The swimmer appealed and the Swiss Federal Supreme Court in December upheld his challenge against the CAS Panel “on the grounds of bias of one of the arbitrators of the CAS”.
Giving its reasons on Friday, the court said the CAS arbitrator had tweeted about animal protection issues, without the restraint required of judges, and had repeatedly used violent expressions.
“In his tweets, the arbitrator castigates a Chinese practice of dog slaughter and denounces the consumption of this meat at a local festival in China,” the Federal Supreme Court said.
“Some expressions refer to the skin colour of certain Chinese people he targets,” it added. “In addition, the arbitrator also made the said remarks in tweets after his appointment as president of the panel of arbitrators deciding in the Sun Yang case.”
As a result, the case has now been sent back to CAS, which must hear it again with a different panel of judges.
The sanctions imposed on Sun were automatically lifted after the court’s December decision, CAS said, adding its procedure would resume once a new president of the panel had been appointed.
“Ultimately, a new award will be issued, which could be different from the first one, or similar,” a CAS spokeswoman said.
The decision could potentially clear the way for Sun to compete at this year’s delayed Tokyo Olympics, depending on when the case is heard.
Sun, the reigning world and Olympic champion in 200 metres freestyle, was banned after he and members of his entourage were found to have smashed vials containing blood samples taken at an out-of-competition test in September 2018.
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Sun Yang shouldn’t be booking his flight to Tokyo just yet.
Despite the anger in Australia at Thursday’s shock verdict by the Swiss Federal Court to overturn the Chinese swimmer’s doping ban, Sun is still a longshot to compete at next year’s Olympics.
There has been a swift reaction by the World Anti-Doping Authority, which had successfully argued Sun was guilty of destroying a doping sample in 2018, and the Court of Arbitration, which handed him an eight-year suspension from the sport, to his latest escape act.
WADA was quick to note the Swiss court’s decision to overturn Sun’s ban was specifically related to the alleged bias of CAS panel chair Franco Frattini and “as such has no bearing on the substance of the case”.
Frattini’s neutrality was questioned after he put out anti-China tweets in which he protested against a dog festival held in Wuhan. But WADA has no reason to believe a new CAS panel will see the evidence against Sun any differently and declared it will “take steps to present its case robustly again”.
It appears that opportunity will come before July’s Olympics.
Cases are rarely sent back to CAS by the Swiss Federal Court, but in 2007 tennis player Guillermo Canas succeeded in having his doping violation looked at a second time.
It took less than two months for CAS to uphold its ban – and there was less urgency in that case because Canas had already served his suspension and was only fighting to clear his name.
CAS issued a statement on Friday saying “it very much regrets” the objections against Frattini were not raised by Sun’s lawyers earlier and promised to “immediately resume the procedure”.
Sun is accused of destroying a blood vial with a hammer when collectors visited his home in September 2018 during an out-of-competition doping test.
The 29-year-old, who has 11 world championships under his belt and won two golds at the 2012 London Olympics and one in Rio de Janeiro in 2016, had said in February he would fight the ban till the end and defended his action saying the doping testers who went to his home were not qualified.
“Let more people know the truth,” Sun said. “I believe in my innocence! Believe in the truth and defeat the lie!”
Sun also served a three-month doping suspension in 2014 for taking the stimulant trimetazidine, which he said he took to treat a heart condition.
The ban was not announced until after it ended and he never missed a major event.
Australian swimmer Mack Horton and Scottish swimmer Duncan Scott had refused to share a podium with Sun at the World Championships in South Korea in 2019, calling him a drug cheat.
Sun Yang’s eight-year doping ban has been spectacularly overturned on appeal.
In a decision that will rock swimming – in particular in Australia where the Chinese freestyle champion has become a villain – Sun has won the right to have his case reheard before next year’s Olympics.
The 29-year-old successfully challenged the neutrality of one of the members of the panel that effectively ended his professional career at a Court of Arbitration for Sport hearing in February.
