Bombers face a tough fight to appeal, say lawyers
Date
September 20, 2014 - 7:00PM
Jon Pierik
Essendon and James Hird could face an almost impossible task to successfully appeal their decisive loss in the Federal Court, lawyers claim.
The Bombers and Hird are weighing up whether to challenge Justice John Middleton's decision that the joint investigation conducted by the Australian Sports Anti-Doping Authority and the AFL into the club's 2012 supplements program was lawful.
This comes as player agents with clients at Essendon on Saturday began discussing what their next move would be. A deal with ASADA is the preferred option for some now that the 34 players issued with show-cause notices face the prospect of infraction notices and suspensions. Potential law suits against the club, should infraction notices be issued, have also been raised.
Ruckman Patrick Ryder has already quit the Bombers largely because of the scandal, and met with Greater Western Sydney recruiting chiefs Graeme Allan and Steve Silvagni and coach Leon Cameron on Saturday.
It's believed the AFL Players Association will look to hold a meeting with the 34 players as soon as this week.
Middleton was emphatic that the anti-doping body and the AFL had done nothing wrong during their joint probe, and even ruled that the Bombers and Hird pay ASADA's costs, which some believe could be more than $500,000. The Bombers have already spent more than $1 million on legal fees this year alone, as the financial pain mounts.
Graham Smith, a partner with Clayton Utz and a leading industrial relations and employment law specialist, said the losing parties faced a major challenge if they chose to appeal.
"The decision is a complete vindication of the actions taken by ASADA. It is a comprehensive and closely reasoned decision that is unlikely to be overturned on appeal, in my view," Smith said.
"When you look at it objectively, their case was not as strong as it appeared."
The Bombers and Hird had 21 days from Friday to appeal to the full Federal Court of three judges.
Smith said Middleton's decision reinforced the strength of the AFL's coercive powers that ASADA had required to compel the players to answer truthfully during their interviews. These interviews helped ASADA issue show-cause notices, which Hird and the Bombers had argued should be struck out.
"I would say the judgement contains a very lucid examination of the obligations of players and coaches under the player rules and the AFL standard player contract to co-operate in any joint AFL, ASADA investigation and to fully and truthfully answer any questions asked by the AFL, including on ASADA's behalf," Smith said.
"It does show the enormous breadth of power ASADA and the AFL have got to conduct a joint investigation through what he [Middleton] calls the 'contractual framework'.
"It shows the key role of the AFL in enforcing the ASADA regime."
Lawyer and blogger Natalie Hickey, a former partner at King & Wood Mallesons, wrote on sociallitigator.com that Middleton's factual findings were "devastating" for the Bombers and Hird.
She pointed to Middleton's declaration that "on the evidence before the court, the investigation disclosed a strong link between deficient governance and management practices at Essendon and the possibility of Essendon players being involved in anti-doping violations".
"Therefore, the poor governance and management practices at Essendon were related to possible anti-doping violations by Essendon players, to the extent that such violations may have been systemic, or may have occurred because proper governance and management practices were not in place. This seems to have been the very situation that existed at Essendon," Middleton said.
Hickey wrote: "In other words, Justice Middleton went further than an analysis of ASADA's legal powers. He was prepared to conclude that the apparent anti-doping rule violations leading to ASADA's intervention were entirely justified."
Hickey said lawyers for Hird and the Bombers would assess the findings of fact, the strength of the legal analysis and the impact of the discretionary factors before deciding whether to appeal.
While Hickey said "no judgment is appeal proof", in terms of the finding of the facts, Hird and the Bombers faced a difficult task to push for an appeal.
"Findings of fact cannot generally be overturned on appeal. This is because the trial judge is in the best position to assess the demeanour of witnesses. Appeal judges only review the paperwork and do not get to see the witnesses again," she said.
"True it is, conclusions based on inferences [say, from documents] are more susceptible to challenge. However, appeal courts are generally at pains to support the decision of the judge below.
"Indeed, the task of an appellant to overturn a judgment cannot be overstated. It is very hard. There must generally be a clear error of law for an appeal court to find that one of their colleagues was mistaken in approach."
Read more:
http://www.theage.com.au/afl/afl-news/bombers-face-a-tough-fight-to-appeal-say-lawyers-20140920-10jqsb.html#ixzz3DtpOzdmw
