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Dons' appeal unlikely to succeed, says legal expert

Nick Bowen  February 11, 2016 8:18 AM

Essendon 34 launch Swiss appeal AFLPA boss Paul Marsh announces next legal move
You've got to show it was an unfair hearing in the first place, I would suggest that that's a pretty high bar to get over

• Essendon appeal confirmed
• Jobe medal call on hold
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THE APPEAL launched by 34 past and present Essendon players against the Court of Arbitration for Sport decision banning them for the 2016 season is unlikely to succeed, according to leading sports lawyer Paul Horvath.

The banned players have filed appeal paperwork with the Federal Supreme Court of Switzerland before the February 10 deadline expired. 

But Horvath told SEN radio on Thursday morning that, in his memory, only six appeals against CAS decisions had been successful in the past.

It is understood the players' appeal will argue that the CAS decision contained errors of law that meant they were denied a fair hearing when found guilty of taking the banned substance Thymosin Beta-4 during the club's supplements program in 2012. 

"Given [the appeal is being based on] a technicality, and you've got to show it was an unfair hearing in the first place, I would suggest that that's a pretty high bar to get over," Horvath said.

"It's relatively rare to succeed in these sorts of appeals."

Asked whether the CAS judgment had contained any glaring errors that suggested there had been a miscarriage of justice, Horvath said: "The short answer is no."

"As far as whether they had a fair hearing, the questions that come to my mind are 'Did they get the chance to put forward all of the evidence and information they wanted?' 

"And the answer to that I suspect is no."

Horvath suggested the players' strongest argument was that the standard of proof WADA had to meet at CAS was lower than the one ASADA failed to meet at the earlier AFL Anti-Doping Tribunal. 

"One point a number of people make is the change in the way the court accepted the evidence of WADA in the case," Horvath said. 

"It seems to not be a bad point … the links in the chain (AFL Anti-Doping Tribunal) versus the strands in the cable (CAS).

"Without getting too technical, they just changed the way that they said the standard of proof in the case and also that related to 'comfortable satisfaction'.

"To me, that would be one of the key points on appeal to say the test was changed unfairly so it was too easy for WADA to prove their case."

However, Horvath said the players' appeal was unlikely to succeed on the basis that CAS re-heard the ASADA/WADA case, which included new evidence, and should only have considered whether the AFL Anti-Doping Tribunal made errors of law.

"My understanding of the CAS rules is that you are allowed to have a re-hearing – as opposed to other types of tribunals – and introduce parts of new evidence," Horvath said.