The haughty arrogance of lawyers

 

The CAS Panel that dealt with Essendon has the same problem as Dyson Heydon, QC.  They don’t know what they are talking about.  Heydon has probably never met a trade unionist in his life, and it shows.  The members of the CAS Panel know little or nothing about the life and work of Australian footballers – two of them are not even Australian – and it shows.

Heydon had to make judgements about trade unionists and he was obviously not the man for that job.  The CAS Panel had to make judgements about Australian footballers and the members of that panel were obviously not up to that job.  Heydon displayed his rare personal flair for getting it wrong throughout the hearing and then, in his final decision, when he said: ‘It is clear (in unions) there is room for louts, thugs, bullies, thieves, perjurers, those who threaten violence, errant fiduciaries and organisers of boycotts.’ Charlie Chaplin would not have dared to take on Colonel Blimp with that kind of script.

The CAS Panel displayed its ineptitude in its decision by forgetting, as did Heydon, the first rule of judicial determination.  The most important person in the room is the loser.  Both Heydon and the panel went out of their way to convince their losers that they were hardly done by.  They have convinced me, too, and very many Australians.

Both findings may be tested in court.  Will anyone go to jail because of what Heydon said?  Experience suggests that the answer is no.  The players will sue Essendon – talk about ‘errant fiduciaries’!  Essendon will then be able to argue in its defence that the players were at fault in the manner found by the CAS Panel.  The legal issues before that court will be different technically from those before the Panel, but an allegation of fault against the players may fall to be determined by the court. Experience suggests that Essendon may be advised that it is not forensically worthwhile to take such a defence, since it may inflame both the court and the damages.  But if such a defence is taken and pushed, experience also suggests that it would be found to be bullshit by a real court.

What kind of a jurisprudence would we have then, when an arbitration body from overseas has found people guilty of fault that merits their being out of a job for twelve months because they did not ask enough questions of their boss, but a civil court awards damages to compensate them for that loss because of the wrong done to them by their boss or the AFL or both, and there is no discount for any fault on the part of the players?

How will they explain that in Brussels or London?  And what about poor Jim Spigelman, the beleaguered Chair of the beleaguered Auntie, closing a glittering forensic career as the Token Oz?  Well, at least it was decent of the Swiss, or whoever they are, to allow us to put one up for the locals.

There are aspects of this process that should shock ordinary Australians.  These players were previously acquitted by a tribunal that contained two Australians – Victorians as a matter of fact – who had long practical experience as trial judges in the County Court, plus a barrister with considerable AFL football experience.

None of this panel has had any such experience.  The President is an English silk.  Then there is a Belgian silk.  Then there is a former Chief Justice from New South Wales.  He is presumably the only one trained and brought up in our law.  Being from New South Wales, there is every chance he is ignorant of AFL culture.  The players were acquitted by judges from Victoria who knew what they were doing.  They have now been found guilty by lawyers from overseas or interstate who cumulatively know more about Brussels sprouts than the lives and work of these footballers.  Whose judgment will the great majority of Australians prefer?

That is bad enough.  But what the Panel decision makes clear is that this finding that is now made against these players, some years after the event, has been made on an argument that was reformulated on appeal and on evidence that had not been presented in the first place.  It was also made at the instance of someone who was not there in the first proceedings.  Just how defective was the original prosecution and who is responsible for the defects?

It is difficult to imagine a more comprehensive rejection of what we have regarded as fundamental to our jurisprudence, that a person should not be exposed to double jeopardy.  The regulator fails, and fails badly?  Simple, have another go and start afresh.  Even if you may take a man’s name and livelihood.

It is both revolting and frightening, is it not?  Is it beyond the dreams even of Mr Putin?  Think of it.  You fight and beat the charge to save your name and job, and then, following Kafka, they, whoever ‘they’ are, say: ‘Never mind, Sport: that was just a trial run.  Or as kids say in alleys, ‘slips’.  We will have a new prosecutor, new evidence, new arguments, and then put you up before a new panel of judges who are good at this kind of thing.  And then when we get what we want we will rub it in by saying ‘We were right all along.’’  The question, as Lenin said, is who are ‘we’?

