Here and there – Time’s up for sledging


Cricket was once said to be a game for gentlemen.  There are two parts to that proposition.  First, cricket is a game.  A game is something that you play.  The full OED definition is: ‘A diversion of the nature of a contest, played according to rules, and decided by superior skill, strength or good fortune.’  The relevant definition of ‘gentleman’ is quaint: ‘A man of chivalrous instincts and fine feelings.’  It may be simpler to say what a gentleman is not – a cheat, or a bully, or a lout.

It is not surprising, then, that the Laws of Cricket – they are big on upper case – say that ‘The umpires shall act upon any unacceptable conduct’.

If you were playing a game of golf and your opponent sought to put you off your game by insulting you or trying to intimidate you, you might think you were playing with a cheat, or a bully, or a lout.  (And the hardest insult to survive is that you cheat at golf.)  You would certainly know that you were not playing against a gentleman – or a lady.  And you would also certainly have known that this conduct was unacceptable.

You might then be surprised to learn that at the highest levels of cricket, umpires do not think a player who seeks to put another player off his game by insulting or trying to intimidate him is engaging in unacceptable conduct.  That conduct is called ‘sledging’ and umpires have tolerated it.  So have I – but no longer.  I will just turn the cricket off if they start at it again.


Attitudes change, but all this looks to me now to be petty, childish, and vulgar – and entirely unacceptable under each heading.  To go back to where we started, cricket is hardly a game at the top level.  Hardly any sport is now at that level.  It is part of an entertainment industry that gets more vulgar by the day – as a matter of commercial policy. Those running cricket have deliberately sought to popularise it to raise more money.  The financial motivation of the entertainment industry has debased the game of cricket.  With that debasement has come an acceptance of what we should plainly see as misconduct.  My sense is that most people who care about cricket, or having people represent their country, have had enough of sledging.

Certainly, one thing that people are utterly sick of is this talk about ‘crossing the line.’  At least two propositions are entailed – first, that some criteria exist to allow the line to be defined; secondly, that players will be able to identify that line and avoid crossing it.

I have trouble with each of those propositions.  We are solemnly told that there is a line between, say, ‘You’re as weak as piss’ or ‘I can see the brown stain starting’ and ‘Your mother’s a tart’ or ‘Your wife has a colourful history.’  ‘You black bastard’ is on any view out of bounds.  I’m not sure where ‘You fucking sook’ or ‘We’ll break your fucking arm’ stands.  Neither, you may be sure, are the players.

Presumably, that line turns on something as nebulous as taste.  Courtesy can’t come into it because the exercise in all cases involves trying to put someone off their game by insulting them.  There is in truth no satisfactory intellectual or moral basis for drawing any such line.  Too many players are incapable of seeing or adhering to such a line.  If I am right on that, the only answer is a blanket ban on sledging.

May I mention three related points?

First, it’s about two generations since parents could tell their children to emulate their sporting heroes, but that is no reason to tolerate forms of misconduct that can only serve to mislead or coarsen our youth.

Secondly, the behaviour of some of our cricketers is getting uncomfortably close to the truly scandalous behaviour of our tennis players.  I got turned off tennis about thirty years ago.  McEnroe misbehaved to obtain an advantage.  That’s called cheating – or bullying.  Too many tennis players are what were called ‘bad sports.’  We can’t afford to let cricket go there.

Thirdly, and perhaps most worryingly, some people want to defend sledging as being in some way tied to the way Australians play cricket.  In its customarily anaemic style, Cricket Australia said: ‘Australia has always prided it itself on taking a highly competitive approach to international cricket.’  That’s obviously bullshit.  Aren’t the English, Indians or South Africans highly competitive?  But it’s worse than bullshit.  It’s an appeal to nationalist instincts in the context of an appeal to pride.  We are in the realm of the last refuge of the scoundrel.  In truth it’s worse than that.  We have relapsed into the era of the macho Marlboro man.  And as my old man said, the Marlboro man went out with hessian drawers.  It’s revolting to see grown men behaving like that now.  It’s as bad as Donald saying that his button is bigger than Kim’s.

One of the tragedies of our sport is that too many of us don’t get to follow our national team in footy.  I happen to follow an NRL club.  I take an interest in Origin games.  And I take a real interest when the Australian side gets an outing against New Zealand or England.  It’s not the same as a rugby union test, but it is a test match.  And when Cameron Smith and Jonathon Thurston come out in my colours they carry my pride and trust.  Boy, do they ever.  They, and other Kangaroos, doubtless indulge in what’s called gamesmanship, but I don’t see or hear of the coarseness that some of our cricketers show – and that’s in a sport that is as rough and tough and down-market as you can get.  The Australian cricketers no longer carry my pride or trust.  And if you know anything about footy here, that means our cricketers have a real problem.

Our coach has failed to set the right tone.  He should go.  The captain is weak; he needs to grow up and be firmly told that he is not a shop steward to represent the comrades, but the captain of a national team that wears our colours and purports to represent all of us.  The vice-captain has so much form that he should be fired from that position and be given some time to be at home with his Lamborghini.  The piddling penalties handed out suggest that the game is now being run by the players.  Cricket Australia is responsible for this.  They were utterly gutless in allowing Indian money and caste to run over them when the Indians thought it was OK to sledge one of our players of colour as a monkey.  Cricket Australia needs a new CEO.

The time may have passed when cricket was a game played by gentlemen, but at the rate we pay these spoiled brats, they could at least try to feign some manners.  Otherwise, our only remedy is to turn them off while they falsely wear our colours.  Cricket Australia can tart up and trivialise either form of the pyjama game as much as they like.  But in the only real game – test cricket – our players are claiming to represent us as a nation, and it’s time that they learned again how to do so decently.

Finally, can anyone imagine Victor Trumper being so crude?  Of course not – and Trumper was and is our hero and our idol.

Passing Bull 122 – All the President’s sportsmen


Most of the wording of ‘The Star-Spangled Banner’ is downright silly.  The suggestion that ‘No refuge could save the hireling and slave’ still makes many people nervous, but everyone knows of ‘the land of the free and the home of the brave’.  Sadly, the President of the United States gets angry when brave Americans use their freedom to seek to make their land a better home.

At major sporting events in the U S, it is customary for players and spectators to stand during the national anthem.  Some players have kneeled to protest against crimes allegedly committed by government agents against African Americans.  President Trump says that these people are not respecting the flag, the anthem, or the nation.  He goes further and he says – in typically coarse and disrespectful terms – that the protesters should be fired.  Trump’s supporters – who love these live TV shows – lapped it all up.  So, of course, did Trump.

Now, you don’t disrespect or insult a flag or an anthem –one’s a piece of cloth, and the other is a song.  A nation is a group of people.  You don’t disrespect or insult a whole group of people by failing to adhere to one of their customs of courtesy – unless those people are mightily sensitive.  What Mr Trump must be saying is that by making this gesture, these players are disrespecting or insulting what America stands for.  Turning your back, say, on the anthem may be like burning the flag.

What, then, does America stand for?  It is stated in terms engraved on many hearts, and not just in America.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The question then is: are these players showing disrespect or insulting what America stands for by exercising a constitutional right to protest against those in government in an effort to make America better for ‘Life, Liberty, and the pursuit of Happiness’?  The very idea is surely absurd.

That’s the first point.  The next point is that these players and their employers will be legally bound by contracts that are probably much longer than the U S Constitution.  Those contracts may or may not give rights of termination for some kinds of ‘conduct unbecoming.’

I don’t know, and I don’t know what prospect there would be of an American judge or jury holding that dropping a knee in protest during the national anthem constitutes a breach of contract.  And I don’t know if such a court might hold that such a breach might entitle the employer to terminate the contract and deprive the player of his livelihood.  I would be surprised, but I don’t know.  Nor does the President.

As matters stand, then, the President may well be guilty of attempting to induce a breach of contract.  Presidents shouldn’t do that.  And quite apart from the law, there may be a real question about how much football got to be played in the weeks after an employer fired one of these players for bending his knee.

Then, some nations make it an offence against the law to insult the nation.  Examples are Turkey, Thailand, Indonesia, or – God help us – North Korea.  They are not regimes that we admire.  Could the U S ever do this?  Never – America, you will recall, is ‘the land of the free and the home of the brave’.

