Twelve days ago, shortly after the Court of Arbitration for Sport (‘CAS’) cleared 28 Russian athletes of the doping allegations which had been made against them, I expressed the hope that sanity would prevail and that the International Olympic Committee would reconsider its decision to exclude some of these athletes from the Winter Olympics in PyeongChang.

After all the International Olympic Committee’s own Schmid commission had reported that there was no proof of a government organised state sponsored doping conspiracy in Russia, and since the athletes had been cleared of the doping allegations there seemed no reason to exclude them.

In the event sanity – or at least justice – did not prevail. Not only did the International Olympic Committee refuse to allow the cleared athletes to attend the PyeongChang Games, but Thomas Bach – the IOC President, who is himself a lawyer – not only criticised CAS’s decision in intemperate terms but actually called for CAS to be reorganised

We cannot have a situation of CAS losing its credibility with athletes… We have to do our job to make proposals so trust of the athletes can be restored….. [the CAS] ruling was extremely disappointing and surprising…..We feel that this decision shows the urgent need for reforms in the internal structure of CAS…..

Bach then went on to insinuate that the 28 Russian athletes who had been cleared by CAS might not be clean after all

……[the absence of CAS sanctions does not mean that the Russian athletes are entitled to receive an invitation from the IOC] because receiving this invitation is a privilege of clean Russian athletes

(bold italics added)

Bach did not of course say what grounds the International Olympic Committee had for insinuating that the Russian athletes who had been cleared might not be ‘clean’ after all, or what distinguished them from the ‘clean’ Russian athletes the International Olympic Committee had invited to PyeongChang.

However, and unsurprisingly given the clear threat against CAS implicit in these words, CAS then went on to adopt this strange reasoning in its subsequent decision to uphold the International Olympic Committee’s decision to exclude these cleared Russian athletes from the PyeongChang Winter Games. Here is what CAS Secretary General Matthieu Reeb said in an interview he gave to RT

The duty of the IOC (International Olympic Committee) was to show that the athletes involved in this case were guilty of an anti-doping rule violation. The fact that you cannot establish the evidence of guilt does not mean that you have established the innocence of the athletes

(bold italics added)

Ever since the beginning of the Russian Olympic Doping Scandal in the autumn of 2015, and especially since the publication of the first of Professor McLaren’s two reports on the even of the 2016 Summer Olympics in Rio de Janeiro, I have been saying that the burden of proof was being reversed, and that instead of those who were accusing Russian athletes of doping offences being asked to prove their case, it was the Russian athletes who were being required to prove their innocence. This for example is what I wrote on 18th July 2016, shortly before the start of the Summer Olympics in Rio

In fact what this affair most resembles is a Stalinist witch-hunt. Wild allegations of a conspiracy based on the evidence of a few compromised individuals are treated as proof of guilt against an entire class of persons. Demands for confessions and for stern punishments of those declared guilty follow. The presumption of innocence is cast aside, the burden of proof is reversed, and due process is ignored.

(bold italics added)

No less a person than the Secretary General of the Court of Arbitration for Sport has now publicly admitted as much.

That this is a total abnegation of due process, setting aside basic principles of justice and of judicial practice extending back centuries, need hardly be said.

When I wrote the above words some people took exception to my use of the word ‘Stalinist’ to describe what was happening.

However it was Stalin’s prosecutor Andrey Vyshinksy who in Theory of Judicial Proofs in Soviet Justice [Stalin Prize 1947] argued that actual proof of guilt against a Defendant was unnecessary; courts and judges should instead consider “the wider social perspective” of each case.

It is fascinating to see Vyshinsky’s philosophy now being adopted by the International Olympic Committee and by CAS.

If CAS and the International Olympic Committee had merely said that invitations to participate in the Olympic Games are the exclusive prerogative of the International Olympic Committee, then that might have been hard and unjust and perhaps even legally wrong, but at least it would have been coherent.

Saying instead that Russian athletes must prove their ‘innocence’ when no evidence of wrongdoing has been presented against them is by contrast not just legally absurd; it is also unethical and immoral.

That no voice in the West is speaking out against it is beyond alarming, and shows how deep prejudice against Russians now runs.

That this is all totally contrary to the entire principles and traditions of the Olympic Movement hardly needs saying. Baron Pierre de Coubertin, its founder, must be spitting in his grave.

In light of this, I personally do not accept them as ‘Olympic Games’ any longer.

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