To appeal or not? The AFL’s cases for and against after landmark tribunal

It’s hard to recall a more landmark tribunal case in recent times. And it mightn’t be over yet.

Following intense commentary over the last five days surrounding Brayden Maynard’s knock-out hit on Angus Brayshaw — that saw the Pies star referred directly to the Tribunal — Maynard on Tuesday night was sensationally cleared of that rough conduct charge after a marathon four-hour hearting.

It means Maynard will be free to play in Collingwood’s preliminary final next weekend against either Port Adelaide or GWS at the MCG in a huge win for Craig McRae’s side.

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But there’s still one final hurdle to clear — a possible AFL appeal.

The league by Wednesday midday must make a decision of whether or not they wish to pursue that and potentially further drag out the case that’s dominated the football landscape this week.

Of course, Maynard’s case was taken to the tribunal by AFL bosses after overruling the Match Review Officer’s original verdict, so from that perspective, it certainly seems like a live possibility.

It was led by new AFL executive general manager Laura Kane, who wasted no time to assert her authority some 11 days into her tenure in a power move.

Some have suggested this could be something of a watershed moment for the league given the focus and sensitivities around concussion, even though the tribunal already gave Maynard the benefit of the doubt.

The AFL is ultimately the governing body though and this is its competition, so any decision will be separate to Tuesday night’s hearing — unless it deems that was sufficient.

Here’s a breakdown of the two options the league faces.

WHY THEY COULD APPEAL

If we’ve learned anything over the past week, it’s that the AFL is prepared to make independent — and overriding — decisions if necessary.

It has history in this area in 2021 when it took Toby Greene to an appeals board for making contact with an umpire, doubling the Giant’s initial three-week suspension to six weeks.

As for Maynard, it was the league’s call to take the case as far as it already has by overruling the MRO and taking it to the tribunal in a sentence that carried a minimum three-week suspension.

The key is whether they think it simply deserved a proper hearing, or if they genuinely believe it warranted suspension. Plus, was the league satisfied with lawyer Andrew Wood’ efforts at the original hearing?

There’s also a view that the AFL was simply doing its due diligence around concussion and player welfare, irrespective of the circumstances.

Given the league’s legal implications around head knocks in recent times including facing a series of lawsuits from ex-players who’ve battled concussion problems post-career, you sense it’ll very much consider pushing this case as far as it can.

As per the official tribunal guidelines, an appeal of the tribunal can be on one or more of the following grounds.

-An error of law that had a material impact on the decision of the tribunal has occurred

-The decision of the tribunal is so unreasonable that no tribunal acting reasonably could have come to that decision having regard to the evidence before it

-The classification of the offence by the tribunal was manifestly excessive or inadequate; or

-The sanction imposed by the tribunal was manifestly excessive or inadequate.

Regulation 20 also states an appellant can seek leave of the appeal board to provide fresh evidence that, by reasonable diligence, had been obtained prior to the conclusion of the initial tribunal hearing and had sufficient value to potentially impact that verdict.

That’s a fair amount of scope to at least try mount a case that Maynard was in fact guilty, if, as mentioned, they wanted to tackle it from a different direction to Tuesday night.

The cost of an appeal is $5,000 — a sum that’s refundable if that appeal is successful.

It’s ultimately a small price for the AFL to pay, and given the wider legal ramifications, can the AFL afford not to challenge it?

Can it say it did everything in its power to make a stand against a prominent concussion incident, and be able to make this claim both now and years down the track? The optics aren’t great.

Accident or not, Maynard, though not ‘electing to bump’ as such, charged at Brayshaw and knocked him out cold for some time in the centre of the MCG.

Maynard is now free to play in the rest of the finals series, while not only is Brayshaw’s finals fate in doubt, but there’s questions around his football future altogether after a series of concussions in recent years.

Given the seriousness of Brayshaw’s injury, younger brother Hamish admitted prior to Wednesday’s hearing he’d be disappointed if there wasn’t a potential AFL appeal against a not-guilty outcome.

“It would be, I think, a little bit of an injustice, because if it went the other way, I’m sure Collingwood would be appealing it,” Hamish Brayshaw said on SEN’s Sportsday.

“I’m not over the ins and outs of the tribunal, but you leave the ground to make contact with the face and knock someone out, that’s been the way it’s been.