Some of these difficulties were apparent in the weird White House scattergun defence of the President.  There is a First Amendment right of free speech, but the White House has said variously that the players can’t exercise it at a place of public entertainment, such as a football game, and that they can be fired for exercising that right.

Finally, we again see this President of the United States hell-bent on causing disunity among Americans.  For whatever reason, he is addicted to conflict, and, so sadly, to conflict with Americans that he manifestly regards as inferior to himself.  He is assisted in this course by his accomplices in the media who live of the earnings of conflict.  They couldn’t give a hoot about matters of principle.  They are just there for the dollar.  Trump couldn’t care less either, because he is just there for Trump.

The worrying thing is that as we go from outrage to outrage, and Trump keeps finding it impossible to do something positive, he looks more and more desperate – and more and more at home with his own desperation.  Have things ever been worse in ‘the land of the free and the home of the brave’?

This isn’t just bullshit.  It is venom.

Poet of the month: Emily Dickinson

How firm Eternity must look

To crumbling men like me

The only Adamant Estate In all Identity –

How mighty to the insecure

Thy Physiognomy

To whom not any Face cohere –

Unless concealed in thee.

Dogs, Swans, Storm boys and Grand Finals


This note is dedicated to my counsel, a true son of South.

It was soon after we moved to Rosedale Road, Glen Iris that I started following Melbourne.  I can’t recall where we lived before that, so I think that we moved there in about 1950.  (I can recall wanting to chisel a ‘D’ before the 24 etched into the concrete driveway: D 24 was the call sign for Police H Q, at least on radio programs.)

Neither Mac nor Norma then had any interest at all in football.  As best as I can recall, I selected Melbourne for the sound patriotic reason that it was the capital city.  My first Melbourne jumper had number 1 – Dennis Cordner, whose house in Ashburton a few of us walked around to one morning.  (Cordner was Demons royalty – even Mac looked up to him.)  Every other kid in the street, or in the school ground at Glen Iris State School, wore a Collingwood jumper or an Essendon jumper with number 10 on the back.

Some people spoke of Coleman with the same kind of soft awe as when they spoke of Bradman.  I can recall Norma taking me to the MCG to see the Lightning Premiership just so that I could see Coleman play.  (The alternative, I suppose, may have been the odd newsreel and Hopalong Cassidy at the flicks before the Saturday matinee.)  I can also recall both Mac and Norma taking me to the Southern Stand to see Typhoon Tyson run through an Australian side that I think included Keith Miller.  It was about then that I started to fret – was it worse for Australia to lose to England or for Melbourne to lose to Collingwood?  This was an agonising moral question.  It still troubles me occasionally.

My interest in Melbourne was for some time confined to listening to the games on the radio, or the wireless as we sometimes called it then.  You could hear the footy or the races on the radio as you walked past people edging their nature strips besides burning autumn leaves, the harbinger of footy – just as the longer and warmer days told you that the season was ending.  It was good to align rituals with seasons.

The footy was a lot more regular and homely then.  We got to know and respond to every ground – and, later, what pubs best serviced them.  And the games only ever started at one time.  Night footy was decades away; Sundays would be reserved for the irreligious VFA, and cast-offs from barbecues who tuned in to the VFA of the day for the fights.

Each ground had its charm – or lack of it.  The Lakeside oval at South Melbourne was a great venue – it was a place where people played footy, not a temple to Mammon and press barons.  You could confidently expect to hear the umpire addressed as ‘You bludger!’  (My mate George spent a match hearing the umpire addressed as ‘You Hitler bludger!)

Lakeside has a lot of memories, but now I only get to it for the Grand Prix.  During the height of our secular conflict in 1952, a Methodist preacher got heavy raspberries for addressing the crowd.  Well, it was after all Saturday, not Sunday.  He appealed to common decency.  ‘After all, we are all Christians.’  ‘What about the bloody umpire?’

I have a clear recollection of listening to radio talk shows on Saturday evening – as I recall, the London Stores Show and the Pelaco Inquest – and on Sunday morning – I think H V Varley, who made trousers.  Some of the commentators were, I think, Baron Ruthven, Skeeter Coghlan, Chicken Smallhorn, and Butch Gale.  I would listen to their discussion spellbound by the radio beside my bed.  Later I would acquire the habit of buying The Sporting Globe (‘the pink comic’) when the Demons won.  I think that the name the Redlegs was used as much as the name the Demons back then.  For forty or so years, the Sunday roast at East Brighton (and others would not let you drop the qualifier) would be dominated by World of Sport on Channel 7, a definitively Melbourne ritual.  Even Liza, Norma’s mum, took some interest, although of course the roast was had in the laminated kitchen, in a house that we pretended had not started life in the Housing Commission.

I can recall paying a game of school footy at Gardiner’s Creek, Glen Iris when Jim Cardwell, the secretary or manager of the MFC, came waddling down the slope and handed out membership tickets to those in Demons jumpers – including me.  I was then well and truly locked in.  I think this was about 1953.

Norma’s sister lived in Elsternwick on Williams Road opposite Rippon Lea, the last house before the railway bridge, squeezed in like a triangulated sardine can.  The whole place rattled whenever a train passed, and it always had a dank and off-putting odour for me.

My cousins John and Roger barracked for South Melbourne.  That seemed to me to go with the depressed condition of the house.  I can recall the respect that they held Smokey Clegg in, but the glory days of South were long behind them, while the Demons were about to come into their own time of glory when between 1955 and 1964 they won six premierships.

I felt very sorry for South and John and Roger – my instinct is still to refer to Sydney as ‘South’.  I also felt somehow guilty.  I can recall Melbourne beating them after they, the Demons, had been five goals behind at the start of time-on.  I would think back on that when Leo Barry took that mark to secure a flag for the Swans about five decades later.

I only saw two of those Melbourne premiership wins – 1956 and 1964 – but on a good day I could still now reel off the names of a few of the main players.  Of course that whole era was, at least for Melbourne supporters, dominated by Ron Barassi.  He was a wonderful specimen of humanity, a wicked enthusiast and a magical figure who just attracted all eyes whenever he got near the ball.  After he left Melbourne, I would have to wait for about 40 years till I saw someone playing for my team who had anything like the same magnetic power of attraction.  That would be Billy Slater playing for the Melbourne Storm.

I certainly did not see the 1954 grand final in which Footscray, the Bulldogs, comfortably beat Melbourne.  It was one of those games featuring Barassi and the great Ted Whitten.  I can barely recall listening to the game, but I can clearly recall being accused of spending some part of the afternoon throwing bricks at the chooks of the family next door.  (My bedroom window overlooked their outside dunny – from which young Betty, as I will call her, would look up and flash it.)  I can’t remember much about the game, except that people were excited that the Bulldogs had at last won their first flag.  And apparently, the chooks next door were not happy.  (I have since seen a homemade film of the game with a phantom call by Ted Whitten.)

They were very different times then.  Some years ago I heard a radio interview with the guy who played fullback for the Bulldogs that day.  I think his name was Herb Henderson.  He was an apprentice butcher and he duly put in his Saturday morning shift on Grand Final day.  He then went home to Thornbury to get his gear – and probably put it in one of those little TAA plastic bags – before driving to the MCG for the game.  When he got there, he found that he’d left his boots at home.  So he asked the man in the blue coat in the car park – do you remember the men in the blue coats? – to look after his spot while he went back to Thornbury to get his boots.  He said that he made it back just in time to hear the end of Charlie Sutton’s pre-match address.  Charlie was a robust captain coach who, I think, would now be called an on-baller.  One version of that address that I have heard has Charlie saying: ‘You fellas look after the ball; I’ll look after the other stuff.’  And Charlie bloody well did, with the consequences that I have referred to.  Well, we won’t see much of that this Saturday.  Some of us might regret that.

I can remember being at the 1956 Grand Final – at least I think it was 1956, the year that we had the Olympic Games.  The crowd was huge – they were on the roof, and I think in part over the fence.  The record shows the crowd was 115, 000, but there were ugly scenes as 20,000 got turned away.  I’ve forgotten who I was with, but I was in front of the old scoreboard, on the terrace.  I wanted to go to the dunny and I went down in front of that parapet – and I then got lifted up off my feet in the crush.  It was terrifying.  Mercifully, a bloke reached over the parapet and pulled me out of the crush and suggested that I go back to where I had come from and just sit on it – while standing up.  Well we won, and it was against Collingwood.

