time around. It is all very unsettling and discomforting.
Now doubtless, the Panel would say that the failure of the players to take a trick is the proper result of the proper application of the Code. The trouble with that response is that the players are footballers not jurists. All that they know is that they lost on everything in a way that looks demonstrably unfair. It is not for them to divine or define how they suffered that trainwreck.
There is one final point on the standard of proof. On one issue, the players had the onus. I have not found in the reasons any discussion of the standard of proof in that context. The issue is fundamental. This is another example of a bad Code at work.
9 How would this kind of issue be dealt with elsewhere?
How would this kind of case be dealt with elsewhere? As it happens, I am in a position to give a reasonably confident answer to that question, at either end of town down here, for the benefit of our visitors.
Take a case occurring at what we call the Big End of town. Let us say that some over-zealous executives have engaged in some trading that brings a bank into disrepute or bad odour with the regulator, and which might cause it to suffer what we fondly describe as reputational damage. There has been real dishonesty. Billions have gone west. Innocent people have been badly hurt. The regulator unleashes a squad of plods who miss the point, and both sides retain platoons of lawyers, PR consultants, and the rest. At some time, the lawyers will get together in a dark room, and hammer out an agreement. Millions or billions of dollars will be transferred to the Consolidated Revenue as some kind of a fine, or for costs, or pursuant to some kind of undertaking. There may have to be a seal put on all this by a court, in which case you might see the most unedifying spectacle of the court agreed to accept a statement of facts agreed to by the lawyers for the parties, which may or may not occasionally bear some resemblance to the facts, or look like a composition of the Brontë sisters. One way or another, the deal will be blessed. No one will be publicly examined or humiliated. The shareholders will just get a slightly lesser dividend, but the bonuses of the people concerned will not be affected.
The whole thing is utterly disgraceful, but it goes on all the time. Somehow or other, our governments permit these deals to be done like this – in no small part, I think, because they are being bought off. Even where there is litigation in matters alleged in court and the miscreant officers finally agree to settle, they go to huge lengths to document the transaction and to bury their role in it, so that their benevolence to the community remains monastic and anonymous.
I can speak with even more confidence about what might happen at the other end of town. I have been dealing with disciplinary cases for the Melbourne Fire Brigade since about 2003. I can say with considerable confidence that if a tribunal such as mine were to rub out firefighters on the basis of an offence of strict liability and a fixed penalty applied regardless of the level of personal culpability, then homeowners in Melbourne would want to pray that there was no fire during the succeeding period of civil industrial unrest that would arise while the Comrades expressed their solidarity until the firefighters were reinstated. They would go out and stay out until the decision was withdrawn.
The football players, it seems, in this case, live in the worst of all possible worlds. It is not unusual for our governments to provide more solace and protection to the privileged classes and the Establishment, than to people in the position of these players. Equality is a myth foregone in our law. Their additional misfortune is that their industry is not one where as yet they can exercise industrial muscle so as to meet outrages like this in the same way that orthodox trade unions would. They are in a very bad no-man’s land – somewhere between here and Lausanne. They are what terrorists call soft targets.
10 What was the nature of the CAS inquiry?
There are rules about cheating. They are meant to protect other competitors, and to maintain standards. They are enforced to protect people at large, and not to punish those found guilty of cheating. Punishment is reserved for the courts. The CAS is a disciplinary tribunal, and not a court. Tribunals like that have no power to punish. Their role is simply to protect those interested in the sports that seek their intervention.
This power is similar to the power of the Court to discipline a barrister, which our High Court has said is ‘entirely protective, and, notwithstanding that each exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.’ In so holding (New South Wales bar Association v Evatt (1968) 117C L R 177) the High Court overruled the Supreme Court of New South Wales which had held that ‘as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown toward a young man who had not understood the error of his ways.’
Even putting aside the word ‘mercy’, this ruling at first sight might appear to be against the interests of the Essendon players. The reverse is the case, in my view. What that ruling says is that the role of the tribunal is to enforce discipline for protective purposes. For protection against what? Cheating. But there was no finding of cheating. The Code says point blank that no fault or intent need be found. All that this tribunal did was to make a finding on strict liability and then clear the way for the application of a mandatory sentence to take effect, irrespective of the justice in each of the thirty-four separate cases. The whole object of this scheme in this Code is to banish judgement on any conduct or its consequences and then confine the tribunal to brute facts and ineluctable consequences. To discover if cheating occurred, we have I think just to trust WADA.
There are good reasons why the Panel may not have referred to this part of our law. One is that the majority did not know about it because they do not practise our law. Another is that our law probably does not apply in this hearing. Another is that even if it did, it was probably displaced by the provisions of the Code. Is that a good result for Australia?
It is a shame, though, because a reflection on this part of our law may have caused the Panel to reflect more deeply on just what it was doing and why. Justice Holmes said that our law started with looking for someone to blame. Before you do that, you need to point to some harm for which the person is to be blamed. The Panel did not undertake any such enquiry.
Had they done so they may have inquired about the utility of their role if the only relevant harm was the risk undertaken by the players as a result of putting their trust in their employer. It is hard to explain why the Panel did not say at least something about how utterly inappropriate and unfair was the operation of the Code in this case. What was the purpose of rubbing these guys out? What has WADA and the CAS achieved? What good have they done for the people of Australia?