The World Anti-Doping Authority (WADA), which had fought to ban Sun from swimming after he twice drew the ire of doping officials, responded to the latest decision by welcoming the opportunity to present its case against Sun again.
It noted: “The Swiss Federal Tribunal’s decision upholds a challenge against the chair of the CAS Panel and makes no comment on the substance of this case.”
Franco Frattini, the former Italian foreign minister, appears to have been the subject of Sun’s appeal.
Reports in China had highlighted his perceived unprofessional manner in what was at times a circus of a hearing.
Frattini was heard making a joke about Sun Yang’s mother when she was called to give evidence, saying “A very strong witness, ha ha”.
But he also appears to have been exposed by a number of comments on social media that included anti-Chinese sentiment.
They included Twitter posts from 2018 and 2019 where he expressed his disdain for animal cruelty in China.
“This yellow face chinese monster smiling while torturing a small dog, deserves the worst of the hell!!! Shame on China, pretending to be a superpower and tolerating these horrors!” he wrote in May last year.
While a tweet from 2018 said: “Hell forever for those bastard sadic chinese who brutally killed dogs and cats in Yulin, with the complicity of the chinese authorities.”
Sun, who won the 400m and 1500m freestyle in London and the 200m in Rio, first served a doping suspension in 2014 after testing positive to a drug he said he was using to treat heart palpitations and was unaware had recently been added to the banned list.
Australian swimmer Mack Horton spoke out against Sun at the Rio Olympics and his protest appeared to be validated when his rival was accused of refusing to provide blood and urine samples when drug testers visited his home in China in September, 2018.
In February, The Court of Arbitration for Sport (CAS) handed down an eight-year ban for “manipulation” of an anti-doping test sample, effectively ending the Chinese star’s professional career.
Sun’s CAS hearing, the first in 20 years that was open to the public, was beset by technical difficulties and interpreting errors between Chinese and English which frustrated lawyers and held up proceedings.
Sun’s lawyers lodged an appeal last month, challenging the technical and procedural grounds of the verdict, which WADA confirmed was successful.
“The World Anti-Doping Agency has been informed of the decision of the Swiss Federal Tribunal to uphold the revision application filed by Chinese swimmer Sun Yang and to set aside the 20 February 2020 award of a Court of Arbitration for Sport (CAS) Panel,” it said in a statement.
“The case is in relation to WADA’s successful appeal against the original Fédération Internationale de Natation (FINA) disciplinary panel decision following an incident that led to a doping control involving Sun Yang not being completed as planned.
“The Swiss Federal Tribunal’s decision upholds a challenge against the Chair of the CAS Panel and makes no comment on the substance of this case.
“WADA will take steps to present its case robustly again when the matter returns to the CAS Panel, which will be chaired by a different president.
“At this stage, WADA has not received the Tribunal’s full reasoned decision and therefore cannot comment further.”
The decision means Sun is free to resume swimming until his case is heard by a different CAS panel.
ABC reporter Bill Birltes tweeted: “Yet another twist in the years-long Sun Yang saga – his 8 year ban overturned due to claims of racism among a member of the Court of Arbitration for Sport … but he hasn’t been cleared. He’ll have to face a new panel all over again to decide his fate.”
The Swiss Federal Supreme Court’s decision to set aside the eight-year ban given in February to Chinese world and Olympic swimming champion Sun Yang has made headlines around the globe.
It’s a landmark case that is far from over with questions that go to the very heart of anti-doping, sports justice and athletes’ rights.
The decision is monumental in two ways.
Firstly, it’s not impossible but extremely rare for the Swiss court to set aside findings of the Court of Arbitration (CAS). It does not review findings as you might expect in a traditional appeal process, but only considers matters of “procedural irregularity”.
