A detailed analysis of the legal arguments in WADA v Sun Yang & FINA - a very public hearing
Published 28 November 2019 By: Jack Anderson
Twenty years ago, the Court of Arbitration for Sport (CAS) held its first public hearing: B v FINA. The hearing was an appeal by a leading swimmer of the time, Ireland’s Michelle de Bruin, winner of three golds at the Atlanta Olympics of 1996. In 1998, and as a result of irregularities during a doping control test at her home, FINA, the world governing body for swimming, suspended her for four years. De Bruin’s appeal to CAS failed.
A similar factual matrix (and parties) were in dispute at CAS’s second ever public hearing held on 15 November: WADA v Sun Yang & FINA. The applicant-athlete was again a multiple Olympic gold medallist in swimming, China’s Sun Yang. FINA was a party to the proceedings, though on this occasion in support of the athlete. The hearing similarly concerned allegations of procedural impropriety during an out of competition test at the athlete’s home and the specific anti-doping infraction at issue also related to tampering, now defined in Article 2.5 of the World Anti-Doping Code (WADC).
- The factual background;
- WADA’s key legal arguments:
- “Guidelines” - the Blood Sample Collection Guidelines are not mandatory or legally binding;
- “Uncompelling” - Sun Yang’s concerns could not have been “compelling” as they arose only after the sample was taken;
- “Experience” – why did Sun Yang react to this test in particular, when numerous others had passed without incident?
- “Reliance” - Sun Yang should not have relied upon his entourage/doctor; he is an experienced international athlete who knows the consequences of tampering.
- Sun Yang’s key legal arguments;
- Other parties: FINA, the Panel. and CAS
- Outcomes and conclusions
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- Tags: Anti-Doping | Athlete Welfare | China | Court of Arbitration for Sport (CAS) | Dispute Resolution | FINA | Swimming | WADA Blood Sample Collection Guidelines | WADA Code | World Anti-Doping Agency (WADA)
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Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne. The sports law program at Melbourne was one of the first to be established globally in the mid-1980 and continues to expand at the Melbourne Law School, which itself is ranked in the top 10 law schools globally.
Jack has published widely in the area including monographs such as The Legality of Boxing (Routledge 2007) and Modern Sports Law (Hart 2010) and edited collections such as Landmark Cases in Sports Law (Asser 2013) and EU Sports Law (Edward Elgar 2018 with R Parrish and B Garcia). He was Editor-in-Chief of the International Sports Law Journal based at the International Sports Law Centre at the Asser Institute from 2013 to 2016.
Jack is a former member of CAS (2016-2018). He became a member of the inaugural International Amateur Athletics Federation’s Disciplinary Tribunal and the International Hockey Federation’s Integrity Unit in 2017. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission. He is currently chair of the Advisory Group establishing a National Sports Tribunal for Australia