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Opinion - Murray Rosen

Sports arbitration for the bamboozled - the Russian doping bans at Rio 2016


Murray Rosen QC

Recent issues in sports arbitration, in connection with the Rio Olympic and Paralympic games, have pitted collective responsibility against individual rights, and highlighted arguments of proportionality in the fight against doping.

Murray Rosen QC, FCIArb, shares his thoughts on the latest developments.

Recent issues in sports arbitration, in connection with the Rio Olympic and Paralympic games, have pitted collective responsibility against individual rights, and highlighted arguments of “proportionality” in the fight against doping. Before outlining these, some explanation might be needed as to the splendid old word “bamboozle” meaning (as noun or verb) a way of gaining the upper hand by trickery, flattery or confusion.

In that sense, we are sometimes “bamboozled” by those we worship as champions, such as Lance Armstrong. As the astronomer (of all things) Carl Sagan put it: “… If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle... It’s simply too painful to acknowledge, even to ourselves, that we’ve been taken…”.

The charlatan gains that sort of power through breach of trust. The only way to get it back is by enforcing the agreements which have been broken, through fair process.  In the sports world, that means arbitration. And when it is a team or a national federation, and more than individual cheating - a collective swindle with a necessarily wider fallout - the private or individual connotations may have to give way to more public action to protect the rules.

The sorry tale of Russian chicanery has been emerging through reports by the World Anti-Doping Agency and reached the newspaper headlines with the publication of Richard McLaren’s report dated 18 July 2016, demonstrating a “thin slice” of the widespread Russian state action since 2010 to hide cheating by its athletes - including the swapping of samples at the 2014 Sochi Winter games.

The International Association of Athletics Federations had already suspended the entire Russian track and field team on the grounds that no athlete trained in the Russian system could be trusted, and on 21 July 2016 the Court of Arbitration in Sport upheld that ban. This was a crucial case. The Russian Olympic Committee and the 68 athletes concerned failed in their contentions that the relevant IAAF Competition Rules - which provided that athletes whose national association was suspended were ineligible for competition - were invalid and that the individuals should be allowed to compete in some ‘neutral’ team.

WADA urged the International Olympic Committee (which was not party to the IAAF decision) to go further and impose a blanket ban on all the other Russian athletes, excluding it entirely from the Rio games. However, the IOC adopted a different course, leaving it to each of the 70 or so other international federations to decide which Russian athletes could or could not compete, depending on the results of their tests outside Russia compared with other, non-Russian athletes. This was in effect an administrative rather than judicial process (in which CAS’ only role was to scrutinise the international federations). In “political” terms, it might be described as libertarian, putting the rights of individuals to participate if clean, above a rule-based system of collective responsibility.

The International Paralympic Committee on the other hand, voted for the more collective, rules-based approach. Given that it was the Russian Paralympic Committee which was its relevant member, not the individual athletes, and that Russia had broken the IPC rules and could not be relied on to remedy the ongoing state-sponsored doping, it imposed the blanket ban. Again, on 23 August 2016, CAS upheld this. The role of the sports federations now will be not to resolve which Russian can compete in their sports, but to redistribute the 267 slots left vacant by Russia’s blanket exclusion.

The legal issues highlighted in these recent cases, stem from the structure of international sports rules. The participants on the ground are the individuals, and if they comply with the rules, in particular as regards doping, and satisfy the other selection criteria, they should be entitled to compete. But the members of the international federations are their national committees: if they breach the rules, is it right to exclude and thus punish the individuals as well?

Sports arbitrations are becoming replete with these issues of “proportionality” precisely because they involve quasi-judicial disciplinary decisions, in which wider public interests are at stake. But ultimately the rules are there to protect sport and all its participants, and their enforcement impacts not just those involved, but has more far reaching implications. Whilst most arbitrations are private mechanisms for resolving private disputes, collective responsibility is built into the function of sports.

As at the time of writing, CAS has not published its reasons for dismissing the Russian Paralympic Committee’s appeal and Russia has indicated its intention to appeal further, to the Swiss Federal Tribunal. But as things currently stand, the fact that Russia has officially condemned the international doping bans as politically motivated, refused to accept its guilt and - according to further WADA reports - continued to hide doping results since McLaren’s investigation, all complicate enforcement. Given that the last appeal from CAS to the Swiss Federal Court, namely the Pechstein case ended with a vindication of CAS’ independence and fairness, the arbitration and appeals process is not likely on its own to bring Russia in from the cold.

That is not to say that Russia is necessarily alone in state-sponsored sports doping. But the sooner the evidence is revealed, confronted and resolved, the sooner it can return to the international sports fold, and the more the war against doping can move on. It is the rules and agreements, and the arbitration and appeals process, which must hold the fort in the meantime. For the bamboozled, the message might be: arbitrations should protect individual rights, but must not endorse the wrongdoers. It can be a painful process to investigate and expose the extent to which we have been bamboozled, and to vindicate a just remedy, but sports arbitration sometimes has that burden.

Murray Rosen QC practices as an arbitrator and mediator at 4 New Square. He is a member of Sport Resolutions in the UK and the Court of Arbitration for Sport in Lausanne.

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