Wednesday, June 1, 2016

Guilty Until Proven Innocent

The BBC reports that the IOC is coming up with a clever strategy to ban Russia from the Rio Olympics while letting Russia into the Rio Olympics. If that sounds like doublespeak, well, there you have it. 

The BBC explains the emerging compromise:
BBC Sport understands that senior figures in the Olympic movement are now actively discussing the possibility of a controversial compromise agreement that would enable Russian athletes to compete in Rio - even if the IAAF refuses to lift the ban on 17 June.

Remember that the Olympics comes under the jurisdiction of the IOC, not the IAAF.

So while an IAAF ban would apply to the Russian athletics federation, the IOC could then decree that Russian athletes who prove they are clean, with additional independent tests, would still be allowed to compete. Not under the Olympic flag as has been suggested - but under the Russian flag itself. So a 'ban', but only a partial one.

Many critics would no doubt attack such a proposal as a contradiction in terms, and a fudge. They would ask how any athlete could actually prove they are clean. They would insist that this falls a long way short of the proper punishment that Russia deserves and which is needed to establish a true deterrent.
IOC President Thomas Bach laid the groundwork for such a compromise (emphasis added):
The results of the WADA [Sochi]  investigation will also greatly influence the nature of the participation of Russian athletes in the Olympic Games Rio 2016. Should there be evidence of an organised system contaminating other sports, the International Federations and the IOC would have to make the difficult decision between collective responsibility and individual justice. It would have to consider, whether in such 'contaminated' federations the presumption of innocence for athletes could still be applied, whether the burden of proof could be reversed. This could mean that concerned athletes would have to demonstrate that their international and independently proven test record is compliant with the rules of their International Federation and the World Anti-Doping Code, providing a level playing field with their fellow competitors.  
In other words, athletes from "contaminated" federations would be assumed to be guilty until proven innocent -- that is what it means to reverse the burden of proof, which generally holds that athletes are innocent until proven to be guilty of doping.

Let's set aside the issue of "proving innocent"(and it's a big one, as it is impossible to do), and simply note that such a compromise strategy, if implemented would threaten the entire foundation of sports jurisprudence developed over decades.  It can't work.

Imagine, if you will. A Russian athlete is given an passes a pre-competition set of drug tests. She is clean, proven innocent, Yay! She then enters the Olympics under the Russian flag. She runs and wins a medal, Yay!  Is she then tested along with others on the podium?  Sure.

Under this scenario there is no practical difference from how things work now, except that the Russians are subject to targeted testing (which is probably the case now anyway).  One big difference is that the IOC will have introduced the notion of a "reversed burden of proof" potentially confounding the work of CAS when inevitable challenges occur.

The proposed compromise is little more than an elaborate way to avoid the consequences of the agreed-upon rules of anti-doping that sports organizations agreed to follow under WADA. The IOC stands on a precipice of lost legitimacy. Will it jump?  


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