Secondly, the procedural irregularity in this case centres on one of the senior arbitrators at the CAS — former Italian foreign minister Franco Frattini — who presided over the Sun Yang panel that handed the swimmer the maximum eight-year ban after finding him guilty of an anti-doping rule violation (this will be discussed in more detail later).
Sun’s appeal provided evidence of anti-China sentiments expressed on Mr Frattini’s Twitter feed during 2018 and 2019, with the swimmer’s lawyers questioning the judge’s neutrality.
In a statement the court said it had “approved the request by the Chinese swimmer Sun Yang for revision of the arbitral award of the Court of Arbitration for Sport (CAS) … on the grounds of bias of one of the arbitrators of the CAS”.
“The award of the CAS is set aside. The CAS will have to render a new award in the case of Sun Yang in a different composition of the panel,” it said.
The full reasoning will be issued at a later date, but as of now Sun is free to resume swimming and training with his teammates.
If he is fit enough, and so inclined, he may even attempt to qualify for the delayed Tokyo 2020 Games.
The World Anti-Doping Agency has already announced it will head straight back to CAS to have the case heard again “chaired by a different president”.
The CAS is on notice.
CAS director-general Matthieu Reeb told The Ticket: ”The CAS very much regrets that the objections against the president of the panel have not been raised earlier and that they could not be examined during the CAS proceedings.”
“Obviously, the statements published by the president of the panel on his personal Twitter account in 2018 do not represent the view of CAS,” he said.
“In any event, the CAS will accept the ruling of the Swiss Federal Tribunal (SFT) and will immediately resume the procedure WADA v/ Sun Yang & FINA in accordance with the instructions given by the SFT.”
The original CAS hearing ran for 11 hours and was marred by serious translation problems.
Sun is Chinese and speaks Mandarin and a little English, certainly not enough to be able to have a detailed, legal conversation in the sports court.
Despite having numerous registered arbitrators that are fluent in Mandarin, none were selected as part of the three-person panel.
It is difficult to imagine an Australian athlete would ever have to argue his or her case in front of three jurors, none of whom spoke English.
Much commentary around the Sun case has focused on the swimmer and the entourage “smashing vials of blood”.
This is factually incorrect and yet continues to be published again and again.
A full reading of the CAS hearing, or a complete viewing of the 11 hours available on the CAS website, establishes that Sun’s vial of blood remains in existence — stored at the hospital where his doctor works, although inadmissible since it was not taken by drug testers at the swimmer’s home on the night of September 18, 2018.
How a routine test turned into one of sport’s biggest scandals
In a nutshell, Sun’s mother phoned him late in the evening to tell him testers had arrived and he should get home within the allotted hour. He did so. He provided a blood sample before noticing anomalies with the testing party’s accreditation and documentation.
An hours-long stand-off ensued.
Sun offered to wait until a properly accredited party arrived to test him, which they declined to accept, and in response the swimmer’s legal and medical advice was not to let his blood sample — now locked in a tamper-proof casing — be taken away.
The doping control party refused to leave without the casing.
The only option was for a security guard at the compound where Sun lives to break open the container to allow Sun’s doctor to take custody of the blood sample and allow the doping control officers to leave with their casing.
The night in question was Sun’s ninth drug test in 12 days. Until his ban he was the most tested athlete on the planet, asking to provide urine or blood, on average, once every two weeks.
He knows the rules and he is familiar with the process.
If Sun was concerned about “failing” a test, he need only have not gone home. An athlete can miss two tests in a calendar year without incurring a sanction.
But he didn’t choose that option. He chose to go home.
As WADA successfully argued in the CAS hearing, though, the minute Sun refused to let the doping control officers leave with his blood — despite serious questions over their accreditation and paperwork — he had committed an “anti-doping rule violation”.
The CAS decision, at different times, notes “the panel considers that an eight-year period of ineligibility is, although justified in application of the rules … a severe sanction”.
