westdog54
22-10-2016, 08:20 AM
Here's why the AFL can't strip Essendon's Jobe Watson of his Brownlow Medal (http://www.theage.com.au/afl/essendon-bombers/heres-why-the-afl-cant-strip-essendons-jobe-watson-of-his-brownlow-medal-20161020-gs6t2m.html)
Last January, three Court of Arbitration for Sport judges determined that 34 AFL players, contracted to the Essendon Football Club during season 2012, violated clause 11.2 of the AFL's 2010 Anti-Doping Policy, and were significantly at fault in doing so (actually, one CAS arbitrator decided the exact opposite in relation to a number of, still unidentified, players).
Clause 11.2 says that it's doping, to inject or ingest a "prohibited substance", even if there is no failed test. Consequently, almost three-dozen players each were suspended for two years, partially backdated. The banned substance in question – thymosin beta-4 – isn't lolly water. Exactly how it's the reality, that no non-player bar the malefactor Stephen Dank, has their head on a stick for orchestrating or supervising this fiasco is a mystery; the statute of limitations still has three years to run.
But, with Jobe Watson and his Bombers teammates having now exhausted all available appeal rights in relation to the CAS decision – the doomed appeal to the Swiss Federal Tribunal failed – surely it's a fait accompli that Watson's Brownlow Medal, earned in the Bombers annus horribilis, will be stripped.
Lance Armstrong, Alberto Contador and Marion Jones each suffered similar fates – retrieved yellow jerseys or Olympic golds. Jones was banned from sport for the same period as Watson; Contador for half as long. Cleansing the record books – that's just what happens in these cases. Or is that too unsophisticated a conclusion?
I recall watching Watson in June 2013, being grilled during an episode of Fox Sports' On the Couch – almost five months after the proverbial hit the fan in the AFL and NRL. Watson was cross-examined at length, about allegations of the club-wide use of a different substance, AOD-9604. Watson was asked serious and confronting questions, and rightly so. I wrote shortly thereafter that his answers were honest, believable and brave; and that it was hysterical for him to be labelled a "cheat".
Nothing since causes me to resile from my views, expressed over three years ago. To Watson's immense credit, he easily could have gone nuclear on the six o'clock news and declared Dank a tumour on the Bombers, which was excised before it became a cancer; yet he didn't.
He and a posse of Bombers could have door-stopped the team doctor or James Hird, unannounced in the dead of night, to exact revenge or convey sentiments of extreme displeasure, that the players weren't looked after with due care and diligence. Yet nowhere in Melbourne did that happen. Nobody would have blamed Watson, had he gone all Nick Kyrgios-like at some point, and given up; but if anything, Watson did the opposite.
Yet Watson has been found to have breached doping rules; appropriate penalties must be paid. There's a key word in that sentence; it's not "penalties".
The AFL's 2010 Anti-Doping Policy, under which the CAS banned Watson and his 33 co-defendants for two years, contains precisely no provision mandating the handing back of Brownlow Medals, or other such honours. The 2009 version of the WADA Code – on which the AFL's applicable anti-doping rules were based, likewise contains no on-point requirements.
The WADA Code does at article 9 talk about the "forfeiture of any medals, points and prizes". But the impossible problem is that article 9 is only adopted for individual sports, and for results obtained following in-competition tests – think swimming or track and field finals. "Individual" sports are those where the substitution of players isn't permitted, during a single race or athletic contest (relay swimming isn't a "team" sport; no replacements are allowed).
Is that the answer then? Not exactly. The awarding of the Brownlow Medal is governed by regulation 21 of the Australian Football League Regulations. Surprisingly, given the high esteem in which the award is held, the rules prescribing how it's awarded run for a single page. However, a separate section provides that the AFL Commission may, in its discretion, determine that a player "is not eligible" for honours including the Brownlow, if the player "is found guilty of an offence under the AFL Anti-Doping Code", or if he breaches the AFL's illicit substances policy or other rules.
