Essendon WADA CAS

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

/ Geoffrey Gibson / 3 Comments

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

/ Geoffrey Gibson / 8 Comments

 

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.