Sun Yang 8-Year Doping Ban Overturned by Swiss Federal Tribunal

Sun Yang‘s eight-year doping ban has been overturned by an appeals court.

The Swiss Federal Tribunal has upheld Sun Yang’s appeal against the ban, handed out by the Court of Arbitration for Sport (CAS) earlier this year. The World Anti-Doping Agency said that it had been informed of the decision, but the full statement of reasoning has not been released.

According to the New York Times, the decision was made not based on the case’s merits, but due to the fact that the chairman of the CAS panel, Italian Franco Frattini made public comments that were anti-Chinese. Because the CAS decision has been overturned, Sun will become eligible to compete until his case is again heard. WADA will have to present its case again.

WADA released this statement:

“The World Anti-Doping Agency (WADA) has been informed of the decision of the Swiss Federal Tribunal to uphold the revision application filed by Chinese swimmer Sun Yang and to set aside the 20 February 2020 award of a Court of Arbitration for Sport (CAS) Panel. The case is in relation to WADA’s successful appeal against the original Fédération Internationale de Natation (FINA) disciplinary panel decision following an incident that led to a doping control involving Sun Yang not being completed as planned. The Swiss Federal Tribunal’s decision upholds a challenge against the Chair of the CAS Panel and makes no comment on the substance of this case. In the CAS award, WADA clearly prevailed on the substance of the case as it was able to show that there were a number of aspects of the original FINA decision that were incorrect under the World Anti-Doping Code and the related International Standard for Testing and Investigations. WADA will take steps to present its case robustly again when the matter returns to the CAS Panel, which will be chaired by a different president.”

The Chinese swimmer received an eight-year ban from the World Anti-Doping Agency for ‘manipulation’ of an anti-doping test sample. Sun’s initial appeal, made in April, was not the first in a long process that ended up in a hearing before three judges at the Court of Arbitration for Sport (CAS) last November, ahead of a ruling in favor of WADA in February. Last month, Sun’s lawyers lodged a second appeal that aims to have the eight-year ban reduced.

Now, the last court of appeal has reversed the Sun Yang decision.

The second appeal means that the eight-year ban could be reduced rather than dismissed entirely.

The decision of the SFT was made on technical and procedural grounds, not on the rights and wrongs of the WADA Code, CAS – in common with the International Olympic Committee and FINA – being subject to the provisions of Swiss law as it is based in Switzerland.

The Background

Sun Yang was handed an eight-year ban after a panel of three senior CAS judges upheld the charge of “tampering” brought by WADA

At a hearing in Montreux last November, WADA challenged a January 2019 ruling by a three-man FINA Doping Panel to issue only a caution to Sun, 28, over a four-hour argument that raged through the night with out-of-competition anti-doping testers outside his home in Zheijiang Province in September 2018.

The FINA decision was to have been kept private but a Sunday Times report by this author on January 27 last year revealed the severity of the caution handed to Sun – and promoted WADA to delve more deeply before it lodged a case with CAS last March.

The swimmer, who failed to deliver a urine sample on the night of September 4-5, 2018, submitted to a blood test, signed off the sample but was then, two hours into the session when his doctor, Ba Zhen, arrived, party to arguments that led to a security guard being asked by Sun’s mother Ming Yang, to fetch a hammer.

According to Sun and the CAS hearing, the blood sample has been removed from the chain of custody by Dr Ba Zhen, who was twice penalised for supplying a banned substance to Sun in 2014 – once for the offence and then a second penalty for having worked with Sun at the Asian Games at a time he should have been serving a suspension.

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Sun Yang and his legal team arrive for the hearing, FINA counsel to the left – Photo Courtesy: Craig Lord

Once the Sun entourage had taken the sample back from testers, the outer casing of the vial was smashed with the hammer by the security guard as Sun shone his smartphone torch on proceedings.

Sun and his lead team had argued that the three testing officers who arrived at his home had not presented valid proof of identity and authority. This was rejected by the CAS judges.

Instead, they sided with WADA lead counsel Richard Young, who stunned the CAS hearing when he revealed what WADA aimed to catch Sun for:

“Tearing up the form, smashing the bottle, I mean that is pretty sensational but he was nailed on a tampering violation before any of that happened.”

Sun’s penalty is the first eight-year ban to be imposed on China since then-deputy head coach to the country, Zhao Ming was barred for the same period in the wake of the China Crisis of the 1990s, when more than 60 swimmers, all barring a couple teenagers, tested positive for a range of banned substances, including steroids, human growth hormone, blood booster EPO and diuretics.

Remaining questions revolve around Sun’s entourage and what penalties they may face, though the Chinese Swimming Association said that it would support Sun’s appeal to the highest Swiss court. That case is unlikely to be heard before the Tokyo 2020 Olympic Games, where Sun had hoped to defend the 200m freestyle title he claimed in Rio in 2016.

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Brent Rychener – Photo Courtesy: Craig Lord

In Montreux at the hearing last November, WADA Counsel Richard Young referred to “concerns over intimidation and protection issues”, while his co-counsel Brent Rychener highlighted several times in cross-examination of witnesses the threats and warnings, as he described them, made by members of Sun’s entourage to the testing officers, including exchanges involving the swimmer’s mother, the head of the Chinese Swimming Association and two doctors, namely, Dr Ba Zhen, a man twice-penalised by WADA in 2014-15, and Dr. Han Zhaoqi, head of the Zheijang Anti-Doping Centre.

Those characters, among others in the Sun Yang story, go unmentioned in the overview CAS ruling but there is a case, giver that Sun said that it was Dr Ba Zhen  who had taken the blood vial back from the chain of command, for imposing a third and final penalty on a doctor described by a source close to the international federation as “more dismissive of the WADA Code than is healthy for any athlete or sport.”

Swimming World’s coverage of Sun Yang & FINA Vs WADA At the Court of Arbitration for Sport