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All comments by Nick Krnjevic
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Ray - I think we are at cross-purposes. As I stated in my first, lengthy post on the CAS, my. beef isn't with that body. As I indicated, per its regulations, the CAS panel was fully entitled to conduct a de novo hearing.

My complaint was that which has since been echoed by Don M and Marty H. I don't blame the CAS; I blame the EBL (or rather, as Don has more accurately pointed out, the WBF) for having chosen the wrong body for the task it needs performed.

As I have stated elsewhere, I agree that an independent body should hear NBO appeals in order to ensure that the parties received a fair hearing. The focus should be on protecting the parties' procedural rights.

But that's not what the CAS does. And I think you and I are on the same page on that point.

And I could probably be persuaded that it may be useful, in limited circumstances, to have an appeal panel that has extensive bridge experience hear appeals that focus on bridge errors of fact committed by the NBO panel.

But the CAS clearly isn't qualified to perform that role.

Which is why my initial post argued that the EBL should adopt a proper appeal process that does not include the CAS.

Unfortunately, as Don has pointed out, it seems that the EBL is stuck with the CAS process until such time as the WBF severs it's link with the IOC.
Jan. 18, 2018
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Giorgio - as was pointed out in response to your comment on the other thread, there is a very significant difference between this case and the Italian civil appeal process that you reference.

In particular, it is one thing for three generally technically illiterate appeal judges to hear new technical evidence and set aside the factual conclusions of a similarly technically illiterate lower court judge.

But it is quite another for a technically illiterate CAS panel to hear new evidence and set aside the factual findings made by the EBL's far more experienced first instance panel.
Jan. 17, 2018
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Greg - for the reasons set out below, if you're going to have a trial “de novo” in which the “appeal” panel can substitute its own findings of fact for those made by the far more bridge-savvy EBL panel, then the CAS panel should have a background in bridge as well as experience with statistics.

As a general rule it is a losing tactic for lawyers to try and attack the validity of the opposing expert's technical analysis (assuming the expert is a genuine expert).

The expert knows a *great* deal more about his/her specialty than does the opposing lawyer, and the latter will get crushed trying to trip up the expert on the science.

Instead, a very common method of attacking the expert's report is to establish that the factual foundation of same is contradicted by other factual evidence.

In other words, the lawyer will agree that the opposing expert's theory is sound, but will argue that the Court should place no value on the expert's report because it is based on facts that are not consistent with those that are put into evidence and accepted by the judge.

So the findings of fact (which are determined by the trial judge) are of particular importance, since the fate of the expert report turns, in no small measure, on the extent to which the factual foundation relied on by the expert is consistent with the factual evidence that the judge decides to retain.

Since the the CAS panel is hearing new witnesses, and determines which factual evidence should be retained, it is particularly important that the panel members should have the practical experience necessary to make informed findings of fact on bridge matters.
Jan. 17, 2018
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Thanks Greg - Carelessness on my part. Particularly since I had taken David B. to task for having made that mistake a week ago.
Jan. 17, 2018
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Tomislav - the CAS ruling provides an example of an NBO that had adopted regulations which made it easier for that body to rely on statistics to prove its case before the CAS:

“49. It is true that the panel of the case CAS 2015/A/4351 VSL Pakroujo FK et al y. Lithuanian Football Federation sanctioned the appellants based on ”suspicious conducts“ that resulted from statistical studies but this was only because the disciplinary code of the Lithuanian federation allowed it to do so. In casu, the EBL regulations do not permit sanctioning based on suspicions and, for this reason only, the Appealed Decision shall be annulled as there is no direct evidence proving the alleged Code.”

But that “solution” has it's own problems.

I'd be very uncomfortable depriving someone of their livelihood on the ground that statistical evidence establishes, to a degree of “comfortable satisfaction”, that they engaged in “suspicious conduct”.
Jan. 17, 2018
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Don - at least the members of that majority are consistent.

4 out of 5 them dissented in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009.

That *minority* opinion would be another useful standard against which to measure the CAS ruling.
Jan. 16, 2018
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David - since Plessy,regrettably,was entirely consistent with the then-prevalent mainstream thinking, the analogy seems wide of the mark.

A better standard to compare the CAS ruling with would be the majority decision in Connick v. Thompson, 563 U.S. 51 (2011).

You couldn't make up those facts, and get that result, because no one would believe you.
Jan. 16, 2018
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Melanie - corruption seems to be a stretch.

I think it is preferable to apply Hanlon's Razor:

“Never attribute to malice that which is adequately explained by stupidity.”
Jan. 16, 2018
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Brad - dealing ghoulies produces some truly spectacular deals.

I organize a game every weekend for a friend and some time bridge partner who has been in hospital for 15 months. To liven the hands up, we play “ghoulies”

The hand of 2017 was the following:

Sitting in 4th seat, at unfav.(imps), I picked up:

AJT9xxxxxxx; A; A; void.

The auction went

(1H)-P-(2D game force) to me.

I passed, hoping one of the opps. would eventually bid NT holding the 2 outstanding spades.

The auction continued:

(2H)- P- (3D)- P;

(4C) – P – (5D).

Since each had passed up the opportunity to bid 3NT, it seemed spades were 1-1.

So I bid 7S.

2 seconds later the opponents were scoring up +400.

I could have passed 5D for the same result…..
Jan. 16, 2018
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Agree entirely - the “pitchfork and torch” brigade would have a much better appreciation of the benefits of the rule of law if they spent some time in countries that do not have an independent judiciary.

