26th May 2021

Court of Arbitration for Sport fails again in Sun Yang case

The Court of Arbitration for Sport (CAS) will hold its second hearing into a case involving the Chinese swimmer Sun Yang Sports this week, from 25-27 May. The ruling of the first Panel was overturned by the Swiss Supreme Court (Swiss Federal Tribunal) because it was conclusively demonstrated the President of the first hearing was biased. The case will be followed closely in the sporting world and can be seen as laden with geopolitical ramifications. For background on the case see here and here and here. 

If an American swimmer was having a controversial case adjudicated by a panel of three judges, would you consider it fair if none of the judges spoke English? Would it seem biased if all of the judges were from Asia?

That is the situation facing Chinese swimmer Sun Yang in this second hearing before the Court of Arbitration for Sport (CAS). According to its own website, there are numerous qualified adjudicators who speak Chinese. Yet it has again chosen to NOT have a Chinese speaker on the hearing team.  They have again chosen a panel which is exclusively European and this time, where every panelist is associated with the United States. 

More than Racist Tweets

Franco Frattini…

The previous CAS decision was overturned by the Swiss Federal Tribunal because the Chairman of the panel, Franco Frattini, published tweets considered racist. It was embarrassing to have a CAS Adjudicator lashing out on Twitter about a ‘yellow faced Chinese monster’. It was also embarrassing that he quietly mocked Sun Yang’s mother. 

But these revelations were only the tip of the iceberg. The first Panel was biased against China in a geopolitical sense. Frattini was formerly Italy’s foreign minister, supporting both controversial military action in Iraq and the overthrow of the Libyan government. This is evidence of an attitude in favor of western aggression. In 2004, the UN Secretary General said the invasion of Iraq was illegal and contrary to the UN Charter.  

Another member of the panel openly supported the US campaign to overthrow the government of Venezuela. This evidences a similar attitude in favor of US aggression. The third panelist was the counsel for The Philippines in a dispute with China. It is not hard to see how this could also be construed as suggesting bias. 

The new panel appears similarly biased. The jurists in the new CAS panel are: 

Jan Paulsson from France. He studied at Harvard and Yale and taught at the University of Miami. He has served as counsel for numerous oil corporations in their court fights against countries seeking damages, e.g., Chevron vs. Ecuador, Conoco Philips vs. Venezuela, Total vs. Argentina. Always on the side of the oil corporation. This suggests possible pro-corporatist bias against populist governments, such as China. 

Bernhard Harotiau from Belgium. He studied and was a visiting scholar at Columbia University in the US. He is former vice chairman of the Center for American and International Law in Dallas Texas.

Hans Nater from Switzerland. He studied at Harvard and practiced law in New York.

Studying in the US means an Arbitrator is likely to have friends and contacts in the US. It also means they are likely to be influenced by US media and sentiments. Of course there are exceptions to this, but there is strong possibility of subtle or not so subtle bias. Would CAS have selected a panel entirely educated in Russia?  

Politicisation of sport in the USA

One might ask: What difference does it make if they all worked in the USA?  This is hugely significant because the US government has politicised sports to an incredible degree. 

Dr. Grigory Rodchenkov…

In 2020, the US Congress passed the ‘Rodchenkov Act’. With this law, the US now claims extraterritorial rights to punish anyone in any country deemed to be involved in doping and harming a US athlete. The US will be prosecutor, judge, and executioner.

What could go wrong?  Even the World Anti-Doping Agency (WADA) has expressed alarm at this power grab. It warns, ‘No nation has ever before asserted criminal jurisdiction over doping offences that occurred outside its national borders – and for good reason’.

The Congressional act is named after the Russian doping expert, Dr. Grigory Rodchenkov, who was transformed from villain to hero when he moved from Russia to the USA. Of course, the passage of the Rodchenkov Act doesn’t automatically signal bias against China. But many are suspicious about the US’s attempts to become the world’s anti-doping police, especially since its own professional sports are not held to the same standards as those set by WADA.

As another example of the politicisation of sports and anti-China hysteria, political leader Nancy Pelosi has called for a diplomatic boycott of the 2022 Winter Olympics in China.  She suggests it is a “moral” imperative. Another US Democratic Party leader is calling for postponement of the games so they can be moved to another country. This illustrates a US political bias against China and Chinese sport in particular. 

The US establishment seems desperate to stop China’s rise; hence the effort to prevent China holding a successful Olympic Games. In this context, it is naïve to expect an impartial hearing for a Chinese athlete before a US-centric Panel. 

WADA vs. FINA

It is seldom mentioned that this hearing is not just against Sun Yang. It is also against the international swimming federation, FINA. The reason is because FINA held a hearing to review the controversy and determined that Sun Yang was NOT guilty of an anti-doping rule violation. The FINA panel agreed (PDF below) that the test team was not properly accredited. They also determined the Doping Control Officer (DCO) failed to give an appropriate warning to Sun Yang as required. This is necessary because an anti-doping rule violation can be life altering and career ending.  In Sun Yang’s case, this did not occur.

The World Anti-Doping Agency, based in Canada, did not like the FINA panel decision in support of Sun Yang. Hence the long and expensive case before the Court of Arbitration for Sport.  

The deck is stacked 

Although Sun Yang has a strong case and much evidence to support his defence, he will have to overcome a panel that could be considered as influenced by pervasive and growing anti-China propaganda. By selecting a Panel which is entirely European and American educated, the Court of Arbitration for Sport has failed a basic test of fairness. 

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