Related cases:
- CAS 2019_A_6148 WADA vs Sun Yang & FINA - Final Award
June 22, 2021 - CAS 2019_A_6148 WADA vs Sun Yang & FINA - Annulled Award
February 28, 2020 - FINA 2019 FINA vs Sun Yang
January 3, 2019 - Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
October 28, 2019 - 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
In this overly publicized and quite interesting case, involving the Chinese Swimmer Sun Yang (the Athlete) and the World Anti-Doping Agency (WADA), the Athlete was accused of an antidoping rule violation due to the unsuccessful attempt to take blood and urine samples during an unannounced test carried out at the Athlete’s home in September 2018. Even though the Swimmer was cleared by his federation’s (i.e. FINA) Anti-Doping Commission, WADA appealed against said decision before the Court of Arbitration for Sport (CAS). The CAS final award was rendered on February 27, upholding WADA’s appeal and sanctioning the Athlete for 8 years.
This is the third in the series of appeals to the Swiss Federal Tribunal (SFT) filed during the arbitral proceedings. All three motions have been found to be inadmissible or devoid of purpose for various reasons (see Judgment 4A_265/2019 of September 25, 2019 and Judgment 4A_413/2019 of October 28, 2019, http://www.swissarbitrationdecisions.com/atf-4a-413-2019).
The Athlete’s motion in the present proceedings was directed against the decision of the Panel considering that the Appeal Brief by WADA was filed within the applicable time limits and was, therefore, admissible.
The SFT repeated the different categories of arbitral awards for which an appeal is possible under Article 190 PILA. In essence, the common denominator for the “appealable” character of an award is that it contains a final ruling that puts an end to one or various claims and cannot be modified at a later stage (at 3.5).
In this case, the Appellant submitted that by accepting that the appeal was filed on time, the Panel wrongly accepted its jurisdiction “ratione temporis” under Article 190 (2) (b) PILA. The SFT discarded this argument: in its view, the CAS letter dismissing the inadmissibility objection filed by the Athlete was not a decision on jurisdiction, but only a preliminary ruling on a procedural question not (directly) related to a jurisdictional problem. As such, the SFT found that the Panel had not (yet) decided the question of its jurisdiction in a definitive manner. Interestingly, the SFT reached this conclusion assisted by the CAS’ response to the appeal through the CAS Secretary General, according to which the CAS letter finding the appeal admissible did not contain a decision on jurisdiction.
In any event, the plea fell outside the scope of Article 190 (2) (b) PILA since the question of time limits to file the appeal is (as now confirmed by the SFT) a question of admissibility and not of jurisdiction (see 4A_413/2019 of October 28, 2019).
The second grievance was based on the alleged irregular constitution of the arbitral tribunal (Art. 190 (2) b PILA): the Athlete considered that the CAS Panel which rendered the contested decision included an arbitrator who lacked the guarantees of independence and impartiality. However, since the arbitrator in question had spontaneously resigned shortly after the contested decision and the new CAS panel had confirmed its actions, the Athlete lacked a current legal interest to attack the decision on this ground.
Despina Mavromati
Charles Poncet
http://www.swissarbitrationdecisions.com