“I understand it’s different, the pressure of a final and all the rest of it.

“There’s been a lot of people saying it’s going to set a precedent and it’s divided a lot of people.

“For me, really at the end of the day, the outcome of that doesn’t bother me as much as the outcome of his health, but it’s certainly one I’ll be paying close attention to.”

WHY THEY SHOULDN’T APPEAL

Simply put, people responsible for and paid to make these decisions have already done so.

A marathon four-hour hearing on Tuesday night — following an already dragged out process from last Thursday’s incident — saw both AFL and Collingwood present their cases for why Maynard should and shouldn’t respectively be banned.

It was effectively determined Maynard wasn’t careless in choosing to smother or in the way he landed, while he also didn’t engage in the act of bumping.

In other words, it was concluded that this was a football act and that, unfortunately, there’s still scope for accidents to happen in such instances.

There was a view going into the hearing that it was more likely the Pies would be the party needing to challenge/overturn the outcome and fight tooth and nail.

From that perspective, the Collingwood vice-captain being cleared was something of a surprise, but the club’s case was ultimately a convincing one and hard to argue against.

“It was thoroughly tested. The rules against the incident, the two cases on merit, there were no errors in there that I could detect,” Fox Footy AFL360 co-host Gerard Whateley said.

“I think they (the AFL) did their bit and put it up, Collingwood’s defence proved too strong to leave it be.”

It included Maynard revealing his attempts to smother ball and that he wasn’t expecting Brayshaw moving inward — saying he had no alternative option once in the air — and biomechanic Michael Cole also stating why the Magpie, once airborne, had no opportunity to avoid the collision.

Pies lawyer Ben Ihle argued Maynard’s leap was more vertical than horizontal and Brayshaw’s move to his right contributed significantly to the impact.

Ihle’s final words summed up Collingwood’s defence to a tee, saying: “This was unfortunate. This was an accident. This was not unreasonable conduct.”

Speaking after the hearing, Magpies footy boss Graham Wright, while emphasising his thoughts to Brayshaw’s health and wellbeing, said the club was “hopeful” the matter had been dealt with then and there.

“That’s up to the AFL and I think that’ll be (Wednesday) if that’s the case,” Wright said.

“But we thought Jeff Gleeson’s summation of the tribunal hearing and what we put forward as evidence and what the AFL put forward as evidence was really clear. We’re hopeful that this is it.”

There might also be something in acknowledging Collingwood class with the way its handled the situation helping its cause.

For starters, any time any member of the club has spoken on the incident, they’ve instantly extended their well wishes to Brayshaw.

Even the club’s official social media post that announced Maynard had been cleared included the line: “Our thoughts remain with Angus Brayshaw and his family — we wish him a speedy and complete recovery.”

And though it reportedly wasn’t well received, Maynard did his part in an act of goodwill by checking in on Brayshaw at his home the day after the incident — and even ringing the Demon’s mother.

How much does such compassion count for? If only one per cent, it’s something, and the Pies deserve credit for their honourable approach.

VERDICT

The clock is ticking, with a notice of appeal required to be sent through by 12pm AEST the next business day after the tribunal’s decision, which is less than three hours out from the time of writing.

If one is lodged, a hearing would then take place on Thursday night, some 24 hours before the second week of finals kicks off in a semi-final showdown between Melbourne and Carlton.

Would the league see this as a distraction for an incident that’s already ruled the football landscape and effectively overshadowed the finals series? If an appeal was successful, there’s then the potential for the Pies to challenge that call at higher courts and risk things getting messy.

Of course, the backdrop of concussion is such an important one, so this is a decision the league will take very seriously.

In addition to that, this was a case with so many layers including the fabric of the sport, a high-profile Collingwood player’s finals fate, another marquee star’s playing future and the game’s direction at large.

If nothing else, the AFL, will use this to, as it’s done with so many previous instances in recent times, assess and potentially re-write its rulebook and what it is and isn’t accepted moving forward.

From that regard, Maynard might be on the right side of history, as on current governance, he technically didn’t do anything illegal or unjust.

Only the AFL and its lawyers would truly know if there’s genuine grounds to challenge that, and that’s what it’ll all boil down to.

But Collingwood’s evidence on Tuesday night, just like its season at large, was compelling.