Also, “there is no evidence before the panel that the athlete may have engaged in doping activity between 4 September 2018 and the date of the present arbitral award” and “on balance the panel concludes that the results in the period prior to the sanction taking effect should not be disqualified”.
These are not findings generally associated with a “drug cheat”.
Separately, it noted the “attitude” of the swimmer and his lack of contrition: “It was striking that, in the course of his testimony, at no point did the athlete express any regret as to his actions.”
Given the Swiss Supreme Court’s judgment that the neutrality of the panel chair is questionable, it is reasonable to consider whether some of the findings he presided over may have been influenced by his alleged bias.
It is a fair assumption that an athlete who believes he is innocent, in an 11-hour hearing in which none of the arbitrators can understand what he is saying, may become animated, even frustrated — an attitude that might be understandable given the circumstances.
Not only must justice be done; it must also be seen to be done.
The CAS has work to do to ensure its legitimacy is not undermined.
The panel also noted that once the new World Anti-Coping Code comes into effect on January 1, 2021, Sun could apply to have the eight-year ban reduced.
That won’t be necessary now, as WADA’s promised re-hearing of the case will be conducted in 2021 under the new code — that includes an Athletes’ Anti-Doping Rights Act that speaks of fair testing programs, accountability and data protection.
Fair, impartial and operationally independent hearings and disputes must also be resolved reflecting the principles of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court of Arbitration will now be able to offer decisions that take into account the facts of a particular case, rather than the previous “one size fits all” form of justice where the only question was not guilty or innocent but guilty by how much?
No doubt the reaction to the ongoing case will differ between east and west.
How different nations responded to the news
There were almost 4 million comments on Weibo, China’s social media support, by midday on the same day the news broke of Sun’s ban being put aside just hours earlier.
“No matter what foreigners say, I support Sun Yang [all the way],” wrote one supporter.
Another fan was looking forward to the Tokyo Olympics.
“Come on, come on! Come on cutie Sun! ! ! ! ! ! ! Looking forward to your appearance in the Olympics!” they said.
However, not all of the comments posted were positive.
“[Sun Yang has] the lowest ever EQ (emotional intelligence), no regard to legal process, and didn’t care about rules and regulations. The General Administration of Sports of China would not hire him again.”
In Australia it was plenty of negative commentary, although a little mute considering the number of articles, interviews and general backslapping that occurred when Sun’s career-ending ban was first announced.
At that time it was suggested a pool be named after Australia’s Mack Horton, and a statue erected in his honour, since it was his high-profile protest at the 2019 World Swimming Championships — when the Australian refused to stand on the podium to receive his silver medal behind Sun’s gold — that attracted such widespread attention ahead of the initial CAS hearing.
It’s easy to see this as another case of China versus Australia as the relationship between the two has soured.
But it’s not that at all.
It’s a case of the legitimacy of anti-doping and sports justice being meted out fairly, and consistently, for all.
Chinese swimmer Sun Yang has had his eight-year ban for doping violations referred back to the Court of Arbitration for Sport (CAS) after an appeal to a Swiss court, the World Anti-Doping Agency (WADA) said in a statement.
Sun Yang was banned for eight years after being found guilty of wrongdoing during a 2018 test
The case will be re-heard by the Court of Arbitration for Sport Panel chaired by a different president
Sun was the first male Chinese swimmer to win an Olympic gold medal
Sun was banned for eight years by CAS in February after it accepted an appeal from WADA against a decision by swimming body FINA to clear Sun of wrongdoing for his conduct during a 2018 test.
Sun appealed that decision and WADA said in Wednesday’s statement that it had been informed the Swiss Federal Tribunal had upheld a challenge against the chair of the CAS Panel but had not made any comment on the substance of the case.
“WADA will take steps to present its case robustly again when the matter returns to the CAS Panel, which will be chaired by a different president,” the statement said.
The New York Times reported Sun’s lawyers had successfully argued to the tribunal that the head of the CAS Panel had made public comments that expressed anti-Chinese sentiments.
