CAS 2016/A/4615 Asli Çakir Alptekin v. World Anti-Doping Agency (WADA)
Related case:
CAS 2014_A_3498 IAAF vs TAF & Asli Çakir-Alptekin - Settlement
August 17, 2015
- Athletics (middle distance)
- Further suspension of period of ineligibility based on
- Substantial Assistance Agreement with WADA
- Scope of CAS review of WADA refusal to further suspend the period of ineligibility of an athlete
- Grounds for WADA denial of further suspension of period of ineligibility
1. If a Substantial Assistance Agreement concluded between an athlete and WADA foresees that WADA – having suspended part of the athlete’s period of ineligibility at an earlier point in time – has the power to suspend more of the athlete’s period of ineligibility “if it considers, in its entire discretion”, that the extent and/or quality of the Substantial Assistance provided by the athlete proves more valuable than currently anticipated and if according to the Substantial Assistance Agreement WADA is further obligated to “act reasonably and in good faith”, a CAS Panel requested to review WADA’s refusal to suspend further parts of the athlete’s period of ineligibility may only annul WADA’s decision if the athlete in question proves that WADA, in taking its decision, acted unreasonably or in bad faith.
2. The decision by WADA not to grant a further suspension of the period of ineligibility based on the consideration that the athlete had two prior anti-doping violations (both of which were serious (steroids and blood doping)) and that the granting of the further suspension requested would potentially enable the athlete to compete at the upcoming Olympic Games is not unreasonable or taken in bad faith.
The Turkish Athlete Asli Çakir Alptekin was sanctioned in August 2015 for her second anti-doping rule violation. As a whistle blower the Athlete provided substantial assistance to the International Association of Athletics Federations (IAAF) and to the World Anti-Doping Agency (WADA).
In November 2015, further to a Substantial Assistance Agreement, the Athlete revealed unprecedented levels of corruption within the IAAF, including attempts to subvert the anti-doping regime. Her Substantial Assistance included evidence of an alleged scheme by Papa Massata Diack (PMD) and Khalil Diack – both sons of former IAAF President Lamine Diack – and others to extort money from athletes charged with anti-doping violations.
Her evidence was given to WADA and the IAAF Ethics Board, as well as to the French financial crimes prosecutor, which has launched a criminal investigation into the scheme. Due to the Substantial Assistance Agreement WADA suspended in November 2015 4 years of the 8 years of the Athlete’s period of ineligibility which started on 10 January 2013 and ended on 10 January 2017.
Following the appeal of PMD, the IAAF Ethics Board and the French financial crimes prosecutor asked the Athlete to procure further evidence from additional witnesses to bolster the case against PMD. In response, in April 2016, the Athlete procured Additional Witness Statements that provide direct evidence of PMD’s attempt to extort money from her after she was charged with the anti-doping violation that ultimately led to the Consent Award.
Because of the provided information and her cooperation the Athlete requested WADA in April 2016 for a further suspension of her period of ineligibility by 6 months and 10 days such that she would be eligible to return to competition in July 2016 and potentially would allowed her to qualify for the Rio 2016 Olympic Games.
On 25 April 2016 WADA responded that it was not willing to agree to suspend a further portion of the Athlete’s ineligibility period. Hereafter in May 2016 the Athlete filed an appeal with the Court of Arbitration for Sport (CAS).
The Athlete asserted that WADA has refused to suspend any further portion of the Athlete’s period of ineligibility for no legitimate reason. The WADA decision of 25 April 2016 appears to be motivated by political and/or reputational concerns linked to criticism WADA anticipates it might receive if it were to allow the Athlete the opportunity to compete in the Olympics. The Athlete argued that in denying her any additional suspension for the Additional Witness Statements WADA did not act reasonably and in good faith as required under Clause 5 of the Substantial Assistance Agreement.
WADA contended that the four-year suspension WADA has already granted the Athlete under the Substantial Assistance Agreement is substantial and generous and, perhaps, unprecedented. In providing the Additional Witness Statements, the Athlete simply complied with her duties under the Substantial Assistance Agreement and she cannot be rewarded twice for the same commitment.
The Athlete asked WADA to assess – within a very short time period – the value of the Additional Witness Statements within the context of appeal proceedings to which WADA was not a party. Taking into account the limited information it had, WADA decided to exercise its discretion not to grant any further suspension. The Athlete’s assistance has not proved more valuable than anticipated by WADA and WADA acted reasonably when taking its Decision.
The Panel does not consider that it arose from bad faith, but rather from WADA’s discomfort in having to decide upon a further suspension on short notice and limited information. Despite the time constraints and limited information, WADA did manage to consider the Athlete’s Application and decided that the value of the Additional Witness Statements did not justify granting the Athlete any further suspension of her period of ineligibility.
In review of the Athlete’s arguments the Panel concludes that WADA didn’t act unreasonably or in bad faith under Clause 5 of the Substanctial Assistance Agreement in denying the Athlete the further suspension she requested.
Therefore the Court of Arbitration for Sport decides on 4 November 2016 that:
1.) The appeal filed by Ms Asli Çakir Alptekin on 17 May 2016 in the case CAS 2016/A/4615 Asli Çakir Alptekin v. WADA concerning the decision rendered by the World Anti-Doping Agency on 25 April 2016 is dismissed.
(…)
4.) All further claims are dismissed.