It is even worse because of the complexity of the proceedings.  There is an agonised discussion among these three most learned jurists of whether the case would be presented as one of ‘strands in a cable’ or ‘links in a chain’.  This discussion arises in the context of discussing the nature of the rehearing and prompts one of the Panel’s periodic descents into Latin.

Then there is the finding by this gaggle of silks that these young men were at fault for not doing more to enquire about what their employer, with all of its resources, was doing to them.  Just where do these silks get the idea that they might have the faintest notion of how ordinary Australian footballers might or should behave in the course of their employment?  Will these silks from London and Belgium be just as happy for their conduct in their profession to be assessed by a panel of Australian footballers?  Did it occur to them ever that some of these footballers may not have the same education levels or even intelligence quotient as these international highflyers who are now being touted by Australian bureaucrats as the repository of all wisdom on doping?  Did it occur to them that we may be different?  Have they ever faced a problem of doing what you’re told or losing your meal ticket?  For that matter, has any of them ever worked for a boss?

They even ordered costs against the footballers although this was a different case to what they had succeeded on before, and to show how quaint and ridiculous the whole process is, they ordered the footballers to pay Swiss Fr.30,000 towards the costs of a body that had not been involved in the original proceedings.  It would not be at all surprising if the footballers thought that they had been parachuted into Alice in Wonderland.

The AFL will have to answer to these players in court for their wilful fault in allowing its footballers to be exposed to this kind of chook raffle.  The AFL is obliged to look after its footballers, which are the prime source of its business, and they have not done that by leaving them exposed to this kind of agony over three years of double jeopardy.

The players have been badly let down by vindictive, moralizing commentators, who live off the earnings of their betters, by their politicians, by their club, by the AFL, and by the bureaucrats, and now they have been even more badly let down by the lawyers.  You can imagine these footballers asking themselves what 34 lawyers would have to do to get rubbed out for twelve months.  They have been landed with a foreign-run regime not just where they are exposed to losing their livelihood for an offence of strict liability, and to double jeopardy, but where they are exposed to mandatory sentencing of the kind that some governments inflict on people of a different race.

You do have to wonder about the legality of any contract that so arrantly strips innocent people of their rights to due process.  The footballers are back were they were a century ago – feudal serfs, sans rights.  But you don’t have to wonder about the wisdom of those who signed the players up for this kind despoliation.  It looks like we have another nest of ‘errant fiduciaries’, this time at the AFL.

Fitzpatrick and McLachlan should resign.  You cannot have spent that much time on the bridge of the Titanic and just sit still.  For years, AFL heavyweights have been telling others it is time to move on.  It is time they took their own medicine.  We must see some decency somewhere.

The Australian public is now being called on to believe and accept that each of these 34 footballers has a precisely equal degree of culpability for what has happened.  That proposition is manifestly absurd.  The Australian people are also asked to believe that just because the NRL players copped only a fraction of this penalty, because they were dealt or played a better hand, does not mean that we have sold our administration of justice into the casino.  That proposition is also absurd.  The Australian people will, for the most part, think that this is just another case in our long national nightmare of those who run sport in this country having gone clean out of their minds and clean off the rails.

And let us say that some neurotic nerd does find some fault with the players – preferably a nerd who knows at least something about their work – how does that stand against the manifest failings of the politicians, administrators, bureaucrats and lawyers who have all contributed to this train-wreck that so affronts both sense and decency?  Tens and tens of millions of dollars have been spent on lawyers and ‘experts’ to work out what happened.  We are cancelling the meal tickets of ordinary footballers because three lawyers think that those footballers did not do enough to find out what was going on.  How does that grab you?  Were the poor deluded footballers looking for links in a chain when they should have gone after strands in a cable?

The journalist Chip Le Grand wrote a book about this tragic farce.  His article yesterday showed how silly it is to say the players are equally culpable.  It begins and ends as follows.

