The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
The reasoning behind the Swiss Federal Tribunal’s (SFT) Decision to set aside an eight year ban imposed by the Court of Arbitration for Sport (CAS) on Sun Yang reveals that Franco Frattini ‘vigorously contested’ allegations of bias levelled against him. On 24 December, the SFT ruled that the CAS must rehear the case, after Sun Yang’s legal team successfully argued that Frattini, Chair of the CAS Panel that heard Sun’s case, was biased due to a series of tweets using derogatory terms against the Chinese.
The CAS also attempted to argue that Sun’s legal team had not filed its objection to Frattini’s appointment as Chair of the CAS Panel in time. Frattini’s tweets were only discovered after the 28 February 2020 CAS Decision in May 2020, through an article [warning: contains images of animal cruelty] published by The Sports Integrity Initiative. The CAS argued that Sun’s team should have excessed due care and made reasonable enquiries before this.
Sun’s team argued that although it had googled Frattini’s name, it had not discovered the offending tweets prior to the article [Editorial note: many of them were discovered using Twitter’s Advanced Search feature]. ‘It has not been established that the use of the Franco Frattini keywords in [Google], during the arbitration procedure, would have made it possible to reveal the disputed tweets’, reads the SFT reasoning. ‘Contrary to what the CAS maintains, the applicant cannot be criticised for not having carried out research by also introducing the world “China”’.
Frattini’s tweets, which used derogatory terms against the Chinese, were posted between 28 May and 3 July 2019. He was appointed as Chair of the CAS Panel that heard WADA’s case against Sun on 1 May 2019. His tweets concerned images of animal cruelty, an issue against which Frattini is vehemently opposed.
In a written statement of 3 September 2020 provided to the SFT, Frattini argues that his tweets were related to the ‘slaughter of animals committed each year in the city of Yulin in China on the occasion of the disastrous traditional Dog Meat Festival’. He argues that he may have reacted ‘in a very emotional way’ after discovering videos where dogs were ‘being tortured with sadism by some people’, and concedes that he failed to moderate his language. He argued that his criticisms were not directed at China or the Chinese people.
However, the SFT held that the terms used in the tweets refer to the skin colour of the Chinese people and so were not intended to qualify the behaviour of individuals as cruel or sadistic. For this reason, it disregarded an argument put forward by the CAS that Frattini’s comments should not be considered as biased against the Chinese any more than an Indian Arbitrator’s comments about bullfighting in Spain might be considered as biased against the Spanish.
Sun’s team previously launched a civil appeal against the CAS Decision which is still pending. A separate challenge to the independence of Romano Subiotto, also originally appointed to hear Sun’s case, is also pending. Tweets were discovered that allegedly indicated that he didn’t respect the principles enshrined in the UN Charter preventing interference in the affairs of other countries.
The international swimming federation (FINA) initially cleared Sun of evading and tampering with a doping control on 3 January 2019. It found (click here for ruling) that doping control staff from International Doping Tests and Management (IDTM) failed to provide the correct documentation. As such, FINA ruled that an IDTM doping control performed on Sun on 4 September 2018 was invalid, and Sun couldn’t be charged with tampering with an invalid doping control.
The World Anti-Doping Agency (WADA) successfully appealed, resulting in an eight year ban being imposed for a second doping offence, as Sun had been sanctioned for an anti-doping rule violation (ADRV) in 2014. Analysis of the CAS Decision (click here) and recordings resulted in allegations that testimonies suffered from insufficient time and a translator with a conflict of interests; a measure on mistranslation was proven ineffectual; requests from key witnesses to testify were denied; and relevant allegations were submitted but not assessed. Questions on how the CAS Panel interpreted WADA’s standards under Swiss law have also been raised.
As Sun was initially cleared of committing an ADRV by FINA, it is understood he is currently free to compete at the rescheduled Tokyo 2020 Olympics from 31 July this year. However, it is likely that the CAS will rehear his case before then.
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