Here's why the AFL can't strip Essendon's Jobe Watson of his Brownlow Medal

[westdog54]

Here's why the AFL can't strip Essendon's Jobe Watson of his Brownlow Medal

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...

[westdog54]

Wowee, where do I start?

First things first. the 'CAS Arbitrator' that 'decided the exact opposite' still found that at he was comfortably satisfied that at least 18 players had committed a doping violation. This was Essendon's hand-picked arbiter, and he still decided the majority of the group were guilty. In any case, his was a dissenting opinion, just as is provided for in the Supreme Court of Victoria and the High Court of Australia. A split decision, but a decision nonetheless.

The author then questions why only Stephen Dank is the only non-player held accountable in this case. Mate, you're a lawyer, you're not an idiot. There was virtually no paper trail remaining by the time investigators were called in. All that was left was to charge a few club figures with bringing the game into disrepute, and even then that was stage managed to the extreme.

He claims that the Anti-Doping code has no provision mandating the handing back of Brownlow medals, and yet then refers to the WADA code explicitly referring to the forfeiture of medals. Given that the AFL is signed up to the WADA code, what's the issue. He's trying to pick and choose which set of rules to follow, when both are applicable.

He then tries to use the rather comical 'individual sports' argument. Hate to point it out to Mr Kane, but the Essendon Football Club didn't receive the Brownlow medal. An individual did. An individual who has since been found to have been committing a doping violation.

Then, there's the best piece of Lawyer-talk in the whole column.

Whilst quoting the exact provision that states that the AFL can determine a player is not eligible for the medal if the player is found guilty of doping violation, he tries to claim that he could only find a 2014 version of the Regulations.

I'm guessing he wasn't interested in finding a set of rules that contradicted his argument, but that provision was in existence well before 2014.

Then, he tries the old "Present tense" argument, saying that the AFL can't say Watson 'Was not eligible'. Please, give me a spell. He's not eligible to be the 2012 Brownlow medallist. Simple.

Then, here's the real Coup de Gras. He says that the Commission's power is 'discretionary', as though it somehow means that the whole process should just be placed in the too hard basket. He then tries to say that because the CAS decision is, for convenient reasons to himself, not logical (which is lawyer-speak for 'he didn't like the result'), that the AFL Commission should exercise its discretion and should not act.

How despicable would it be for the AFL to turn around and say "Well, we don't accept that Jobe Watson committed a doping violation because the CAS decision was confusing (It really shouldn't be to anyone who has a grasp on the English Language), and on the strength of that alone Jobe Watson keeps his Brownlow"?

But then again, we are dealing with a lawyer here.

And then, when all else fails, you throw in a completely irrelevant comparison to try and distract the simple minded.

He tries to somehow state that Ben Cousins' 2005 Brownlow could be stripped under the same provision because he brought the game into disrepute in 2007.

1) Ben Cousins didn't bring the game into disrepute the year he won the Brownlow. Watson's doping violation occurred in his Brownlow year. Irrelevant comparision.
2) Ben Cousins didn't commit a doping violation in 2005. Watson did in 2012. Irrelevant comparison.
3) He then even tries to throw James Hird under the bus, by saying his 1996 Brownlow should somehow be in jeopardy. Again, totally ridiculous and completely irrelevant comparison.

This is why people hate lawyers.

If the AFL doesn't act against Watson then one can only draw the conclusion that the AFL have tried to stage manage the process from day one, and take as little action as possible against the club and players.

[aker39]

One person has argued the case perfectly, the other is a lawyer.

[Topdog]

Did i just really read that tripe?

[Greystache]

This guy's argued on behalf of Essendon at every stage of the process, and being proven wrong at every stage. His follow up articles usually just argue the decisions are irrational and wrong, because he doesn't agree with them. When Watson's stripped you can expect another saying the AFL was wrong again.

He's basically Slobbo, but literate.

[Twodogs]

Yep. We really got those Essendon bastards, didn't we?


Well done everyone. We should be really, really proud of ourselves. The guilty parties have all been punished.

[Greystache]

Yep. We really got those Essendon bastards, didn't we?


Well done everyone. We should be really, really proud of ourselves. The guilty parties have all been punished.

Who's we? The courts are the only one that found anyone guilty, and they hardly got them, just held them accountable for their illegal activities.

The fact Hird, Robinson, and Corcoran weren't banned for 2 years means many of the guilty party's weren't punished like they should've been.

[Twodogs]

Who's we? The courts are the only one that found anyone guilty, and they hardly got them, just held them accountable for their illegal activities.

The fact Hird, Robinson, and Corcoran weren't banned for 2 years means many of the guilty party's weren't punished like they should've been.

The baying mob that had decided guilt long before anything was proven.