Did the CAS ask the correct question in this case?
11 The pressures applied
I have no personal knowledge of the pressures brought to bear on these players during these proceedings, but after more than 40 years acting for or against bodies like the VFL, the AFL or these regulators, I have some understanding of how they operate. When I acted for the VFL in the first half of the 1980s, the late Jack Hamilton was an immensely shrewd and capable administrator. At any one time, he was surrounded by 12 men who were looking to knife him in the back, and he would walk across the town from Jolimont to visit us because he needed the fresh air and because he did not trust the phones.
The monolith that the AFL is now is a very, very different beast, and the problem that we have is the same that we have with almost any large corporation. They become utterly soulless. Their leaders have immense egos and equally immense needs to save face. Most of them quickly forget how they got there. There are many words that you do not mention in these boardrooms. Two of them are humility and compassion. I have no doubt that the AFL acted in a brutally arrogant and self-protective fashion in this case. For the reasons that I have given, or tried to give, the AFL in my view does have a lot of explaining to do.
The regulators tend to be different. They have a chip on their shoulder because they are not respected and they are about as popular as parking attendants. They are generally unloved, and in this case they appeared to be totally useless.
The bullying of the regulators has, I am ashamed to say, a legal backing. I have described how large corporations cut deals involving millions of dollars to protect their senior people – and to rip off their shareholders. That is for the most part a privilege of only the rich in this country. This serene deal–cutting at the expense of others is not available to lesser mortals – like the Essendon footballers.
At that level, what is called plea bargaining operates very differently. ‘Either, Sportsman, you agree to play ball with us and bow your head and say sorry – even for something that you deny doing – or we will throw the book at you and make life hell for you and you will be three times worse off – and let us tell you, Sportsman, that we have been given all the tools we need to be just as brutal as we like.’ One of the more awful consequences of this part of the failure of our law is that it gives the power to act as judge and jury to precisely those people who will abuse that power.
It is not hard to find examples of regulators offering deals at the end of a gun or heavying people for exercising their legal rights. Here is an example from the press in 2014 when the players lost in the Federal Court after the AFL squashed a Supreme Court challenge. John Fahey, a former politician, and former president of WADA, attacks people for challenging authority in the context of the refusal of a deal offered by the local regulator.
“I welcome the Federal Court’s decision,” Fahey said.
“The governments of 194 countries have accepted the code in support of clean and ethical athletes and officials. To me it was beyond belief that one club in one city of one of those countries would believe the rules should not apply to them.
“It is time certain people with big egos and fat wallets threw them both in the drawer and started focusing on 34 young men and their future in sport.
“Refusing to face reality only increases the likelihood of longer suspensions for the players. I sincerely hope that common sense now comes into play.”
By arguing in Federal Court that ASADA’s investigation into Essendon was unlawful, club chairman Paul Little – under increased pressure given the events of the week – and Hird hoped the 34 show-cause notices issued to past and present Bomber players would be annulled…..
When these show-cause notices were issued by ASADA in June, the agency’s new CEO, Ben McDevitt, tabled an option that might have resulted in the players serving backdated bans and resume playing from round one next year, provided they accepted they took the banned drug.
Well, there you have a politician being a heavy-handed politician, and a regulator being a heavy-handed regulator, both unattractively. Fahey was hopelessly wrong, which is not uncommon, but in the events that have happened we now see that the players have suffered twice the penalty that they could have suffered. Why? Because they refused to bow their heads and play the game as their enemies wanted them to do. They had been impertinent enough to seek the views of Her Majesty’s judges. Is that your idea of justice?
I have had to deal with this problem in thirty years of sitting on tribunals, and I am very often deeply ashamed of what might go on. No one – not the most senior of Law Offices or Crown Prosecutors – has ever been able to explain to me how offering a discount for pleading guilty does not constitute enforcing a penalty against someone who exercises their civil rights and pleads not guilty. This is a travesty, and a breach of that constitutional document made 801 years ago that says that our government will not sell, deny, or delay justice to us. This particular travesty arises from another failure – to ensure that our justice system can cope without having to pressure people – or at least ordinary people – to surrender their rights.
There was another and better-known part of Magna Carta, the clause that says ‘we will not go or send against’ any man ‘except by the lawful judgement of his peers or by the law of the land.’ The pressures brought on these Essendon players are simply another part of the injustice that they have suffered. It is just wrong for anyone to accuse them of seeking legal redress unnecessarily, when their rights have been so often infringed, and when they are only where they are now because the enemy was allowed a second bite at the cherry.
I think the one thing that is common ground here is that the players have been put through hell for years. God only knows what troubles we might see as a result.
12 We are not talking about sport
The regulators seek to give themselves a gloss by saying that they are protecting sport. Anyone who claims that role in any part of this planet at this time is courting contempt for reasons I will come to. But in this case, we are not talking about sport. We are talking about people plying a trade in a part of the entertainment industry called professional football, and we are talking about people being run out of that trade by regulators and having their lives and reputations ruined. This is too bloody serious is to be dismissed as sport.
We are talking of sport that is conducted as a business – that is, for profit. For too long now, bodies like IAAF, IOC, FIFA and ICCB have been competing to see who can show themselves to be the most corrupt and untrustworthy. You would likely defame someone if you said they were a sports administrator. Blatter is just the most obvious at the moment. There are shockers everywhere, and what is most shocking is the sublime and undeniable arrogance of those who stay on even after the Titanic has hit the iceberg.
