Sun Yang to Request a Public CAS Hearing ‘To Be Fully Transparent,’ Lawyers Say

World record holder Sun Yang will request his hearing in the Court of Arbitration for sport to be public, his lawyers told the Associated Press.

The CAS will “tentatively” hear the World Anti-Doping Agency’s appeal case against FINA’s decision not to sanction the three-time Olympic champion over his blood vial-smashing incident in September, and Sun reportedly will request an open process “in order to be fully transparent and to clear his name.”

His case would be the first in public at CAS since a European Court of Human Rights ruling last October which maintained in Mutu and Pechstein v. Switzerland that if an athlete expressly requests a public hearing, the court must oblige.

Adrian Mutu is a former professional soccer player (for Chelsea) who lost an appeal over a seven-month cocaine-related suspension in 2004; he argued, unsuccessfully, that two of the arbitrators on his panel were not impartial. Claudia Pechstein was a nine-time Olympic medalist German speed skater who landed a two-year suspension for blood doping and requested a public hearing, but was not granted it. In 2010 she filed a criminal complaint in Switzerland against the International Skating Union, alleging trial fraud

SwimSwam has reached out to CAS to learn more about the protocol surrounding public hearings.

Sun’s case has been ongoing for more than 10 months now. He nearly missed an out-of-competition doping test on September 4, 2018, and made the testers wait outside of his home for almost an hour, and then challenged whether the officials were genuine testers from the International Doping Tests and Management lab.

Reports surfaced alleging that Sun’s mother, after he broke a number of out-of-competition drug testing protocols, ordered security guards to smash a vial of his blood taken in a nearby clubhouse, according to witnesses. Dr. Ba Zhen, who supports Sun (and who like Sun has a history with doping), reportedly contacted Dr. Han Zhaoqi, the head of the Zhejiang Anti-Doping Center. Han told FINA that the nurse present didn’t have the necessary paperwork, and at a January 3rd hearing, the FINA doping panel ruled in Sun’s favor, stating that they would “never know” what had happened.

During the hearing, FINA – independent of its doping panel – officially sought for a harsher sanction for Sun, but the doping panel sided with the athlete, agreeing that there wasn’t evidence that the doping sample collector provided proper credentials. WADA has been claimed to be ‘furious’ over the ruling. They had 21 days following “the last day on which any other party in the case could have appealed” or 21 days “after WADA’s receipt of the complete file relating to the decision” to file the appeal case to CAS, and did so.

With Sun competing at the 2019 FINA World Championships this month, many expected that his case would already have been heard. According to CAS, Sun’s hearing process could potentially have been expedited if his party, FINA, and WADA agreed to it, but none of the three even made a request.

UPDATE: Full Press Release from Sun Yang‘s Attorneys

Sunday 14 July 2019 saw the Australian newspaper the Sunday Telegraph publish an incomplete and biased account of the drug testing on Sun Yang, the Chinese freestyle swimmer, in 2018. The article spoke about the legal proceedings before FINA which led to FINA dismissing the case against Sun Yang. These proceedings were confidential but that did not stop the Sunday Telegraph from publishing its shocking article defaming Sun Yang. The article also spoke of the subsequent confidential Court of Arbitration for Sport (“CAS”) proceedings brought by the World Anti-doping Agency (“WADA”) against FINA’s decision. The CAS appeal is pending with a hearing set down for September 2019. On account of these flagrant breaches of confidentiality which the Australian newspaper was only too pleased to profit on the eve of the commencement of the FINA World Swimming Championships in South Korea, Sun Yang, represented by his legal team would like to summarily respond.

The doping control officers sent by the Chinese Testing Agency, IDTM, were not properly accredited to carry out the out of competition tests on Sun Yang, as the FINA judgment sets out very clearly. Worse, while he was fully cooperating, Sun Yang then noticed during the test that one of the unauthorised officers was secretly filming him without his permission. This act was resoundingly condemned by FINA in its judgment in Sun Yang’s favour. After having been advised by his medical team and the Chinese Swimming Association, Sun Yang, who has been tested hundreds of times in his career, requested the officers to show their accreditations, but to no avail. It also appeared that the nurse involved was not authorised to draw blood in China. Mr. Sun Yang requested IDTM to send testing officers with proper accreditation and he was ready to wait all night in order to complete the test, but IDTM refused. The officers then decided to stop the testing and gave the blood samples back to Sun Yang.

The matter is before CAS who will try the appeal brought by WADA. It is CAS and CAS alone who should hear this appeal and Sun Yang objects to being tried by the Australian press by journalists who cherry-picked through FINA’s judgment, inciting adverse and damaging reactions from third-parties on the internet.

In view of this, Sun Yang has requested CAS to hold a public hearing of his case in September 2019 in order to be fully transparent and to clear his name.

Qihuai Zhang
Lanpeng Law Firm, Beijing

Fabrice Robert-Tissot
Bonnard Lawson, Geneva

Ian Meakin
XXIV Old Buildings, London and Geneva