But it's a shame the CAS didn't have the option of rendering the Scots verdict of “not proven”, which is the jury's way of saying “we think you did it, but the evidence doesn't quite reach the level required for a conviction”.
Jan. 16, 2018
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Amen Marty -MLB was cheerfully prepared to turn a blind eye to flagrant steroid abuse as long as the doped-up homer-run hitters generated huge TV ratings.

Until very recently the NHL and the NFL were just as keen to ignore substantial evidence on the dangers of head-shots because their “real fans” tuned in in greater numbers to see the ‘action’.
Jan. 15, 2018
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Giorgio - I am not familiar with continental European appellate procedure. In the UK, and North America, including the civil law jurisdictions of Quebec and Louisiana, appeal courts do not hear new evidence save in exceptional circumstances.

But I think that is beside the point.

It is one thing for three generally technically illiterate appeal judges to hear new technical evidence and set aside the factual conclusions of a technically illiterate lower court judge.

But it is quite another for a technically illiterate CAS panel to hear new evidence and set aside the factual findings made by the EBL's far more experienced first instance panel.

Even worse,the CAS panel's ruling is not subject to appeal,regardless of the mess it might have made.
Jan. 15, 2018
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“CAS's decision doesn't change that, it just means this particular punishment is overturned because they didn't prove the case to the satisfaction of the CAS.”

Barry - “overturned” is what happens when an appeal court reverses the first instance ruling after assessing the merits of same solely in light of the facts that were introduced into evidence before the lower court.

The CAS didn't “overturn” anything.

It held a new hearing, and came to a different conclusion, based on different evidence.

So there have been two hearings,and two rulings, each based on different proof.

And the glaring problem with the CAS process is that although the win/loss hearing score is EBL 1 - F-N 1, the final outcome is F-N 1 - EBL(and the rest of the bridge world)0, even though there has not been any ‘appeal’ hearing in the true sense of the word.

So if both the EBL tribunal and the CAS tribual make a mess of the ruling each renders on the basis of the *distinct* facts put in evidence before them, the CAS' mess counts, while the EBL's doesn't.

Great system…..
Jan. 14, 2018
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Jon - the bidding is best understood as being within the range of acceptability in the robot 55% game, which features wild matchpoint operating predicated upon exploiting the bots fatal tendency to believe that the human has his/her bid.

A review of USLA's score-card will provide you with a useful illustration of an extreme example of the principle.
Jan. 14, 2018
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John - since you seem genuinely interested in the process, I'll add a further reference which you'll find to be of interest.

Electing panels to hear any type of matter, be it bridge or otherwise, leads to this:

https://www.supremecourt.gov/opinions/08pdf/08-22.pdf
Jan. 13, 2018
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John - an elected panel is the worst option. For detailed reasons why, google “Sandra Day O'Connor” and “elected judges”.

Unfortunately, F-N's CAS hearing strikes me as the second worst option, namely a trial “de novo” presided over by a selected panel that apparently had no experience whatsoever in the relevant fields.
Jan. 13, 2018
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Greg - you hit the nail on the head.

A lay judge, seized of a complex technical matter, will side with the expert who is clearer and more convincing.

The problem, of course, is that being clear is not the same as being correct.

As Ray and Michael H. have explained, in most cases a skilled attorney, working with an expert who is experienced in testifying, will be able to get the judge to understand the technical issues.

Difficulties will arise if one side does not do an adequate job of preparing.

They can also arise if the subject matter is particularly complicated, and the only people who are truly expert are not particularly well versed in very difficult art of reducing a problem that is fiendishly complex into small, easily digestible bites for the judge to chew.

Finally, regrettably, you may get stuck with a judge who is either unwilling, or unable, to do the heavy lifting required to master the technical issues. Judges who are overworked,or lazy, will be predisposed to take the path of least resistance, and decide in favor of the party whose winning judgment will be the simplest and shortest to write.

So for a case like F-N, I think it's clearly preferable to have a panel that has some relevant experience.
Jan. 13, 2018
Nick Krnjevic edited this comment Jan. 13, 2018
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David - with respect, the section of the ruling you are referring to (par.44) is simply the CAS' summary of F-N's argument on that issue.

The reasons for judgment on this issue are found at pars. 104 et.seq. of the decision.

As is evident from par. 108 of the ruling, the CAS rejected F-N's submission and held that the chairman was eligible:

“108. Given the wording of this article, the Panel concludes that the Disciplinary Committee was duly constituted for conducting the disciplinary proceedings against the Appellants since it was compulsory that an executive member, such as Mr. Caric, chair the disciplinary body.”
Jan. 11, 2018
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Don - thank you for the compliment.

I'll reciprocate.

Having read your informative post about the unfortunate consequences of the EBL having followed the WBF's Olympic dreams,I was aware that the EBL was stuck with the CAS process.

My reference to “appeals” in the plural was intended to convey disagreement with the generic process selected by the EBL.

Perhaps it could have been put more clearly.
Jan. 11, 2018
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“If the EBL had thought, even for a moment, that this kind of thing could happen it might not have botched the affair. But it didn't, because it thought that the whole thing was an open-and-shut case to bridge players. Rightly, though, the affair was not going to be judged by bridge players.”

David - I agree that the appeal should not be judged by bridge players.

I don't agree that the appeal should be a trial “de novo” presided over by a panel whose members would not have been eligible for the first instance panel because they lacked the practical experience necessary to make informed findings of fact on bridge matters.

The appeal court can protect the accuseds if, as a matter of procedure, they were denied the right to a fair hearing.

But the appeal body should defer to the factual findings of the lower tribunal, and should only reverse the Disciplinary Committee ruling if it was predicated upon a determinative error in law, or a manifest error in fact.
Jan. 11, 2018
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