According to the great English jurist William Blackstone, it is
better that ten guilty men go unpunished than one innocent man is
convicted. Authoritarian opponents of Blackstone (who,
Wikipedia informs us, include Bismarck, Dick Cheney and Pol Pot)
would appear to have been joined by the Court of Arbitration for
Sport( CAS). CAS has decided that the Paralympic organisation was
entitled under its rules to exclude all Russians from participation
on the basis of their collective (rather than individual)
"guilt" because they come from a country that has been
found to have sponsored doping of athletes.
The CAS decision is in stark contrast to that of the IOC, who
famously washed its hands of this matter and allowed individual
federations to decide on participation. This resulted in the
very probable (but unprovable) outcome that a number of Russian
athletes who had breached doping rules did take part in the
Olympics but did not result in the exclusion of innocent
athletes – as the Paralympic ban probably did.
Naturally the Russians are incensed. Even though it made no
difference to participation of their athletes in the Paralympics,
which start this week, the Russians have appealed the decision of
CAS to the Swiss Courts, relying, ironically, on highly bourgeois
concepts of human rights that are somewhat foreign to their rather
more authoritarian traditions.
Swiss Courts are bound by the
European Convention of Human Rights which contains principles which
would find support in Blackstone's maxim. Indeed,
Blackstone was one of the inspirations of the entire human rights
legislation and Switzerland does take human rights seriously.
So advantage Russia?
Moreover, when they don't
abdicate responsibility, like the IOC, sports regulatory bodies
themselves tend to fight shy of punishing the innocent –
perhaps sacrificing the effectiveness of sanctions as a result.
Thus clubs who have infringed sporting rules, such as West Ham in
the Tevez affair and Harlequins in the Bloodgate affair, have
avoided expulsion on the grounds that innocent fans would suffer as
a result. How then can it be considered correct to exclude
innocent athletes from a competition for which they have
trained? So, on the face of it, things look promising for the
recent converts to Blackstone.
However, Swiss authorities
(including its courts) have been criticised for giving sports
federations an easy ride in the hope (it is said) of keeping
federations located in its jurisdiction. If these criticisms are
correct, then the Russian appeal (if pursued and not settled behind
closed doors) will prove uncomfortable for the Swiss court but may
Predictions of how courts will
decide hard cases are difficult at the best of times but especially
nowadays. Who would have predicted that, for example, in England,
members of a political party could be stripped validly of their
right to vote by an all encompassing constitution on the grounds
that the constitution gave the governing body the right to do just
that without a hearing at which those who were stripped could
express a different opinion? These are clearly strange times
and the perceived need for effective sporting discipline may well
favour the federation – and the jurisprudence of Cheney, Pol
Pot and Bismarck (however the Swiss court dresses up the decision)
– to the discomfiture of Blackstonians – wherever
they may now be found.
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The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
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