The haughty arrogance of lawyers Part III The foreign members of the CAS Panel – the two amigos


There is a movement to hold a Senate inquiry into the case of the Essendon footballers which I will comment on in a later post.  In the meantime, may I introduce you to our two guests from overseas who sat on the CAS panel and who therefore sat in judgment on the conduct of Essendon footballers?  They were Mr Michael Beloff, QC, and Mr Romano Subiotto, QC.

Mr Beloff was in the Chair of this Panel.  According to Wikipedia, he was born in 1942.  The son of Baron Beloff, he is by courtesy styled ‘the Honourable’.  He was educated at Eton and Oxford – well, where else?  He is a Fellow of All Souls, and was President of Trinity College, Oxford.  The debating society of Trinity College runs the Michael Beloff After-Dinner Speaking Competition.  He has also chaired the IAAF Ethics Commission (again according to Wikipedia) and was involved in investigating Papa Massata Diack, the son of the predecessor at the IAAF of Lord Coe.  These people all seem to move in ever-diminishing concentric circles.  Finally, Mr Beloff is said to be a friend of – you guessed it – Cherie and Tony, and he and his wife were guests at Chequers.

So much for Wikipedia.  How does Mick describe himself on the website of Blackstone Chambers?  Immodestly.  The phrase ‘Senior Statesman’ recurs.  Is it a term of art or just a boast?  Then there are the quoted endorsements.

·         Administrative & Public Law – Senior Statesman. ‘He is extremely articulate and engaging as an advocate.’ ‘He can grasp a completely new area of law incredibly quickly and then deliver a brilliant performance in court showing complete mastery of the subject matter and demolishing every argument the other side puts forward.’

·         Education – Senior Statesman.

·         European law – Senior Statesman. ‘Always a joy to work with. He wears his brilliant intellect lightly and is very easy to engage with.’

·         Professional Discipline – ‘He’s an excellent thinker and advocate.’ ‘He’s a big beast of the Bar.’

·         Sport ‘Michael Beloff more or less invented sports law’.


There was a time when this sort of arrant bullshit was thought to be bad form for a professional man.  Things must be very different in England.  It is unthinkable that a decent Australian silk would suffer this sort nonsense under his or her shingle.

But when it comes to blowing your own trumpet, Mick palls beside Mr Subiotto.  Here is how his firm demurely sets out his credentials.

Romano F. Subiotto QC is a partner based in the Brussels and London offices.

Mr. Subiotto joined the firm in 1988 and became a partner in 1997. He received his Diploma de Estudios Hispánicos from the University of Málaga, Spain in 1980; his LL.B., First Class Honours, from the University of London, King’s College, in 1984 (Harold Potter Prize in Property Law, Laws Exhibition, Second Maxwell Law Prize); his Maîtrise en Droit, Mention Bien, from the University of Paris I, Panthéon-Sorbonne, in the same year; and his LL.M. from Harvard Law School in 1986, where he was a John F. Kennedy Memorial Scholar. 

 Mr. Subiotto qualified as a Solicitor of the Senior Courts of England and Wales in 1988, and was appointed Queen’s Counsel in 2009. Mr. Subiotto is also a member of the Bar in Brussels. He is fluent in English, French, Italian, Spanish and German. 

 Mr. Subiotto advises companies on a wide range of issues under European and national antitrust law, and represents companies in arbitrations and before the European Commission, national antitrust authorities, the European Courts in Luxembourg and the High Court in London. Mr. Subiotto has spoken widely on EU law issues and published numerous articles. He is also distinguished as a leading Competition/Antitrust lawyer by Chambers and Partners Global – The World’s Leading Lawyers. Mr. Subiotto is a member of the Court of Arbitration for Sport as well as a member of the Advisory Council of Harvard Law School’s Institute for Global Law and Policy.

