On February 28,2020, CAS published the results of Sun Yang`s ruling in the form of a press release, and on the evening of March 4, the full text of CAS`s decision in case CAS 2019/A/6148 was publicly released. This is a textbook general international sports arbitration award, the arbitration process of all entities and procedural issues are elaborated, to solve the domestic audience for a long time many doubts. It also gives us a clearer picture of the road to appeal in the case.
one
As a matter of fact, both the examiner and the blood-collecting assistant have been questioned in advance
In the earlier forecast, we always thought that the examiner had not appeared at the trial site, thus thinking that if the tribunal had not arranged for the important key witness to be questioned by the athlete, it was suspected that the athlete had not been guaranteed equal rights to be tried. On July 16,2019, the athletes informed CAS that urgent measures should be taken to ensure that the three examiners, blood collection assistants and escort officers could attend the trial and asked the arbitral tribunal to postpone the opening date until the three were able to testify in person.
On 7 August 2019, the arbitral tribunal informed the parties that the arbitral tribunal had found that WADA`s application was dependent on the testimony of three Chinese witnesses, and that the three witnesses must therefore be cross-examined by the arbitral tribunal and other parties to test the credibility of the testimony and evidence they formed, and that the arbitral tribunal had ordered WADA to bring the three to the trial for questioning.
Finally, the examiner gave his testimony and evidence in advance of a cross-examination lawer by the parties to the case, which took place before a formal hearing in Stockholm on 5 September 2019. A blood-collecting assistant was interrogated by the lawer of the parties and the arbitral tribunal in Lausanne the day before the trial, on 14 November 2019, by videoconference, and testified in advance. The chaperone submitted two affidavits to the arbitral tribunal on 16 October and 10 November 2019, respectively. 12 November 2019, the arbitral tribunal stated that leave third witness, the escort, was no longer required to testify because the date of the hearing was only three days. The following day, the athlete responded that the arbitral tribunal had refused to accept the escort`s testimony, and on another day, the tribunal explained that the tribunal had not refused to hear the escort`s testimony, but had not been able to bring him in for the past few months, and that the last day before the that it could testify on the last day before the hearing, which the tribunal considered inappropriate.
As a result, the three witnesses failed to testify and the mystery of the cross-examination was solved, in which both the examiner and the blood-collecting assistant had been cross-examined and completed by the parties and the arbitral tribunal. Only two written statements were provided by the attendants. In fact, the tribunal ultimately relied on the testimony of the examiner and the blood-collecting assistant, not on the testimony of the escort because his testimony was not cross-examined.
If the above facts are clarified, the prediction that the arbitral tribunal we had hoped for had failed to order key witnesses to appear for cross-examination and thus could affect the principle of due process is no longer valid.
("二"的大写) two (used for the numeral 二 on cheques, bank-notes, etc. to avoid mistakes or alterations)
Controversy in WADA of late filing of memorials:
Richard Young`s lesson for us
In this case, the ruling of first instance was served to Sun Yang and the IPF on January 3,2019, and to WADA and the China Anti-Doping Centre on January 7. WADA filed an Application for Appeal with CAS on February 14,2019(while applying for an extension of the duration of the appeal for 45 days), bringing the case into the CAS appeal arbitration proceedings. CAS approved an extension of its appeal period of 20 days. On April 3,2019, WADA again filed the Appeal with CAS, exactly 90 days after January 3.
(1) CAS rejects Sun Yang`s request to find WADA late for filing the petition
On May 9,2019, Sun Yang and FINA requested CAS to determine that WADA had no admissibility in the case as a result of the late filing of the appeal. On May 19,2019, CAS rendered an interlocutory decision (C519 ruling), finding that both WADA`s Application for Appeal and the Application for Appeal had been filed within the deadline and that there was no problem of late submission, rejecting the athletes`and FINA`s requests. The full text of the award, published this time, discloses for the first time CAS`s finding that WADA was not overdue.