You can see this even now in the AFL and CA. You could see it with the Adolf Hitler reaction to an eight year suspension by Blatter. What was more revolting was the ban itself. Presumably this stunt was perpetrated in the belief that the little crook will die in the meantime. Is any administrator in the world going to ask anyone in the world to believe that if Blatter lives for eight years, he will somehow become trustworthy? These galahs just live in a different world.
Just look at what has happened. We now have a bookie sponsoring a grand slam tennis event – when match-fixing reaches tennis. The march of live betting looks unstoppable in a nation already corrupted by pokies and dependent governments. Cricket has been junking itself since Mr Packer arrived and has now plumbed a new depth with 20/20. The Australian authorities chickened out in the face of Indian bullying, and later joined a cartel with India and England to carve up the game – and the moulah. The players behave badly – but not as badly as the tennis players. Armstrong was a serial bully, liar, and crook who has cast doubt on about every person who excels in sport. Which ‘sport’ is the most corrupt? And look what replays have done to umpiring and what betting ads have done to our last hope of decency.
It is about two generations since any responsible or sane parent could suggest to their children that they might have a role model in one of the sports heroes. Harvey, Coleman, Rosewall, Thomson, Elliott, and Brabham are gone from our sporting lives, and sport went out the window with them. There is hardly any such thing as innocence in any professional sport, and any functionary claiming to have achieved it is living in one of those bubbles of delusion for which they are properly derided.
13 Lindy Chamberlain
Let us look at some of the more obvious points of similarity. Both cases involved complicated circumstantial evidence. They both involved difficult expert evidence. The accused in each case were heavily attacked over differing accounts they had given of aspects of the case. The legal system showed itself to be seriously flawed in each case. In each case it took a long time for the truth to come out. Despite all these sources of difficulty, nearly everyone in Australia had a view on the case, and once they had adopted that position, they hung onto it like a koala on a gum-tree branch in a cyclone. There is an iron law at work. The most ignorant are the loudest. There is bullshit everywhere. Justice ultimately came out, thank God, in the first case. We must wait to see if it happens in the present case.
May I be allowed two comments? I said that the case of Lindy Chamberlain showed flaws in the legal system. The verdict was appealed right through to the High Court of Australia. Two Justices analysed in great detail the problems with the Crown case which in their view made the verdict insupportably unsafe. The majority of the Court was not sufficiently moved to disturb the verdict. The obvious policy of respecting the verdict of a jury on issues of fact won out for them. There were therefore very substantial juristic and policy reasons for the division in the High Court which we can now see as showing a flaw in the system which was only cured after a Royal Commission. I have not seen any justification for what I regard as serious failures of the legal system here.
The second thing is that Lindy Chamberlain was criticised for what she said and how she reacted. No one could ever tell me what the textbook mode of reaction is for a mother who has had her child taken and killed, and who is then falsely accused of having murdered her own child. What, then, is the textbook reaction of professional footballers who have been wilfully let down and deceived by their club and who are then falsely accused of cheating?
14 Who or what is WADA?
WADA is an emanation of the IOC. That is not a good start. The Thought Police have to be cleaner than the wife of Caesar. How does WADA go about that?
The business of athletics has been notoriously badly run for years. Its administration has been corrupt, and its athletes have been drugged. Russia, not surprisingly, has been a serial offender. The whole sport is rotten.
WADA was commissioned to enquire into IAAF. It produced a most damning report that documented cases of officials extorting bribes to cover up positive drug tests which had allowed drug cheats to continue competing. It found breaches that extended ‘to criminal acts of conspiracy, corruption and bribery within the organisation’s leadership. WADA is alarmed that this ultimately allowed doped athletes to evade punishment and sanctioning for a long period of time.’ When a body has been gripped by corruption for years, as this one had been, it is impossible for those directing it to say that they should not be held responsible. They knew or should have known – this is the VW dilemma. You would therefore expect all of the board to resign if they had one iota of decency or, for that matter, one iota of respect for athletics. And you would expect WADA to back those resignations.
One of those directors is the famous athlete Sebastian Coe. Surely WADA would expect him to resign. No, Mate. After he had handed down the report, Mr Dick Pound, a former head of WADA, said that Lord Coe was the man for the job to lead the shattered IAAF back to health. This was so even though as a director of IAAF, Coe was looking straight down the barrel of a WADA finding of ‘a complete breakdown of governance structures and accountability.’ Interpol immediately issued a warrant for the man Coe will replace as president.
The IAAH has its HQ in Monaco. Tax and the climate, old boy. Coe had eulogised the previous president. The current IOC chief comes from Adidas. He is a mate of Putin and Coe. He says – of course – that Russia should be there in Rio. Coe was with the other team, Nike, and he wanted to stay on with them as president of IAAF. Just think of the size of the store-rooms for brown paper bags at Adidas and Nike. The Pound Report – it is thrillingly described as ‘Independent’ – said that Coe’s mate and right hand man Nick Davies was well aware of Russian skeletons. Dick Pound is also an IOC veteran. It looks like Seb got a heads-up on how Dick would respond. He looked serenely relaxed during the press conference – as he looked at his luxury watch. (And what a blue to be spotted with one of those on in an outfit like the IAAF.) Coe’s predecessor is headed for the slammer. He employed two sons at IAAF and his lawyer looked after anti-doping. It will be a real hoot when his lawyer tenders Coe’s eulogy as character evidence. Serious Groucho Marx stuff.
