WADA v (1) Sun Yang (2) FINA – CAS panel finds that Sun Yang violated Article 2.5 FINA

WADA v (1) Sun Yang (2) FINA – CAS panel finds that Sun Yang violated Article 2.5 FINA

CategoryArticles Author Stephanie David Date

This case has received widespread public interest for a number of reasons, particularly:

  1. The dramatic facts – it was alleged that the vial containing the blood sample had been smashed by a hammer.
  2. The public hearing before CAS – this was only the second ever public hearing before CAS in November 2019.
  3. “Podium-gate” – British swimmer, Duncan Scott, refused to share a podium with him at the 2019 World Aquatics Championship after Sun won gold in the 200m freestyle.

On 28 February 2020, the Court of Arbitration for Sport (“CAS”) released its decision on the appeal brought by the World Anti-Doping Agency (“WADA”) against the Chinese swimmer, Sun Yang, and the Fédération Internationale de Natation (FINA).

At first instance, the FINA Doping Panel had found that the International Standard for Testing and Investigation (“ISTI”) had not been properly followed. The ITSTI  provides the protocol for conducting doping controls. The sample collection was therefore invalidated and it was determined that he had not committed an Anti-Doping Rule Violation (“ADRV”).

CAS has confirmed in a press statement that the CAS Panel found, to their comfortable satisfaction, that the Athlete violated Article 2.5 FINA DC (“Tampering with any part of Doping Control”). They found that the Athlete had failed to establish a compelling justification to destroy his sample collection containers. It was one thing to question the compliance of the sample collection with the ISTI, after having provided a sample; but it was quite another, to destroy the samples, after lengthy exchanges and having received warnings as to the consequences, which eliminates the change of testing the samples at a later stage.

Given that the Athlete had been found guilty of another ADRV in June 2014, the Panel determined that the appropriate sanction was an eight year period of ineligibility  (pursuant to Article 10.7.1 FINA DC) starting on the date of the CAS award.

The CAS Panel’s arbitral award is awaited, however, there are already reports that Sun intends to appeal the decision to the Swiss Federal Tribunal. The grounds of any such appeal are, however, tightly circumscribed by Article 190 of the Swiss Federal Code of Private International Law (which I have considered previously in the context of the Caster Semenya decision, available here).

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