Introduction

The Court of Arbitration of Sport (CAS) today upheld the World Anti-Doping Agency’s (WADA) appeal against the Fédération Internationale de Natation (FINA) and Sun Yang in relation to an anti-doping rule violation by Mr Yang in 2018. In January 2019, a FINA Doping Panel cleared Mr Yang of wrongdoing relating to an attempt to collect samples from him in September 2018. However, CAS has now overturned FINA’s decision by ruling that Mr Yang violated Article 2.5 of FINA’S Doping Control Rules (Tampering with any part of Doping Control). As a consequence, the multiple world and Olympic swimming champion has been sanctioned with an eight-year period of ineligibility, effectively ending his career as a professional swimmer.

Background

WADA challenged FINA’s decision to clear Mr Yang of an anti-doping rule violation. They asserted that Mr Yang had voluntarily refused to submit to sample collection, which should result in a period of ineligibility of between 2 and 8 years. Mr Yang’s alleged violation related to an attempt by International Doping Tests and Management to collect blood and urine samples in September 2018 at the swimmer’s residence as part of an out-of-competition doping control. Whilst the precise circumstances of the anti-doping test are contested, the attempted testing resulted in dramatic scenes, with a vial containing Sun Yang’s blood being smashed with a hammer by a security guard under the direction of the swimmer’s mother. Mr Yang’s second blood sample was retained by his doctor and no sample (blood or urine) was sent for analysis.

In January 2019, the FINA Doping Panel determined that Sun Yang had not committed any anti-doping rule violation on the basis that the sample collection protocol adopted by WADA for the conduct of doping controls (the International Standard for Testing and Investigations (ISTI)), had not been properly followed and therefore the sample collection was invalid. The FINA Doping Panel resolved that Mr Yang had not committed an anti-doping violation, but issued him with a severe caution.

On 15 November 2019, the hearing of WADA’s appeal took place in Switzerland before a panel of three CAS arbitrators. Uniquely, at the parties’ request, the CAS hearing was open to the public and broadcast on a livestream via the CAS’s website.

Whilst the award is yet to be released, according to a media release published by CAS this morning, the CAS panel has unanimously determined, to its comfortable satisfaction (i.e. lying between the criminal ‘beyond reasonable doubt’ and the civil ‘balance of probabilities’), that Sun Yang had violated Article 2.5 of the FINA Doping Control Rules (Tampering with any part of Doping Control). In reaching its decision, the panel determined that: (i) the representatives who conducted the doping control had complied with all requirements of the ISTI; and (ii) Mr Yang failed to established that he had a compelling justification to destroy the sample collection container and forego the doping control notwithstanding he was of the opinion that the ISTI collection protocol had not been adhered to.

As summarised in the CAS media release:

“…it is one thing, having provided a blood sample, to question the accreditation of the testing personnel while keeping the intact samples in the possession of the testing authorities; it is quite another thing, after lengthy exchanges and warnings as to the consequences, to act in such a way that results in destroying the sample containers, thereby eliminating any chance of testing the sample at a later stage.”

Next steps

The award is due to be published in the coming days unless the parties agree that it should remain confidential (which would seem unlikely here given the public CAS hearing). Mr Yang will have 30 days from the notification of the award to file an application at the Swiss Federal Tribunal to set aside the award, albeit he will have limited grounds for doing so (e.g. lack of jurisdiction, procedural unfairness, or incompatibility with Swiss public policy­­­).

Significance

Many will welcome Mr Yang’s lengthy ban as an example of anti-doping rules being robustly applied to sanction offenders and, in particular perhaps, to repeat offenders like Mr Yang who served a three-month suspension in 2014 for taking a banned substance. However, all of Mr Yang’s competitive results since he was charged in September 2018 will stand, much to the displeasure of his former opponents.

It will be interesting to see how FINA reacts to the decision, given that serious questions will be asked as to why its panel did not sanction Mr Yang. FINA may well need to consider overhauling its internal structures and may consider establishing an integrity unit to combat doping, much like the Athletics Integrity Unit that World Athletics set up in 2017.

More generally, the Sun Yang case was only the second public hearing in the history of CAS (also an anti-doping case involving a swimmer). It is also the first public hearing since CAS updated its Code of Sports-related Arbitration in 2019 to make it easier to hold disciplinary hearings in public. This was a response to the decision of the European Court of Human Rights in the Mutu & Pechstein v Switzerland case, in which it was held that denying an athlete’s request for a public hearing had violated her right to a fair hearing under Article 6(1) of the European Convention on Human Rights. Without having seen the award, it is difficult to comment on whether the publicity of the hearing had an impact on the underlying proceedings. However, the hearing itself attracted significant media attention, including some criticism as to the translation difficulties that occurred at the hearing. The commitment by CAS to broadcast hearings in full – warts and all – is a welcome step towards improving transparency.