Simple words, but there's a few barnacles on the rule. First, for the Commission to act it must be the case that it was conferred with this discretionary power in 2012, when the relevant doping conduct occurred. To use an analogy, if I was to murder someone tomorrow, and the death penalty was then reintroduced next year just before my trial, I couldn't be sent to the gallows. I raise this issue simply because the earliest version of the AFL Regulations I can readily locate is effective from February 2014. Did the AFL Commission even have these powers in 2012?
Second, the precise language of the AFL's rule is set in the present tense, in that the AFL Commission may determine that a player IS NOT eligible for the Brownlow Medal. The relevant rule does not expressly empower the AFL Commission to make a decision about retrospective eligibility, four years after an award has been presented. It was open to the architects of the AFL's regulations, to grant the Commission this exact power to review history; yet the rules are silent.
Third, even if the relevant powers existed in 2012; and even if you accept the proposition that those rules empower the AFL Commission in relation to prior years – and not only to make declarations of eligibility for the present season – the power conferred on the Commission is discretionary. The power isn't expressed as being "unfettered" or "absolute"; thus some semblance of reasonableness must be expected. The AFL Commission isn't compelled to act.
The AFL tribunal's original "not guilty" judgment, handed down in March 2015, was logical; the CAS appeal decision last January is less so. One is left with a lingering confusion, as to precisely how the CAS was so resolute in determining guilt. Does this opaqueness warrant the Commission not exercising its discretion?
Ben Cousins was awarded the Brownlow in 2005. Two years later, the AFL expelled him from the game for 12 months for bringing the sport into disrepute – he was arrested a month earlier, for drug possession and other shenanigans. Yet regardless, there's nothing preventing Cousins hawking his Brownlow down at the local pawn shop, if things get desperate. Did the AFL have the power to strip Cousins of the Brownlow in 2007? On one construction of the rules, maybe (if they were in force, and if you accept the Commission can deal with Watson). If so, why didn't it?
Further, Hird was awarded the Brownlow in 1996, and he was head honcho at Essendon in 2011 and 2012. Doesn't the fish rot from the head?
Googling "should Ben Cousins lose his Brownlow?" reveals no weight of keyboard-based rage. Replace Cousins' name with that of Watson, and my Mac goes postal. There's something not right about that.
Darren Kane is a Sydney sports lawyer
Rebuttal to follow...
Last January, three Court of Arbitration for Sport judges determined that 34 AFL players, contracted to the Essendon Football Club during season 2012, violated clause 11.2 of the AFL's 2010 Anti-Doping Policy, and were significantly at fault in doing so (actually, one CAS arbitrator decided the exact opposite in relation to a number of, still unidentified, players).
Clause 11.2 says that it's doping, to inject or ingest a "prohibited substance", even if there is no failed test. Consequently, almost three-dozen players each were suspended for two years, partially backdated. The banned substance in question – thymosin beta-4 – isn't lolly water. Exactly how it's the reality, that no non-player bar the malefactor Stephen Dank, has their head on a stick for orchestrating or supervising this fiasco is a mystery; the statute of limitations still has three years to run.
But, with Jobe Watson and his Bombers teammates having now exhausted all available appeal rights in relation to the CAS decision – the doomed appeal to the Swiss Federal Tribunal failed – surely it's a fait accompli that Watson's Brownlow Medal, earned in the Bombers annus horribilis, will be stripped.
Lance Armstrong, Alberto Contador and Marion Jones each suffered similar fates – retrieved yellow jerseys or Olympic golds. Jones was banned from sport for the same period as Watson; Contador for half as long. Cleansing the record books – that's just what happens in these cases. Or is that too unsophisticated a conclusion?
I recall watching Watson in June 2013, being grilled during an episode of Fox Sports' On the Couch – almost five months after the proverbial hit the fan in the AFL and NRL. Watson was cross-examined at length, about allegations of the club-wide use of a different substance, AOD-9604. Watson was asked serious and confronting questions, and rightly so. I wrote shortly thereafter that his answers were honest, believable and brave; and that it was hysterical for him to be labelled a "cheat".
Nothing since causes me to resile from my views, expressed over three years ago. To Watson's immense credit, he easily could have gone nuclear on the six o'clock news and declared Dank a tumour on the Bombers, which was excised before it became a cancer; yet he didn't.
