CAS 2016/O/4488 lnternational Association of Athletics Federations (IAAF) v. All Russia Athletics Federation (ARAF) & Anastasiya Bazdyreva
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March 10, 2017
- Athletics (middle distance)
- Doping (witness statement of whistle blower)
- Taking of evidence and arbitral tribunals’ discretion
- Law applicable to procedural and to substantive matters respectively
- Taking of evidence under Rule 33(3) IAAF Competition
- Rules and illegally obtained evidence
- Evidence required under IAAF Rules to establish anti-doping rule violation
1. Article 184(1) of the Swiss Private International Law Act (“PILS”) provides arbitral tribunals in international arbitration proceedings seated in Switzerland with ample latitude in the taking of evidence. It further follows from Article 184(1) of the PILS that CAS panels dispose of a certain discretion to determine the admissibility or inadmissibility of evidence. In general, the power of the arbitral tribunal related to the taking of evidence is only limited by “procedural public policy”, the procedural rights of the parties, and, where necessary, by the relevant sporting regulations.
2. Pursuant to the legal principle of tempus regit actum, procedural matters are governed by the regulations in force at the time of the procedural act in question, whereas the substantive issues are governed by the IAAF Rules in force at the time of the alleged violation.
3. The discretion to admit evidence under Rule 33(3) of the IAAF Competition Rules (“IAAF Rules”) is fairly wide as it determines that anti-doping rule violations may be established by “any reliable means”. Whereas an athlete’s witness statement is undoubtedly admissible, particularly because witness statements are explicitly listed as a means of evidence in Rule 33(3) of the IAAF Rules, the admissibility of recordings which objectively fall under the category “any reliable means” provided for in Rule 33(3) of the IAAF Rules, require a more detailed analysis in case the recordings have been made covertly e.g. by an athlete acting as a whistle blower. If a means of evidence is illegally obtained, it is only admissible if the interest to find the truth prevails over the interest in protecting the right that was infringed by obtaining the evidence. Elements to be considered pertinent when performing the above balancing test are e.g. the nature of the violation, the interest in discerning the truth, the difficulty of adducing evidence for the concerned party, the conduct of the victim, the legitimate interests of the parties, and the possibility of acquiring the (same) evidence in a legitimate manner. Where it is notorious that doping in a particular country is widespread and has been systematically supported by coaches, clubs and government-affiliated organisations, the interest in finding the truth prevails over a possible reliance of an athlete on the principle of good faith as a defence against gathering illegally obtained evidence. This is even more the case if the athlete in question himself/herself relies on the illegally obtained evidence to exculpate himself/herself.
4. The IAAF Rules do not foresee that a conviction of an anti-doping rule violation must be based on multiple pieces of evidence. Therefore a CAS panel can be comfortably satisfied that an athlete committed an anti-doping violation based on (another) athlete’s witness statement or/and on recordings or/and on the transcript of such recordings.
Ms Anastasiy Bazdyreva is a Russian Athlete specializing in the middle distance events (in particular 400 metres, 800 metres and 1000 metres).
In the period from 2013 to 2014, the Russian Athlete Yulia Stepanova secretly recorded a number of conversations that she had with Russian athletes and Athlete Support Personnel. With a view to exposing the widespread doping practices within Russian athletics, Ms Stepanova made those recordings available to Mr Hajo Seppelt, a German journalist. Mr Seppelt used some of those recordings to produce a documentary alleging widespread doping in Russian athletics which was broadcasted in December 2014.
Based on the evidence and statements provided by Ms Stepanova the International Association of Athletics Federations (IAAF) reported in August 2015 an anti-doping rule violation against the Athlete for using prohibited substances. After notification a provisional suspension was ordered and the Athlete filed a statement in her defence.
Because the All Russia Athletic Federation (ARAF) was suspended by the IAAF the case was referred in March 2016 to the Court of Arbitration for Sport (CAS) for a first instance hearing panel procedure with the right to appeal.
The IAAF requested the Panel to impose a 4 year period of ineligibility on the Athlete with aggravating circumstances for the use of prohibited substances on multiple occasions.
The Athlete denied having committed an anti-doping rule violation and disputed the evidence provided by Ms Stepanova and the IAAF.
The CAS Sole Arbitrator finds that the recordings of Ms Stepanova' s conversations with the Athlete and the Coach are admissible as evidence in the proceedings at hand and finds that the recordings are in general reliable evidence. Considering the admissions of the Athlete in her conversations with Ms Stepanova the Sole Arbitrator finds that the Athlete violated Rule 32.2(b) of the IAAF Rules for using prohibited substances.
The Sole Arbitrator is not satisfied that the Athlete used multiple prohibited substances or used prohibited substances on multiple occasions as aggravating circumstances.
Therefore The Court of Arbitration for Sport decides on 23 December 2016 that:
1.) The claim filed on 8 March 20 I 6 by the International Association of Athletics Federations against the All Russia Athletics Federation and Ms Anastasiya Bazdyreva is upheld.
2.) A period of ineligibility of two years is imposed on Ms Anastasiya Bazdyreva starting from 24 August 2015.
3.) All results of Ms Anastasiya Bazdyreva since 23 April 2014 are disqualified through to the commencement of her provisional suspension effective since 24 August 2015, including forfeiture of any titles, awards, medals, points and prize and appearance money.
4.) The costs of the arbitration, to be determined and served to the parties by the CAS Court Office, shall be borne entirely by the All Russia Athletics Federation.
5.) Ms Anastasiya Bazdyreva shall bear her own costs and is ordered to pay to the International Association of Athletics Associations the amount of CHF 2'000 (two thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) The All Russia Athletics Federation shall bear its own costs.
7.) All other and further prayers or requests for relief are dismissed.