Mr. Subiotto also regularly advises companies on a wide range of industrial sectors, including diamonds (Alrosa), payment cards (American Express), pharmaceutical products (Amgen, Boehringer Ingelheim, Debiopharm, Lundbeck, Merck & Co. Inc., Millenium Pharmaceuticals, PhRma, Sanofi), diagnostics (association of diagnostics manufacturers, Agilent Technologies), electronic measurement instruments (Agilent Technologies), air transport (British Airways, Lauda Air, TAT European Airlines), luxury products (Richemont, LVMH), telecommunications (Telefonica O2), cosmetics (Estée Lauder, Sephora), sports (FIFA Marketing, the IOC, the Grand Slam Committee), alcoholic beverages (LVMH), hospital beds (Hillenbrand), computer hardware (Logitech), animal health (Merial Intervet), plant protection (Bayer CropScience), radiopharmaceuticals (MSD Nordion), glass fibers (Owens Corning), rail transport (Russian Railways) security services (Securitas, Stanley Black & Decker), karting (Vega), offshore drilling (SeaDrill), Foreign Exchange (HSBC), EU financial regulation (European Central Bank), aquaculture (Marine Harvest).

Here is the description of itself offered by the firm Cleary Gottlieb. Steen and Hamilton LLP.

A leading international law firm with 16 offices located in major financial centers around the world, Cleary Gottlieb Steen & Hamilton LLP has helped shape the globalization of the legal profession for more than 65 years. Our worldwide practice has a proven track record for innovation and providing work of the highest quality to meet the needs of our domestic and international clients. In recognition of the firm’s strong global practice, its effectiveness in dealing with the different business cultures of the countries in which it operates, and its success in multiple jurisdictions, Cleary Gottlieb received Chambers & Partners’ inaugural International Law Firm of the Year award.

Organized and operated as a single, integrated global partnership (rather than a U.S. firm with a network of overseas offices), Cleary Gottlieb employs approximately 1,200 lawyers from more than 50 countries and diverse backgrounds who are admitted to practice in numerous jurisdictions around the world. Since the opening of our first European office in 1949, our legal staff has included European lawyers, most of whom have received a portion of their academic legal training in the United States and many of whom have worked as trainees in one of the firm’s U.S. offices. The firm was among the first international law firms to hire and promote non-U.S. lawyers as equal partners around the world.

Our clients include multinational corporations, international financial institutions, sovereign governments and their agencies, as well as domestic corporations and financial institutions in the countries where our offices are located. Although each of our 16 offices has its own practice, our “one firm” approach to the practice of law offers clients in any office the ability to access the full resources of all of our offices and lawyers worldwide to the extent their matters so require.

Now, I have been a partner in a large international law firm, and one thing is clear.  Neither the firm nor Mr Subiotto acts for the workers.  They are always on the other side, and at the biggest end of town you could ever imagine.  Mr Subiotto acts for corporates like Louis Vuitton and Richemont (Cartier, Mont Blanc and Purdey), and Merck, and for very repellent outfits like FIFA and the IOC.  The closest he gets to a working man in his professional life is when he collides with the janitor.  It would be about even money that he holds more university tickets than the 34 Essendon players put together.

The Australian, Jim Spigelman, was born in Poland and educated at Maroubra Public School (which here means the opposite of what it is in the UK) and Sydney Boys High before going to the University of Sydney and later becoming the 16th Chief Justice of New South Wales.

It is clear that the Australian model both at the original hearing, and in the Australian component on appeal, was far better placed to hear and determine this kind of case.  The original panel had two very sensible and practical former County Court judges and a lawyer who had played AFL footy.  The CAS panel was dominated at least in numbers by two apparently technically proficient lawyers from England and Europe who have no idea of how working people live generally, or of how Australians view the world, and who would be in the worst possible position to assess the conduct of Essendon footballers.  I doubt whether either of them knows what it is like to be subject to the power of the Boss.  The two amigos might be able to run rings around us with their imported juristic subtleties and fancy titles, but they had no idea of what was going on the ground at Essendon in 2012.  You might as well ask me for my insight on the sex life of the Eskimo.

There also you have the reason why the terms of the decision were so legalistic and so utterly unpersuasive.  A majority of the Panel was incapable of anything else.

And there also is a reason for an inquiry.  The more legally correct the decision is said to be, the more urgent becomes the need to work out how this wrong came to be inflicted upon us – because no one – no one – can maintain that at the end justice was done or seen to be done by handing out exactly the same penalties to each of all of the accused irrespective of the history and level of responsibility of each of them.

Each of us is entitled to be treated with our own individual dignity merely because we are human, and we need to find out how and why this Panel departed from this fundamental principle.  If the answer is that WADA and the Code dictated what I see as a violation of our rights, the case for an inquiry is so much stronger – but more on that later.