It is hard to imagine a clearer case of a breach of fiduciary duties. How on earth can anyone expect this body to clean up its act if it is now being entrusted to the leadership of someone who was there on the board all the time when it got into the mess from which it now has to be extricated? Will he sit on judgment on himself? When will he be implicated next? Is this just not another case of members of the Old Boys’ Club looking after each other? In the name of heaven, this man is a champion, a lord, and has been presented to the Queen. Well, yes, old boy, but, you see, appearances matter, and the fact is that he was there when the ship started to sink, and no one will trust us if we leave him now in charge at the wheel.
Instead we get bullshit like the following from one sports administrator:
We reiterate our unwavering stance against doping in sport and require that the IAAF, under the leadership of president Seb Coe to take all actions necessary to deliver a level playing field for all athletes, worldwide. We want to see real action before Rio 2016. We acknowledge that there is an enormous amount to do to restore the credibility of the sport of athletics. We share the confidence that the President of the Independent Commission, Dick Pound, has placed in Sebastian Coe as the right person to lead the IAAF into a new era.
Pound’s endorsement is in neon. They want to murder language as well as ethics. His Lordship said:
I am extremely grateful to the WADA Independent Commission for its work and for the recommendations it has made. The corruption that it has revealed is totally abhorrent, and a gross betrayal of trust by those involved. Even though each of the impacted doping cases was eventually resolved with lengthy bans for the athletes involved, I recognise that the IAAF still has an enormous task ahead of it to restore public confidence. We cannot change the past, but I am determined that we will learn from it and will not repeat its mistakes.
Coe was involved in the breach of trust. The Russians should be rubbed out. Their defence is that everyone’s a crook. Well, it looks like everyone at IAAF was. How can you try to act tough against a thug like Putin when you don’t even look pure? If Dyson Heydon had come across a stunt like this in a union official, he would have gone troppo about errant fiduciaries – and he would have been right.
Dick Pound is one of those ‘holier than thou ‘guys who has been around sermonising for years. He will lecture people about ethics at the drop of a hat. It is apparently too much to ask that he might know better. When I saw Dick Pound endorse his failed buddy Seb Coe on TV, for some reason my mind straight way turned to those glorious lines of Queen Margaret:
And where’s that valiant crookback prodigy,
Dicky, your boy, that with his grumbling voice
Was wont to cheer his dad in mutinies?
What you see here again is the incredible, unstoppable arrogance of sports administrators. They will never own up. They are too thick or too proud to enjoy a term and a style less than that of the average African dictator.
This is how The Guardian called it.
When the killer question came, Dick Pound gently rocked on his seat and took a discreet breath. “Given what you have said about the IAAF council, and that it must have known what was going on in Russia, do you believe Lord Coe’s position remains tenable?” he was asked.
There was a deliberate pause. Everyone knew Sebastian Coe’s tender career as the head of global athletics was at his mercy. A few damning words would have pulverised it. Instead Pound, that ice-veined investigator of Russia’s sporting corruption only two months ago, put a warm protective cloak around the IAAF president. And so a week that started with Coe on the ropes ended with him receiving an unexpected dose of smelling salts.
“I think it’s a fabulous opportunity for the IAAF to seize this opportunity and under strong leadership to move forward,” explained Pound, whose former role as an outspoken head of the World Anti-Doping Agency gives his words more credibility than most. “There is an enormous amount of reputational recovery that has to occur here but I can’t think of anyone better than Lord Coe to lead that.”
You could almost hear the sound of jaws plummeting through the floor of the Dolce Munich Hotel and into the basement. Understandably so.
Apparently, it takes a crook to catch a crook. The truth is, is it not, that you what would not believe one word of any one of these whackers said, even the word ‘the’. What credence would I give to any pronouncement of WADA? Any of the following – nil, nought, nix, zilch, or Sweet Fanny Adams.
We might have known we would have problems with Seb as the IAAF president when he refused to give up his Nike contract. A kind of ethical blindness falls over the eyes of people when they take a job like this. But Seb holds an ace at IAAF. The guy he just beat for the job was a pole-vaulter from the Ukraine. Putting a Ukrainian pole-vaulter in charge of a corrupt athletics body might be a little like putting a drunk in charge of a distillery. Seb’s predecessor came from Senegal and was in the chair for sixteen years. Seb says he did not know of corruption. Seriously. His Lordship really is playing with the faith of fifty million people, to adopt that well-known comment in The Great Gatsby.
Meanwhile, 34 young Australian have been put out of work at the instance of WADA, and one very compromised English lord is hanging on to an office he should not hold on the spontaneous endorsement of his mate, WADA’s boy, Dicky. And two of the three wise men have gone back to Lausanne or London confident that they have taught those commoner yokels down there a thing or two about how people on top of the world look after things.
Those who seek to persecute Essendon might wish to reflect on the company they keep. The trouble with all these outfits is the same. If you lie down with dogs, you get up with fleas. ‘Reputational recovery’ – what a preposterous term! – is out of the bloody question. Give us a bloody break, Dicky.
