Swiss Federal Tribunal Makes Clear That Partiality Of Judge Shown In Anti-Animal-Cruelty Tweets, Not WADA Argument, Behind Decision To Send Sun Yang Case For CAS Retrial
The Swiss Federal Tribunal (SFT) today makes 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 argument of the World Anti-Doping Agency 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.”SFT
As announced in December, when considering Sun’s appeal, lodged on June 15, 2020, the 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.
In its full reasoning, the SFT notes that Sun’s appeal came too late for it to be considered under normal circumstances: those appealing have 30 days after verdict in which to file their grounds for review. Sun did not meet the 30-day deadline and, SFT notes, the swimmer “is therefore barred from basing his request for review on certain passages of the award under appeal, highlighted by him, which cannot, in any case, justify the challenge of the arbitrator in question”.
That said, the SFT also notes:
“… 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”.
Here are the tweets (originally posted in Italian, some nuance clearly lost in translation below but the overriding point clear), cited by SFT, according to Sun’s complaint, many preceding his appointment by CAS to the list of eligible judges for sports arbitration:
- tweet 28 May 2018: ” Show the HORROR THIS IS CHINA TODAY!! I’m sure nobody will ha e the courage to respond to me!!! Ambassador of China to Italy,where are you??? Are you silent on the tortures on dogs in Yulin??? ”
- 28 May 2018: ” Let’s multiply our messages! Invade in China with our protest against horror and torture on stray dogs and cats,as they try to invade our markets with fake products!! Raise our voice, otherwise we are in complicity!, ”
- 3 July 2018: ” Hell forever for those bastard sadic (sic; sadistic) chinese who brutally killed dogs and cats in Yulin,with the complicity of the chinese authorities !!! ”
After CAS appointment to Sun Panel:
- 28 May 2019: ” This yellow face chinese monster smiling while torturing a small dog,deserves the worst of the hell!!! Shame on China,pretending to be a superpower and tolerating these horrors!! “
- Same day: ” Racist????Me??ehi guy, I repeat: those horrible sadics are CHINESE!not French or Italian or polish! And I think they deserve a worse hell than the one in which they torture innocent animals!!Chinese is Yulin!!!do you want to defend!!come on,shame!!! ”
- 2 June 2019: ” Old yellow-face sadic trying to kill and torture a small dog:this is China’s picture!!! Westerners doing rich business with China bear in mind these atrocities ” [in reply to another Twitter user)]
- 9 June 2019: “Torturing innocent animal is a flag of chinese!Sadics, inhumans with the protection of chinese authorities and the tolerance of western powers focusing on more business with China,regardless any massive violence!Shame on china and their protectors! ” [disturbing images of animal cruelty].
Those tweets would come to be judged as a demonstration of partiality by Frattini in a case, like all anti-doping cases, that demands impartiality, and retrial was required, the SFT concluded, even though the reason does not diminish the arguments presented by WADA when it convinced not one but three judges that Sun Yang deserved to be punished as a second-time offender.
The first in a string of tweets was issued by Frattini on May 28, 2019, in the same months as he was appointed to the panel that would hear the CAS case. His role would not be known to the wider world until shortly before the November hearing in Montreux later that year.
The SFT also notes arguments in favour of Frattini, stating:
In this case, it is clear that the arbitrator, who has obviously taken up the cause of the defense of animals, [chose] through his various tweets, to castigate a Chinese practice of slaughtering dogs, likened by him to torture, as well as the large-scale tasting, on the occasion of a local annual food festival, of the flesh of sacrificed animals and denouncing people whom the arbitrator considers to be executioners.
The arbitrator also did not hesitate to denounce acts of cruelty to animals committed in other countries and to support people of Chinese nationality who have taken steps to put an end to the practice denounced by him. His fierce criticism was thus clearly not directed against all Chinese nationals”
The SFT notes Frattini’s opposition to cruelty to animals in Spain, India and elsewhere. In that context, it notes: “… the practice of bullfighting that is going on. in parts of Spain. Supposing that this person sits on a CAS Panel called upon to rule on an appeal against a disciplinary sanction inflicted on a Spanish athlete, would she be recusable on account of the statements made by her to denounce the cruelty committed … towards animals? The answer would probably be [no], in the absence of other corroborating circumstances.”
Even so, the SFT adds:
“However, it must be understood that it is not so much the cause defended by the arbitrator that appears problematic in the present case but rather certain terms used by him. Indeed, the arbitrator did not hesitate to use extremely violent terms, repeatedly, and several messages were published even while the present case was being investigated before the CAS.”
It notes the disturbing nature of the cruelty being inflicted on animals in videos associated with Frattini’s tweets as material apt to provoke the feelings the judge expressed but the tribunal also notes that “these terms clearly refer to the skin color of certain Chinese individuals and are not intended to qualify their behavior considered cruel, unlike other incisive or even hurtful terms used by the referee, such as “sadistic”. Such qualifiers, even though they have been used in a particular context, have absolutely nothing to do with the acts of cruelty alleged against certain Chinese nationals and are, whatever the context, inadmissible. If we add to this the fact that the arbitrator made such remarks, not only on two occasions, but also after his appointment as president of a Panel called to rule on the appeal lodged by a Chinese national, even though the proceedings were pending, it must be admitted that the applicant’s apprehensions as to the possible bias of the arbitrator in question may be regarded as objectively justified.