(2) The Swiss Court dismissed Sun Yang`s appeal against C519 decision
On 11 June 2019, Sun Yang filed an appeal against the C519 decision before the Federal Supreme Court of Switzerland, requesting the court to find that the arbitration was not admissible as a result of the WADA`s late filing of the petition to the CAS, which resulted in the CAS having no temporal jurisdiction in the case (jurisdictionrationetemporis).
On 6 January 2020, the Swiss Court ruled against Sun Yang`s appeal. According to the court C519 the award was an arbitral intermediate award, not a final award or a partial award. According to article 190, paragraph 3, of the Swiss Federal Private International Law, an interlocutory arbitration may be appealed to the court only if it involves the composition or jurisdiction of the arbitral tribunal. In the present case, the question of the late filing of an appeal was a question of the admissibility of the arbitration (" admissibility ") and would not affect the jurisdiction of the arbitral tribunal. According to the court, sports arbitration is different from commercial arbitration, and its jurisdiction comes from the provisions of individual sports alliance internal regulations, not from the agreement of arbitration agreement between the parties. The Court dismissed the appeal because the subject matter was not a matter of jurisdiction or the composition of the arbitral tribunal.
This is the first time that a Swiss court has determined that the question of overdue is a question of admissibility rather than jurisdiction.
Richard Young gave us a lively lesson in sports arbitration rules
Why, then, should WADA be able to delay the filing of its petition for 90 days rather than be overdue, and have to mention WADA`s agent, Lawer Richard Young.
To me, Richard Young`s greatest achievement in the world`s anti-doping field is not to help the US Anti-Doping Center bring down seven-ranked cyclists Armstrong (LanceArmstrong), American track and field flying woman Jones (MarionJones), and ringfence Landis (FloydLandis), but to lead the drafting of the latest World Anti-Doping Regulations of the World Anti-Doping Agency, and to pass years of negotiations with global sports organizations and national government, As a result, more than 600 international sports organizations worldwide and 160 countries government agreed to adopt the World Anti-Doping Regulation as a template for rules, thereby bringing the global anti-doping rule into general order. So it is not too much to say that Richard Young is the godfather of the world`s anti-doping rules.
For the purposes of sports law lawmaker, the understanding of the time limit for an appeal in an international sports arbitration is normally to submit the Application for Appeal to CAS within 21 days from the date of receipt of the first instance award, and then to CAS within 10 days after that time limit. But in this case, Richard Young took the rule to the extreme.
Section 13.1.1, paragraph 1, of the FINA Doping Control Rules (DC Rules) provides that the period of appeal of the appellant (including those who are not parties to the first instance but have the right right of appeal in the present case, such as the China Anti-Doping Centre) shall be 21 days after the receipt of the decision; paragraph 2 provides that, nevertheless, the WADA period of appeal shall be 21 days after the expiry of the period of appeal by any other party; and paragraph 3 provides, similarly, that the FINA period of appeal shall be 21 days after the expiration of appeal by any other party (except WADA).
WADA understands the above rules as follows: In this case, the China Anti-Doping Centre received a first instance ruling on 7 January 2019, and therefore, according to section 13.7.1, paragraph 1, the appeal period of the China Anti-Doping Centre (in theory) is 28 January 2019, and then, pursuant to section 13.7.1, paragraph 3, the appeal period of FINA ends from 21 days to 18 February 2019. Since section 13.7.1, paragraph 2, provides that WADA`s appeal period is on any other party and should include FINA, plus 21 days, then WADA`s appeal period becomes until 11 March 2019. Article R51 of the CAS Arbitration Rules of Procedure stipulates that the time limit for filing the petition is within 10 days after the expiration of the appeal period, and therefore that time limit is 21 March 2019. Finally, since the previous CAS has approved an extension of the WADA appeal period of 20 days, the date of the final filing of the petition should be April 10,2019. WADA`s appeal filed on 3 April 2019 was not overdue.
