The McLaren Report and the Court of Arbitration for Sport
When the Court of Arbitration for Sport overturned the disqualifications and bans of 28 Russian athletes, the natural reaction was one of anger. It is hard to reconcile the decision with the McLaren Report, which concluded that Russia had been involved in state-sponsored manipulation of doping tests, during the last Winter Games in Sochi.
However, it is possible to make sense of it all, and it is important to do so, to ensure that the fundamental role of CAS is not undermined by public and media misunderstanding.
The answer is to appreciate the difference between legal conclusions about individuals and legal conclusions about groups. For example, imagine that the police are called to a house from which a gunshot has been heard. Inside the house, they find a body, the gun which fired the fatal shot, and two suspects. There are no fingerprints on the gun but it can be established that nobody else has entered or left the premises since the murder.
In this situation, we can be sure beyond reasonable doubt that one of the two suspects is guilty of murder, but there is no way to know which. If they were put on trial, the jury would have no choice but to acquit them both, even though one of them must be guilty.
The latest CAS decision does nothing whatsoever to undermine the main conclusions of the McLaren Report. The IAAF, the IPC and the IOC have all imposed bans on Russia in reliance on that report and, although aspects of these decisions have been litigated, Russia has never once challenged the factual basis of the McLaren Report before CAS.
It follows that the bans remain in force and, as far as CAS is concerned, there is no basis for questioning the reasoning behind them. The latest case was simply about observing a smoking gun, and trying to determine with certainty who has fired it and who has not. Nobody in court, not even Russia, was seriously arguing that it has not been fired at all.
Because Russia is still banned by the IOC, there is no reason to suppose that any of the affected athletes will be in Pyeongchang. The IOC must consider making exceptions for them, as it has done for other Russian athletes but, if it does, it will be rather a surprise.
In the long term, the most significant lesson for anti-doping is likely to be that national bans are an important weapon in the fight, which should probably be used more often, especially in cases where there is overwhelming evidence of national wrongdoing, but the evidence of guilt is not quite as strong for every specific individual who is involved.
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