All banned Essendon players have joined a Swiss court appeal against their AFL anti-doping charges, despite the legal avenue’s notoriously low success rate.
AFL Players’ Association chief executive Paul Marsh was cautiously optimistic on Thursday morning when he confirmed details of the appeal to the Swiss Federal Supreme Court.
The latest development in the long-running Essendon supplements saga will involve the 34 current and past Bombers players appealing against last month’s Court of Arbitration for Sport (CAS) verdict.
WADA went to CAS and successfully appealed against the original AFL anti-doping tribunal ruling that had gone in the players’ favour.
The Swiss appeal will most likely go ahead in the next four to six months.
It is the only avenue to challenge CAS findings and few appeals are successful.
“We’re all optimistic about the prospects – we wouldn’t be taking this on and the players certainly wouldn’t be taking this on if they didn’t think they had reasonable prospects,” Marsh said.
“We have exceptional lawyers telling us that we have reasonable prospects.”
Marsh also confirmed that the 12 Essendon players and five others still at AFL clubs would not seek an injunction.
That means that even if the appeal is successful, they will still not play this season.
“We’re certainly proceeding on the basis, and the players are, that they won’t be playing in 2016,” he said.
“This is about clearing their names, that’s what is most important to the players,” Marsh said.
The hearing will go ahead in Switzerland and will not be heard in English, so the players association has to organise translators as well as engage Swiss lawyers.
Given the appeal will be on legal grounds, no players are likely to attend.
Essendon will fund the appeal, reportedly through their insurers.
The players’ argument will be that the three-person CAS panel was wrong when it ruled that the WADA appeal could be “de novo” – a whole new hearing.
The anti-doping code was changed during the original AFL anti-doping tribunal hearing.
The players’ lawyers will argue that under the old code, a de novo appeal hearing was not allowed.
“WADA should only have been allowed to appeal … on grounds of either legal error or that it was grossly unreasonable,” Marsh said.
Marsh also was adamant that the players are not pursuing the appeal on a technicality.
“We think this is a fundamental legal right that the players have,” he said.
“They’re the only grounds we have available to us here and we think they’re strong grounds.”
The appeals papers were to be lodged later on Thursday.
Also on Thursday, the AFL website reported the decision on whether Essendon captain Jobe Watson should keep his 2012 Brownlow Medal will be postponed until after the appeal verdict.
Last week, there was speculation not all the players would join the appeal.
Marsh said it was a decision that each individual made and added the last few weeks since the CAS verdict had been hard for them.
“Some of them, I guess, are coming to terms with it quicker than others,” Marsh said.
“They’re doing it tough, but I guess it gets easier day by day.”
There is a chance that if the players’ appeal succeeds, the case could go back to CAS.
But Marsh does not think that would affect their bans.
“Our understanding is that the players, their bans, can’t be any longer than what they are,” he said.