WADA v Sun Yang & FINA - The benefits (or otherwise) of a public hearing

Published 14 November 2019 By: Tom Rudkin

Swimming

Yesterday's media release1 issued by the Court of Arbitration for Sport (CAS) highlighted the uniqueness of the hearing that will take place at the Fairmont Le Montreux Palace tomorrow. Broadcast on a livestream via the CAS's website, the World Anti-Doping Agency (WADA)'s appeal of the decision of the International Swimming Federation (FINA) Doping Panel (FINA DP) in the case of the Chinese swimmer Sun Yang will be only the second set of CAS proceedings to take place by way of public hearing (following the case of De Bruin v FINA2).

The impact of Pechstein

While it has always been the case that CAS hearings could be held in public with agreement of all the parties, the decision of the European Court of Human Rights (ECHR) in Pechstein & Mutu v Switzerland3 led the CAS to broaden the scope for hearings to be in public, which can now be held at the sole request of "a physical person who is party to the proceedings… if the matter is of a disciplinary nature" (subject to certain exceptions including national security or publicity prejudicing the interests of justice)4. In Pechstein, the ECHR determined that Claudia Pechstein's right to a fair trial under Article 6(1) of the European Convention on Human Rights had been infringed on the grounds that, despite explicit requests, the proceedings before the CAS had been conducted in private. The CAS proceedings were constituted for the purposes of verifying whether the sanction imposed on Ms Pechstein in respect of an anti-doping violation was appropriate. As a result of Ms Pechstein's explicit request and the fact that the case concerned the merits of a sanction that called into question the athlete's integrity and prevented her from practising her profession, the ECHR determined that a hearing subject to public scrutiny was required and there had been a violation of Article 6(1).

The consequence of the Pechstein decision, as set out in the update to the CAS Code referred to above, is that there is an effective presumption of a public hearing in disciplinary cases (including doping cases) where this is requested by the athlete. It is in reliance on these updated provisions that Sun Yang, a three-time Olympic gold medallist5, has requested a public hearing.

Summary of the case

In summary, the case relates to a decision of the FINA DP that Sun Yang had not committed an anti-doping rule violation in the context of an attempt by International Doping Tests and Management (IDTM) to collect blood and urine samples in September 20186. In the event, no blood or urine sample was analysed, although FINA and Mr Yang provided very different explanations of what happened. FINA asserted that Sun's conduct amounted to a refusal or failure to submit to sample collection7 and to tampering with the doping control process8. However, for reasons that are set out in the FINA DP's decision, which was subsequently leaked to the media and published online9, the FINA DP concluded that there had been failings in the sample collection process and specifically that Mr Yang was not properly notified. As such, the International Standard for Testing and Investigations was not followed, and the sample collection was determined to be invalid. WADA has filed an appeal at the CAS against the decision of the FINA DP, on the grounds that, WADA alleges, "Sun Yang voluntarily refused to submit to sample collection"10. WADA seeks a period of ineligibility of a minimum of two years and a maximum of eight years.

It is evident from the reporting of the FINA DP's decision that the circumstances of the sample collection attempt are highly contentious11 and it is in this context that Sun's decision to request a public hearing must be considered. As practitioners will be aware, the concept of an arbitration in public is, in many respects a contradiction in terms, with the option of confidentiality frequently cited as one of the principal benefits of arbitration proceedings.

The benefits (or otherwise) of going public

Nevertheless, Sun Yang has taken the decision to waive the confidentiality that generally attaches to CAS hearings. While it is impossible to know his reasoning for this, it seems likely that it is linked to a desire for transparency and the opportunity to clear his name in the most public way possible. It does, however, carry risk. This is especially so, in a case where, despite the determination of the FINA DP that no anti-doping rule violation had taken place, Sun Yang was issued with a caution and significant concerns expressed as to his conduct12. The matters that form the basis of these concerns will inevitably be aired in what is essentially open court and may (whatever the ultimate result) cast doubt on the integrity of an athlete who has already been the subject of protests at this year's World Championships13.

Media will be entirely within their rights to report on any aspect of the proceedings without the fear of defamation proceedings, provided that they do so in a way that is fair and accurate. As such, the allegations that both sides make will be fair game and are likely to dominate the coverage on the day of and in the immediate aftermath of the hearing itself. It is inevitable that the more contentious elements of the case will be of particular interest to the media (and their readership), and it will be these elements that are most likely emphasised. This may be damaging for all parties concerned. The result is that the more technical aspects of, and reasoning for, the CAS Panel's ultimate decision (whenever it is forthcoming) may be lost in the accusations made in respect of, on the one hand, the athlete's conduct and, on the other, the doping control process. Of course, there are likely to be other considerations that only those involved in the case are party to and which may have led Sun Yang to request a public hearing. But what is certain is that the publicity surrounding the case will be impossible to control in the same way as if, as with many CAS cases, the only publication is a summary or press release summarising the decision.14 At the 2019 LawInSport Annual Conference, a leading anti-doping expert mentioned that the public setting of the hearing is "not tempered by anything and everyone can report on it"15.

The other party in all of this, of course, is the CAS itself. The proceedings provide an opportunity for the CAS to showcase what it hopes will be a demonstration of the quality of its arbitrators and procedural rules and practices, in circumstances where those practices were called into question by the Pechstein case (although it should be noted that the proceedings did not succeed on the first ground of challenge related to alleged lack of independence and impartiality16). While the concept of a public hearing is at odds with usual private arbitration practice, it does offer the prospect of the kind of transparency and open justice that many in the world of sport have been clamouring for over a long period. Nick De Marco QC of Blackstone Chambers identified17 at the 2019 LawInSport Annual Conference the tension between private arbitration, the decision of the ECHR in Pechstein and the general desire in sport for consistency of decision making. It may be that the Sun Yang case is a step on the way towards more open sports dispute resolution and, with it, a greater ability to scrutinise the consistency of awards. However, it is worth also noting that the manner in which the case is reported (especially if it plays out badly for the parties) may well have a material impact on the desire of other parties in arbitration cases to follow Sun Yang's suit.

Whatever the merits of the decision by Sun Yang to request a public hearing, tomorrow will offer a fascinating insight into the workings of the CAS for those not versed in sports arbitration. And, for everyone (whether athletes, journalists or sports lawyers), the subject matter means that an intriguing spectacle is assured. The CAS's decision will be awaited with anticipation and, provided it is made available, a further commentary on the case will follow.

Author

Tom Rudkin

Tom Rudkin

Associate - Farrer & Co

Tom provides reputation management and contentious media advice to the full range of Farrer & Co's clients. He is a member of the firm's Sports Group and, as well as assisting sports clients on reputational, media and other sensitive issues, he advises on sports-based disputes, rules and regulations and commercial contracts. Tom's work spans from advising National Governing Bodies to high profile sportsmen and women. He has also spent time in-house on secondment at the Lawn Tennis Association.

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