In an award released on 28 February 2020, the Court of Arbitration for Sport ("CAS") upheld the appeal filed by the World Anti-Doping Agency ("WADA") against the Chinese swimmer Sun Yang and the Fédération Internationale de Natation ("FINA"), imposing on the Olympic champion an eight-year competition ban and effectively terminating his career.
The CAS Award recalls that on 4 September 2018 Sun Yang refused to complete a doping test conducted by an international testing company at his residence. Sun Yang questioned the credentials of the testers and, as the result of a heated exchange, the blood samples taken were destroyed before they could be taken away and the testing could not be completed.
The matter was initially referred to the FINA Doping Panel, which found that the International Standard for Testing and Investigations ("ISTI") – the protocol adopted by the WADA for the conduct of doping controls – had not been properly followed. In particular, the FINA Doping Panel found that testers had, among others, failed to produce adequate identification during their visit. As a consequence, the FINA Doping Panel invalidated the sample collection and determined that Sun had not committed a violation of the FINA Doping Control Rules (the "FINA DC").
WADA lodged an appeal at the CAS. The CAS arbitration panel held a hearing on 15 November 2019, which, at the parties' request, was conducted in public. This was only the second time in the CAS history that such public hearings were organized.
The CAS unanimously determined as follows:
- Sun Yang violated Article 2.5 of the FINA DC (Tampering or Attempted Tampering with any part of Doping Control). In particular, the Panel found that the personnel in charge of the doping control complied with all applicable requirements as set out in the ISTI. More specifically, it found that the athlete failed to establish that he had a "compelling justification" to forego the doping control when, in his opinion, the collection protocol was not in compliance with the ISTI. In particular, the Panel rejected two justifications put forward by Sun Yang, namely: (i) that the sample collection personnel did not provide him with a specific and individual authorisation letter besides the generic letter of authority – which the Panel considered was not required; and (ii) the fact that the Doping Control Assistant acted inappropriately in taking at least three photographs of Sun Yang – which the Panel considered was not compelling enough to interrupt the control.
Generally, the Panel blamed Sun Yang for having taken the matters "in its own hands" by destroying the samples and preventing the Doping Control Officer from completing the sample collection process. The Panel noted that it is one thing, having provided a blood sample, to question the accreditation of the testing personnel while keeping the intact samples in the possession of the testing authorities; it is quite another thing, after lengthy exchanges and warnings as to the consequences, to act in such a way that results in destroying the sample containers, thereby eliminating any chance of testing the sample at a later stage.
- An eight-year period of ineligibility, starting on the date of the CAS award, is warranted in accordance with Article 10.7.1 FINA DC. The eight-year period resulted from the fact that, in June 2014, Sun Yang was already found guilty of a first anti-doping rule violation ("ADRV") and that this was his second ADRV.
- The results achieved by Sun Yang in the period prior to the CAS award being issued should not be disqualified. The Panel based its findings on the following elements: (1) FINA refrained from seeking the imposition of a provisional suspension on the athlete when charging him with an anti-doping rule violation; (2) doping tests performed on Sun Yang shortly before and after the aborted doping control in September 2018 were negative; and (3) the absence of any evidence that Sun Yang may have engaged in doping activity since 4 September 2018, including on the occasion of the FINA World Championships in Gwangju, South Korea, in July 2019.
Two other aspects of the Panel's findings are worth noting:
First, the Panel did not exclude that in the "most exceptional circumstances", "serious flaws" in the notification process, or during any part of the Doping Control process, may justify that that an athlete refuses to subject himself to, or continue with, a sample collection session. The Panel thus did not entirely close the door for circumstances in which an athlete could interrupt a doping control without being perceived as having tampered with the process and, as such, this finding is likely to be referred to by parties in subsequent proceedings where a doping control did not go as usual. The Panel, however, made it clear that "as a general matter, athletes should not take matters into their own hands, and if they do they will bear the risk of serious consequences" and that "any athlete who questions whether notification requirements have been properly complied with would be well-advised not to refuse or abort the sample collection process, but rather to complete the sample collection process under protest and document the reasons of such objection in as much detail, and as early, as possible".
Second, the Panel seems to have attributed great importance to Sun's personality, noting "that the Athlete appears to have a forceful personality, and seems to have an expectation that his views should be allowed to prevail". It further noted that Sun Yang did not express regret as to his actions, but that "he dug his heels in and, eventually, sought to blame others for the manifest failings that occurred."
Sun Yang won gold in the 200 metre freestyle at the 2016 Rio Olympic Games, the 400 metre and 1,500 metre freestyle at the 2012 Olympics in London and the 200 metre and 400 metre freestyle titles at the 2019 FINA World Championships in South Korea. The pronounced illegibility, if definitive, would mean the end of his career. In the Panel's words, "[t]his is the rule of law, now of singular importance in the field of sport, and applicable to all athletes, irrespective of their background or status, their standing or success."
Sun Yang has the right to appeal the ruling at the Swiss Federal Tribunal and has already stated his intention to do so. Before the Swiss Federal Tribunal, arbitral awards can only be annulled based on very limited grounds such as certain types of procedural defects or breach of public policy. The four types of procedural defects that can lead to annulment are: (i) the irregular composition of the arbitral tribunal; (ii) an incorrect decision on the jurisdiction of the arbitral tribunal; (iii) a decision of the arbitral tribunal that either exceeds or falls short of the scope of the claims that were brought; and (iv) a violation of fundamental principles of procedure. Statistics confirm that the Federal Tribunal has shown great deference to CAS in the past and will not easily overturn CAS rulings. Sun Yang's appeal thus seems to have a very low chance of success.
Sun Yang's lawyer has stated that his appeal would be based "[o]n the ground of a series of procedural errors by the CAS during the appeal hearing". It therefore seems that Sun Yang will likely invoke a violation of fundamental principles of procedure. One argument he will not be able to run – and the one that was successful before the European Court of Human Rights in the Pechstein case – is that he was deprived of a public hearing. Only for the second time in its history and for the first time since the changes to the CAS Code following Pechstein did the CAS agree to such a public hearing in this case. It is noted that a similar public hearing had recently been requested by WADA in the case involving WADA's decision to revoke the compliance status of the Russian Anti-Doping Agency ("RUSADA") and to strip Russia of the right to participate in major international sports tournaments, including the Olympics, Paralympics and world championships, for a period of four years. However, recently the CAS Panel for this case decided that the hearing, which will not take place before the end of April 2020, will not be held in public due to the absence of an agreement between all parties concerned.
To the extent he is already appealing on procedural grounds, Sun Yang may also attempt to argue that the eight-year ban violates public policy. The Swiss Federal Tribunal has held in previous cases that a two-year doping ban and a five-year ban for match-fixing do not violate public policy. Whether the "life sentence" of an eight-year ban from competition that was handed to Sun Yang by this verdict, which effectively puts an end to his career, would be considered in violation of public policy in the circumstances of this case is thus potentially another matter of interest to follow.
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2020 White & Case LLP