FINA Backed Moves To Have Sun Yang CAS Case – & WADA’s Lead Counsel – Thrown Out

Sun Yang - Photo Courtesy: Becca Wyant

The leadership of FINA, the international swimming federation, sought to protect China’s Sun Yang from being banned from the sport in a doping case by backing efforts to have lead counsel for the World Anti-Doping Agency (WADA) removed from the case, according to a Swiss Supreme Court document.

A verdict in the case against the reigning 200m freestyle Olympic champion who in 2014 tested positive for a banned substance, is expected within days from the Court of Arbitration for Sport (CAS) after a hearing last November related to events in 2018.

The Swiss federal court document, AP reports, confirms that FINA supported arguments by Sun’s lawyers to have an appeal by WADA thrown out before the case could be heard, firstly on ground of conflict of interest and then by arguing that WADA had missed a procedural deadline.

WADA lodged an appeal with CAS in March last year after The Sunday Times in London, in a report by this author, revealed that a FINA Doping Panel had issued Sun with a series of warnings after an acrimonious exchange for four hours through the night with out-of-competition anti-doping agents near his home in September 2018. The Panel and FINA had sought to keep the report into the case confidential.

The testing session resulted in no urine sample being provided and a blood sample that had been submitted for testing and signed off by Sun removed from the chain of command, the protective vial housing it smashed on the pavement outside the control room by a security guard operating under instruction from Sun, his mother and a doctor with two WADA penalties to his name, Ba Zhen.

The Swiss court documents show that in a pre-trial dispute over an alleged conflict of interest for the agency’s lead prosecutor, American lawyer Richard Young, FINA backed moves to have WADA’s lead counsel removed.

Young had resigned from FINA’s legal commission in February 2019 to free himself for WADA’s appeal, the federal court document stated. Months before the public hearing by CAS, Sun’s lawyers and FINA asked Young to stand down from the case because of a possible conflict of interest. Young refused and served as lead counsel for WADA in the case.

In a second attempt to stall the CAS hearing, the swimmer’s lawyers appealed to the Swiss Federal Tribunal but the court dismissed their procedural objections weeks before CAS heard only the second public hearing for a swimmer in an anti-doping case since Michelle Smith de Bruin challenged FINA in 1998.

“In the course of the proceedings, the swimmer and FINA raised a plea of inadmissibility because of the allegedly late filing of the (WADA) appeal brief,” said the Swiss federal ruling, dated October 28.

In pursuing the course it did, FINA, a signatory to the WADA Code, left itself open to criticism over its own conflict of interest, having departed from the neutrality inherent in its position as both policeman and promoter of the sport of swimming.

The Swiss court papers confirm that FINA was working to have WADA’s appeal thrown out beyond the controversies of the World Championships in Gwangju in July, when Australian Mack Horton and Britain’s Duncan Scott staged podium protests over Sun’s presence at the event at a time when a decision in the case of a swimmer already towing a doping record was pending. Horton, Scott and Sun all received reprimands from FINA but in his closing remarks at the championships, FINA Director Cornel Marculescu criticised Horton and Scott but not Sun.

In contrast, USADA boss Travis Tygart hailed the actions of those who protested as evidence that the system had failed them.

In an AP report on the court documents, the news agency notes: “Had Young, who previously prosecuted doping cases involving Lance Armstrong and Marion Jones and is based in Colorado, been considered ineligible for the case because of his past work for FINA, the WADA appeal could have technically missed its deadline and allowed CAS to decline jurisdiction.

“Instead, Young stayed on the WADA team for the public hearing. Sun is facing a ban of up to eight years for his alleged refusal to provide blood and urine in September 2018 in a visit by sample collectors to his home in China.”

FINA declined to comment on attempts to remove Young and stop WADA’s case, while Young was yet to reply to requests for comment, AP reports.

Sun Yang sums up as the hall in Montreal empties of journalists gone to work on their words – Photo Courtesy: Craig Lord

At the 10-hour CAS hearing in Montreux, Switzerland, last November, those present heard how senior anti-doping and Chinese Swimming Association (CSA) had directly intervened to halt a testing session during an anti-doping visit to Sun in 2018. The session ended after a four-hour confrontation when a security guard used a hammer to smash a container holding a vial of Sun’s blood as the swimmer lit the scene with his mobile phone.

Young told the CAS hearing that the WADA Code had been broken long before the vial was smashed:

“That is pretty sensational. But he (Sun) was nailed on a tampering violation before any of that happened.”

Sun denies wrongdoing.

CAS judges are due to deliver their verdict in the case.

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