Using illegally obtained evidence in the Court of Arbitration for Sport

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Obtaining evidence for sport-relating disputes in a dubious way remains frequent in practice. In particular, parties often use such evidence in CAS. It follows from the applicable law, that relying on such evidence does not contradict public policy.

On 10 January 2018 Fancy Bears’ Hack Team made public communication between International Olympic Committee (IOC) and World Anti-Doping Agency (WADA) regarding Russian athletes. Richard McLaren (independent expert, hired by WADA to prepare reports on alleged doping system in Russia) also took part in the communication.

Here are some examples of information, included in these letters. In the letters, Denis Oswald (head of special IOC commission, engaged into sanctioning individual Russian athletes, imposing life ban and annulling Sochi medals) wrote to McLaren on the difficulty to get enough evidence to sanction individual athletes. There is also a confession that “the scratches are not enough”. P.G. Zappelli wrote to IOC colleagues regarding Mr. McLaren’ lack of readiness to pass main evidence. Other IOC Members are unhappy with WADA actions using McLaren report to exclude the Russian team rather than going down the path of dealing with the individual athletes on a case-by-case basis.

On 1 February Court of Arbitration for Sport (CAS) issued a decision regarding Russian athletes (operative part only, no reasons yet). After that, there were 2 other decisions in CAS ad hoc division. Even though there were stated that there were not enough evidence and life ban was successfully annulled none of the athletes, uninvited by IOC, dare to participate in the games.

There is no information whether the parties used in CAS this evidence, obtained by hacking. It should be noted though that the evidence used by IOC and WADA to prove athletes guilty might be considered to have been obtained in a doubtful way as well. Mr. Rodchenkov, former director of Russia’s national anti-doping laboratory, stole emails and files from work computer, downloaded on USB, and took to the US with him.

Swiss legislation provides that illegally obtained evidence shall be considered only in case of “overriding interest”

According to Art. 152 of the Swiss Civil Procedure Code court shall consider illegally obtained evidence only if there is an overriding interest in finding the truth. At the same time according to Art. 184 of Switzerland’s Federal Code on Private International Law the arbitral tribunal shall itself conduct the taking of evidence. However, Swiss Civil Procedure Code is inapplicable to arbitral proceedings and the arbitrators have the power to rule on the admissibility of evidence.

It is a well-established practice that arbitral tribunals enjoy considerable discretion and are not necessarily barred from taking into account evidence, which may prove inadmissible in civil or criminal state courts. Taking into account CAS case law, CAS panels are likely to take into account evidence, unlawfully obtained, which would not be admissible in state courts of most of the countries. So far CAS has adopted an approach that the end justifies the means.

Notable previous CAS cases that allowed using of unlawfully obtained evidence

CAS has specific features compared to ordinary commercial arbitration and it seems interesting whether Swiss legislation and CAS practice allow using evidence obtained in an illegal way.

1The first case, featuring this issue was Alejandro Valverde Belmonte v. Comitato Olimpico Nazionale Italiano, 2010CAS held that the issue of admissibility of evidence is procedural in nature and therefore subject to the procedural rules applicable before the Panel. As a consequence, the Panel considered it was not bound by the rules regulating the admissibility and choice of evidence applicable before national courts of the seat of the arbitral tribunal. Hence, the Panel used documents from the Spanish criminal proceedings. An appeal to the Swiss Federal court was rejected, Swiss Federal court found no breach of public policy.

In a match-fixing case Ahongalu Fusimalohi v. FIFA, 2012 the applicant stated that the Recordings that FIFA obtained from the Sunday Times must be considered as illegally obtained evidence because the journalists’ undercover investigation deceived him, did not serve to achieve a justified purpose, used unnecessary and inappropriate methods and compromised the applicant’s right to privacy by pursuing a less significant interest than that of the applicant. In applicant’s view evidence was procedurally inadmissible.

The panel found that FIFA did not perform any illegal activity and did not cheat the applicant in order to obtain the recordings. There was no evidence on file, and the appellant did not contend that the Sunday Times’ investigation was prompted or supported by FIFA or by anybody close to it.

In panel’s view, FIFA transparently solicited and received such evidentiary material from the Sunday Times immediately after the publication of the article on 17 October 2010 and the disclosure of important portions of the recordings’ content. The panel founded that FIFA did not violate the duties of good faith and respect for the arbitral process.

