The Court of Arbitration for Sports (“CAS”) has upheld the International Paralympic Committee’s collective ban on the Russian Paralympic Team attending the Paralympic Games in Rio.
The trend in CAS decisions has been to uphold the collective bans by the IAAF and the IPC whilst upholding the appeals by individual Russian athletes appealing individual bans and trashing the McLaren report in those decisions. The latest CAS decision is no exception.
To understand what is going on it is necessary to look at the decision itself. Though CAS has not published the full reasons for its decision, the summary it has published makes it clear that it took its decision on purely narrow issues of procedure. It did not look at the facts of the McLaren report and it did not consider issues like discrimination or natural justice.
“The CAS Panel in charge of this matter found that the IPC did not violate any procedural rule in dealing with the disciplinary process leading to the RPC’s suspension and that the decision to ban the RPC was made in accordance with the IPC Rules and was proportionate in the circumstances. The Panel also noted that the RPC did not file any evidence contradicting the facts on which the IPC decision was based. The parties in this procedure were the International Paralympic Committee and Russian Paralympic Committee exclusively. In making its decision, the CAS Panel did consider the particular status of the RPC as a national governing body but did not determine the existence of, or the extent of, any natural justice rights or personality rights afforded to individual athletes following the suspension of the RPC.”
There is a high degree of legal sophistry here. CAS obviously knows that there simply is not sufficient time for the Russian Paralympic Committee (the “RPC”) to provide a detailed refutation of the claims made by the McLaren report. It also knows that individual Russian athletes have no standing in a appeal to reverse the collective ban. However by saying that it is not looking at “any natural justice rights or personality rights afforded to individual athletes following the suspension of the RPC” it is turning a blind eye to the obvious whilst in effect giving those athletes the green light to pursue civil claims.
The Russians have condemned the decision as political and on the facts it is difficult to disagree. Realistically CAS could not have upheld the appeal without casting doubt on its own decision to uphold the collective ban on the Russian Olympic track and field team, and without throwing the IAAF and WADA into crisis. This was something that the three judges who made up the Panel were simply not prepared to do.
The Russians have said that they will appeal the CAS decision to the Swiss Supreme Court, and we can now anticipate a further flood of legal claims by Russian athletes against the IPC in the civil courts. However it is now a virtual certainty that there will be no Russian Paralympic athletes competing in the Paralympic Games in Rio.
Those Paralympic Games are however descending into crisis. It turns out that the Russians were major funders of the Paralympic movement and one effect of the collective ban is that they are withholding funding.
More to the point the Brazilians are apparently denying help and facilities to the Paralympic Games, which are therefore taking place in a severely stripped down fashion. Most people assume that this is being done for cost reasons and because of Brazilian disinterest in the Paralympic Games. However there might be an element of Brazilian solidarity with the mistreatment of their Russian BRICS partner despite the change of government in Brazil which is supposed to have repositioned Brazil closer to the US.
Though the Russians are furious with this decision they cannot have been surprised by it. As I have said previously this is far from being the end of this affair.