A detailed analysis of the legal arguments in WADA v Sun Yang & FINA - a very public hearing
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 a Professor of Law at the University of Melbourne where he teaches criminal law, the law of torts and sports law.
Jack has published widely in the area of sports law and 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). 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. He is Honorary Member of the Centre for Sports Law, Sports Policy and Sports Diplomacy, University of Riejeka, Croatia and an external examiner at the University of Malaya.
An accredited workplace mediator and a Chartered Arbitrator, (CArb). Jack is an arbitrator on the international panel for Sport Resolutions UK and World Athletics’ Disciplinary Tribunal. Jack is a member of International Hockey Federation’s Integrity Unit and a founding member of the Asia Racing Federation’s Anti-Illegal Betting Taskforce. In Australia, Jack sits on the disciplinary tribunal of the Football Federation of Victoria and for Basketball Australia. In 2019, Jack was appointed by the Victoria government to the Board of Harness Racing Victoria. He is Vice-President of Gaelic Games Victoria.
From 2016-2019, he was a member of the Court of Arbitration for Sport and appeared on the list of arbitrators of the CAS Ad hoc Division for the UEFA EURO 2016 (European football championships). He was the sole CAS arbitrator at the Commonwealth Games in 2018. In 2019, he was appointed to the International Tennis Federation’s Ethics Commission and was asked by the Australian government to chair the advisory committee to prepare for the establishment of a national sports tribunal. In 2020, he was appointed as a member of the National Sports Tribunal of Australia.