Michael Hibberd is one of the 12 AFL footballers currently contracted to the Essendon Football Club (Essendon) found by the Court of Arbitration (CAS) to have breached clause 11.2 of the Australian Football League (AFL) anti-doping code as a result of their part in the Essendon supplements saga in 2012. Hibberd, along with 33 other past and present Essendon footballers were “sanctioned with a period of ineligibility of two years as of 31 March 2015”. Currently, Hibberd is serving a provisional suspension from all competition expiring on 13 November 2016. As a result of these extenuating circumstances, Essendon have reportedly been keen to retain all 12 currently contracted banned players until the conclusion of their respective contracts. However,
…show more content…
Per clause 43.17(b), it is in the “absolute discretion” of the Tribunal Chairman as to “whether any matter should be re-opened…or…reconsider(ed)”. Accordingly, if the Grievance Tribunal found in favour of Michael Hibberd i.e. found that Essendon, as a result of the 2012 supplements program, breached the contractual clause 7.3 with respect to providing Hibberd with a safe work environment whereby the Grievance Tribunal compels Essendon to delist Hibberd and transfer to Melbourne (for which Essendon will receive no compensation for), Essendon would have little grounds for appeal not only on the basis of these CBA clauses, but also as courts have generally been reticent to involve themselves in decisions of domestic tribunals. According to Tagdell JA in Australian Football League v Carlton Football Club Ltd, “courts have consistently refused to review…decisions made by private or domestic tribunals…established to deal with disputes within organisation to which people had voluntarily affiliated, by contract …courts will not discourage private organisations form ordering their own affairs within acceptable limits”. Nonetheless, it is possible to bring a private law action in contract challenging an AFL tribunal decision whereby somewhat akin to an ultra vires claim in judicial review actions, a player (or club) could take action against the Grievance Tribunal for breach of contract, if it acted outside the express/implied scope of its own rules in making its decision. According to Tagdell JA in Australian Football League v Carlton Football Club Ltd, the court has jurisdiction to interfere in a matter decided by a domestic tribunal if the conclusion reached was plainly absurd or unreasonable i.e. a decision that “no
Per clause 43.17(b), it is in the “absolute discretion” of the Tribunal Chairman as to “whether any matter should be re-opened…or…reconsider(ed)”. Accordingly, if the Grievance Tribunal found in favour of Michael Hibberd i.e. found that Essendon, as a result of the 2012 supplements program, breached the contractual clause 7.3 with respect to providing Hibberd with a safe work environment whereby the Grievance Tribunal compels Essendon to delist Hibberd and transfer to Melbourne (for which Essendon will receive no compensation for), Essendon would have little grounds for appeal not only on the basis of these CBA clauses, but also as courts have generally been reticent to involve themselves in decisions of domestic tribunals. According to Tagdell JA in Australian Football League v Carlton Football Club Ltd, “courts have consistently refused to review…decisions made by private or domestic tribunals…established to deal with disputes within organisation to which people had voluntarily affiliated, by contract …courts will not discourage private organisations form ordering their own affairs within acceptable limits”. Nonetheless, it is possible to bring a private law action in contract challenging an AFL tribunal decision whereby somewhat akin to an ultra vires claim in judicial review actions, a player (or club) could take action against the Grievance Tribunal for breach of contract, if it acted outside the express/implied scope of its own rules in making its decision. According to Tagdell JA in Australian Football League v Carlton Football Club Ltd, the court has jurisdiction to interfere in a matter decided by a domestic tribunal if the conclusion reached was plainly absurd or unreasonable i.e. a decision that “no