And then there is this pearler. How will this little duet between Dicky and Seb go down at Windy Hill? They are broken on the wheel because they got conned; Lord Seb presided over crooks for a decade and flies on. And it’s all thanks to Dicky and his mates.
There is one final point about this foreign enforcer. When emanations of government in this country engage in litigation, they are customarily subject to expectations and protocols about how they should conduct themselves in dealing with the people who have entrusted them with power, and who pay their bills. We don’t get that protection when we are dealing with guns for hire from out of town. Just as the CAS is not a court, so WADA is not one our enforcers. We might hope that people who are here on sufferance might behave more circumspectly.
15 A vicious, totalitarian law
As I said, this Code was not made for this kind of case. It was made to deal with established crooks. The word Draconian is abused, but here we have a real one. This lot would make Putin blush and Stalin jealous. All we are missing is the midnight knock on the door.
We have seen that WADA does not have to prove fault but the players have to prove its absence in order to beat the max – irrespective, we are told, of the justice of each case. You will find these sweeping blankets in anti-avoidance tax acts, and they have proved notoriously difficult to keep under control. The first reaction of the judges is to say that the parliament could not really mean what they have said, and there then follows the kind of minuet that I have referred to.
But the better analogy here is legislation designed to deal with terrorism or organised crime. There are well known models for such laws. They are deliberately savage to deal with savage people. The consequent risks to our civil liberties are equally well known.
The level of corruption in sports administration is as notorious as the use of drugs in so many sports. What we have here is the extreme reaction of an officialdom seen to be inept or corrupt in dealing with widespread drug use. This savage law is aimed at presumed crooks. That is why it is drawn from the start to override the basis of our law – where people are presumed to be innocent – and reverse the onus of proof. ‘We will pay the best legal minds to create a bullet-proof wagon to skin any bastard that gets in our way.’ And the invasions of rights and obvious injustices predictably follow.
It is an outrage that Australians should be subjected to such a dreadful foreign law.
Let me give you some examples of how these guys operate. I cannot recall seeing one decision of our courts referred to by this Panel. They hand up lots of Latin and oodles of cases of themselves, the CAS. They presumably were decisions made by lawyers appointed as arbitrators. We do not know who these people are or what their qualifications or predilections might be. Do we have the same trust in them that we have in Her Majesty’s Australian judges who have the invaluable protection of the Act of Settlement and who conduct their proceedings in the cauterising glare of public office and public scrutiny? Not on your bloody Nelly, Mate.
Well, what kind of doctrine gets propounded by these anonymous piece-work hot-shots who now rule the lives of our athletes? Here is a quote from another CAS Panel on the contentious subject of the duty of an athlete to inquire about what they are taking. (You will of course bear in mind that the consent form so heavily relied on by WADA and the Panel said point-blank ‘All components of the intervention/s are in compliance with current WADA anti-doping policy and guidelines…’)
It is not open to an athlete simply to say ‘I took what I was given by my doctor who I trusted’… At the very least, an athlete who has been given medicines by a doctor should specifically ask to be informed of what are the contents of those medicines. He should ask whether the medicines contain any prohibited substance. He should attempt to obtain written confirmation from the doctor that the medicines do not contain any prohibited substances.
It will no doubt be objected that to require an athlete to ask such questions and to obtain such confirmation would be to place too heavy a burden on the athlete. The Panel rejects such an objection. It rarely, if ever, is the case that medicines are given to an athlete in circumstances in which it would not be possible for him to ask such questions or to obtain such confirmation.
If an athlete wants to persuade an anti-doping tribunals, or CAS panel, that he has been found to have a prohibited substance anybody, but that he was not at fault or negligent, or that he was not substantially at fault or negligent, he must do more than simply rely on his doctor.
This is what lawyers call a gloss on a law or rule. It is a commentary that if accepted as a precedent comes to be accepted as law. It is a law made by unelected foreigners in this case. Do you think that that is a fair and good law to be applied to Australian athletes? If so, do you think that it is appropriate to apply such a law simply by having it imported in here by foreign tribunals? If so, how do you suggest that athletes might go about finding out about this law? For that matter, how might their lawyers go about finding out about this law? More importantly, is this a sensible kind of law to apply to the workings of an AFL football club that has a resident doctor?
For that matter, how do we know if the lawyers who succeed in getting their pronouncements adopted into de facto law are up to it? Whose word do we trust on that question? Are we right to have our athletes subjected to rules and the enforcement of those rules by people we have never heard of and who are beyond our control and outside our jurisdiction?
I suspect that the international thought police would say that local bodies could not be trusted. I can understand that as a general and historical proposition. But we are not some jumped up banana republic that is mired in corruption. We are a mature, civilised nation that has a respect for the rule of law that is unequalled and we produce far more than out share of the best sports people in the world. It is madness that we should entrust them to outsiders who do not know us or our way of life and who may well not share the principles we live by.
Let me give another example of how Australian lawyers might have difficulty in following this kind of law–making. The players naturally objected that WADA should not be able to change its case, and they referred to a part of the code that on one view would preclude this. ‘The Panel considers that the provision in Article R56 of the Code purposively construed draws a distinction between re-formulating an existing argument and advancing a new and distinctive argument. It is inherent in the forensic process that sometimes a party’s argument is developed and at other times discarded.’ The Panel then went on to reject the submission of the players, as they did almost every submission made on behalf of the players.
