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- 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
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January 3, 2019 - Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
January 6, 2020 - Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
October 28, 2019 - Swiss Federal Court 4A_406-2021 Sun Yang vs WADA & FINA
February 14, 2021
Chinese elite swimmer Sun Yang has managed to draw the attention of sports arbitration practitioners in recent years: after the first CAS public hearing following the ECtHR Pechstein judgment and several motions filed with the Swiss Federal Tribunal during the CAS proceedings, this important judgment constitutes the first in the history of the CAS where the Federal Tribunal has annulled a CAS award for bias of its Panel Chair, Mr. Franco Fratini, an Italian former EU Commissioner.
The facts of the case are more or less known: the CAS award had imposed an eight-year ban on the Chinese swimmer Sun Yang due to an established violation of the anti-doping rules of the International Swimming Federation (FINA). In essence, the Athlete’s counsel claimed that an online article published after the issuance of the final award revealed problematic statements expressed by the Panel Chair via his twitter account. These statements targeted Chinese nationals and raised questions as to the arbitrator’s independence and impartiality in the given case (the disputed twitter posts of the arbitrator can be read in Section 5.1 of the decision).
In view of the fairly recent modification of Art. 190(a) PILA allowing for revisions of arbitral awards, the Federal Tribunal filled the gap by allowing an opportunity to request the revision of the award after the expiry of the time limit to raise such challenges, provided that the requesting party was unable to discover the reason for the challenge during the arbitral proceedings by exercising due diligence.
Most importantly, the Federal Tribunal held that the Athlete’s counsel had indeed complied with their “duty of curiosity” (or “duty of enquiry”) through an online search, which had not shown anything suspicious. By referring to the rather ambiguous notion of the “duty of curiosity”, the Federal Tribunal seemed to lower its requirements when it comes to the social media search: while the parties must perform some online research (e.g. on the main arbitration institutions, the parties etc.), it should not be expected to systematically and thoroughly scrutinize all the online sources relating to a given arbitrator. This is also due to the ever-evolving number of social networks and notwithstanding the fact that the arbitrator’s twitter account was publicly accessible and his twitter account appeared in the first entries of a google search.
The Federal Tribunal also examined whether the statements of the panel chair could indeed justify his challenge as alleged by the Athlete. With references to the Pechstein judgment (!) but also to the IBA Guidelines, it reiterated the principle (in section 2 c) of the reasonable third-party standard (see Section 7.4 of the judgment in this respect). While agreeing that an arbitrator is, in principle, free to defend his convictions on social media (in this case, the cause for animal rights) an arbitrator must still express any opinions with a certain restraint – and irrespective of whether he is acting in his capacity as an arbitrator.
The Federal Tribunal concluded that the use of an expression referring to the skin color of certain Chinese individuals (“yellow face”) – even if used in a particular context – had nothing to do with the acts of cruelty against certain Chinese nationals and are inadmissible irrespective of their context. An additional element taken into account was that the arbitrator made these remarks on more than one occasion and even after his appointment on the Panel of the specific case.
