Sun Yang Appeal Unlikely To Succeed, Says FINA Legal Chair As China Debates Swimmer’s Continued Monthly Wage Packet
A top FINA legal eagle has concluded that it is “very hard to see [Sun Yang] succeeding” in his appeal to the Swiss Federal Tribunal (SFT) against an eight-year suspension for tampering with an anti-doping sample handed down by the World Anti-Doping Agency (WADA) on February 28.
The intervention Darren Kane, an Australian sports lawyer and acting chair of the FINA Legal Committee, comes as Sun Yang is said to have appeared on a list of athletes invited to join Olympic training in China because of an agreement with the Chinese Swimming Association (CSA) to keep paying the Olympic 200m freestyle champion a monthly wage of RMB130,000 (around $18,000).
WADA had requested the penalty as part of its appeal against a FINA Doping Panel decision to let Sun Yang off with a caution after an acrimonious out-of-competition visit from anti-doping testers in September 2018 ended in a blood sample being removed from the chain of command and the outer casing of a blood vial being smashed on a pavement outside the control room.
With a day remaining to a deadline that had been extended from one to two months due to the coronavirus pandemic, Sun’s lawyers lodged an appeal on April 29 against a Court of Arbitration for Sport (CAS) ruling on February 28 in favour of WADA and its call for an eight-year suspension. The appeal is being considered by the Swiss Federal Court (SFT), which is charge with considering appeals against decisions of the CAS in very limited circumstances, namely how judgments play out under the law of Switzerland, where the CAS is based.
Now, Kane, a sports lawyer who writes the Advocatus Diaboli column in The Sydney Morning Herald and is the acting chairman of the FINA legal Committee has used his platform to set out the five grounds on which CAS awards can be challenged at the SFT and concludes that the Chinese swimmer has very slim prospects of succeeding in an appeal to a court his lawyers turned to on the way to the CAS hearing of November 2018 without success.
Sun Yang, with his counsel Ian Meakin to the left, in Montreux at the CAS hearing, November 2019 – Photo Courtesy: Craig Lord
Noting that “Roughly 150 such cases have been brought to the SFT since 1992; a single-digit percentage of appellants have succeeded”, Kane rules out some of the grounds for appeal, including where a CAS panel might have been “improperly constituted” and where the CAS may lack jurisdiction to hear a dispute or “makes orders not sought by the parties” as approaches that “seem wholly irrelevant”.
Where Swiss law may be relevant is if the CAS could be shown to have afforded the parties unequal treatment or violated a party’s right to be heard, Kane notes.
He asks “Could it be suggested that Sun received less preferential treatment than WADA?”. Kane raises the issues of matters being list in translation but notes that it is the responsibility of Sun and entourage to arrange translation services, not WADA nor the CAS. He adds: “Moreover, the SFT remedy for this would simply be a new CAS trial.”
On another ground, Kanes wonders whether “… Sun’s lawyers weren’t afforded the same rights of audience and time to make their case, as were WADA’s counsel.”. He concludes that “the prospects of succeeding on this point appear dim”.
Kane then notes: “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 [Swiss public policy].” Matters of good faith, anti-discrimination and prohibition of the abuse of power come into play but Kane raises doubts once more when he writes:
“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 of 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.”
A Swiss legal source told Swimming World: “The ‘life ban’ issue is unlikely to be an issue at all, given that the penalty was not a ‘lifetime ban’, for which there is provision in the WADA Code. The suspension was for eight years and that stacks up in the WADA Code, which is why the CAS agreed with WADA on that point.”
Kane concludes:
“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.”
The FINA Legal Commission
In Sun Yang’s case at the CAS, FINA and its legal team sided and argued with the swimmer against WADA. On Sunday, the Australian Sunday Telegraph cited sources who claim that FINA bosses had wanted to strip Mack Horton of the silver medal he earned in the 400m freestyle at the World Championships year after the Australian staged a peaceful podium protest over Sun Yang’s presence at the event.
It is rare to find a committee or commission member within the FINA structure openly discussing matters directly linked to FINA decisions at the heart of controversies making global headlines.
The FINA Legal Committee’s powers and duties include:
- to provide legal expertise to the Bureau and to give recommendations regarding legal matters whenever needed,
- to assist the Bureau, FINA Committees and the commissions in drafting amendments to the Constitution, FINA Rules and regulations,
- to conduct administrative reviews regarding whereabouts violations referred to the Legal Committee,
- to advise, if necessary, on matters referred to CAS by FINA, and
- to advise, if necessary, on agreements between FINA and third parties.
Sun “Still Being Paid $18,000 A Month Wage By CSA”
Sun Yang – Photo Courtesy: Patrick B. Kraemer
The intervention of the FINA legal committee man comes as Sun Yang is said to have appeared on a list of athletes invited to join Olympic training in China because of an agreement with the Chinese Swimming Association (CSA) to keep paying the Olympic 200m freestyle champion a monthly wage of RMB130,000 (around $18,000).
According to reporter He Xiaolong of the Xi’an Evening News, invitations to join Olympic training from April to June were issued automatically to all swimmers still be paid a months wage by the CSA.
Sun is still on the list because the CSA has not sought to alter an agreement with the swimmer in light of his eight-year ban.
A source told Swimming World:
“The salaries vary across athletes and are determined by their performances in a 4-year Olympic cycle. Sun Yang got many gold medals during this period. So he could get 130,000 monthly pay.”
Ming Yang – Photo Courtesy: Craig Lord
Media and social media posts in China include widespread speculation that the CSA, in order to keep Sun Yang and his mother Ming Yang, from further criticising the association, has agreed to keep the monthly payments going until the rescheduled Tokyo 2020 Olympic Games, now due to start on July 23, 2021 due to containment measures forced by the coronavirus COVID-19 global pandemic.
In social media posts criticising the “vanity” of sports stars with plenty while many go hungry in the wake of a pandemic that started in China, some question why Sun is still receiving pay from the CSA, a signatory to the WADA Code, while suspended.
The CSA cancelled the training invitation sent to Sun after Swimming World‘s report alerted WADA to the potential breach of a WADA Code that forbids those serving suspensions from working with national teams and others directly connected to programs working under the Code.
Hao Cheng, the head of the Chinese Swimming Association, Dr Ba Zhen, a man twice-penalised by WADA in 2014-15, and Dr. Han Zhaoqi, head of the Zheijang Anti-Doping Centre and “mentor” to Dr Ba as his senior at the hospital where they both work, according to Dr. Han, all encouraged Sun to take a blood sample he had signed over to anti-doping testers in September 2018 back from the chain of command against the wishes of the chief testing officer. The actions of the three men contributed to Sun being served an eight-year suspension, the swimmer but no others held accountable as yet, pending the SFT appeal and the conclusion of the Sun case.
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