For nearly the entire Essendon drugs scandal, this has been the belief of the AFL and anti-doping authorities: a generation of Bombers players was misled by their own club into unwittingly accepting a banned peptide.

Three years after the blackest day in Australian sport, the Court of Arbitration for Sport has departed savagely from this script………

The CAS finding is consistent with the strict liability principle: an athlete is ultimately responsible for any substance that enters their body.  It is also at odds with a fundamental understanding of what happened at Essendon.

The players were not the crooks – they were the victims.  What harm did they do or what advantage did they gain over anyone else?  That is the real point of this case and the three wise men from out of town just missed it.  They got it wrong.  This often happens when you do not know what you are talking about.  In the most learned words of Professor Harry G Frankfurt of Princeton University, ‘Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about’.

Still, what would I know?    I used to dabble in arbitration, but the closed shop nature of these BYO judge and BYO law parties unsettles me.  I prefer to have to resolve issues under the general law rather than by agreement of the parties.  It is much simpler.  I have only been hearing cases part-time for thirty years.  I keep being told by counsel of the difference between the civil and criminal standard of proof, and the intermediate stage that we call Briginshaw (a case about adultery).  The people from out of town bring their own law with them.  They talk of ‘comfortable satisfaction.’  They tell us that it is a term of art.  There is something unsettling, is there not, about feeling ‘comfortable’ about sacking someone?  If they get caught with their hand in the till, yes; but just because they did not ask enough questions?

In thirty years, no one has explained our version to me.  But I recall Sir John Latham, one of our Chief Justices, saying something to the effect that common sense tells us that you need more to hang someone for murder than you do to give them a parking ticket.

I am not persuaded that the Panel applied that common sense here.  That idea went west with mystic discussion of the ‘links in the chain’ and ‘strands in a cable.’  What about some string theory or a Big Bang or two?  If guilt is so clear, why it has it been so hard and taken years to spell it out?

But I am also a parent, and if someone had done to a child of mine what the system has done to these young men, I would be even more incandescent with rage.  The injustice that we have done to these young men is the worst since we went after Lindy Chamberlain.

We as a nation have been blessed with wonderful sports men and women.  We have also been cursed with inept and arrogant administrators who always forget that we watch and admire our champions in sport, and not the hangers-on, place-seekers or time-servers, who are all now so massively overpaid.  This all comes from our embrace of mediocrity, our self-imposed immaturity, and our lingering readiness to tug our forelocks to our perceived betters.  Now we have the final outrage that we have sold out our right to judge the prime of our manhood to a bunch of foreigners who couldn’t tell a Sherrin from a Belgian waffle.

Still, in the land of Down Under, serial idiots knight dukes.

One thought on “The haughty arrogance of lawyers

  1. Geoff, the players got penalised because they took illegal performance enhancing drugs which is cheating and unfair on every other player in the competition. They stood to gain a lot from doing so, and 8 weeks in were looking like they would win the premiership, which is the ultimate dream of every afl player. I recall a newspaper article where Jobe Watson was saying how he was looking forward to the 2012 season because of a new training regime that had made them all a lot stronger and had even changed their body shapes. He won a Brownlow medal. I understand the discomfort with penalising a player when a club or a person working for a club administers the drugs and says that they are legal. But either players are entitled to escape penalty by saying someone told them it was ok, or they can’t. The legal regime says they can’t. I understand why. If sportsmen and women who take illegal performance enhancing drugs are able to say they thought the drugs were legal, where would that leave us? Would you strip them of medals won anyway? Of course. Because in a competition it is not just about them. I don’t see a real conflict between penalising them, and also blaming the club.
    This does not deal with your point about the differing views of the afl tribunal and the CAS. But factual conclusions are overturned on appeal all the time and I don’t see why the fact that someone is English means they can’t evaluate whether someone probably took drugs as well as an Australian steeped in afl lore can. But I haven’t seen the afl reasons so can’t comment further. I accept that as a Hawthorn supporter I would have to excuse myself for both actual and apprehended bias.

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