[Photo by Emily Rose from Pexels]
By Bryan Boo
It was reported on 24 December 2020 that the 3-time Olympic champion Chinese swimmer, Sun Yang, had succeeded in overturning the decision of the Court of Arbitration for Sport (“CAS“), apparently on the ground of bias of one of the CAS arbitrators on the CAS appeal panel. In February 2020, following an appeal from the World Anti-Doping Agency (“WADA“), CAS baned the swimmer for 8 years from the date of the arbitral award for violating Article 2.5 of the Fédération Internationale de Natation Doping Control Rules (“FINA DC“), which is regarding tampering or attempted tampering with any part of doping control (4 years for violating Article 2.5 and the period of ineligibility being multiplied by 2 under Article 10.7.1(c) FINA DC for the violation being the second anti-doping violation). Links to the following documents are as follows:
- CAS arbitral award (CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation) dated 28 February 2020
- FINA Doping Control Rules (as approved by FINA Congress on 19 July 2019) (the FINA DC has been updated and the updated version will come into force from 1 January 2021)
The Court of Arbitration for Sport (CAS)
CAS is an institution that is independent of any sports organisation, association and/or federation that resolves legal disputes related to sports through arbitration or mediation. Based in Lausanne, Switzerland, CAS is placed under the administrative and financial authority of the International Council of Arbitration for Sport and its arbitral awards have the same enforceability as judgements of ordinary courts.
As this dispute resolution is an arbitration, parties must first agree to such arbitration in writing – whether on a one-off basis or where it forms part of the contract. This can also be achieved through the statutes or regulations of the sports organisation, association and/or federation. On the same vein, parties are free to agree on the applicable law. However, if no such agreement is procured, then the default applicable law will be Swiss law.
In terms of the seat of arbitration, the Code of Sports-related Arbitration provides that the seat of CAS and of each arbitration panel is Lausanne, Switzerland unless decided otherwise by the President of the arbitration panel upon the consultation with all parties.
Can the decision of CAS be appealed/reviewed?
An award pronounced by CAS is final and binding on the parties and may be enforced in accordance with the New York Convention on the Recognition and Enforcement of Arbitral Awards. As such, CAS is usually seen as sports’ “final court”. However, as was the case in Sun Yang’s appeal to the Swiss Federal Supreme Court, CAS decisions may be appealed/reviewed to the Swiss Federal Tribunal, albeit on very limited grounds. The grounds for subjecting a CAS award to further judicial recourse are usually for lack of jurisdiction, violation of procedural rules or incompatibility with public policy.
Alternative Dispute Resolution such as arbitration is gaining traction and favour, even in Malaysia, and sports is no different. In fact, the Asian International Arbitration Centre located in Kuala Lumpur, Malaysia, is also an official CAS alternative hearing centre. Sports arbitration also draws from the general principles of arbitration, these principles of which are deserving of an article on its own in due time.
As for Sun Yang’s appeal against the CAS award, at the time of writing, WADA has indicated that they have yet to receive the grounds of the Swiss Federal Supreme Court’s decision but, in light that the CAS award is set aside and CAS will have to render a new award, WADA has instead indicated that they will take steps to argue its case again when the matter returns before the CAS Panel, believing that WADA had prevailed on the substance of the case and that the decision of the Swiss Federal Supreme Court was only “against the Chair of the CAS Panel”.
Until then, it appears that Sun Yang is free to compete again and probably will be able to defend his title in the upcoming Tokyo Olympic Games.
[Disclaimer: the Rules, Codes and Statutes referred to in this article are effective/in effect as of the date of writing of this article.]