CAS 2019/A/6148 WADA v. SUN YANG & FÉDÉRATION INTERNATIONALEDE NATATION (CASE SUMMARY:PART 1)
This two-part blog piece has been authored by Mr Chirayato Banerjee.
Chirayato is a Civil Judge working in the Indian judiciary after securing an overall 2nd rank in 2016. He has previously worked as an Associate at Amarchand Mangaldas in the Project Finance team. In excess to this, he has also previously worked in the Marketing and Legal team at Rainmaker. He is an avid follower of Sports Law, with a keen interest in and around the footballing world.
In a nutshell, the factual matrix can be traced back to the night of 4 September 2018, when a team for dope-testing visited the residence of Mr. Sung Yang (“Athlete” and 1st Respondent) as per the time preference provided by him in the ‘Whereabouts Information’. The Fédération Internationale de Natation (“FINA”) and the 2nd respondent) was the Testing Authority while the International Doping Tests and Management (“IDTM”) was the Sample Collection Authority.
WHEN DID IT ALL START?*
IDTM, through a female Doping Control Officer (“DCO”), a female Blood Collection Assistant (“BCA”) and a male Doping Control Assistant (“DCA”) (referred to as “IDTM Team”), attempted to collect blood and urine samples from the Athlete between 10.00 pm and 11.00 pm as per the Athlete’s preference.
The Athlete questioned the authorization and the documentation which the IDTM team displayed. After being satisfied with the same, he signed the Doping Control Form. Further, two blood samples were provided by him and then stored in the appropriate containers. At this juncture, the Athlete discovered that the DCA was clicking his photographs without his consent. The Athlete objected and also expelled the DCA from the sample collection process. Now, as the DCA was the only male member of the IDTM team, the urine collection process could not be completed. At this point, the entourage of the Athlete, including his mother, his doctors questioned the entire process. After some debating and discussion, the sample collection process was terminated as the Athlete’s team questioned the authority of the IDTM team. Thereafter, the Athlete proceeded to tear up the doping control form and destroy the previously collected blood samples. Thus, on that night, no sample could be collected.
FINA DOPING PANEL PROCEEDINGS
A month later, FINA formally asserted violations of Article 2.3 (Refusing or Failing to Submit) and Article 2.5 (Tampering or Attempted Tampering with Any Part of Doping Control) of the FINA Doping Control Rules (“FINA DC”) against the Athlete. However, FINA Doping Panel (“FINA DP”) decided that the Athlete was never informed as to the possible consequences of his actions (refusing to provide samples, tearing up the form, etc) and thus would not have known the impact and the effect of the same. Therefore, FINA DP held that the Athlete did not commit an anti-doping rule violation. Pursuant to this, World Anti-Doping Agency (“WADA”) lodged an appeal against the said decision before the Court of Arbitration for Sport (“CAS”).
THE OUTLINE OF CAS PROCEEDINGS
Objection by the Athlete against the Panel’s constitution and WADA’s counsel
Before the CAS Panel could proceed with the hearing of the case on merits, the Athlete questioned the constitution of the Arbitration Panel (“Panel”). The Challenge Commission (“Commission”) heard the said challenge and dismissed the prayer. Further, the Athlete raised objections regarding WADA’s counsel, citing a conflict of interest. The same was also dismissed but the Athlete preferred a second challenge against the arbitrator appointed by WADA to the Panel. Further, he also approached the Swiss Federal Tribunal (“SFT”) to set aside the aforementioned order regarding the Panel and the counsel of WADA. To supplant the same, the Athlete filed a stay petition with the CAS, awaiting orders from the SFT on his setting aside applications. Eventually, the SFT dismissed the Athlete’s appeal seeking for disqualification of WADA’s counsel. Since the same was dismissed by SFT, the stay petition became infructuous thereafter.
Taking note of the Athlete’s repeated remonstration, the arbitrator as appointed by WADA stepped down on his own to expedite the proceedings. Consequently, WADA nominated a new arbitrator, and unsurprisingly, the Athlete objected to that nomination as well. However, the CAS Court Office dismissed the said objection and deferred the detailed order (regarding the issue of conflict of interest) to the time of the final hearing.
The dilemma regarding the deposition of the witnesses
In the meantime, the witnesses (IDTM team) swayed to and fro in their contentions apropos deposing in the instant proceedings. They alleged intimidation by the Athlete and WADA had reported on numerous occasions about such advances, requesting the Panel to prohibit any form of such contact. Be it intimidation in the form of releasing a video by the Athlete’s mother or trying to contact the employer of one of the members of the IDTM team- the confidentiality order by the Panel was breached repeatedly with a certain degree of impunity.
A strange series of events unfolded apropos the deposition of the DCA. Faced with the constant reluctance by the DCA to depose before the Panel, it was ultimately decided that the written statement provided by the DCA would be considered instead. However, just a few days before the hearing, the DCA made himself available for the hearing and the Athlete stressed upon the significance of the same as well to uphold the tenets audi alteram partem.
Grounds of the case
The primary grounds for WADA’s appeal were:
1) Obstruction by the athlete and the destruction of the collection of the sample and therefore causing an anti-doping violation in the form of tampering.
2) Refusing or failing to submit its sample for dope testing and thereby causing an anti-doping violation.
The Athlete contended, to which FINA 'alluded to' as well:
1) That the IDTM team was not carrying proper documentation and thus the athlete was not properly notified. This, in turn, violated the strict liability, imposed on the anti-doping authority. Therefore, the entire process was null and void.
2) That CAS has no jurisdiction to deal with the case and the appeal filed by WADA is time-barred and therefore liable to be dismissed with costs.
[For reading the Part 2 of this blog-piece, Click Here!]
The author can be reached for comments on his email at firstname.lastname@example.org
Cite as: Chirayato B., CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation (Part 1), Extra-Cover, The Sports Law Blog of India (6th Apr 2020), Accessed at https://www.extra-cover.org/post/cas-2019-a-6148-wada-v-sun-yang-f%C3%A9d%C3%A9ration-internationalede-natation-case-summary-part-1 [Date of Access].