In the final award, CAS stated that the arbitral tribunal fully accepted WADA`s understanding of the duration of the appeal, arguing that both WADA`s Application for Appeal and the Application for Appeal had been filed within the time limit and that there was no delay, and that this was the reason for rejecting Sun Yang`s request.
(4) In the present appeal, is it meaningful for Sun Yang to raise the question of overdue?
We don`t think it makes any sense to raise the question of overdue. Because the Swiss Federal Court`s decision of 6 January 2020 has made it clear that the late submission of the petition by the parties in international sports arbitration is a matter of admissibility and should be handled by the sports arbitration body itself, not a matter of jurisdiction, and can not be appealed on this ground.
This is the first time that the Swiss courts have determined the nature of the overdue issue in international sports arbitration, which is of great significance.
("三"的大写) three (used for the numeral 三 on cheques, etc. to avoid mistakes or alterations)
WADA Acting Lawyer Richard Young`s InterestsConflict Question
Richard Young, formerly an adviser to the FINA Legal Commission, resigned from the FINA Law Commission on February 1,2019, to represent WADA in the case, and filed an application for appeal against Sun Young on behalf of WADA two weeks later (February 14,2019). On February 18,2019, WADA listed FINA as second defendant by amending the Application for Appeal.
(1) CAS rejected Sun Yang`s request for confirmation of Richard Yang`s existence
On mid-March 2019, Sun Yang and FINA considered Richard Yang to be the second defendant in the second defendant in this case because of his previous service in FINA, so there was an interest WADA his agent and insisted that Richard Yang withdraw from the agency. Richard Young refused.
On May 29,2019, Sun Yang filed a request with CAS to find that Richard Yang`s agent WADA had interests in existence, and further argued that the Application of Appeal filed with CAS on behalf of Richard Yang on February 14,2019 by him on behalf of WADA should not be accepted and that CAS did not have temporal jurisdiction over the case.
On 26 July 2019, CAS rendered its ruling (which was notified to the parties on 2 August 2019, hereinafter referred to as the "C726 award "), dismissing Sun Yang`s overall request that Richard Yang`s agent did not have interests conflict, thus his participation in the case did not affect the admissibility of the Application of Appeal filed on his behalf, nor did it affect CAS`s jurisdiction over the case.
(2) CAS grounds for dismissing the Lee Chong request
CAS states in its final award that in international arbitral proceedings, the issue of the agent`s discomfort is usually determined only if the proponent can adduce conclusive evidence. In the present case, neither Sun Yang nor FINA can prove that Richard Young has benefited from the procedural and substantive benefits of the case from his previous tenure on the FINAlaw Committee. The executive director of FINA has confirmed that the FINA Law Committee is normally not involved in the FINA Anti-Doping Violations process and that, to its knowledge, Richard Young has never previously received any information from FINA relating to the Sun case. The arbitral tribunal also did not believe that Richard Young`s role as the drafter of the World Anti-Doping Regulations would create a conflict with his representation in the case. Furthermore, while FINA also insisted that Richard Young had a profit, Richard Young had emailed FINA`s executive director on February 7,2019, saying," Thank you for calling on Monday to confirm that FINA did not believe that I represented WADA in Sun Young`s appeal case, and the FINA executive director did not refute this in his reply. Above all, CAS concludes that Richard Young has no interest in conflict.
(3) The Swiss Court dismissed Sun Yang`s appeal against C726 decision
On September 2,2019, Sun Yang appealed against the C726 decision to the Swiss Federal Supreme Court, filing four requests:(1) the court accepted its appeal,(2) the C726 ruling was annulled,(3) the CAS was declared null and void, and (4) the replacement of WADA`s newly nominated arbitrator Romano Subiotto.