The Melbourne v Collingwood rivalry was a kind of class war that got more and more stupid as the Smokers got more and more plebeian and the Pies got more and more drenched in white collars.  But it took off one day when Bluey Adams came on as nineteenth man, spotted someone in black and white, made a bee-line for him, and cleaned him up.  A mate of mine swears that he can still hear the sweet crunching sound of Noel McMahon running through Bobby Rose, and watching him leave the ground on a stretcher before a quieter Collingwood crowd.  Their revenge came in 1958 when they denied the Demons their fourth consecutive flag.  Mac, who never saw a game, said that Hooker Harrison had got Barassi in.  That may not have been too hard, but what would Mac know?

I saw Melbourne beat Collingwood in 1964.  We had thrashed them in the semi-final and I was extremely nervous about the rematch.  I was to sit with my mother, but I went with my mate John Burns to see the two preliminary games.  We knocked over some tall boys to soothe our nerves.  (Do you remember those anodised aluminium drinking cups that came in pigskin pouches that were handed out at 21sts?)  We were standing right behind the Punt Road goal, and the seats for Norma and me were right behind that goal about six rows back.

I therefore had a perfect view of the two extraordinary goals of Ray Gabelich.  The first he just grabbed out of the air from, I think, a throw in and got his boot to it as he was being dragged to the ground; the second he ran for about 100 yards and kept fumbling the ball until he finally got to the goal square and put it through.  There was mass hysteria of Nuremberg proportions.  Then I think it was Hassa Mann who got the ball to Neil Crompton (the Frog), who had followed his rover down the field from the back pocket, and who lined up from about 45 yards and put it through.  I had a perfect view of that one too.  The crowd was even more insane, and Burns said that from where he was standing, he feared that I might levitate.  The Frog was a very good footballer and cricketer (for Victoria), but people only ever wanted to talk about that goal.

The next year the most insanely stupid administration in the history of sport sacked the most successful coach in the history of VFL football, Norm Smith, and the Demons came under a curse like that of the Boston Red Sox when they let Babe Ruth go.  Our first game after the sacking was at Coburg for some reason.  Phil Gibbs interviewed me for TV.  I said, sagely – ‘there is more to this than meets the eye.’  In truth, it was probably just the arrogance and inanity of Australian sports administrators.  Then Barassi went to Carlton, and we were left, like Cleopatra, with mere boys.  Then Melbourne spent a generation waiting for the return of the Man, and then we found that he was out of miracles for us.

I can recall the day that South (the Swans) made it to the finals for the first time in the living memory of my cousins.  I had to attend two weddings that afternoon, but out of deference to my cousins, I was determined to listen to the game via an earpiece from my little plastic transistor.  I just had to pray that the cord would not come out and impugn a sacred moment.

The first wedding was an Italian one in some indiscriminate suburb that I have forgotten.  A bearded priest in a suspicious looking white gown kept waving us forward.  We kept resisting.  But he kept waving us.  So we moved down near the front.  Then he said – and I can recall this precisely – ‘I will give some of the service in English for the benefit of the white people present.’  The word was ‘white’.  Well, Sport, you magical herald of multiculturalism, one of those bloody white people just wants to listen to the bloody footy.  White people are like that.

We scampered away to the second wedding.  It was a Greek wedding in, I think, East Melbourne, somewhere.  The game was still going, and I still had to fight to listen to it.  As I recall it, this service was rather more mobile, and I can’t recall what language it was given – my interest was elsewhere.

And now looking back, I can’t even recall who bloody well won, or whether Bobby Skilton was playing or not.

In the late 60’s, I went to the outer on a regular basis to watch the Demons take their medicine. I went with John Wardle.  He was doing medicine.  When it came time for him to study at St V’s, we used to look carefully at the three quarter time scores of other games.  If the Pies were getting done, it might get ugly at St V’s casualty that night.  (More than four decades later, I was instructed by Slaters in a big case.  The solicitor had been brought up in Port Adelaide.  He told me that if Port got done, the blinds at home would be pulled down, and the children sent to bed without dinner.)  A lot of that raw tribalism has been dulled by television and money, although you can still find pockets of it west of Broken Hill.

Early in the ‘70s I went with an Irish Mick Carlton mate to watch Carlton in a Grand Final.  (I see that it was 1972.)  We decided to do it in style and go to Vlado’s steakhouse for lunch, and not just some pub.  There were no prices on show.  Big Jack comfortably devoured his mountainous steak.  I got through about half of mine.  Then came the bill.  Disaster!  No credit cards.  We would be short of big cans to stand on at the game!  We stood right up at the back (so I would have a sporting chance of reaching the loo).  There were 112,000 there, and Carlton reversed an earlier result and won.  Big Jack came back to our place very tired and emotional.  It had after all been a big day.  Our hall moved when he did, and he burst into tears when I put on Verdi.  The crowd, he said, sang the Slaves’ Chorus at Verdi’s funeral.

Jack was wont to devour large slices of life, but I have seen other mates reduced to tears by Jussi Bjorling while we communed after yet another Demons’ disaster.  I would say that I have seen three losses for every Melbourne win – I hardly got to go in the glory days.  I can recall John Wardle asking me to put on music of great things beaten, and I can remember a former Olympic rower getting very teary over the great male duet Au fond du temple saint (especially as sung by Jussi Bjorling and Robert Merrill).

After Barassi left Melbourne as its coach, the Demons made the Grand Final on two occasions.  As was utterly predictable, they were ritually slaughtered in each.  I had made a very smart tactical move before each of those games – for the first, I was at Iguazzu Falls; for the second, I was at Gallipoli.  In each case, the distance was both safe and mollifying.  (My middle name is McPherson, the maiden name of Mac’s mother.  The McPhersons too once made a very smart tactical move.  They were a day late for the battle of Culloden.  They may have forgotten that steam trains had not yet been invented.)

During the ‘80s I tried to ease the pain of Grand Final Day by going to the Old Boys’ breakfast, and then entertaining a select bunch of coudabeens and wannabes for lunch before watching the game live at home.  (Wedge got to the first, but he was immediately put under a life ban when he got home.  Just how he got home is the big question.)  Then we would go the Malvern Hotel.  Before the first of these challenges to decency and medical science, I had spent hours and days compiling a tape of great things beaten.  I still have it – a cassette.  It is a relic of schmalz and kitsch – but it was a good release for us withdrawn Anglo-Saxons.  As well as music, they got Richard Burton and John Gielgud.  The killer was the Maori farewell.  It slays drunks.

But then there was that magical day at the Western Oval in 1987.  If we won and Hawthorn beat Geelong, we would be in our first finals since 1964.  (That does seem a very short drought now.)  The Doggies broke free, and we prayed that they would put us to sleep mercifully.  Then Our Son – the most graceful footballer I’ve seen – rose again.  He did so twice!  We got ahead, Dunstall put Hawthorn in front, and grown men cried – all the way to Young & Jackson’s.  I took my girls to watch the boys in training, and they asked me why I was crying.  ‘Bloody long time between drinks, Girls.’

Then came the apocalypse at the misbegotten and frozen Waverley when an anal Baptist with whistle addiction called out Jimmy Stynes after the bell and then sweetly gave the ball to the only bastard on the ground that could make the distance, and I turned round and saw the faces of the GIs who had entered Belsen.  My mate, now a criminal silk, said he was prepared to do time.  I reflected on the education of my daughters on the subject of the blood feud and the vendetta.  Then I – or Freud, or God – threw a lever in my soul or psyche that ensured that no mere game would ever get so dangerously close to me again.  I think that day comes within the phrase ‘soul-destroying.’  Shit, it was a hard road back home from the end of the bloody earth.  (Imagine going to New Zealand to watch the Wallabies get yet another lacing!)

The Demons got so bad that when the Melbourne Storm was created, I was very glad to attend the first game.  I soon became attracted to the game for a number of reasons – when you followed the Demons, you did not go to see the football, but to enjoy a lunch beforehand, and the AFL, as it had then become, was not minded to give us too many bloody games at home on a Saturday afternoon.  Another reason for the attraction was the ferocious snobbery about League – even in Sydney.