As a consequence, there was no basis to exclude the disputed evidence from the arbitration proceedings. The panel endorsed the admissibility of such evidence.  CAS took the same approach in the similar match-fixing case Amos Adamu v. FIFA, 2012.

In Football Club Metalist. v. UEFA & PAOK FC, 2013  the arbitral tribunal held that the transcription of an illegally recorded phone conversation with a player was unlawful but admitted an additional video because the applicant had relied upon it as exculpatory evidence. Football Club Metalist filed an appeal against the CAS Award with the Swiss Federal Court submitting that the CAS Award breaches Swiss public policy by imposing sanctions on the basis of illegally obtained evidence.

4In March 2014 the Swiss Federal Tribunal rejected the appeal and held that while there is a major public interest in fair football and considering that the investigative tools of the state failed to enforce it, any illegally gathered evidence would always be admissible.

In the case Sivasspor Kulübü v. UEFA, 2014 CAS used wiretaps as evidence. The panel noted that even if evidence may not be admissible in civil or criminal state court, this does not automatically prevent arbitral tribunal from taking such evidence into account. The Panel concurred that steps must be taken in regard to the public interest in finding the truth in match-fixing cases and also in regard to the sports federations’ and arbitral tribunals’ limited means to secure evidence. These opened up the possibility of including evidence, which in courts’ opinion did not infringe any fundamental values reflected in Swiss procedural public policy.

The Panel considered that the wiretaps produced were valid and admissible evidence for the purposes of the proceedings and that there was of no importance that the criminal cases concerning the player had been sent back to the first instance body.

CAS cases regarding the Russian athletes

On 1 February 2018 CAS has delivered its decisions (operative parts only) in cases filed by Russian athletes. CAS panels unanimously found that the evidence put forward by the IOC in relation to this matter did not have the same weight in each individual case. In 28 cases, the evidence collected was found to be insufficient to establish that the athletes concerned committed anti-doping rule violations. With respect to these 28 athletes, CAS upheld the appeals, annulled the sanctions and reinstated individual results achieved in Sochi 2014.

In 11 cases, CAS found the evidence collected to be sufficient to establish an individual anti-doping rule violation. CAS declared that the athletes are ineligible for the next edition of the Olympic Winter Games (i.e. Pyeongchang 2018) instead of a life ban from all Olympic Games. The mandate of the CAS Panels was strictly limited to dealing with 39 individual cases and to assess the evidence applicable to each athlete on an individual basis and there were no issue raised on the obligation to invite to Korea.

After that, there were other decisions on claims in CAS ad hoc division. The CAS panel found that the applicants did not demonstrate that the manner in which the two special commissions carried out eligibility evaluation in a discriminatory or unfair manner. The panel also concluded that there was no evidence that these commissions improperly exercised their discretion.

Judging from the available information none of the parties raised the issue of illegally obtained evidence. After examining each individual case, the CAS upheld 28 appeals and partially upheld the remaining 11, none of the applications in ad hoc division was satisfied.

Conclusion

The use of evidence, potentially secured in an inappropriate manner, is admissible taking into account the limited investigative powers of sports bodies in comparison to public authorities (Criteria from Fusimalohi v. FIFA Case, see Rigozzi A., Quinn B. Evidentiary issues before CAS; Viret M. Evidence in Anti-Doping at the Intersection of Science and Law). The approach that CAS took in the Fusimalohi appears was later confirmed in subsequent, recent CAS decisions. In most cases, it is the only way for asserting the factual truth.

CAS uses such evidence primarily in match-fixing cases in football and concludes that the interests of FIFA in uncovering the truth outweigh the unlawfulness of the way in which submitted evidence was obtained. As for the illegally obtained evidence in cases against Russian athletes, neither party has raised such arguments so far, though nothing precludes them from relying on hacker leaks in CAS.

About the Author:

Natalia Kisliakova is a Russian lawyer with experience gained in international and leading Russian law firms and arbitral institutions both in Moscow and abroad. Her arbitration and litigation experience includes real estate, oil and gas, sports, construction, utilities, banking and human rights. She has academic and practical interest in the field of international arbitration (especially sports arbitration). As a former German Chancellor Fellow of Alexander von Humboldt Foundation she is an author of numerous articles and teaches sports arbitration in MGIMO University, that she herself graduated from. She also often serves as an arbitrator/judge in moot courts, being multi-lingual in English, German, Russian and learning French.

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