Swiss courts to choose between Blackstone and Pol Pot

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 not succeed.

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.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.