Look, I absolutely despise Essendon, drug takers and law breakers but the unseemly rush to judgment by the public and the desperate need to believe WADA's ruling over ASADA's ruling shows what a pissant country this is.

[Topdog]

The baying mob that had decided guilt long before anything was proven.

Look, I absolutely despise Essendon, drug takers and law breakers but the unseemly rush to judgment by the public and the desperate need to believe WADA's ruling over ASADA's ruling shows what a pissant country this is.

Your stance on this whole thing has been baffling to be honest. I dont really give a shit about Essendon but they have taken part in a drug regime, have absolutely no idea what they gave their players, have admitted to having a banned substance at the club at one stage through Dank, do not know what happened to that banned drug yet are adamant that it did not go in players.

I genuinely feel sorry for the players but they are deserve to go. Hird, Dank, Robinson and everyone else involved should never be allowed in the AFL again, only Dank copped a ban though.

And on that, if Dank is guilty how can the rest be innocent.

The baying mob found them guilty because it is seemingly impossible to see them as anything other than guilty.

[Greystache]

The baying mob that had decided guilt long before anything was proven.

Look, I absolutely despise Essendon, drug takers and law breakers but the unseemly rush to judgment by the public and the desperate need to believe WADA's ruling over ASADA's ruling shows what a pissant country this is.

I've struggled to understand your view through out this process, but the bolded part is baffling to me to be honest.

ASADA didn't rule anything, they prosecuted a case. The court was the AFL's handpicked judiciary, and given the way the case was heard, and the prior form the AFL has of covering up major incidents for brand protection, WADA stepped in and requested the case be re-heard in a neutral court not controlled by the AFL. That court was the CAS, WADA was the prosecutor (supported by ASADA).

I would've thought with the disgraceful way the Talia spying cover up was masqueraded as a legitimate AFL investigation, you'd have wholeheartedly supported as case as important as PED use not be handled and decided by the AFL. That's without mentioning the likes of Melbourne tanking but not tanking and some of the other laughable outcomes from previous AFL tribunal hearings.

You keep saying WADA found Essendon guilty and are corrupt, and ASADA found them not guilty and are incompetent. It's wrong, it's always been wrong, and will continue to be wrong. WADA and ASADA are bodies that investigate PED use in sport's that are signed up to the WADA code. If they suspect a violation they investigate, if that investigation turns up evidence they think warrants prosecution they take it before a court. The first step is the local competition hear the case and make a judgement. Given the conflict of interest and the propensity for those organisations to be corrupt they have the opportunity to take the case to a neutral court, which is CAS.

[FrediKanoute]

I have a pretty simple response to this. Only a c*nth would hang on to an award like the Brown low knowing full well that they cheated to win it.

Take the legal arguments aside, as they hardly reflect the moral/ethical position. The piece is sophistry in the extreme.

[AndrewP6]

Yep. We really got those Essendon bastards, didn't we?


Well done everyone. We should be really, really proud of ourselves. The guilty parties have all been punished.

I know you're being sarcastic, but I completely agree with your words (not the sarcasm, just the words). I have zero time for anyone putting the careers and lives of young men in danger, in pursuit of gaining illegal advantages over other athletes. I have zero time for anyone who, at best, has been negligent in their duty of care towards others. They completely and totally deserved the whack they got - and Watson completely and totally MUST be stripped of the Brownlow.

[boydogs]

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?

I was with him until here. After being super technical with the rules & regulations, he backs the AFL ruling over the CAS ruling with nothing to substantiate his view

Neither Hird nor Cousins took performance enhancing drugs, there is no comparison

[Bulldog Joe]

It is clear to me that something illegal transpired.

1. The no records must be a sham. It is the Talia "lost my phone" defence. I have no doubt the records were destroyed due to the tip off. It is not even plausible that nobody kept records. You simply cannot run any program without recording what is happening.

2. Senior players in Watson and others are the ones who should have been thorough in their vigilance. Yet they (apparently) kept the information from the club doctor and their own personal medical advisers. They also neglected to correctly declare the substances when they were tested. This is not an accident of omission. It is a deliberate attempt to avoid detection.

In my view the players have escaped lightly and the entire administration at Essendon should have life bans.

I do not boo anyone at the football, but I will be able to make an exception for Jobe Watson. There should be no discussion on keeping his brownlow. It should have been stripped immediately.

[Greystache]

I was with him until here. After being super technical with the rules & regulations, he backs the AFL ruling over the CAS ruling with nothing to substantiate his view

Neither Hird nor Cousins took performance enhancing drugs, there is no comparison

I think that's highly questionable. Given almost the first thing he did as a coach was set up a performance enhancing drug program at Essendon, supplied by his former "nutritional advisor" and convicted drug dealer, it suggests that PED'S were very much part of his training program as a player. What he didn't realise is that these undetectable designer drugs and their suppliers are closely monitored as apposed to his days as a player.