Related cases:
- FINA 2019 FINA vs Sun Yang
January 3, 2019 - CAS 2019_A_6148 WADA vs Sun Yang & FINA - Annulled Award
February 28, 2020 - CAS 2019_A_6148 WADA vs Sun Yang & FINA - Final Award
June 22, 2021 - Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
January 6, 2020 - Swiss Federal Court 4A_318-2020 Sun Yang vs WADA & FINA
December 22, 2020 - Swiss Federal Court 4A_406-2021 Sun Yang vs WADA & FINA
February 14, 2021
The background case involves the celebrity swimmer Sun Yang, who was accused of an anti-doping rule violation due to unsuccessful attempt to take blood and urine samples during an unannounced doping control at his house and the subsequent lifting of charges by the FINA Anti-Doping Commission. Following the FINA decision, WADA appealed against said decision to the CAS in Lausanne, leading to a highly publicized procedure akin to an arbitral soap-opera since this was the first public hearing after the modification of Article R57 of the CAS Code that itself was instigated by the ECHR Decision in the Pechstein matter in October 2018.
In essence, the Swimmer contested the capacity of WADA’s counsel to act as its representative due to the existence of a conflict of interest. His lack of capacity to act on behalf of WADA could, in turn, render the filing of the appeal brief “late“ (under the CAS Code) and therefore the CAS should have denied its jurisdiction ratione temporis.
First, the Federal Tribunal held that the decision on the incapacity to act as a party’s representative is neither a decision on jurisdiction nor a decision on the constitution of the panel, hence such appeal is inadmissible and should only be filed upon issuance of the final award.
Furthermore, the Federal Tribunal drew an interesting analogy between the arbitral and civil proceedings, whereby in case of lack of capacity to act as a party’s representative, the court must in principle set a time limit for the party to remedy such requirement before declaring such appeal inadmissible. Thus, even if there was such an issue, this would not immediately lead to the inadmissibility of the appeal.
Late Filing of the Appeal to the CAS: a Question of Admissibility, Full Stop.
This judgment gave the opportunity to the Swiss Federal Tribunal to finally answer a question that had been left open since 2012: whether the late filing of an appeal to the CAS is a question related to jurisdiction or to the admissibility of the appeal, as was previously suggested by the doctrine but never answered in a clear way by the Federal Tribunal until this case. For the first time the Federal Tribunal distinguished between “typical arbitration” and “atypical” (i.e., sports) arbitration; in the latter case, whether a party is entitled to challenge the decision taken by the body of a sports federation on the basis of the statutory and procedural rules, does not concern the jurisdiction of the arbitral tribunal but is a question of standing (a procedural issue that the Federal Tribunal does not review in appeal). The practical difference is essentially the wider power of review by the arbitral tribunal that cannot subsequently be reviewed by the Federal Tribunal. Also, the incapacity of a party to file an appeal to the Federal Tribunal before the issuance of the final award.
Despina Mavromati Charles Poncet