So, I followed the Storm, and I patronised the Greeks in Swan Street before or after the game for that purpose.  My patronage of Salonas became an indispensable part of a civilised existence.  Most of the time I went to the Greeks and the footy on my own.  I took the late Jim Kennon one night.  He left at half time after perceptively noting that they were passing the ball backwards.  I took my mate George, a hopeless Pies addict from the Malvern Hotel.  We had a very good lunch.  The game was awful.  So we went back to the Greeks and had an even better dinner.  The ambulance, in the form of George’s wife, arrived to a scene of mild carnage.

Then there was the sheer bliss of our first flag.  I think this was 1999.  We were down and out at half time, but we came back and won with a penalty try.  And Little Johnnie Howard was there to share the pain, going through one of his preposterous little sportsman phases in a St George jumper.  You can have even money that that is still the only NRL game that Little Johnnie has ever been to.

I have been fortunate to watch players like Billy Slater and Cameron Smith.  Men have taken their sons to the Storm just so that they could say that they had seen Billy Slater.  In his own way, Smith impresses me now as much as Barassi did when I was a boy – he quite possibly has far more impact on the games he plays because of the nature of the role of captain in NRL footy, and because Smith in number 9 is pivotal in either attack or defence.  He is certainly the coolest player in any sport that I have seen since Steve Waugh.  (I would pair the two as captains.)

We have won four flags – you can put to one side that fascist nonsense from those bastards in Sydney who did not appreciate our version of double entry accounting – and the club has persistently rewarded its members and supporters as well as any of them could decently ask for.  My sense is that the only football club in Australia that could match it for coaching and leadership at the moment is Hawthorn.  (As it happens both clubs will lose their current leaders at about the same time.)

So, I will have a split of allegiance between the Bulldogs and South (the Swans) on Saturday.  I will just have to resolve that as best I can, but rather than put the kiss of death on my boys, I will stay silent about what might happen in the game at Sydney on the following day.  The Sharks will be as popular with the crowd as the Doggies will be, but we are used to that up there.  We do after all give Sydney so many reasons to be jealous.  Among other things, we invented the best code of footy on earth.

I will however say this.  The Storm boys are resolved.  The big question is whether I can steel myself to watch the game live, or if I should put on Verdi’s Rigoletto or La Traviata – or perhaps La Forza del Destino! – and sneak a peek at the scoreboard between scenes.  At my age, a man has to look after his heart – even with the benefit of the 1987 by-pass.

And yes, it is 52 years this Saturday since the Frog slotted the sealer; and yes, the Red Sox finally broke free of their curse for selling Babe Ruth; but I have it in my water that it took them a lot longer than 52 bloody years, at least to win a World Series; and yes, even the great Barassi might have to give right of way to the Babe.

Good luck to all who take part in either game.  These games are proper and decent national rites.  Am I still allowed to say that they are tests of manhood?

A salute to the Greatest

I wrote the following about Muhammad Ali some time ago in a history of the twentieth century.

Muhammad Ali (1942-)

As befits a nation of pioneers who put a premium on individual responsibility and community ideals, Americans go for sport in a big way.  It is their national tragedy that instead of rugby or football and cricket, they have their own sports of gridiron and baseball, so that their champions do not compete on an international stage.  That does not stop Americans following their sports with at least the passion and patriotic intensity of the Indians with cricket or African nations in football.  The games they play tell you a lot about Americans.

In June 1902, a guy who ran saloons in Pigtown, Baltimore took his seven year old kid on a trolley-car to a reform school and then left him there. The school was named St Mary’s Industrial School for Orphans, Delinquent, Incorrigible and Wayward Boys.  The kid would stay there until 1914 when he was 19.  By the time he left, his mother was dead.

The kid got training to become a tailor, but he was big on baseball.  His nick-name was the unkind one of Nigger Lips.  Photos show a wide-eyed innocent with thick lips.  He was a fan of Brother Matthias, who gave instruction on baseball on Saturday evenings, and as a big raw-boned kid, he could play.  He could both pitch and hit – left-handed.  Jack Dunn, the manager of the Baltimore Orioles, spotted the kid and offered him a contract at $250 a month – primarily for his pitching.  The kid left St Mary’s as the legal ward of two of the Brothers, and with Jack Dunn as his guardian – the abandonment by his own family was complete.

They took off for spring training.  The kid had never been on a train or seen a menu before – he had never seen a professional player, let alone a professional game.  He must have been the most untutored player ever to go up to the Majors.  Dunn’s babies were known as ‘babes’.  Since the kid had got to retain his surname if nothing else from his family, and that name was Ruth, the kid became Babe Ruth, unquestionably the most famous name in all baseball.

Over the next twenty-one years, the Babe changed the game of baseball.  Before him, the game was controlled by pitchers, and batters approached their task tactically, and they tended to hit a flat trajectory.  The Babe was altogether less prosaic.  He introduced the power game, big hitting right up into the crowd.  He saw his role not just in moving men along the bases, but in belting home runs off his own bat.  He took baseball to a whole new level of entertainment, not just with the power of his hitting, but with the power of his presence.

The kid went to the Red Sox but they came to the doom-laden view that they would have to sell the Babe.  They did so at huge expense – an unprecedented sum – to the Yankees.  Now, the Babe was not really a Boston type, but he and New York in the Twenties were just made for each other.  And the city of Boston would pay an appalling price for its failure to come to terms with the Babe.  In what became known as the curse of the Bambino, the Red Sox would not win another World Series that century.

The Yankees won four World Series and seven pennants in the period that the Babe was with them (1920 – 1935).  In his total career he hit 714 home runs, a proposition that would have been laughed at in 1914.  He was the first to break 60 in a season – which he did after apparently being trumped by Lindbergh.  He was called the Sultan of Swat, the Caliph of Clout, or the Wizard of Whack, but he still holds the tenth highest batting average of all time.

Jackie Robinson became an officer in the US Army during World War II.  What awaited him when he got back to the land of the free?  ‘Down the back of the bus with the other niggers.’  Rather than football, Jackie took on baseball as his professional sport.  He had the eye of a natural hitter; he had all the skills for a second base; he was deadly quick at stealing bases, and handy if a shirt-front were needed; and he was determined to win.  In short, he was just the kind of player to build a team around.  Except that in 1947, baseball was rigidly segregated – no formal agreement, just invincible history and unwritten understanding.  There were white leagues and black leagues, and that separatism was just as saluted in the north as in the south.

Jackie Robinson and a man named Branch Rickey cracked the monolith.  They both subscribed to the teaching of the Jewish carpenter, especially the Sermon on the Mount.  They would both be tested on the hard bit – turning the other cheek – in a way that is not asked of most of us.  Rickey was the manager of the Brooklyn Dodgers.  He told Robinson that he would give him a go in the minors with a view to signing him for a full season with the Dodgers if he was good enough.  He said Robinson would be exposed to hate and abuse, sometimes from his own side, and that he would not be able to answer back.

Rickey had one large portrait in his office – the great emancipator, Abraham Lincoln.  Rickey was smart as well as brave.  He described his purpose:  ‘First, to win a pennant.  There’s some good coloured players.  The second reason is…it’s right.’

Robinson made the season with the minors satisfactorily.  (In his second at bat, he had rifled it into the crowd.)  When it came time for him to turn out for the Dodgers, every club but one said they were against it, and players in his own team took up a petition to have him excluded.  Other teams threatened to strike.  He was still subject to insult and abuse and death threats on the road, and venomous hate speech on the field.  He kept his part of the deal.  He copped it and he did not answer back.  He had a great season with the bat and a league-leading 29 stolen bases and a momentum – turning base-running style.  He was the first ever Rookie of the Year.  The Dodgers made it to the World Series and forced the Yankees to go to the seventh game.  This Yankee side, with DiMaggio and others, is one of the greatest teams ever, and is the main reason why the Dodgers do not have more to show from their ten years with Robinson.  He was not just a hero for black people, but for all Americans.

Well, what might happen if America got a champion black sportsman who played on the world stage, and who could appeal to coloured people all over the world, and who was prepared to stare down Uncle Sam – and who just happened to be the greatest of all time?

This is how Norman Mailer began his book The Fight:

There is always a shock in seeing him again.  Not live as in television, but standing before you, looking his best.  Then the World’s Greatest Athlete is in danger of being our most beautiful man, and the vocabulary of Camp is doomed to appear.  Women draw an audible breath.  Men look down.  They are reminded again of their lack of worth.  If Ali never opened his mouth to quiver the jellies of public opinion, he would still inspire love and hate.  For he is the Prince of Heaven – so says the silence around his body when he is luminous.

