The World Anti-Doping Agency says a Swiss court has overturned an eight-year doping ban against Chinese swimmer Sun Yang and ordered the case back to the Court of Arbitration for Sport for a second time but with a different chairman of the judges.
In February, CAS found the three-time Olympic champion guilty of refusing to cooperate with sample collectors during a visit to his home in September 2018 that turned confrontational. WADA brought the case to the Court of Arbitration for Sport after world swimming governing body FINA had issued the now 29-year-old Yang with only a warning.
At stake in a second CAS hearing would be Yang’s chance to compete at the pandemic-delayed 2020 Tokyo Olympics now set for July 2021.
The Swiss court ruling appears to have swung on an objection by Sun’s lawyers to the chairman of the three-judge panel, former Italian foreign minister Franco Frattini.
On Wednesday, WADA said in a statement that it had been informed of a decision by the Swiss Federal Tribunal to uphold an application by Yang and to set aside the original February ruling.
“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,” WADA said in the statement.
“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 . . . 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 (chairman).
“At this stage, WADA has not received the tribunal’s full reasoned decision and therefore cannot comment further.”
A clash between Frattini and Sun was one of the most dramatic moments in a 10-hour CAS hearing in Montreux, Switzerland in November 2019 that was a rare instance of a CAS process held in open court and live-streamed online. The hearing ended with Sun surprising his own legal team by waving his arms and calling another translator from the public seats to better articulate his closing statement.
“Who is this guy?” asked an incredulous Frattini. “It is not up to you to appear before the court. There are some rules.”
Frattini has upset Yang and his legal team for a series of past tweets, including one from April 23, 2019 that read: “Those horrible sadic chinese are the shame of mankind !! For how they torture animals they deserve the evil every day! And the chinese authorities tolerate and encourage.”
Sun’s challenge to Frattini at federal court followed a pattern of objecting to lawyers involved in the case.
A typical CAS hearing allows each side to select one of the three judges on the panel, and the swimmer’s legal team persistently objected to WADA’s original choice of Michael Beloff from England.
Beloff, a veteran and in-demand CAS judge, eventually stepped aside from the case “solely to assist in an expeditious hearing, and not because the challenge had any merit whatsoever,” the CAS ruling in February stated.
Sun’s team also tried to have WADA’s lead prosecutor, Colorado-based Richard Young, removed from the case for alleged conflict of interest because he previously worked for swim body FINA.
Young, who previously prosecuted doping cases involving Lance Armstrong and Marion Jones, stayed on the case.
Very few cases, at a rate of about one per year that includes around 400 arbitration and appeal processes, are successful at the Swiss tribunal.
It is even possible to overturn a CAS verdict in the federal court and still lose the re-trial. That happened to tennis player Guillermo Canas of Argentina in 2007.
Canas was initially banned for two years by the ATP Tour’s anti-doping tribunal, and saw that reduced to 15 months at CAS. When Canas went to federal court, Swiss judges ruled his right to be heard had been breached and sent back the case. A second CAS hearing also applied a 15-month ban.
The most vivid detail of the evidence submitted at the Yang's November 2019 CAS hearing was a blood sample rendered useless for testing by a hammer blow.
The hearing was reminded of how a security guard instructed by Sun’s mother broke the casing around the vial to ensure the blood could not be used for anti-doping tests.
“The athlete failed to establish that he had a compelling justification to destroy his sample collection containers and forego the doping control when, in his opinion, the collection protocol was not in compliance,” the CAS panel of three judges agreed in an unanimous verdict announced in February.
Immediately, Sun said he planned to appeal to the Swiss Federal Tribunal, which is Switzerland’s highest court. That move proved to be successful this week, setting the scene for another CAS hearing ahead of the Tokyo Olympics and ensuring the case involving a controversial 2018 doping test continues into at least 2021.