Sun Yang Faces WADA Demand For 2-to-8-Year Ban As CAS Names Judging Panel

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Sun Yang - Photo Courtesy: Becca Wyant

Sun Yang Faces WADA

The World Anti-Doping Agency (WADA) will argue that a penalty of between two and eight years be handed down to Chinese Olympic champion Sun Yang at the Court of Arbitration for Sport (CAS) on Friday.

WADA is challenging a FINA Doping Panel decision to issue a caution to Sun over an acrimonious dispute with out-of-competition testers in September 2018 that ended with a vial of Sun’s blood being smashed by a security guard operating under instruction from the swimmer’s mother and no sample, neither blood nor urine, being sent for analysis.

Proceedings will be conducted in English and Sun Yang will give his testimony from 9.15am local time and then be given an opportunity to make his closing remarks at 8pm before the hearing is due to end at 8pm.

The judging panel will be made up of Judge Franco Frattini, from Rome, Italy, Panel President; Romano F. Subiotto QC; and Prof. Philippe Sands QC (further details below).

The hearing will be held in public and at least some of it will be live streamed. The arbitrators in the case, as set out below, will not speak to the media but the parties to the case are allowed to do so if they wish. CAS indicated today that Sun Yang will not answer media questions. The court noted:

“Mr. Yang intends to issue a brief statement to the media at the conclusion of the hearing.”

There will be no judgment on the day, the judges due to consider the witness statements and case at large over the days and weeks following the hearing.

The Panel will deliberate and prepare an Arbitral Award setting out its decision and the grounds for it in the days after the hearing. CAS noted: ” …  it is not possible to give a precise indication of the date of notification at this time.”

Any decision is likely to be final. As CAS pointed out: “Arbitral Awards issued by the CAS can be challenged before the Swiss Federal Tribunal on very limited grounds. The time limit for appeal is 30 days.”

Today, CAS issued further details about the hearing due in Montreux on Friday, including:

What is the case about?

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Sun Yang – Photo Courtesy: Becca Wyant

Following a conflictual anti-doping test, initiated on 4 September 2018 at the residence of Mr Sun Yang, resulting in the testing not being completed, the matter was referred to the International Swimming Federation (FINA) Doping Panel (FINA DP). The FINA DP determined that the International Standard for Testing and Investigations (ISTI), the protocol adopted by the World Anti- Doping Agency (WADA) for the conduct of doping controls, had not been properly followed in the circumstances and that accordingly, the sample collection was invalid. As a consequence, the FINA DP ruled that the athlete had not committed any anti-doping rule violation.

WADA filed an appeal at CAS against that decision, considering that Sun Yang voluntarily refused to submit to sample collection and requesting that a period of ineligibility of minimum 2 years and maximum 8 years be imposed on him.

The parties have exchanged written submissions to present all their arguments and requests. They are now called to appear at a hearing in the presence of the Panel of arbitrators. The hearing will give the opportunity to the CAS Panel to hear the parties, their witnesses and experts and to ask them questions.

Who will decide the case?

The Panel of arbitrators constituted to decide the matter is composed as follows:

  •  Judge Franco Frattini, from Rome, Italy, Panel President
  • Mr Romano F. Subiotto QC, Solicitor-Advocate in Brussels, Belgium and London, UK(appointed by WADA)
  • Prof. Philippe Sands QC, Professor of Law and Barrister in London, UK (appointed by Sun Yang with the approval of FINA)

Mr Matthieu Reeb, CAS Secretary General, will supervise the organization and smooth running of the hearing. The Panel will be assisted by Mr Brent J. Nowicki, CAS Managing Counsel, and by an ad hoc clerk, Mr Dennis Koolaard.

Who is representing the parties?

WADA will be represented by

  • Bryan Cave Leighton Paisner LLP, Colorado Springs, USA.

Sun Yang will be represented by:

  • Bonnard Lawson Law Firm, Geneva, Switzerland XXIV Old Buildings, London, UK
  • Beijing Lanpeng Law Firm, Beijing, P.R. China

FINA will be represented by

  • CPV Partners, Lausanne, Switzerland

Why is this hearing being held in public?

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Michelle Smith Photo Courtesy: Tim Morse 1996

It has always been possible for CAS hearings to be held in public so long as all parties to the procedure agreed to the proceedings being conducted in public. The first public hearing, which took place in 1999, was in the matter Michelle Smith De Bruin v. FINA. At the beginning of 2019, following a decision taken by the European Court of Human Rights (ECHR) in the cases Pechstein & Mutu v. Switzerland, the CAS updated its procedural rules to widen the scope for hearings to be held in public, which can be held at the sole request of the athlete when the dispute is of a disciplinary nature.

This public hearing was requested by Sun Yang. Neither WADA, nor FINA raised any objection to such request and the CAS Panel confirmed that a public hearing should be organised.

Logistics

The hearing will be held at the Fairmont Le Montreux Palace in Montreux, Switzerland, commencing at 9.00am and concluding at approximately 8.30pm.

A public viewing area will be available for written media and members of the public to observe the proceedings. Access to the public viewing area will be strictly controlled and advance registration is required. Observers seated in the public viewing area must in no way interfere with the orderly conduct of meetings and must follow the instructions issued by the CAS and by the security staff at all times.

From the moment the hearing starts, all or parts of the hearing will be available by livestream via the CAS website www.tas-cas.org.