The point of this note is that it is just a cruel bloody joke to suggest that these imported lawyers may have been able to have done as good a job in this case as those Australian lawyers that we appointed.  If foreigners want to say that Australians cannot be trusted to manage their own footballers, my response – at least in its printable form – is that this case shows so clearly why we cannot trust anyone from outside to get any power at all over our own people.

And why should Australia as a nation even contemplating doing any such thing?  We may as a matter of history import our of head of state; we are told that that is merely a matter of form; importing a judicial body with real power to inflict damage on Australian people is an altogether different thing; and in this case it has worked out badly for all involved.

Dog days at Ballarat


The film Fury that I reviewed here was one I saw in Ballarat. I remember stopping at Creswick on the Midland Highway on the way back home for lunch in the sun. I ordered a pie and a milk drink. The drink arrived after five minutes. Five minutes later, I inquired about the pie. ‘We are just warming it up.’ In a take-away café on the Midland Highway? A bloody pie? Woe is Creswick.

Alas, things are worse in the big smoke at Ballarat. When I got back to my car after the movie, it had a parking ticket. I immediately wrote a polite note saying that it had been issued in error. The letter was as follows.

I enclose infringement notice 72083850 given in error today.

I parked in the relevant Bay 3 at about 10.12 and paid into the machine the full three hours. The machine told me it was good until 1.15. I recall it well, because I was going to the movies two blocks away at 10 am, and had driven around a little to find a meter which would safely allow me to see the film. I attach the ticket to the film, showing an end at 12.29. I was back at the car by about 12.40.

I do not know how the error occurred in the machine, but if I had been given a ticket to display, we would not be having this discussion.

The other reason I recall this well is that I had fed another meter $3 before I realised that street had a I hour cap.

I would be glad if you could ensure that the ticket is withdrawn.

I got no response and concluded that the issue was dead – I could not produce the ticket I bought because that machine did not issue them, as the better ones do. Then I got a follow up notice demanding extra fees – unlawfully – so I responded with another note enclosing a copy of that referred to above.

I have now received a polite response delivered with lightning speed – within a week of receipt of my second letter. That response says:

The matter has been reviewed taking into account your written request and a report submitted by the issuing Traffic Officer. The decision to serve the Parking Infringement Notice has been reviewed by the Manager Community Amenity and the Coordinator of Parking Services. The outcome of the review is that the decision to serve the Parking Infringement Notice is confirmed and as such the fine must be paid. Please note the agency fees of $23.80 have been waived.

The letter politely tells me they may take further action, or I might refer the matter to court.

What could be fairer? I have been given a hearing by something like a court of appeal – a manager, a coordinator, and an officer. Well, what would have been fairer for them would have been for them to have given some reasons for their decision, which in substance entails preferring the word of a machine to the word of a citizen. All they do is to say that they have reviewed the matter and come to a decision. They do not say why, or if they thought that I was dreaming or just making it up.

Was there something about what I said that struck them as odd? Is this the way for a government agency to behave when it uses machines that encourage this kind of error when it has access to those machines that make this kind of dispute impossible? I am not criticising the relevant officers – I am criticising every part of a system that makes public servants act judicially when they are not trained for that purpose, and the whole of our constitutional history says that it is wrong.

Well, you might say, I have the option of going to court. This is, if you like, a Magna Carta right. Not before my peers, but someone independent of the triumvirate that has made the present ruling. This right is eight hundred years old this year, and it is important in protecting us against government. Government officers do after all have an interest in protecting the sources of revenue from which they are paid.

So I could go to Ballarat, an hour each way. If I was lucky enough to get on in three hours that would be five hours plus petrol. If I was a tradesman charging $80 and hour, the opportunity cost would be $400 – more than seven times the fine. If I were a heart surgeon, the costs could be a lot higher.

That is the kind of dull oppression that led me some years ago to pen the attached note on how we are surrendering our rights. The easiest thing to do is to pay and tell the people at the Regent Cinema and Scott’s over the road that they have lost a customer. Those governing their city have different views on amenity. They greatly prefer their dollars over the interests of those who wish to visit their city and patronise their merchants. It is after all not unheard of in this country for government to be acting directly contrary to the interests of small business. And Ballarat is famous for officers of the law going after bits of paper and checking that government fees have been paid. A significant part of the city’s revenues comes from people who visit the shrine of the rebellion at Eureka.

Read on for the 2009 note on penalties.