Role of Judge Romano Subiotto In World Anti-Doping Agency Vs Sun Yang Retrial Up To CAS Not Us, Says Swiss Tribunal
The Swiss Federal Tribunal (SFT) has issued further clarification in its decision to send the Sun Yang case and the eight-year suspension imposed on the Chinese swimmer by the World Anti-Doping Agency back for retrial based on the perceived lack of impartiality of the head of the Court of Arbitration for Sport panel of three judges.
In its latest declaration, the SFT notes that it has no say in a challenge from Sun Yang’s legal team calling for another of the CAS judges, Romano Subiotto, to be ruled out of proceedings in a retrial.
The SFT states that the way in which the CAS and parties to CAS cases select judging panels is not within its scope of jurisdiction. The implication is that no evidence was presented that would extend any objection to Subiotto, who is no stranger to challenge in his role as a CAS judge, to Swiss Civil law in the way that the complaint against panel chair Franco Frattini did.
The SFT cites among matters it took into consideration an August 2020 letter from FINA in which the international swimming federation noted that it would be pursuing its own legal challenge. The Swiss court does not spell out the details of what FINA intended to challenge but the federation has made clear its support for Sun Yang despite the damning criticism of the athlete and his entourage in a FINA Doping Panel report of January 2019 that FINA had sought to keep confidential.
FINA’s position in the case is an odd one in that, as the SFT notes in its case description, the sides are listed as Sun Yang contre (against) WADA and FINA. The SFT notes, too, that the challenge it has and can consider relates only to matters of relevance to Swiss civil law.
The specific reason for its decision spelled out by the SFT is the one complaint that spoke directly to a challenge admissible in Swiss law: a complaint from Sun Yang about the suitability of one CAS judge to serve as a judge in the case against Sun, that judge being Franco Frattini.
The challenge was based on matter relating to social media posts Frattini made before the acrimonious clash between Sun and anti-doping testers in September 2018 that led to a FINA Doping Panel hearing and then, after that hidden report was exposed by The Sunday Times in January 2019, a challenge from World Anti-Doping Agency.
After almost missing an out-of-competition test on September 4, 2018, Sun, supported by Dr Ba Zhen — both with previous doping suspensions to their names — and other powerful officials from the realms of Chinese sport and anti-doping, took what the FINA Doping Panel of lawyers described as a “huge and foolish gamble” on his “entire athletic career”.
Despite that and further damning criticism from the lawyers, the Panel let Sun (who in 2014 was handed a back-dated doping suspension that was never actually served) off with a warning. The World Anti-Doping Agency begged to differ and believed that Sun should not get away without penalty.
After a highly controversial appearance at the FINA World Championships in Gwangju, Korea in July 2019, including podium protests against Sun under a giant banner of the event mantra “Dive Into Peace” by rivals Mack Horton, of Australia, and Duncan Scott, of Britain – both attracting widespread support of world-class swimmers from around the world – the World Anti-Doping Agency challenge was put at a CAS hearing in November 2019.
The hearing in Montreux, Switzerland, was held in public, by agreement of all parties, making it the first such occasion involving a swimmer since Michelle Smith, of Ireland, challenged a FINA suspension on the grounds of manipulation of a doping sample back in 1998.
Smith lost her appeal, as did Sun on the same grounds, manipulation, the circumstances and substance of the cases different in nature. Where Smith was found to have attempted to spoil a sample by pouring alcohol (Whiskey was cited in evidence) into a urine test sample without testers spotting it, Sun was said by the World Anti-Doping Agency to have removed a blood sample already signed over to testers from the chain of command.
CAS judges ruled in WADA’s favour on February 28 this year, leading to the imposition of an eight-year suspension of Sun by the World Anti-Doping Agency.
Sun’s legal team turned to the SFT to argue against the WADA position and later on grounds pertaining to the CAS, both before and after the Montreux hearing. Most of those grounds were rejected. The Frattini issue was, however, one that the SFT found to be valid in Swiss law.
The SFT cannot – has no jurisdiction to – rule on sports law nor on the arguments about the WADA Code, testing teams and other aspects of the Sun Yang case that led to the World Anti-Doping Agency argument prevailing on February 28 this year.
In its response to the SFT decision, the World Anti-Doping Agency noted:
“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.”
WADA
In its latest statement, the SFT lists the following events and moves as matters it took into consideration when coming to its conclusion that a retrial was required with a replacement for Franco Frattini:
- The decision issued on February 28, 2020 by the Court of Arbitration for Sport (CAS);
- The appeal in civil matters filed on April 28, 2020 by Sun Yang against the CAS decision
- The order of June 12, 2020 by which the President of the 1st Civil Law Court took note of the fact that Sun Yang followed up on the request for security for costs made by the World Anti-Doping Agency by paying the sum of 30,000 fr. (minus 12 fr. fees) at the Federal Tribunal Fund
- The response to the appeal, dated August 17, 2020, in which the World Anti-Doping Agency concludes that the appeal should be rejected to the extent of its admissibility
- The letter of August 17, 2020 in which the International Swimming Federation (FINA) declares that it is going to pursue the matter in court
- The response of the CAS at the end of which it proposes the rejection of the appeal
- Communication from Sun Yang and WADA dated September 4 and September 23, 2020, respectively
That the investigating judge decides as a single judge on the striking off from the roll of proceedings which have become devoid of purpose (art. 32 para. 2 LTF) – NB: pertaining to jurisdiction of the SFT in the rules of the Tribunal in Swiss Civil Law.
On December 22, the SFT allowed the appeal for review presented by Sun Yang, “annulled the arbitration award of February 28, 2020, and accepted the challenge request against Franco Frattini, President of the Panel which rendered the said award”.
That is to say that the issue of Frattini being perceived to be and being impartial when considering the arguments in the case of the World Anti-Doping Agency Vs Sun Yang and FINA was the only one that led to a decision to send the matter back for retrial.
What then SFT does not do – nor can it do – is judge any of the arguments that led to Sun Yang being handed an eight-year suspension. All arguments must be presented again.
In regards to a challenge from Sun and team to another CAS judge, Romano Subiotto, the SFT notes: “Considering that the present appeal proceedings have become devoid of purpose, the award under appeal having been annulled, it should be specified that the Federal Tribunal cannot rule on the challenge request against arbitrator Romano Subiotto, contained in the appeal brief, given the annulment of the award under appeal, that it will thus be up to the CAS to decide whether or not to maintain arbitrator Romano Subiotto within the Arbitration Panel which will be called upon to rule, once again, on the fate of the appeal filed by” [the World Anti-Doping Agency] …”
The SFT set a deadline of January 22 for the parties to “decide on the fate of the costs and expenses relating to the present appeal proceedings” and noted that WADA and the CAS will now receive a copy of a Sun Yang letter of December 8, 2020 and its appendix (acts 30 and 31, dealing with matters that included “foreigners’ law” and “International arbitration”).