Sun Yang Vs WADA Second Hearing Set For May 24-28 By Video Conference

2021-04-01 Reading Time: 3 minutes
Sun Yang walks past a FINA banner at the 2017 World Championships - by Patrick B. Kraemer
Sun Yang walks past a FINA banner at the 2017 World Championships - by Patrick B. Kraemer

The second hearing into the Sun Yang Vs World Anti-Doping Agency (WADA) case involving FINA is to be held between May 24 and 28 by video conference, the Court of Arbitration for Sport (CAS) has announced.

NB: This is not an April Fools….

An entirely new panel of three judges, all Europeans, will hear the re-trying of the case. Hans Nater of Switzerland is the panel’s president, while Jan Paulsson, of France, and Bernard Hanotiau, of Belgium, will also serve on the panel.

On February 28, 2020, after a November 2019 hearing, Sun Yang was handed an eight-year suspension by the WADA after a panel of three judges ruled unanimously that the Chinese swimmer had fallen foul of the WADA Code on manipulation of an test-sample in a dispute with three Chinese members of an anti-doping testing team in September 2018.

Sun Yang’s legal team, appealed the ruling on several grounds, one of which led to the 2020 ruling being set aside and a new hearing being called.

When considering Sun’s appeal, lodged on June 15, 2020, the Swiss Federal Tribunal (SFT) took into account tweets posted in May and June, 2019, by the chairman of the CAS Panel, former Italian foreign minister Franco Frattini, in which he used racist terms referring to Chinese ethnicity when railing against animal cruelly, namely the tormenting, attempted drowning and slaughter of dogs in China.

The SFT made clear in the release of a full reasoning that its decision to overturn the anti-doping verdict against Sun Yang is based on issues of a right to fair, impartial process under Swiss Civil law and unrelated to the arguments of WADA that led to the imposition of an eight-year ban on the Chinese swimmer.

In a statement alongside its reasoning in full, the SFT notes:

“In the case at hand, the arbitrator had taken up the cause of animal protection in the contested tweets. In principle, an arbitrator can also defend his convictions on social networks, but with the restraint required of judges. The choice of words and the repeated use of violent expressions is problematic in the specific case. In his tweets, the arbitrator castigates a Chinese practice of dog slaughter and denounces the consumption of this meat at a local festival in China. Some expressions refer to the skin colour of certain Chinese people he targets. In addition, the arbitrator also made the said remarks in tweets after his appointment as president of the panel of arbitrators deciding in the Sun Yang case. In view of all the relevant circumstances, the Federal Supreme Court therefore considered that the doubts as to the impartiality of the arbitrator were objectively justified.”

The SFT also noted:

“… an arbitrator can perfectly defend his convictions on the various social networks. This does not mean, however, that the referee can express on the internet everything he thinks, in extremely strong terms, without risking arousing certain fears, even if they are unfounded, as to his impartiality, and this even if he does not act under his referee “cap”.

SOS Comment on the judge, the tweets and why a second hearing was required

The CAS Statement in Full:

IN THE WEEK OF 24-28 MAY 2021

Lausanne, 1 April 2021 – The Court of Arbitration for Sport (CAS) has resumed the appeal arbitration procedure brought by the World Anti-Doping Agency (WADA) against the Chinese swimmer Sun Yang and the Fédération Internationale de Natation (FINA) in relation to a decision issued by the FINA Doping Panel dated 3 January 2019 whereby Sun Yang was found not to have committed an anti- doping rule violation following an out-of-competition doping control.

Following the decision of the Swiss Federal Tribunal of 22 December 2020 to remove the previous President of the Arbitral Panel, the other Panel members stepped down and an entirely new panel was appointed, composed of Mr Hans Nater (Switzerland), President, Mr Jan Paulsson (France) and Mr Bernard Hanotiau (Belgium).

A new hearing will take place during the week of 24-28 May 2021. In light of the travel restrictions and sanitary measures in place due to the COVID-19 pandemic, the hearing will be held by video- conference.

At the conclusion of the hearing, the Panel will commence its deliberations and prepare the Arbitral Award. Accordingly, the decision will not be announced when the hearing concludes, but at a later date.

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