One of the additional grounds that they gave is that the players were ‘estopped’ from advancing their submission. Estoppel is a doctrine of our law that says that if you state your position and the other side relies on that statement and changes its position, you may be precluded later from changing your own position. We commonly regard that law as being part of the law of evidence. If so, as I follow it, then the Swiss law would be applied here: if the CAS has any laws of evidence. I may be wrong on that, for more than one reason, but I have no idea of what the Swiss law of estoppel says. I have no idea of what law of estoppel the Panel was applying because they did not say. Is this a fair and sensible way to conduct a process as a result of which people are deprived of their livelihood?
Let me give you another example of something that happened in this case that would horrify Australian lawyers acting in the ordinary course of their practice. The Panel had to deal with an argument that the scientific evidence that was new in the rehearing should not have been admitted because it was available to ASADA at the first hearing. Part of the answer to that was: ‘However, it should be noted that Wada was not a party to the proceedings below.’ New player, new ball game. We know that, but to suggest that that means that the ordinary rules should be disregarded here seems at best odd. This is another example of this process arriving at results that for the ordinary common lawyer would provoke about the same reaction as if you went in and saw your GP, and the GP said that you should treble your consumption of fats, smoke two packets of cigarettes a day, drink at least one bottle of Scotch a day, and cease all exercise.
Over the objection of the players, WADA was allowed to introduce fresh scientific evidence. Two members of the Panel did not know how dud science brought Lindy Chamberlain down. This was just another submission of the accused that failed.
The Panel’s conclusion on this contest of experts is simple. None of the Players’ experts, whether in the field of medicine or statistics, could rule out the possibility that TB-4 in Player A’s Sample was the product of exogenous administration. But that falls far short of an acceptance that such possibility could justify the Panel, being comfortably satisfied that it did, and Professor Handelsman for his part could not rule out the possibility that the elevated levels of T B-4 in Player A’s Sample was endogenous.
Was it not just both stupid and insulting for these so very clever lawyers to say that its conclusion was ‘simple’?
And for the first time in more than forty years, I think I saw an invocation of the de minimis rule – against the players, again. When I put that to a federal judge here forty years ago, he just gave me a long look and told me to move on. I was very fond of that judge. He said to me, more than once: ‘Mr Gibson, you are too young for this, but during the war, the trains had a sign: Is this journey really necessary?’ That is precisely what goes through your mind when reading the decision of the Panel. What sort of people could inflict this pain and complexity on us?
Here is another problem with the Code. The wallopers do not have to prove intent or cheating. But the onus is on the accused to show innocence. This then allows the tribunal to make assessments on both the conduct and the credit of the players. The players are in the worst of all worlds, as when they get a backhander about the players’ evidence showing an economy with the truth. And then there is the grand-daddy of all backhanders when we come to what an outsider might think should have been the whole point of the case. Did Essendon get an advantage?
While no Player who gave evidence before the Panel accepted that the substance administered by Mr Dank had any beneficial effect, Essendon had conspicuous success at the start of the 2012 season, winning eight out of the first nine games of the season before being destabilized by a series of injuries. While there could of course be many other factors for such team success, it could be argued on that basis that the proof of the substance was in the taking. While the Panel is content to treat this as a barely visible thread rather than a strand, the factor is at least not inconsistent with their overall conclusion.
That is, if I may say so, not the way responsible judges should conduct themselves. The charges made do not call for a consideration of this point. But against what is conceded to be the total weight of the evidence, these three people, who between them know nothing at all about AFL football, speculate – and it is speculation – that the success of Essendon early in the season is such that ‘it could be argued on that basis that the proof of the substance was in the taking,’, having conceded of course that there could be many other ‘factors’ (a weasel word) for what had happened. The Panel then goes on to say that it is content to treat this ‘as a barely visible thread rather than a strand,’ and that this observation, speculative and uninformed as it is, is at least not inconsistent with their overall conclusion.
Are the livelihoods of our footballers to be subjected to this kind of hypothetical claptrap? Do their reputations hang by a barely visible thread? If a barrister tried this sort of stunt in a court, they would be accused of poisoning the well, and subjected to an application to discharge a jury, and very likely get referred to the Stipes. Just what point was the Panel trying to make? Even their unwarranted speculation is predicated on a logical fallacy which the Panel will be familiar with under its Latin tag post hoc ergo propter hoc.
They are examples of how this Code, which in its conception is so bad for the players, was so hard for them to deal with in this case. The Essendon players look to me to have had about as much chance in this contest as they would had if they had been sent to play gridiron in New York or lacrosse, or whatever the Swiss play, in Lausanne.
Judging from the history of this Code, and its objectives, what you have in this Code and CAS lore is a savage response by officialdom in an endeavour to make up for generations of corruption and incompetence on its part across all sports all around the world. That misbehaviour still rocks on at the highest levels, but these innocent Essendon bunnies just get flushed down the dunny as part of officialdom’s ‘reputational recovery’.
It stinks to heaven. Even Lord Sebastian could see that.
