http://www.smh.com.au/afl/essendon-...aring-into-essendon-case-20150520-gh5tbz.html
Australia may not have representative at CAS hearing into Essendon case
Date
May 21, 2015 - 12:29AM
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Roy Masters
Roy Masters
Rugby League Columnist
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Still waiting: Jobe Watson and Essendon teammates at a press conference after they were cleared by the AFL anti-doping tribunal in March.
Still waiting: Jobe Watson and Essendon teammates at a press conference after they were cleared by the AFL anti-doping tribunal in March. Photo: Getty Images
The World Anti-Doping Agency's determination to win the appeal over the Essendon supplements case is reflected in its anticipated choice of Richard Young, who led the successful prosecution of disgraced Tour de France winner Floyd Landis, to argue its case.
Young, a WADA favourite, was also involved in the cases against Lance Armstrong and sprinter Marion Jones.
And, according to lawyers expert in anti-doping matters, Australia may not have either a judge or counsel on the WADA appeal to the Court of Arbitration for Sport, with the hearing inevitably set for Switzerland.
Young was also briefed on the Essendon and Cronulla supplements cases by former ASADA chief executive Aurora Andruska, and has potentially already read the decision of the AFL Anti-Doping panel. It's understood he believes he can overturn the AFL Tribunal verdict.
With CAS based in Lausanne where the WADA appeal was filed and WADA having already appointed a barrister who works out of UK and Belgium as its representative on the three-judge panel, two are certain to come from Europe.
Essendon may even struggle to find a non-conflicted Australian advocate to appear in the court and argue their defence. According to some lawyers, Melbourne's small number of CAS-registered arbiters, some of whom have already appeared in the long-running drugs case, are conflicted and can't appear as counsel for the players.
Only three Australians who are on the CAS register and not conflicted from previous ASADA cases have been identified, meaning that if the AFLPA and lawyers for the 34 past and present Essendon players can't identify a nominee judge, no one from Australia would sit on the bench.
In order to guarantee the presence of one AFL-minded person in a jurisdiction of European lawyers, legal sources claim Essendon have suggested a recently retired Australian High Court judge, Justice Ken Hayne, as their nominated judge on the three-person panel.
Justice Hayne is an Essendon supporter and is hugely respected for his independence and clarity of thinking.
To assume one of the most highly regarded ex-High Court judges would put being Victorian and an Essendon fan ahead of being independent reflects the parochialism of those who must now learn to live in a wider legal universe. An Essendon spokesman said the club was "not aware" of whether Hayne had been approached, or that he is a Bombers supporter.
Justice Hayne is not one of Australia's 19 registered CAS arbiters in a worldwide pool of 200.
CAS rule 33 says, "Every arbiter shall appear on the list drawn by ICAS."
He would need to be added to the list to be Essendon's representative on the three-judge panel.
Lawyers say there is no reason why he could not be added to the list, unless there is an age cap of the type which forced his retirement from the High Court.
There may be many non-CAS arbitrators with an inbuilt bias in favour of the Essendon players but seeking those off the list is at odds with drafting a high-profile, independent, neutral judge, such as Justice Hayne.
Three Melbourne-based barristers on CAS's list have already appeared in ASADA's case against Essendon - Neil Young, QC, who acted for Essendon; Malcolm Holmes, QC, who acted for ASADA and David Grace, QC, who appeared for the 34 past and present Bombers players.
A fourth Melbourne-based barrister on CAS's list, Brian Collis, QC, would likely be challenged by WADA. He sits on the AFL Appeals Board, the body which would have heard the appeal if ASADA, rather than WADA, chose to challenge the judgment of the AFL anti-doping tribunal, which said it could not be comfortably satisfied the 34 players took banned drugs.
A fifth Melbourne-based lawyer, academic Hayden Opie, sits on ASADA's Anti-Doping Rule Violation Panel, and is therefore conflicted.
There are only three arbitrators on the CAS list who could appear on the panel, either as Essendon's choice or the remote possibility of being the third judge – former NSW Chief Justice Jim Spigelman; Annabelle Bennett, a Sydney-based Federal Court judge, and former ICAC commissioner Justice David Ipp, who also lives in Sydney.
CAS's Sydney office has been in contact with the Swiss registry in Lausanne asking whether the case would be held in Australia and the answer has been a definitive no.
All parties must agree where it is held. Essendon's representative would argue it would be preferable for the 34 past and present players to have the case heard in Melbourne but with two of the three judges certain to come from Europe and doubts over the Australian counsel, this is unlikely.
In any case, evidence can be presented by video link.