The Tribunal was not immediately available for comment when contacted by Reuters.
Sun Yang, a former Olympic champion and one of China’s most celebrated athletes, had his eight-year ban from swimming suddenly overturned on Wednesday by Switzerland’s federal court, which upheld a challenge questioning the neutrality of one of the panellists who had issued the penalty.
The Swiss federal court’s decision was rare encroachment on the body that issued the suspension, the Lausanne-based Court of Arbitration for Sport. Its decision means Sun, whose competitive career was effectively ended by the doping ban, is free to resume swimming until his case is heard by a different panel at CAS.
Sun, 29, a six-time Olympic medallist and the first Chinese man to win a swimming gold medal at the Games, has waged a multi-year battle with the World Anti-Doping Agency to preserve his eligibility to swim in international competition.
WADA brought a complaint against Sun to the court last year after swimming’s international governing body declined to penalise him for refusing to cooperate with three anti-doping officials who had travelled to his home in China to retrieve blood and urine samples. The court, after a hearing last November that was marred by translation issues, agreed with the anti-doping agency’s underlying claim that Sun had violated rules governing efforts to tamper with doping procedures.
An Australian democracy advocate imprisoned in China for almost two years has delivered a heartfelt Christmas message to family and friends, insisting he still thinks he can receive a fair trial.
Yang Hengjun, a 55-year-old Australian citizen, still has “some confidence in the court”
He was accused of espionage by the Chinese Government
Dr Yang has been detained since the beginning of 2019
Since January 2019, Yang Hengjun has been tortured and interrogated more than 300 times by Chinese authorities who have accused the outspoken blogger of spying.
“As Christmas and New Year approaches, I miss you more and more,” Dr Yang told supporters back home in Australia.
“I met you in a dream several times. It seemed so real. I regretted having had to wake up. I wanted to pull you out of the dream and hug you tightly.”
In October, the former employee of China’s Ministry of Foreign Affairs was formally charged with espionage, paving the way for a trial that had been scheduled for January, but has now been delayed by several months.
Despite his ordeal, the 55-year-old Australian citizen has assured relatives he is “stronger than ever” and that he still has “some confidence in the court”.
“I think they will give me justice — whether or not they judge me guilty will say a lot about whether the court is governed by rule of law or by pure absolute power,” he said.
“I am now in a place of deeper retrospective and introspective meditation. It makes me strong.
“I think a lot about my life, especially the past 20 years. My life has meaning. Don’t worry about me.
“I feel sorrow that when I was free, I didn’t spend enough time with you.”
Australian embassy officials were again able to briefly meet with the detained writer last week, although Chinese authorities have not yet given any details of the espionage allegations levelled against him.
In the first 18 months after Dr Yang was detained in the city of Guangzhou, he did not receive access to a lawyer and his refusal to confess to any crime is believed to be causing difficulty for the country’s justice system.
“Please tell my relatives not to let my situation affect their lives,” Dr Yang reassured his family.
“I have strong faith in humanity, in righteousness, justice and God. I read, pray, think and do exercise. I am stronger than ever.”
The trial of Australian writer Yang Hengjun, detained in Beijing since January 2019, has been delayed by three months, according to his former teacher and a supporter Feng Chongyi.
The 55-year-old pro-democracy blogger, who was detained at Guangzhou Airport after arriving from New York, faces a lengthy jail sentence after Chinese authorities charged him with endangering national security by joining or accepting a mission from an unidentified espionage organisation.
A trial before the Beijing Second Intermediate People’s Court had been due to begin by January, but has been delayed, Sydney-based Dr Feng told Reuters.
Dr Yang has previously said he would not confess to something that he had not done.
“Yang’s refusal to confess in spite of 300 rounds of interrogation does cause real difficulties for the confession-based legal system,” Dr Feng said.
The Chinese foreign ministry did not immediately respond to a Reuters request for comment.