Cassius Marcellus Clay Junior was born on 17 January 1942 in Louis, Kentucky.  His father painted signs and his mother was a domestic.  They were African Americans descended from slaves.  The baby followed his father in being named after a famous abolitionist.  The former Cassius Clay was a most formidable man, a six-foot-six Kentucky farmer who had commanded troops in the Mexico War.  He inherited a plantation and he later freed his slaves.  For this he received death threats.  ‘For those who have respect for the laws of God, I have this argument.’  He produced a leather-bound bible.  ‘For those who believe in the laws of man, I have this argument.’  He produced the constitution.  ‘And for those who believe in neither the laws of God nor of man, I have this argument.’  He laid down a Bowie knife and two pistols.  Lincoln thought enough of him, or of the Russians, to send him to Russia on government business.  As David Remnick remarks, ‘He maintained his physical courage to the end.  When he was eighty-four, he married a fifteen year old girl.’

Clay grew up to win national Golden Gloves and then gold in the 1960 Olympics at Rome.  He turned pro and was undefeated, but he was not winning friends by his manner of belittling opponents.  He was light on his feet and he was unbelievably fast.  He had height and reach, and he could lean back and then hit his overcommitted opponent with a lethal right jab.  He won the right to challenge Sonny Liston, and the fight was set for 25 February 1964.

Sonny was born into the Mob – the underworld – and he could never get out of it.  He never had a chance.  He had no family to speak of and he knew the inside of the Workhouse.  He was an enforcer for the Mob.  Not many people gave lip to Sonny Liston and lived.  The Mob ran boxing.  A generation of Prohibition gangsters had promoted and fixed fights, charming people like Frenchy DeMange, Frankie Yale, Al Capone, Lucky Luciano, Boo Boo Hoff, Kid Dropper, Legs Diamond and Dutch Schulz.  You can ask why crooks were attracted to pugs, but they were both on the fringe.

Sonny’s manager was Paul John (‘Frankie’) Carbo, also known on the street as Frank Fortunato, Jimmie the Wop, and Dago Frank.  After being sent to Sing Sing for homicide, he lifted his game to become a hit man for the Brooklyn branch of Murder Inc.  David Remnick says that it took Cassius Clay, still on his way up, to break the grip of the Mob.  That young man found his protection in the Nation of Islam.  Many of his countrymen would have been more relaxed if he had stayed with the Mob – the devil they knew.

Sonny then would frighten the hell out of anyone.  The bookies had Clay at seven to one, which is insane in a two man event, and journalists were plotting the locations of the nearest hospitals.  Many thought that the kid would be killed.  The kid – the Louisville Lip – responded as was his wont now.  He taunted Liston, pulled up outside his house and asked him to step outside, and famously said that he would ‘dance like a butterfly and sting like a bee.’  He turned the weigh-in into a circus.

At the bell, Liston came out like an enraged bull, but Clay slipped away, and was scoring heavily by the end of the first round.  He buckled Sonny’s knees in the third, and he cut the champion for the first time.  He seemed to be blinded in the fifth, but he came back to belt Sonny in the sixth.  Sonny did not come out for the seventh.  It was a TKO and Clay shouted to the world that he was the greatest ever.  The rematch came after Clay had publicly, and amid great hostility, converted to Islam and changed his name.  It was a sad farce.  Liston copped what the press called the ‘phantom punch’, and the fight was over in less than two minutes.  It looked for all the world as if the fix had gone in and that Sonny had taken a dive.

Ali said that ‘Clay’ was his slave name.  He got offside with millions by taunting his opponents and then being cruel to them by prolonging their punishment.  He then courted more unpopularity by refusing to be drafted for the increasingly looked down on war in Vietnam.  He knew who his enemies were.  ‘No Vietcong ever called me nigger.’  In the way of things, it would be this stand that would secure his position in the Pantheon – and in the U S, as well as the rest of the world.  He would later be courted by presidents.

Ali was stripped of his title and locked out of boxing until the Supreme Court eventually set aside his conviction on a fine point of law.  (The black Justice, Thurgood Marshall, did not sit.)  By then, the tide had turned completely on Vietnam and Ali was a living legend for more reasons than one.  But he had lost the best years of his boxing life.  He fought Smokin’ Joe Frazier, who was more in the Liston mould, and he lost his first professional fight.  He would later beat Frazier, but the highpoint of his return, and of his boxing career, came with the fight against George Foreman for the title at downtown Kinshasa, Zaire on 30 October 1974, the Rumble in the Jungle.

There was a book, Mailer’s The Fight, and an Academy Award film, Once Were Kings, made about this contest.  Ali was passed his prime.  And Foreman had a fearful reputation.  He was a frightfully heavy puncher.  He had knocked out both Frazier and Norton in the second round.  Ali responded with his normal verbal barrage and mind games, but in the film, Norman Mailer said that Ali never looked at Foreman’s heavy punching bag – it had been deformed.  No one ever got into the ring with George Foreman after watching him deform the heavy bag.  No one – or hardly anyone – though that Ali had any chance at all.  This was then like the first Liston fight that had taken place more than ten years ago.  Again, people in the know feared for the survival of the outmatched challenger.

This is how Norman Mailer describes their coming together in the ring to get instructions from the referee.

It was the time for each man to extort a measure of fear from the other.  Liston had done it to all his opponents until he met Ali who, when Cassius Clay at the age of twenty-two, glared back at him with all the imperative of his high-destiny guts.  Foreman, in turn, had done it Frazier and then to Norton.  A big look, heavy as death, oppressive as the closing of the door of one’s tomb.

Then something extraordinary happened, something almost unbelievable.  Ali came out in the first round and started to hit Foreman, and hit him hard – with his right hand!  It would be like a right-handed batter or golfer coming out and playing left-handed.  It was downright insulting.  Then as the fight settled down, Ali would just go back on the ropes, hunch up, and absorb flurries of punches.  At first some thought that the fight had been fixed.  But then they saw that most of Foreman’s punches directed at the body were not scoring, but were drowning the energy of the champion.  It was high drama – anyone of those missiles could have landed any other fighter back in the bleachers, but Ali just went back, took the blows, and then eased out and scored.  All the time he was taunting Foreman: ‘Is that all you’ve got?’  It then became apparent that Foreman was tiring.  His punches were either not landing or not hurting.  And Ali was starting to float about him and was pinning him with darts at will.  Then in the eighth, Ali moved in for the kill and it was all over, and the world title was his again.  There was delirium in the crowd, and in front of TV sets all around the world.  Sports fans who have seen the fight and the film many times still move to the front of their seats and hold their breath while they watch it yet again.  It is probably the most watched sporting event ever.

After that, there was The Thriller in Manila with Frazier again, but it was all downhill.  Ali was permitted to go on too long.  This is sadly common with boxers and other sportsmen.  He became a distressingly sad reflection of the wonderful athlete and fighting machine that he had been.  In his advanced age he suffers from Parkinson’s disease, and he has had it now for a long time.

But even in that condition, he could move very greatly younger people who came into his presence.  Even in decline he had an aura – as Norman Mailer saw, he could be ‘luminous’ – in a way that could still move people by a curious alchemy, a kind of out of body experience.  Why is that?  Perhaps they just feel somehow that Muhammad Ali was in truth the greatest of all time.

It is a great story, the descendant of slaves beats off the mob, becomes world champion, beats off the government, and wins back his championship, each time against a frightening odds and a terrifying opponent.  For all of his faults and failings – which, for him, like most of us, were formidable – his story is a tribute to the human spirit.  This is why he is held in such awe right around the world.  This is why so many see him as the greatest ever, the greatest ever sportsman and the greatest ever entertainer, the promoters’ final dream, the ultimate crowd pleaser.  He embodies the truth that at least at the top now, professional sportsmen and women have almost nothing to do with sport, and almost everything to do with entertainment, business, and money.  If that means that we have gone from the amateur sportsmen of the Olympic Games of the ancient Greeks to the professional chariot races and gladiators of the decaying and decadent Romans, then that is a lookout for all our mums and dads and others.  Cassius Clay and Muhammad Ali have between them consummated that transformation.  The man has been, if nothing else, a mover and a shaker.

