Sun Yang Ban Overturned

In yet another decision that has reaffirmed the standards of anti-doping laws in sport, the Swiss Federal Tribunal (SFT) has annulled the 8-year ban of Chinese swimmer and gold medal winner Sun Yang as set down by the Court of Arbitration for Sport in February 2020. The annulment comes in the wake of several racist comments published on Twitter by the CAS Panel Chair Franco Frattini in the months following the judgment, calling the panel’s impartiality into question. In light of the annulment, Sun Yang will have the opportunity to have his case reheard.

The procedural history of the Sun Yang case has been a protracted one. In 2018, Yang was subjected to a drug test by representatives of the international swimming federation FINA, as part of its regular testing of Olympic athletes. In its final judgment handed down in February last year, CAS found Sun Yang guilty of tampering with that same drug test.

In May 2020, three months after the Panel’s final decision, legal representatives of Sun Yang sought to apply for revision of the judgment, on grounds that Mr Frattini had expressed views on social media tending against his promise of impartiality in the aforementioned proceedings. Specifically, Mr Frattini published several tweets that were critical of the Yulin Dog Meat Festival held annually in China, with Sun Yang’s representatives arguing that the tweets constituted ‘unacceptable comments’ about Chinese nationals.

As part of all CAS proceedings, parties are obliged to conduct research beyond an arbitrator’s declaration of independence to satisfy themselves of that arbitrator’s impartiality. This research is broadly labelled as a ‘duty of curiosity’, and includes certain research required to be undertaken across a variety of available search engines. Relevant to the case above, the tweets made by Mr Frattini were published several months before his appointment as President and were not discovered by Sun Yang’s legal team until after the judgment had been handed down.

Although the duty of curiosity was deemed to have been met by Sun’s legal team prior to the commencement of proceedings, the SFT found that the ever-growing proliferation of social media had made the task of uncovering relevant information increasingly onerous. As a consequence, Sun Yang was entitled to apply for revision of the judgment, on the condition that an application for review was made within 90 days of discovering the grounds for review. This condition was met within the limitation period, and the SFT allowed the review.

The SFT, after consulting the relevant material put forth by Sun Yang’s legal team, accepted the reasons for revision and recused Mr Frattini from the proceedings. This finding will inevitably influence the duty of curiosity imposed on parties to CAS proceedings, marking significant changes in light of the prevalence of social media use globally. The retrial is expected to commence in the coming months, and the sporting and legal worlds will eagerly await its results.
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If you are interested in learning more about the case, the IFLR has published a detailed article that can be found here: https://www.iflr.com/article/b1qw74gdydybdh/the-case-of-sun-yang-and-switzerlands-international-arbitration-law