I have a comfortable satisfaction with that conclusion. I am satisfied beyond reasonable doubt on another. None of the Essendon players who have been rubbed out will be able to follow the Panel’s reasons. We have a big problem when people lose their job under a law and a process that they do not understand. That is real Russian serf stuff, and we lawyers should be deeply ashamed that this kind of thing can go on.
Lord Sebastian might even be able to see that too. If his mate Dicky lets him.
That leads me to use a term that I thought that I never would or could use. National pride. Who invited the bloody Swiss, a nation that specialises in living off immoral earnings? Why on earth should I have to sit here and be lectured on sport by three blow-in galahs – a silk from England, a nation of shop-keepers, a silk from Belgium, a nation of chocolate-makers, and a silk with a call-up, stand-in cameo role from the convict colony?
More fundamentally, is it not revolting for Australians to be told that they can’t be trusted to run their own sport or to control their own athletes?
16 The terms of the decision and some irony
There are aspects of the wording of the decision which will give a lot of lawyers pause. Some years ago, as it happens, I wrote a little book about arbitration, and at the risk of immodesty, which is an occupational hazard in this case, perhaps I might refer to something that I said about how arbitrators should prepare what they call the award, which is the decision in an arbitration.
The arbitrator should, therefore, prepare the award with care. It is an occasion for intellectual honesty – put otherwise, having the courage of your convictions – but it may be as well to recall the observation made by one English judge to the effect that the most important person in a court is the loser. It is a fundamental requirement of decency, if not procedural fairness, that the loser knows fairly and squarely how the arbitrator reached that result, but it is rarely necessary to express findings in terms that the losing party or witness may find it difficult to live with afterwards.
When drafting orders of the court that require people to do something, judges are very careful because they know the system will come into disrepute if the court publishes something that is not clear or leaves the parties in doubt. Arbitrators should be guided by the same attitude. So far as possible they should prepare awards that leave nothing for questioning or speculation.
Do you think that that is a fair description of how people deciding an arbitration should proceed? If so, how do you think the Panel rates in its decision in this case?
You will be tiring of my querying how this Panel approached its task. I am as much troubled by what they did not say as by what they did say. There are obviously serious questions about whether a strict application of this Code as this Panel and the CAS at large interpret it had to lead to what most lawyers and others would say is an unjust and unreasonable result.
The inference I draw is that CAS appointed arbitrators do not see it as being part of their function to query the Code or WADA or their role in dealing with either of them. That I think is a shame. If that is the case, and the appointed arbitrators just do what they must with the materials that they are given, and without their personal or professional reflection on the worth or merit of their actions – how is their follow-the-leader model different to that which they condemned the players for following?
There is another irony. The Panel decision, as I said, was written by lawyers for lawyers. I find it very hard to follow. I have no doubt that the players could not follow it. (I put to one side whether a court might find the decision to be unlawful on that ground.) The Panel’s understanding of Essendon footballers in 2012 is at best opaque, but the Panel could not have believed that the players would or could read this decision. It follows that the Panel knew that the players would have to rely on their lawyers to explain to them what this decision means, and what they can do about it. The players will just have to take on trust what they are told by people they trust, and then act accordingly. That is not so far from the position that the players were in put in that started this human landslide. The difference of course is that this time the players will not have to suffer the process and sanctions under the Code if those they trust get it wrong. They will just be subject to the laws of Australia.
I could be quite wrong in everything that I have said. I have not had as much time as those professionally involved in the case to acquaint myself with the relevant law or evidence. Neither is easy to follow. I have not been able to follow the reasoning of the Panel in many instances and that failing may be down to me. In particular, I have no knowledge of how this procedure could bind individual players, or what part the AFL played in that process. I do not understand the connection between WADA and the Code or between either and CAS. For the reasons I have given, this Code is in my view vicious to players, and those responsible for exposing the players to this process do in my opinion have a lot to answer for. But even with those necessary caveats, I can say that in more than forty years practice I have never seen a more confused, toxic, and diabolical forensic mess.
The Essendon players are the victims of a witchhunt. The following quote comes from a paper I wrote many years ago called Witchhunts and Holy Wars. Each is a sure sign of a failure of civilisation. The HUAC was the notorious House of Un-American Activities Committee – it stood for McCarthy or McCarthyism. We see a bit of that around here. This quote deals with the assault on that great American playwright, Arthur Miller.
The failure of due process before the HUAC takes your breath away, but it got worse before the courts. When people were charged with contempt for refusing to answer, the trials did not take long. The prosecution called expert evidence. They called an ‘expert on Communism’ to testify that the accused had been under ‘communist discipline’. When Miller’s counsel announced he was going to call his expert to say that Miller had not been under discipline of the Communist Party, Miller noticed ‘that from then on a negative electricity began flowing toward me from the bench and the government table.’ Miller thought his expert was good, ‘but obviously the tracks were laid and the train was going to its appointed station no matter what.’ The nation that would have been entitled to see itself as having the most advanced constitutional protection of civil rights on earth had been scared out of its senses by a big bad bear that existed mostly in the minds of the tormented.
The Essendon players have been feeling negative electricity all along their nightmare ride on the WADA conveyor belt.
Hundreds of years ago, there was a sign on the main court building then in London called the Chancery. That sign read:
It is the refuge of the poor and afflicted, it is the altar and sanctuary for such as against the might of rich men, and the countenance of great men, cannot maintain the goodness of their cause.
