Final appeal was as sure as the Sun rising, but will it succeed?

We’re sorry, this feature is currently unavailable. We’re working to restore it. Please try again later.

Advertisement

This was published 3 years ago

Final appeal was as sure as the Sun rising, but will it succeed?

By Darren Kane

First, a disclaimer. I’m a member, indeed the acting chairman, of FINA’s legal committee.

Absolutely NONE of what I’m about to discuss next is, in any respect whatsoever, the opinion of swimming’s governing body nor that committee. Furthermore, I’ve never met Sun Yang, nor had anything to do with his doping case.

China’s triple Olympic champion has triggered his appeal proceedings in the Swiss Federal Tribunal. In that case, Sun appeals against the decision handed down in February, by the Court of Arbitration for Sport, to ban him for eight years.

Eight years equals a life sentence for a 28-year-old freestyler. It would have been unfathomable had no final petition eventuated. The vexing question is whether Sun has any prospect of succeeding.

The Code of Sports-Related Arbitration provides that the CAS decision to ban Sun is final and binding on WADA, the athlete, the Olympic movement and world aquatics. The caveat is that recourse is available in very limited circumstances, under the law of Switzerland.

At first blush it seems incongruous that the peculiarities of the Swiss legal system should govern matters involving Chinese athletes who have - on the CAS decision - committed anti-doping rule violations in China. This though, is the exquisite reality: the CAS Code expressly states the “seat” of CAS and each arbitration panel is in Lausanne, where it is headquartered. The “seat” of an arbitration is procedurally important, because it decides which laws determine the grounds that may be invoked to challenge an arbitral award.

Chinese freestyler Sun Yang was rubbed out for eight years by the Court of Arbitration for Sport in February.

Chinese freestyler Sun Yang was rubbed out for eight years by the Court of Arbitration for Sport in February.Credit: Getty

Again, CAS awards are final and binding, with the qualification that Swiss law may in certain circumstances allow a party to have an award annulled. Relevant to Sun’s case, under Swiss law the CAS proceedings are considered an “international” arbitration because at least one party is domiciled or ordinarily resident outside Switzerland. Accordingly, the Swiss Federal Statute on Private International Law applies.

Under that statute, a party wishing to challenge a CAS decision has 30 days from receiving the decision (which means Yang’s appeal has likely been bouncing around for a while, in some form) to commence proceedings in Switzerland’s highest court. Roughly 150 such cases have been brought to the SFT since 1992; a single-digit percentage of appellants have succeeded. Commencing SFT proceedings doesn’t suspend the CAS judgment, unless the Tribunal otherwise orders.

Advertisement

By illustration, in 2019 the South African double Olympic gold medallist Caster Semenya failed in her appeal against a CAS ruling on the legality of World Athletics’ policy, requiring female athletes with high testosterone levels to be medicated as a precondition to competition. For a short period, the SFT did however suspend the effect of the CAS decision.

The five grounds on which CAS awards can be challenged in the SFT are listed in the statute. Some bases for appeal – including where the CAS panel was improperly constituted, where the CAS lacks jurisdiction to hear a dispute or where the CAS makes orders not sought by the parties - seem wholly irrelevant here. No such issues were agitated by the parties before the CAS panel last November; it’s too late now.

The remaining procedural basis is where the CAS affords the parties unequal treatment, or violates a party’s right to be heard. A 2007 appeal by the Argentinian tennis player Guillermo Canas was upheld by the SFT because the CAS didn’t deal with all the various arguments Canas submitted in response to a doping charge. The Tribunal’s reasoning was that treating a party in such a way is akin to muzzling him, forbidding him to submit his arguments at all.

Could it be suggested that Sun received less preferential treatment than WADA? The CAS proceedings were conducted in English; not Sun’s native tongue. The proceedings were materially infected by issues relating to inaccurate, incomplete and ham-fisted efforts at English/Mandarin/English translation - to an extent which would be wickedly unacceptable in, say, a murder trial. But Sun’s people engaged the arbitrator - not WADA nor CAS.

Moreover, the SFT remedy for this would simply be a new CAS trial.

The CAS arbitrators also seemed to place significant, perhaps undue importance on Yang’s “forceful personality” and perceived superiority complex; why? Another ground of appeal could be if it’s contended that Sun’s lawyers weren’t afforded the same rights of audience, and time to make their case, as were WADA’s counsel. Those sorts of appeal arguments would pique the interest of the SFT, but the prospects of succeeding on this point appear dim.

The final ground of appeal to the SFT - and the only basis on which the merits and substantive findings of the CAS judgment are reviewable - is where a CAS award is incompatible with public policy. To this point, it’s the Swiss concept of “public policy” - not that of China - which is relevant. Only the most exceptional cases, where an award violates fundamental Swiss legal principles and values will enliven the power to annul the CAS decision.

Loading

Fundamental principles of Swiss law include those of good faith, anti-discrimination and prohibition of the abuse of power. Previous decisions of the SFT say that the doping principles of strict liability, and automatic fixed disqualification periods in doping cases, don’t violate Swiss public policy. Those decisions concerned bans less than eight years. The eight-year ban, imposed by the CAS, is mandated by the WADA Code in the specific circumstances of the case. Any appeal argument rooted in the alleged disproportionate harshness of the ban will fail unless the SFT is interested in the “life ban” aspect.

Good faith principles might be offended if, for example, WADA’s right to appeal the original FINA doping tribunal’s decision was materially broadened after the fact, to permit an appeal previously forbidden. But this isn’t the reality here. The reality is that it’s Sun Yang’s right to appeal. A fair (and final) decision is what’s required. It’s what Sun Yang and all athletes deserve and it’s what sport needs.

But it’s very hard to see him succeeding.

Most Viewed in Sport

Loading