“In this regard, it matters little whether the offending arbitrator is, subjectively, aware or not of the fact that his statements appear objectionable from an objective point of view. Only the objective assessment of the circumstances alleged in support of a challenge request is in fact decisive. However, in the present case, the aforementioned circumstances, considered from the point of view of a reasonable third party having knowledge of it, are such as to cast doubt on the impartiality of the arbitrator in question and to create an appearance of prevention.”
As such, the appeal was upheld and a retrial must now unfold.
Technically, Sun could now compete and qualify for racing at the delayed Tokyo 2020 Olympics. That will depend on three things:
- How fast CAS can get the new process up and running – and given that all evidence, from both sides, has already been prepared, there is no excuse for delay
- How much Sun has stuck to the rule that does not allow him to have worked in the pool or gym with any teammates, coaches, doctors and others associated with Chinese quads, teams or the Chinese Swimming Association (and if he has not trained February to Christmas 2020, fitness would be a serious issue)
- Confirmation of that part of the 2020 verdict that matters: a suspension, the length of which matters not unless as farcical as the three-month retrospective suspension Sun never served back in 2014.
The SFT also issued a clarification on December 28 when it noted that it has no say in a challenge from Sun Yang’s legal team calling for another of the CAS judges on the original panel, Romano Subiotto, to be ruled out of proceedings in a retrial. Sun had objected to Subiotto’s presence in July 2019 but CAS rejected a call for a replacement and the CAS hearing went ahead in Montreux on November 15. It was February 2020 when the verdict was given before the full verdict was released a few days later.
The issuing of the SFT reasoning in full today triggers the start of a new CAS process, starting with the appointment of three judges for the panel that will hear WADA present its case anew in opposition to the arguments that will br brought again by Sun’s side and by lawyers for FINA, the international federation.
FINA is listed in official documents as being “Vs” Sun Yang because of its Doping Panel’s finding of fault in the decision that led to WADA’s appeal against a caution that carried no penalty in January 2019 but at the November 2019 CAS hearing in Montreux, the global aquatics federation and signatory to the WADA Code presented argument against WADA and in favour of Sun.
WADA has already stated that it will mount a “robust” challenge to Sun once more, noting:
“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
The SFT Statement (the full reasoning in French runs to 13 pages, and including lengthy explanation of precedent and direction in Swiss law related to fair process and impartiality):
Judgment of 22 December 2020 (4A_318/2020) – From The Swiss Federal Tribunal
Reasoning of the judgment in the Sun Yang case
The Swiss Federal Supreme Court has published the reasoning of its decision con- cerning the Chinese swimmer Sun Yang. Due to the bias of one of the arbitrators the Court of Arbitration for Sport (CAS) in Lausanne will have to render a new award in a different composition of the panel.
In its decision of 28 February 2020 (CAS 2019/A/6148), the Court of Arbitration for Sport (CAS) imposed an eight-year ban on the Chinese swimmer Sun Yang for violating the doping rules of the International Swimming Federation (“FINA Doping Control Rules”, 2017 edition). The athlete filed an appeal in civil matters (case 4A_192/2020, still pending) and later a request for revision (case 4A_318/2020) with the Swiss Federal Supreme Court. For reasons of procedural economy, the Federal Supreme Court first dealt with the latter request and approved it in its decision of 22 December 2020. The Federal Supreme Court set aside the CAS decision on the ground of bias of one of the arbitrators. As a result, the CAS will have to render a new award in a different composition of the panel in the Sun Yang case.
Following the disclosure of the operative part of the decision on 24 December 2020, the reasoning of the judgment is now available. In his request for revision, the athlete argued that, when an article appeared on the internet in mid-May 2020, he had become aware of circumstances that made the president of the panel appointed for his case appear to be biased. The article covered tweets made by the arbitrator in 2018 and 2019 in connection with the protection of animals.
The Federal Supreme Court first examined whether the objections to the arbitrator’s impartiality had been raised in time. Grounds for challenge must be raised immediately upon becoming known, otherwise they are forfeited. The party must exercise due care and make reasonable enquiries to discover such grounds. According to the Federal Supreme Court, the athlete in the present case sufficiently fulfilled his duty to investi- gate. Therefore he cannot be reproached for not having already discovered, during the arbitration proceedings, the grounds for challenge invoked in his request for revision.
The Federal Supreme Court then examined whether the arguments put forward by the athlete could justify the challenge of the arbitrator. In order to challenge an arbitrator, it is sufficient that the contested circumstances give rise to the appearance of partiality. The mere subjective impression of a party is, however, not decisive in this respect. Rather, the appearance of bias must be objectively justified. Doubts as to the impartiality of an arbitrator are only justified if, from an objective point of view, it cannot be ruled out that the arbitrator was influenced in his decision-making by extraneous factors.
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 consump- tion 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 CAS will therefore have to render a new award in a different composition of the panel in the doping case against Sun Yang.
The appeal proceedings 4A_192/2020, which are still pending before the Federal Supreme Court, are to be considered without object following the annulment of the contested CAS decision of 28 February 2020. Currently, a deadline set for the parties to comment on the allocation of costs is still running.