Muhammad Ali has a lot in common with the late Maria Callas.  He was, like she was, an entertainer.  They are both seen by many as having been in their time the best ever entertainers of their kind – there is generally seen to have been blue sky between them and the rest.  By the force of their character as much as by the high reach of their technique, they both radically changed the way that the world saw their art – and we should not blush to use that word for Ali was well as for Callas.  And now, in his reflective time at peace, Muhammad Ali might agree with Maria Callas that: ‘There are no short cuts.  There is only discipline, technique, and Mut’.  As the professional coach said in Chariots of Fire, ‘You can’t put in what God left out.’  It is just that some make better use of what they get from God than others do.

Red cards


During an AFL game on the weekend, a Port Adelaide player struck a West Coast Eagles player to the rear of the head.  In the year of Our Lord 2016, it was sickening to watch.  A Fox commentator later said that it was a throwback to the 80s.  He was too young to know what happened in the 50s and 60s.  Then we used to smile about these things, but thank God things have changed in the last three generations, and we have grown up.

My views started to change firmly in the early 70s when I heard two coaches of two teams of public-school old boys calmly discussing whether or not they might have to ‘put to sleep’ a player destined for the VFL and one that neither could handle.  If this brutality was happening with amateurs, what might it be like if there was money on the table?  Not long after that, a Collingwood player called Greening suffered very serious injuries when he fell on his head.  The problem with these attacks is often not the original blow but the consequences in the resulting fall to the ground.

The blow on the weekend was struck with the elbow or forearm and it made contact with the back of the head of the victim – in about that area where Philip Hughes was struck and killed.  The victim was not, I think from the replays, in the air at the time of the impact, but he was quite off-balance, with his back turned, in the act of completing a mark, and I think with only one foot on the ground as he was falling toward the earth.  He was carried off in a neck brace with concussion.  It is not absurd to say that the effect of the blow, either immediately, or consequently on impact with the ground, could have been fatal.  There was of course strong reaction from the players, and what is called a melee.

The attack was late, deliberate, vicious, and cowardly.  It was the definitive foul – it was dangerous and as unsportsmanlike as you can get.  Under the laws of the game as they stand, the culprit played on – and, as it happens, his side got a run on – while the victim was carried off and his medical advisers considered having him taken to hospital.

That is a revolting consequence.  It puts the game to shame.  There is no doubt that under the rules of rugby as they are played and administered, at least at the top level, the culprit would have been given a red card and sent off for the match – and his team would not have been able to replace him for that match.

The AFL needs to get its act together on yellow and red cards.  Rugby was an English invention, from which our AFL derives, that was used to implant what was called character in boys and young men.  It is absurd to suggest that such a game, or any derivative of it, should in the year 2016 be a vehicle for this kind of brutality being inflicted without some form of immediate response from authority on the ground.  They have done it in rugby for as long as I can remember, in part, I think, because the game is better administered on issues of discipline at the top level, and more independently administered without having to suffer being importuned by the clubs, and in part because rugby justifiably has more confidence in its referees than the AFL or the NRL does.

We can presently put to one side yellow cards, and ten minutes in the sin bin for lesser offences or ‘cynical’ abuses of the rules, and just look at a terminal send-off under a red card.  In rugby, if the referee has any doubt he will look with other officials at the big screen replay and then make an immediate decision.  In a match in New Zealand about three weeks ago, one player flew very high and an opposing player came underneath him so that he fell very dangerously – he could have broken his neck.  In rugby, there is an absolute ban on tackling a man in the air, and although both the TV referee and the referee on the ground said that the tackle was not malicious, there was no doubt that the offender would be sent off for the match, and this was very early in the match, for what was a dangerous tackle.  His team played the whole of the rest of the match one down – there was no malice, but the safety of the player is paramount.

The AFL is not discharging its obligations to its players by failing to institute similar disciplinary responses.  The AFL is self-evidently not making the safety of the player paramount by adopting a tried and proven response used all around the world.

If the AFL needs it, there are market reasons why it should implement the red card.  Mums and dads watching this game and wondering what their kids might do, need assurance that the highest level the safety of players is the first concern of the authorities of all codes.  And they might find that it adds to the theatre of the game, and also that it might defuse some of the lunatics on the other side.

A couple of weeks ago, I was watching the great Jonathan Thurston play in the NRL.  He was hit after he had passed the ball.  He was therefore in a similar position of unreadiness as the West Coast Eagle victim.  Thurston spends a great deal of his professional life facing thirteen bruisers who could, on a bad day, do him most serious injury.  But when he does so most of the time, he is braced and ready for them – and he wears a head-guard for the same purpose.  But, as the commentators pointed out, he is obviously not in that state of readiness after he has just passed the ball – he is open and vulnerable, and that is just what makes these attacks so cowardly and so dangerous.

It was the same on the weekend, and it is time that the AFL matured, and got respectable, and does what it has to in order to protect the players – who, as it happens, are just about the only asset of worth that the AFL has.  The AFL should know this – at least one other code does it better, and they already look down their noses at you.

And that is before we get to the sword of justice.

Passing Bull 40 – Bullshit in footy


When I was a kid, I tried to play Australian rules footy.  It is too hard a game for kids – either form of rugby or soccer is much easier for kids to play.  If you look at kids trying to play our footy, you will see about three of them who know where the ball is, and the others just make up the numbers.  I was one of the ‘others’.

But I could follow an instruction that people would move up one position from the forward pocket or the back pocket to the half forward flank or halfback flank who would then move to the wing depending on whether the ball had gone into attack or defence.  I could follow that; it seemed a good and simple plan; but it was probably academic for me because of what I have just mentioned about only three boys getting near where the action really was.

Is it pure arrogance on my part to think that other people may have difficulty in implementing more involved plans?  I don’t think so.  I wouldn’t try something more clever on with lawyers.  It has long seemed to me that commentators try to read far too much into games of our footy.  I have long suspected that all this talk about structures and game-plans and the like is mainly bullshit.  As are the convoluted stats.  They are as reliable as economists.

Although I spend at least as much time watching two of the other codes as I do watching the AFL, my suspicion about the role of bullshit in AFL footy has firmed up with the sharp decline of three or four sides in the games played so far this year.  I refer in particular to the collapse – because that is what it has been – of Fremantle and Port Adelaide, and particularly Fremantle.  I find it hard to understand what the Fremantle coach is saying at the best of times, but it did appear to me the other night that he was saying that he has devised a game-plan that his players are not capable of implementing.  I think that may well be true.

In my view, playing footy comes down to other things that we try in life, like being a chef, writing a book, or running a murder case.  You take a certain amount of ability for granted, and the rest is character.  When you look at a bunch of players that form a footy team, what matters is the way in which that given ability is brought out in each player and then encouraged as part of that team.  Students of war tell us that people don’t die for the flag or the nation but for those near them.  It is the same, I think, with footy players.  The object of those running the team is therefore to get the players to develop a warranted faith in each other and an assured endeavour to trust and look after each other.

You see that happen in clubs that have the right character or fibre in themselves.  For the last decade or so, those AFL clubs have been Hawthorn, Geelong, and Sydney.  You can just about see that character or fibre in the way their players come out on the field – and certainly in the way they carry themselves in the heat of battle.  The fibre is transmitted on field by established leaders who command both respect and subscription.  Our politicians have something to wonder at.  And the good clubs have a ruthless policy of ‘no dickheads’.  Something else for our politicians to consider.

What I suspect has happened at sides like Fremantle and Port Adelaide is that the clubs have forgotten the need to develop character in the players and in the club as a whole.  Instead of locking in the basics, they and their coaches have got carried away with stratagems.  They have lost the plot.  They have whipped the cream before baking the cake.  Footy was after all supposed to be a bloody game.

Of the three Melbourne teams I take an interest in, Melbourne Storm has shown fibre for years, and has the best leaders on the field in the competition; there is for the first time in about thirty years a chance that the Demons might find a warranted faith in each other, and that their club may recover some fibre; the Rebels do not look like it doing it yet.

As to the coaches, the main ingredient in character that is required is honesty.

If you want to know what fibre means in footy teams, compare a New Zealand rugby team to one of ours.

Poet of the month: Auden


Trying to understand the words

Uttered on all sides by birds,

I recognize in what I hear

Noises that betoken fear.


