Where does this court ruling leave the Essendon 34?
In October 2016, Chip Le Grand (Doping scandal: Swiss court dimisses appeal by the Essendon 34) wrote “Appeal documents obtained by The Australian reveal that former High Court judge Kenneth Hayne, former Federal Court judges Ray Finkelstein and Neil Young and former Victorian Supreme Court judge Jack Rush all submitted legal opinions to the Swiss court challenging the grounds on which CAS determined the bitterly fought case.
“Young warned that CAS’s decision to conduct a second, full hearing of the case exposed the players to a form of double jeopardy and offended “fundamental principles of justice and fair dealing’’ by giving the World Anti-Doping Agency a powerful appeal right not available to other parties.
“Hayne said WADA’s right of appeal should have been limited to demonstrating that the AFL tribunal, which previously heard the case, either made an error of law or came to a manifestly unreasonable decision.
“Rush said CAS’s rehearing of the case which culminated in a guilty finding and two-year ban against every player should have never taken place. WADA was not entitled to appeal and the CAS panel was not entitled to review the merits of the AFL tribunal decision.”
Now we have this today...
SPORT’S LEGAL SYSTEM SHAKEN BY RULING
A Brussels Court of Appeal has handed down a historic sentence which could shake to the core the legal system of the sporting world. The ruling holds that the “enforced arbitration” of the Court of Arbitration for Sport (CAS) is illegal, thus authorising appeals in sporting matters to be heard in domestic courts.
The Brussels court considers that the arbitration rules set out in the statutes of Fifa, Uefa and their members, which oblige legal disputes to be heard exclusively by the CAS, violate article 6 of the European Convention of Human Rights and article 47 of the European Charter of Fundamental Rights.
The ruling, by extension, affects all national and INTERNATIONAL SPORTING ORGANISATIONS [AFL?] (FIBA, EHF...) and opens up the possibility for any club or athlete to take legal action against, for example Fifa or Uefa, in the domestic courts of their country. They will be able to reject the jurisdiction of the CAS, which will only apply where there is real consent between the parties.
J34 note: Did the players give consent?
According to sources close to the case, the main goal of Seraing and the club’s lawyers was always to seek a sentence revoking the “enforced arbitration” of the CAS, above all the other matters.
In their case they argued that there is room for doubt over the impartiality and independence of the CAS given that the body is under the economic and political influence of sport's international federations. Furthermore, as it is based in Switzerland, the court does not have to apply European Union law.
This led the Brussels Court of Appeal to look again at the case, requesting more information regarding the CAS and examining the legality of the obligation of football clubs to take their cases exclusive to the CAS.
It appears that Fifa and Uefa were unaware of the danger brewing in Brussels and are now facing a problem that could affect the way they, and OTHER SPORTING BODIES, work.
THE RULING COULD ALSO AFFECT OLD CASES.
“It’s highly probable that many rulings handed down by the CAS could now be questioned, on the basis of the illegality of the arbitration clauses”, said the claimants.
The Brussels Court of Appeal denied Uefa’s petition to have the process thrown out, and also refused Fifa’s demand to have the case heard in Zurich, on the grounds that it is based in Switzerland.