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.

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.