The president of the World Anti-Doping Agency has warned Essendon players not to expect a quick turnaround in their appeal against the Court of Arbitration for Sport’s (CAS) findings made against them.
Last month the CAS found 34 past and present Essendon players guilty of doping. Last week the AFL Players Association lodged an appeal in the Swiss Federal Tribunal.
The WADA President, Sir Craig Reedie, said he is not surprised the Essendon 34 are appealing.
Speaking from the Youth Olympic Games in Norway he said: “I understand that the Essendon players are heading to the Swiss Tribunal, which is the ultimate appeal process, and they are entitled to do that.”
“It’ll take quite a long time,” he warned.
“We thought long and hard before we appealed the original decision (handed down by the AFL anti doping tribunal), it was as much on the burden of proof as anything else so we were perfectly happy with the judgment we got.
“In our view an offence was committed, if there’s a different view then in this ever more complicated world they’re entitled to exercise their rights and go to the Swiss Federal Tribunal.”
More appropriate to appeal through Australian Federal Court: Sports law expert
The players’ legal team will argue that the WADA appeal should not have been heard ‘de novo’ (essentially as a fresh case) and that the evidence of players should have been considered on an individual basis.
Sports law expert, Allistar Twigg of Snedden Hall and Gallop, argues it would be more appropriate to appeal through the Australian Federal Court.
“Under the IAA (International Arbitration Act) the Essendon 34 have a right of recourse to any court in Australia,” he said.
“Given that the Essendon 34 would also want, I would have thought, to at least have an option to seek an interim injunction to restrain the AFL from implementing the CAS prohibitions, thus allowing them to train and play until the matter is finally decided, the courts with the relevant jurisdiction are the Federal Court and the state Supreme Courts.”
There are currently two high-profile international cases that are challenging the Court of Arbitration’s authority.
Germany’s most decorated winter Olympian, speedskater Claudia Pechstein, challenged the independence of the CAS in Munich’s Higher Regional Court and won.
It has been appealed to Germany’s Federal Court of Justice and that decision is expected in March.
Sports lawyer, Mike Morgan, told the New York Times recently that the Pechstein case, if upheld, would “definitely send shock waves through sports arbitration”.
The other case involves a challenge to the IOC’s gender policy which as been accepted by the Human Rights Tribunal in Canada.
The athlete involved, cyclist Kristen Worley, refused to sign an athlete agreement with her sports federation because it binds athletes to the CAS and the independence of the arbitral body continues to be questioned.
“Australian courts have not yet dealt with this question about the independence and impartiality of the present CAS, the Australian Federal Court would come to it with fresh minds, a powerful reputation for justice and fairness, and 40 years of experience in the pertinent competition law matters,” Mr Twigg said.
Sir Craig Reedie, who is both WADA president and a vice president of the IOC believes the CAS is the best way to deal with sports cases.
“Certainly in the anti-doping world we have always made it quite clear that if there is to be a disciplinary process the athlete has the right to question that and in the main the jurisprudence that we’ve had from CAS has been good.”
“I think in all honesty to be fair to the athletes in anti-doping we try to protect the clean athletes, if they feel they have been badly treated they are entitled to appeal.”
“The world is complicated, just look at it, and sport is a major part of the world.”