He and a posse of Bombers could have door-stopped the team doctor or James Hird, unannounced in the dead of night, to exact revenge or convey sentiments of extreme displeasure, that the players weren't looked after with due care and diligence. Yet nowhere in Melbourne did that happen. Nobody would have blamed Watson, had he gone all Nick Kyrgios-like at some point, and given up; but if anything, Watson did the opposite.
Yet Watson has been found to have breached doping rules; appropriate penalties must be paid. There's a key word in that sentence; it's not "penalties".
The AFL's 2010 Anti-Doping Policy, under which the CAS banned Watson and his 33 co-defendants for two years, contains precisely no provision mandating the handing back of Brownlow Medals, or other such honours. The 2009 version of the WADA Code – on which the AFL's applicable anti-doping rules were based, likewise contains no on-point requirements.
The WADA Code does at article 9 talk about the "forfeiture of any medals, points and prizes". But the impossible problem is that article 9 is only adopted for individual sports, and for results obtained following in-competition tests – think swimming or track and field finals. "Individual" sports are those where the substitution of players isn't permitted, during a single race or athletic contest (relay swimming isn't a "team" sport; no replacements are allowed).
Is that the answer then? Not exactly. The awarding of the Brownlow Medal is governed by regulation 21 of the Australian Football League Regulations. Surprisingly, given the high esteem in which the award is held, the rules prescribing how it's awarded run for a single page. However, a separate section provides that the AFL Commission may, in its discretion, determine that a player "is not eligible" for honours including the Brownlow, if the player "is found guilty of an offence under the AFL Anti-Doping Code", or if he breaches the AFL's illicit substances policy or other rules.
Simple words, but there's a few barnacles on the rule. First, for the Commission to act it must be the case that it was conferred with this discretionary power in 2012, when the relevant doping conduct occurred. To use an analogy, if I was to murder someone tomorrow, and the death penalty was then reintroduced next year just before my trial, I couldn't be sent to the gallows. I raise this issue simply because the earliest version of the AFL Regulations I can readily locate is effective from February 2014. Did the AFL Commission even have these powers in 2012?
Second, the precise language of the AFL's rule is set in the present tense, in that the AFL Commission may determine that a player IS NOT eligible for the Brownlow Medal. The relevant rule does not expressly empower the AFL Commission to make a decision about retrospective eligibility, four years after an award has been presented. It was open to the architects of the AFL's regulations, to grant the Commission this exact power to review history; yet the rules are silent.
Third, even if the relevant powers existed in 2012; and even if you accept the proposition that those rules empower the AFL Commission in relation to prior years – and not only to make declarations of eligibility for the present season – the power conferred on the Commission is discretionary. The power isn't expressed as being "unfettered" or "absolute"; thus some semblance of reasonableness must be expected. The AFL Commission isn't compelled to act.
The AFL tribunal's original "not guilty" judgment, handed down in March 2015, was logical; the CAS appeal decision last January is less so. One is left with a lingering confusion, as to precisely how the CAS was so resolute in determining guilt. Does this opaqueness warrant the Commission not exercising its discretion?
Ben Cousins was awarded the Brownlow in 2005. Two years later, the AFL expelled him from the game for 12 months for bringing the sport into disrepute – he was arrested a month earlier, for drug possession and other shenanigans. Yet regardless, there's nothing preventing Cousins hawking his Brownlow down at the local pawn shop, if things get desperate. Did the AFL have the power to strip Cousins of the Brownlow in 2007? On one construction of the rules, maybe (if they were in force, and if you accept the Commission can deal with Watson). If so, why didn't it?
Further, Hird was awarded the Brownlow in 1996, and he was head honcho at Essendon in 2011 and 2012. Doesn't the fish rot from the head?
Googling "should Ben Cousins lose his Brownlow?" reveals no weight of keyboard-based rage. Replace Cousins' name with that of Watson, and my Mac goes postal. There's something not right about that.
Darren Kane is a Sydney sports lawyer
Rebuttal to follow...