Finally, on 28 October 2019, the Court rejected Sun Yang`s appeal on grounds similar to C526 Court`s decision. According to article 190, paragraph 3, of the Swiss Federal Private International Law, C726 award is considered to be an arbitral intermediate award and may be appealed to the court only if it concerns the composition or jurisdiction of the arbitral tribunal. The question of whether the WADA agency lawer had a profit or not, and whether the submission of documents by an inappropriate agent had led to the delay, was also a matter of admissibility rather than jurisdiction. The Court therefore dismissed the appeal.
(4) In the present appeal, does it make sense for Young Sun to mention the matter of Richard Young Lee Chong?
We don`t think it makes sense to raise the question again. Since the Swiss Federal Court`s decision of 28 October 2019 had made it clear that the problem of delay resulting from the charge was also a matter of admissibility, not of jurisdiction, and could not be appealed.
In other words, CAS has the final decision on the question of whether or not it is overdue or not, and these final decisions are non-actionable on the grounds that they can only be based on irregularities in the composition of the arbitral tribunal, questions of jurisdiction, irregularities or omissions, violation of the principles of due process or public policy.
(不顾一切； 任意妄为) wanton
Determination of the obligation to inform on the consequences of denial of inspection
The CAS first recognized the obligation of the examiner to inform the athlete clearly of his rights and obligations in the drug test especially to inform him of the possible consequences of any violation. CAS found in the final ruling that the examiner had repeatedly warned Sun Yang that night about the possible law consequences of the refusal. CAS think the warning has been made, but Sun Yang did not notice in the noisy, did not hear, the responsibility lies with Sun Yang side, because he should respect the inspector but did not do.
CAS`s assessment of the warning was based on the testimony of the testing officers, blood-collecting assistants and Popa, as well as a counter-argument from Sun Yang`s statement that "a Chinese Anti-Doping Centre testing officer was fired for using the word ".
To this day, it is no longer meaningful to argue that the inspector had fulfilled his obligation to inform him of the consequences that night. Because CAS`s determination of the facts in this section has become a given fact, the court will no longer hear the facts in the court`s appeal proceedings.
(五的大写) five (used for the numeral 五 on cheques, banknotes, etc. to avoid mistakes or alterations)
There`s no way to appeal
The award, published by CAS on March 4,2020, is fluent and clear, although there are some points of controversy (e.g. the claim that WADA should add a 21-day appeal period after the expiry of the FINA appeal, and the fact that Richard Young was previously employed by the FINA Law Commission in the arbitration of its agent, WADA against FINA, etc.), but because of these CAS`s determinations that the facts and laws are within CAS`s competence, Sun can only appeal to the Federal Supreme Court of Switzerland in extremely limited circumstances.
These limited circumstances are found in article 190 of the Swiss Confederation`s Private International Law, namely:(1) irregularities in the designation of a single arbitrator or in the composition of an arbitral tribunal;(2) irregularities in the arbitral tribunal`s determination of its own jurisdiction;(3) arbitral tribunal overrule or omission;(4) the equality of the parties, or their failure to respect the rights of the statements made in a protest proceeding; or (5) the award is contrary to Swiss public policy. Looking at the full text of the award, it has been difficult to find a relatively solid reason to construct any of the foregoing.
land
Gold medal crisis
FINA vice-chairman matt ?3, the sydney morning herald reported. Dunn said in an interview that further action may be taken against Sun Yang, the possibility of deprive Sun Yang in the 2019 Guangzhou World Championship gold medal. What if Matt? Dunn had control of FINA execution authority, and what he said was likely to come true. Under Article 12.1 of the FINA Charter, athletes who fail to comply with their responsibilities and obligations to the FINA, violate FINA rules, or humiliate water sports and/or FINA may be punished by the FINA enforcement agencies, which, according to Article 12.2, include the cancellation of grades, the withdrawal of awards and medals. Sun Yang is our national treasure class athlete, we do not want such a thing to happen really.
this paper is only the author`s personal point of view, does not represent the views of the author`s unit, and does not constitute law opinion or suggestion.
