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Swiss court dismisses Essendon 34's appeal against doping bans

MELBOURNE, AUSTRALIA - SEPTEMBER 23: Jobe Watson trains after deciding to play on in 2017 during the Esendon Bombers press Conference at St Bernards College in Melbourne, Australia on September 23, 2016. (Photo by Michael Willson/AFL Media)
Jobe Watson and the rest of the Essendon 34 remain guilty of doping charges
We maintain our view that the decision and penalty ... was manifestly unfair on our players
Essendon chairman Lindsay Tanner

THE AFL Commission must decide whether to strip Jobe Watson of his 2012 Brownlow Medal after the banned Essendon 34's appeal to the Federal Supreme Court of Switzerland failed.

The appeal verdict brings to an end the drawn-out legal process relating to the Essendon Football Club's controversial 2012 supplements regime, which resulted in 34 past and present players receiving backdated two-year bans for doping offences.  

The players were initially cleared by the AFL Anti-Doping Tribunal in March 2015, only to be found guilty and suspended by the Court of Arbitration for Sport in January 2016 after WADA appealed.

With the penalty backdated to account for procedural delays, the players were effectively ruled out of the entire 2016 season. 

Timeline: How the Essendon anti-doping saga unfolded

Watson was due to appear before the AFL Commission earlier this year to determine whether he should keep his medal, but the AFL deferred its decision once the appeal was lodged in February.

A spokesman for the Swiss court told AFL.com.au on Tuesday night that usual practice was for parties to be informed of findings under an embargo basis, before releasing details publicly two days later.

The court spokesman said the embargo could be lifted if details of the case did become public in Australia earlier. 

The embargo was lifted on Tuesday night (Australian time) after news of the case was revealed in Melbourne media.

The players had appealed the Court of Arbitration for Sport's verdict on the basis that CAS did not have the power to conduct a de novo hearing - essentially, a fresh case.

But in the appeal verdict handed down on Tuesday, the Swiss court ruled that the players had lost their right to challenge the CAS jurisdiction when they accepted the CAS rules for WADA's appeal of the AFL Anti-Doping Tribunal's 'not guilty' verdict.

In the translated findings, the Swiss court confirmed it would have upheld the power of CAS, even if the players had challenged at the appropriate time. 

CAS issued a statement on Tuesday night confirming the doping penalties it issued in January would stand. 

AFL.com.au has obtained a copy of the findings, which are published in German. Court costs have also been charged to the Bombers players.

Essendon released a statement from chairman Lindsay Tanner late on Tuesday night, saying the result was "obviously disappointing" for the players.

"The club respected and supported the players' decision to exercise the only legal right to appeal they had in this process," Tanner said.

"We maintain our view that the decision and penalty handed down by the Court of Arbitration for Sport was manifestly unfair on our players.

"The club will not be making any further comment at this point in time."

The AFL Players Association also released a brief statement acknowledging the appeal finding.

"The decision is written in German and it must now be translated into English to allow the lawyers for the players to review the reasons of the Court," the AFLPA said.

"As such we are not in a position to elaborate any further on the Court's decision at this point in time."

Essendon 34: Where were they in 2016?

In May, AFL CEO Gillon McLachlan said the commissioners would "dread" making the decision about Watson's medal. 

"I think the people charged with the responsibility of making that decision will not have made a more difficult decision - not just in their time in football, but almost in their lives," McLachlan told Fox Footy. 

"I don't want to over-dramatise it, but that will be as hard a decision as anyone on the Commission has had to make, I'm sure of it."

McLachlan has said he will excuse himself from any Commission deliberations about whether to strip Watson of his medal. 

"What I've said is that I would step down from the Commission and lead effectively the prosecution and lead the recommendation that went to the Commission and then they would make a decision and he would be represented and have a view, whichever way it goes," he told 3AW radio in August.

Richmond captain Trent Cotchin and Hawthorn midfielder Sam Mitchell finished joint runners-up in the 2012 Brownlow Medal.

Cotchin has previously said he would accept the medal if Watson was stripped, telling Channel Nine in March: "I think you would have to."

"I think it’d be a challenging position to be in, because we all know the great person Jobe is," he said.

Mitchell in 2013 said he would not feel good about accepting the Brownlow Medal in such controversial circumstances.

"It's certainly not the way you would want to win a Brownlow Medal," he said. 

Earlier this season, he described it as an "awkward" situation to be in.

The Australian Sports Anti-Doping Authority (ASADA) welcomed the Swiss Federal Tribunal's decision.

"You cannot agree to the rules and then expect them to change if you don't like the outcome," ASADA CEO Ben McDevitt said.

"Furthermore, CAS exists for the very reason of ensuring sports matters are heard fairly and independently, so it is essential that they be able to review all evidence and are not limited by the findings of sports tribunals.

"This ensures that anti-doping rules are applied consistently between cases, which is crucial in the global fight against doping."

- with staff writers