Swiss Court Sends Sun Yang 8-Year Ban Back To CAS For Retrial As Judge Is Judged On Claim Of Racism; WADA Says “Substance Of Case” Prevails

2020-12-23 Reading Time: 5 minutes
Sun Yang (CHN), by Patrick B. Kraemer

The eight-year doping ban imposed on Sun Yang, of China, is heading back to the Court of Arbitration for Sport (CAS) for reevaluation after the Swiss Federal Tribunal upheld aspects of the swimmer’s appeal against the suspension on grounds of manipulation of a doping-test sample.

A retrial looks set to start February 20 with a new panel of judges after accusations of racism were levelled at the chairman of the original panel.

The CAS backed the position of World Anti-Doping Agency (WADA) in February this year and an eight-year ban was set. Sun Yang appealed the decision to the only court able to change or overturn CAS decisions on technicalities based on Swiss civil law. The CAS is based in Switzerland and is therefore subject to Swiss law.

The full ruling of the Swiss court has yet to be released to WADA but does not necessarily amount to an overturning of the entire ruling. The CAS will reconsider the case on February 20 to take account of the points raised by the Swiss Tribunal.

At stake may be the length of suspension imposed and a reduction to a ban of four years was suggested as a possible outcome of any level of success at appeal.

There is a bigger issue, however: the fitness of the lead judge to have judged the case at all. The judgment, WADA said, was based not on the merits of the case, but on concerns about the chairman of the CAS Panel, former Italian foreign minister Franco Frattini.

Sun’s lawyers had appealed to the Swiss federal court after gathering what they said were public comments by Frattini that included racist remarks in tweets in which he expressed disdain over examples of animal cruelty in China. At least one post included a term that is considered an anti-Chinese slur [caution: readers may find the following images disturbing]

Sun’s initial post-verdict appeal, made in April, was one of several appeals in a long CAS process that challenged a FINA Doping decision to impose no penalty on the controversial swimmer after an incident that ended with a blood test sample being removed from the chain of command when anti-doping testers visited the home of Sun Yang in 2018. In January 2019, The Sunday Times broke the story of FINA’s decision and its attempt to keep the story a secret from all but the parties involved on the night in question.

Last month, Sun’s lawyers lodged a second appeal that aims to have the eight-year ban reduced. The Swiss Tribunal’s full ruling is likely to speak to that. There has also been a suggestion, not yet confirmed, that one of the three judges on the panel had posted racist remarks about the Chinese in protest against the cruel treatment of animals in the country and those remarks, unrelated to sport, had been cited as reason why that judge was unfit to make any judgment in a case involving a Chinese athlete.

That suggestion appears to be upheld by a WADA statement in which it notes: ” 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 World Anti-Doping Agency said that it had been informed of the decision but not the reasoning behind the decision to return the case to CAS.

WADA issued the following 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 Sun Yang case is the biggest doping scandal involving Chinese swimming since more than 80 swimmers from the country were banned after returning positive tests: they were almost all teenagers and in the control of rogue coaches and doctors, a relative few of whom were also suspended.

In 2014, Sun was suspended for three months by the Chinese authorities, the penalty never actually served.

Background to Sun Yang Case & His Second Anti-Doping Penalty

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 Yang, 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.

Sun Yang at his hearing – by Craig Lord

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 Yang 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.

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 Yang 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.”

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