Though some of them, I’m certain, must

Stand for rage, bravado, lust,

All other notes that birds employ

Sound like synonyms for joy.

The haughty arrogance of lawyers -Part 4-Grounds for holding a public inquiry

So far, I have sought to make good the following.

First, it does not matter what you or I or God think of what these Essendon players did.  I am concerned with whether they have been fairly treated.  Did they get due process?  Was justice done and seen to be done?  Did the players get a fair go?  You may be surprised to learn that those questions mean much the same in the eye of the law – and, I take it, for those outside the law.

In my view the answer to that question is no.  I set out a summary of my reasons for that conclusion in a previous note as follows.

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.

Second, if you think that the players did not get a fair go, it does not matter if that unfairness derives from the provisions of the WADA Code or from the decisions and reasoning of the CAS Panel.  Both the Code and the decision are the work of foreign lawyers (at least a majority on the Panel), and it does not matter to the players which product of the lawyers was instrumental in their downfall and present suspension.  If any player is precluded by his personal agreement with WADA from complaining about what WADA or CAS have done to him, he should look to those responsible for his agreeing to any course that could have led to such a result.

Third, because the CAS Panel was precluded by the Code from judging each player on the merits of his own case, and because each player was subject to the same mandatory penalty regardless of his level of fault, then in my view it follows that justice has not been done to the individual players – again whether or not that injustice flows from the Code or the Panel decision or both.  The conclusion of injustice in my view follows from a proposition that I regard as axiomatic.  Each player is or should be entitled to have his case determined on the merits of his own case.  If you do not accept a proposition that I regard as axiomatic, there is no point in our continuing this discussion any further.

Our law deals with the rights of persons, not with the rights of groups of people.  At least, that is what it does for the most part.  When it departs from that principle, as some governments now do in dealing with ‘terrorists’, and as some did in dealing with ‘Gypsies’, then we know that those governments are chancing their arms.  The Great Charter of 1215 said that ‘no free man shall be… in any way ruined, nor will we go against him, except by the lawful judgement of his peers or by the law of the land.’

Fourth, if you do accept the decision and the findings of the CAS Panel, you need to remember just what it decided and just what it found.  The Panel did not make a finding of dishonesty or cheating, either by the criminal standard of proof, or at all.  The Panel made its findings on a standard of proof that is less in some unquantifiable way than the standard imposed for many hundreds of years – for longer than the white man has been in this country – by our criminal law of proof beyond reasonable doubt, but higher, in some equally unquantifiable way, from the standard of the balance of probabilities in civil proceedings.  The Panel found on the basis of circumstantial and expert evidence that its members were comfortably satisfied that the players had – and that every one of them had – taken some prohibited substance of a quantity that they could not specify, and with consequences that they did not attempt to make any finding upon.  Then they found that they were satisfied, to an unspecified level of comfort, that the players had not discharged the onus that the Code put upon them to prove that they had acted without relevant ‘fault’.  It is remarkable, indeed, that the Panel could make this finding against each one of the 34 accused without separately ruling on the evidence that related to each one of them.  Is it seriously contended that each of the 34 footballers was equally culpably uninquisitive about what was going into his body?  Is the Panel really saying that they were all equally dumb or naughty?

The Panel did not say that any Essendon footballer had sought to gain, or that he had gained, an unlawful competitive advantage.  So, whatever else the Panel found, it did not make any express finding of against any player of cheating.  The fact that the reasons of the Panel not only do not make this clear, but obscure it by muddying the waters with groundless speculation about the effects on the players of the alleged consumption of prohibited substances and by their finding that all accused had failed to prove that they were innocent, is another reason why I conclude that these people on the Panel were not up to this job.

Fifth, although for the most part neither WADA nor the CAS are concerned with what lawyers call the merits and with what other people called justice, the reasoning of the Panel on what may be called ‘the merits’ is sadly flawed.  The reasoning is in stilted legalese with no attempt to explain it to the losers, with no attempt to explain how limited their decision was, and with no attempt to acknowledge that the Code was driving them to a result that most Australians find odd and that a lot of them find revolting.  Some of the comments of the Panel on the conduct of the players are just silly.  The members of the original tribunal knew what they were doing and they were better placed to do justice to these footballers, and they did so.  The members of the CAS Panel did not know what they were doing, and it shows.

Sixth, I find it offensive, and I invite other Australians to find it offensive, to be told by people from outside Australia that we in Australia cannot be trusted to regulate our own professional sportsmen, but that we should hand over our responsibility to do so to foreigners, whom we do not know, and that we should leave those foreigners with the power to rule over our own citizens, with the power to cancel their right to work, and that we should put our trust in foreign bodies and foreign laws – if it matters, laws that are not made democratically – for our own good.  The coup de grâce is that those bodies that we are asked to trust derive from and still have links with bodies that are notorious all around the world for being utterly and irredeemably corrupt – the IOC and the IAAF.  (And you do have to wonder about WADA.  Its governance comes from governments and the Olympic movement.  From 2008 to 2013, its President was a failed New South Wales politician named John Fahey.  He was a member of the New South Wales political party that has been the staple diet of that state’s anti-corruption authority.)

Seventh, in the best tradition of Australian sports administrators – the ones that we used to call the Panama Hat Brigade – the AFL has been at best silly and at worst cruel.  Those responsible, including Fitzpatrick and McLachlan, should resign – but they won’t; they will adopt the Lord Coe gambit.

And now I may add that we have the absurd spectacle of Australian workers having to defend their right to work by hiring lawyers to address a Swiss court in French.  Which improvident clowns exposed the poor players to this indignity?

The first ground for holding a public inquiry

In an area of trade and commerce that is of interest to and which affects people across the Commonwealth of Australia, people in business, government, and the professions who are responsible for the conduct of that trade and commerce, have brought it into disrepute and have caused people to lose confidence in it.  The delay and ineptitude of almost all those involved have become matters of what is called a public scandal.  The sequence of actual past events and possible future events is as follows.

  • If you accept the findings of the CAS Panel,  Essendon lied to its players about what they are being injected with.
  • The AFL punishes all involved at Essendon for bringing the game into disrepute, although no dishonesty was alleged, and although no harm or undue advantage was proved.
  • ASADA is slow and puts its case in a way that loses and that it later gives up. Even though ASADA is very inept, it is very loud and entirely unprofessional.
  • Essendon loses or has squashed various court proceedings.
  • The WADA Code is finally enforced on appeal by a CAS Panel that makes no finding of dishonesty but which imposes a fixed penalty on all of the players irrespective of individual cases. The panel says that the players did not do enough to show that their employer was a crook.
  • The players go to Switzerland in search of justice.
  • The players then sue Essendon for the original lies and its failure to look after them.
  • The players or Essendon then sue the AFL for exposing the livelihood of the players to a process that denies them due process and by leaving those players in the hands of the body that people do not trust – WADA.
  • The damages that the players seek are compensation for the consequences of the penalty inflicted on them by WADA and the CAS panel – and possibly for the consequences of the penalty inflicted on Essendon as a whole by the AFL.

That pile-up is too big to ignore.  And a prime suspect is a Commonwealth statutory body.

The second ground for holding a public enquiry

It is for the courts to determine what is lawful, and for others to say what is right.  But experience suggests that the odds are that we will never get a ruling from the courts (apart from the watch makers), at least at a level that some of the concepts might call for.  It is therefore appropriate that the Parliament conduct an enquiry into these issues in the national interest.  Some of the issues are:

  • Was the AFL obliged to act in good faith and in the interests of the players? Did the AFL discharge those obligations?  The AFL throughout has appeared to act defensively in its own interests, that is, the interests of those who run it, rather than in the interests of those the AFL should look after – the players, members, patrons, and fans.  They have behaved like the directors of a takeover target or the hierarchy of a church charged with abuse and breach of trust.
  • Magna Carta and the Bill of Rights are still part of our (Victorian) law. We shall not have justice delayed, sold, or denied.  We shall not be subject to cruel and unusual punishments.  Justice for the players was plainly delayed.  It was equally plainly sold.  (Heaven knows how much these lawyers have trousered for this mess.)  Was justice denied?  Were the players subjected to ‘cruel and unusual punishment’ in breach of the Bill of Rights?  If so what are the juristic consequences of any such breaches of our law that are more deeply entrenched in it than any other parts of it?
  • Contracts that restrain trade are void under our law. Can that law be avoided by a contract between other parties?  Can our law of due process be avoided by contracts between parties?  Even if the parties whose trade is restrained or whose rights are denied are not parties to the contract?  Was it either lawful or proper for the AFL and for Essendon to enter into contracts to permit the restraint of the trade of the players without their agreement, and with a denial of due process that would have infected any termination at common law?