It could bring a tear to your eye. That’s our good side. Dickens described our bad side, and the bad side of Chancery, in Bleak House. He said that the one great principle of English law is to make business for itself.
There is no issue about what side the enemies of Essendon are on. They are on the side of the countenance of great men and on the side of the business of the law being to make business for itself. The AFL, ASADA, WADA and CAS have jointly fuelled one of the greatest gravy trains for lawyers that this nation has ever seen. Their conduct is disgraceful on that ground alone. It is enough to make taxpayers and footy fans throw up. As a lawyer, I am ashamed.
One thing has to be said about all the regulators. They would not know the meaning of professional detachment. On the night the CAS decision came down, John Fahey, an Australian politician who became president of WADA after Pound, was on TV fairly glowing and crowing and a representative of ASADA appeared to be undergoing some kind of religious revelation behind a pulpit.
There are whole libraries written about due process. The rules of procedural fairness (or natural justice, or due process) mean that a person accused of infringing a rule must get a fair go. Most Australians understand what this means and it should not be necessary to refer to what the judges have said about it. (The one thing the judges have made clear is that what amounts to a fair go depends on all of the circumstances in each case.)
I have tried to set out above why I do not think that these Essendon players got a fair go – or anything like it. Putting to one side problems I have with the reasoning of the Panel, the major points on the failure of due process are: They should never have had to face charges on these issues that did not call for proof of intent. They should never have had to face fixed penalties. They should never have been required to exculpate themselves on penalty once a finding on strict liability had been made. They should never have been faced with a second prosecution after they succeeded on the first. The prosecutors should not have been allowed to change their case. The identical sentences for very different cases are demonstrably unjust and logically untenable.
There are six basic objections. I regard the last as incontestable. Any one would in my view preclude a finding of due process. The only way to meet them is to say that the Code allowed if not required each such decision. If that is so, how can the AFL justify exposing its players to those infringements on our civil rights that we all take for granted? How does the AFL say that it looked after its players by exposing them to a hazard that no lawyer would have advised them to accept?
The AFL has behaved appallingly, but they got one thing right before the Panel – even though, I suspect, they knew that they might get hanged for it in court. They told the Panel that ‘there is no suggestion that any player intended to use a prohibited substance’ and that if the Panel were to find that any player had used such a substance – not that the player had intended to use such a substance – ‘it was because he was the unwilling and unwitting victim of the gross negligence of others.’ Given those submissions, which the Panel did not reject, is it contended that the suspensions of these players is anything but an offence to both sense and decency?
As an advocate, you know you are for the high jump when the bench says that your argument is ‘clever’, or ‘ingenious’ or ‘nuanced’. The argument has been utterly unpersuasive. That is what we got from the Panel. An argument that is clever, ingenious, and nuanced, but delivered with anal exactitude – and it is utterly unpersuasive. The other word is bullshit.
There has been a lot of bullshit by hairy-chested regulators, administrators, and lawyers. We are talking of a loss of rights that define not just what we understand by the rule of law, but are part of the fibre of western civilisation. It is just wrong to flirt with the first principles of our law. I would like to refer to some well-known words of the greatest jurist that this country has seen, Sir Owen Dixon.
The demands made in the name of justice must not be arbitrary or fanciful. They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring conceptions of justice. Impatience at the pace with which legal developments proceed must be restrained because of graver issues. For if the alternative to the judicial administration of the law according to a received technique and by the use of the logical faculties is the abrupt change of conceptions according to personal standards or theories of justice and convenience which the judge sets up, then the Anglo-American system would seem to be placed at risk. The better judges would be set adrift with neither moorings nor chart. The courts would come to exercise an unregulated authority over the fate of men and their affairs which would leave our system undistinguishable from the systems which we least admire.
There are the reasons why the injustice of this case reminded me of the injustice suffered by Lindy Chamberlain. They are also why so many aspects of this case revolt me as a lawyer – and as an Australian.
Orson Welles taught us that one thing that the Swiss have given us is the cuckoo clock. Well, that is an improvement on Sep Blatter.
One Flew over the Cuckoo’s Nest was a protest book published in a time and place preoccupied with protest and drugs, the US in the early 1960s. The old rhyme was:
One flew east
And one flew west
And one flew over the cuckoo’s nest.
Cuckoos lay their eggs in the nests of other birds. They leave one egg in each nest. The newly hatched cuckoo therefore feels free to throw out the others. This is the dark side of Darwin’s natural selection. Is there something Swiss about that? Should we be above that? This case makes you wonder.
Supporters of Melbourne Storm in the NRL know something of these things. They know what arrant snobbery is about. They know what it is to support a well-managed team that has a nut in the administration that breaks the rules in a crazy way. They know what it is to see the mighty use their power to stifle inquiry and litigation. They know what it is to then see innocent players and supporters punched heartlessly in the head by power-crazed and vindictive administrators. And, finally, they wonder if anything good ever comes out of Sydney.
As my old mate Dicky said, you learn from experience.
The best part of the Kesey book is the dedication. Ken Kesey dedicated the book to someone ‘who told me dragons did not exist, and then led me to their lairs’.
Long may the Swiss continue to make cuckoo clocks and give a home to FIFA – but in the name of heaven, let them leave our poor, bloody footballers alone.