Dr Yang was a former Chinese spy, who had worked in Hong Kong and Washington, before leaving the service to become a democracy advocate, according to a confidential letter he wrote to Dr Feng in 2011.
He wrote spy novels that were published in Taiwan.
The Department of Foreign Affairs and Trade has been contacted for comment.
Dr Yang is among several Australians detained by Chinese authorities. TV anchor Cheng Lei is also being held.
AGL general manager major projects Lucy Martin said batteries were an important part of Australia’s shift towards renewable power.
“With solar and with wind, when the wind’s not blowing or the sun’s not shining, like on a day like today, then we need to have that capacity to be able to buffer the supply,” Ms Martin said.
She said the battery would also support the grid during times of peak demand during summer or when Loy Yang A capacity was reduced during maintenance.
The Victorian Energy Minister Lily D’Ambrosio said the announcement was a major win for the Latrobe Valley, home to the state’s coal-fired power stations.
Earlier this month, the Government announced it would build a 300MW battery at Moorabool near Geelong which should be operational by November 2021.
“This announcement comes just weeks after we announced that Victoria is building the Southern Hemisphere’s biggest battery [at Moorabool],” Ms D’Ambrosio said.
Victoria has a Renewable Energy Target of sourcing 50 per cent of its power from renewables by 2030.
Environment Victoria (EV) said the announcement showed in the future electricity would come from wind and solar and be supported by batteries.
“But that is clearly where the world is moving, and Victoria and Australia are no exception.”
‘Number of construction jobs’
AGL said it was still determining how many jobs the battery would create in the Latrobe Valley, but that most of the positions would come during construction rather than the operational stage of the project.
But Australian Manufacturing Workers Union Gippsland organiser Steve Dodd said the region needed the jobs.
“[There’s] going to be a number of construction jobs, first up, and then there’ll be some operational and maintenance jobs,” Mr Dodd said.
In September, Yang vowed to “fight to the end” after seeing his second lawyer Mo Shaoping for the first time since he was detained.
The 55-year-old has been isolated and allegedly tortured in an attempt to extract a confession on the unspecified claims.
In comments to his lawyers and confirmed by sources close to his family at the time, Yang said he wanted to go to court. “This is political persecution,” he said. “They can abuse me. I did not confess to anything criminal. I am innocent and will fight to the end.”
Yang’s wife, Yuan Xiaoliang, told the ABC she felt “helpless” after hearing her husband had been charged.
Chinese authorities have spent the past year interrogating the pro-democracy blogger on his Australian, US and Chinese Communist Party connections. Prior to coming to Australia in 1999, Yang has said he worked for China’s Ministry of Foreign Affairs.
The charge comes at a time when relations between Australia and China are at their lowest point since diplomatic ties were established almost 50 years ago.
Australia has no accredited foreign correspondents left in China after two journalists were last month forced out of the country, while Australian Australian television anchor Cheng Lei has also been detained in Beijing.
Cheng, a business anchor with Chinese state media network CGTN was privately critical of the Chinese Communist Party on Facebook. China’s Foreign Ministry confirmed in September that the Melbourne-mother had been arrested on national security grounds but there has been no public detail on the specific claims against her.
Australian journalists Bill Birtles and Michael Smith left China in September after being questioned by Chinese state security in relation to Cheng’s case.
Australian-Chinese relations have deteriorated sharply since 2018, with multiple disputes over the coronavirus, Beijing’s crackdown in Hong Kong, foreign interference and incursions into the South China Sea.
China has imposed more than $1 billion in trade strikes against Australia this year, after the Morrison government pushed for an independent inquiry into the coronavirus.
The Department of Foreign Affairs and Trade has been contacted for comment.
Eryk Bagshaw is the China correspondent for The Sydney Morning Herald and The Age. Due to travel restrictions, he is currently based in Canberra.
Anthony is foreign affairs and national security correspondent for The Sydney Morning Herald and The Age.