The third ground for holding a public enquiry

Truth in history is relative, but a Senate enquiry would have a much better prospect of reaching after it than anything that has gone before.  That may not be saying much, but should we as a nation decline to take the opportunity?

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.

A Great Dane, a Confession, the Cataclysm, and a Bad Day


The Dane

But for Einstein, Niels Bohr may have been seen as the greatest scientific mind ever – but he still comes out of it much better than Salieri in Amadeus. Bohr won his Nobel Prize the year after Einstein.  As well as being a genius, this great Dane was, as they say in death notices, a devoted husband and father.  He was also a great teacher.  He told his students to treat every assertion that he made as a question.  Einstein says: ‘He utters his opinions like one perpetually groping and never like one who believes he is in possession of definite truth.’

There are obvious limits on our ability to understand the universe at either end – atoms and galaxies.  The major work of Niels Bohr was to work out the structure of the atom.  He said to Heisenberg, who discovered the principle of uncertainty, that:

When it comes to atoms, language can be used only as in poetry. The poet, too, is not nearly so concerned with describing facts as with creating images.

This is terribly important.  As explained by Jacob Bronowski, what Bohr was saying was that when it comes to atoms, our language is not describing facts but rather is creating images. What lies below the visible world must in some sense always be imaginary, ‘a play of images’.

There is no other way to talk about the invisible – in nature, in art, or in science. When we step through the gateway of the atom, we are in a world which our senses cannot experience.

Einstein said that he rarely thought in words. What we think that he meant was that in his work and at his level, he generally thought not in words but in mathematics. His job was to find the relevant laws of the universe. He was fond of saying that ‘God does not play dice.’ One day Bohr responded: ‘Stop telling God what to do.’

Even where we think that we understand the meaning of words describing events in the universe or in history, there is a separate question of the extent to which we come to grips with comprehending the scale of what is being spoken of.  Do we really have an understanding of how an atom is made up?  Do we really have an understanding of the size of a galaxy when as far as we know, it may have disappeared millions of years ago, but it is just that news of that disappearance is yet to reach us?  Are we able to come to grips with the brute fact that more than 20 million Russians died during World War II, or that more than six million people were murdered in what is called the Holocaust, or that some historians have given up trying to count how many millions died under Mao?  Can we come to grips with the economy of China, or the fact that China builds the equivalent of the city of Brisbane every day?

To go back to the world of physics, one mathematician said that ‘I am now convinced that theoretical physics is actually philosophy.’  New ideas in physics give us a different view of reality. What we are told now is that the world cannot be fully separated from our perception of it. Newton took God’s eye view of the world. Einstein took the view of each of us – the world is what we see and is relative to each of us. We cannot know what the world is like of itself – we can only compare what it looks like to each of us by talking about it. Jacob Bronowski summed it up as follows:

But what physics has now done is to show that that is the only method to knowledge. There is no absolute knowledge. And those who claim it, whether they are scientists or dogmatists, open the door to tragedy.  All information is imperfect. We have to treat it with humility. That is the human condition; and that is what quantum physics says. I mean that literally.

Some say that Gödel made illusory the notion of truth in mathematics.  These are humbling thoughts about the power of thought.  Bohr indeed was a philosopher, even if he said that they all talked nonsense.

A biography of Bohr I read after Christmas referred to a sometime priest called Steno as the only prominent scientist to be beatified who said (in Latin):

Beautiful are the things we see

More beautiful those we understand

Much the most beautiful those we do not comprehend.

Bohr wrestled a lot with his own relativity.  He understood, he thought, that whether an object behaves as a participle or a wave depends on how you look at it – what kind of experiment you use to assess it.  You may hardly be able to ‘see’ either.  He believed that you cannot always separate thought from emotion.  He used a difficult word ‘complementarity.’  He referred to old truths, such as ‘we are spectators as well as actors in the great drama of existence’ and ‘if we try to analyse our emotions, we hardly possess them any more.’  The relativity comes in when you try to try to draw the line between subject and object.

Bohr was like other great wrestlers like Michelangelo, Luther, Beethoven, or Ibsen.  And he was that most beautiful gift – a decent, modest hero.  And God bless him – he gave us a glimpse of mystery in science, at least as deep as the mystery of religion; and in so doing he stuck it right up those arrant God-deniers who want to abolish all magic – and who even claim to have the answer!

A Confession

If you promise not to tell anyone, I watched a bit of the new pyjama game final last night.  I wanted to see Jacques Kallis in what I think will be his last visit.  He is as tough as Steve Waugh.  I also wanted to see if KP is earning his money.  He is, and I have no doubt that he is enjoying his cricket and being part of a team for the first time in a very long time.  The young Australian Muslem was a revelation in correctness.  The bits I saw were therefore encouraging, but I turned it off before the end.  I am trying to acquire this technique with red.

The Cataclysm

We must brace ourselves for disaster in the U S.  On the Democrat side you have a moral disaster and a managerial trainwreck.  The other side is unspeakable.  Trump has done a deal with Palin.  I infer that there is a deal that Trump bought Palin’s endorsement with a ministry.  She chose environment.  She can stand on her Alaskan shoreline with an AK47 and see the visible disproof of global warming.  Good Republicans – and there are some – fear Cruz more than Trump.  Cruz has two things that Trump doesn’t – brains and an agenda.  In a nation that slaughters its children in the name of ideology, we are entitled to be terrified.  If this most decent nation thinks that it will be able to reel in one of these galahs – on either side – if elected, let them reflect on what happened to a people who thought that they could the same with a brutal clown that Trump so closely resembles.

Mussolini still needed their [the moderates’] help, for most of the liberal parliamentarians would look to them for a lead.  He also took careful note that chaos had been caused in Russia when representatives of the old order were defenestrated en masse during the revolution:  fascism could hardly have survived if the police, the magistrates, the army leaders and the civil service had not continued to work just as before, and the complicity of these older politicians was eagerly sought and helped to preserve the important illusion that nothing had changed.

The liberals failed to use the leverage afforded by his need for their approbation.  Most of them saw some good in fascism as a way of defending social order and thought Italians too intelligent and civilised to permit the establishment of a complete dictatorship.  Above all, there was the very persuasive argument that the only alternative was to return to the anarchy and parliamentary stalemate they remembered….Mussolini had convincingly proved that he was the most effective politician of them all: he alone could have asked parliament for full powers and been given what he asked; he alone provided a defence against, and an alternative to, socialism.  And of course the old parliamentarians still hoped to capture and absorb him into their own system in the long run; their optimism was encouraged by the fact that his fascist collaborators were so second-rate. 

Here is the myth of the strong man cleaning the stables.  Does that not seem to be word for word a correct rendition of how decent Germans probably reacted to Hitler?  Still today you will find Christian apologists for Franco, and not just in Spain, who say that his fascism was preferable to republican socialism.  Mussolini had the other advantage that for reasons we now regard as obvious, no one outside Italy could take Mussolini seriously.  As his biographer reminds us, Mussolini was, rather like Berlusconi, seen as an ‘absurd little man’, a ‘second-rate cinema actor and someone who could not continue in power for long’, a ‘Cesar de carnaval’, a ‘braggart and an actor’, and possibly ‘slightly off his head.’  There is Trump.  Churchill always took Hitler seriously; he could never do that with that Italian buffoon.

A Bad Day

If I say that of tomorrow, I will just sit back and wait for an Abbottism about what I might wear on my arm.  So I won’t.  From 2015, 26 January will be looked back on as the day when Tony Abbott came out.  It was on that day that the Prime Minister of Australia formally announced that he was crackers.

In the meantime, Australians like me are resigned to popping up daisies before this nation reaches the stage reached by the United States on 4 July 1776.

The haughty arrogance of lawyers Part II How the Essendon players were dudded



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.

17 Disclaimers

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.

18 Conclusions

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.

19 Cuckoos

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.