Final CAS Award in Sun Yang case upheld by the Swiss Supreme Court

In a decision dated 14 February 2022 and notified on 3 March 2022 (case 4A_406/2021), the Swiss Supreme Court ("the Court") dismissed the setting-aside application filed by the Chinese Olympic swimmer Sun Yang against an arbitral award rendered by the Court of Arbitration for Sport (CAS) in June 2021, putting an end to a saga that had been going on for more than three years and caused a total of six decisions of the Court in successive proceedings. Lenz & Staehelin successfully represented the World Anti-Doping Agency (WADA) in all setting-aside proceedings before the Court, which also involved the Fédération internationale de natation (FINA).

In September 2018, Mr Yang had prevented the collection of a blood sample (including by destroying with a hammer a glass containing an already collected blood sample) in the context of an anti-doping control. In February 2020, a CAS Panel held that this conduct breached anti-doping rules and sanctioned Mr Yang by declaring him ineligible to participate in competitions for a period of eight years ("the Award").

In June 2020, Mr Yang filed a revision application with the Court against the Award, alleging that the Panel had not been properly constituted. In support of his allegations, Mr Yang pointed to comments made by the president of the Panel on Twitter in 2018 and 2019 that supposedly showed racial prejudice against Chinese. In December 2020, the Court granted the revision application and set aside the Award, finding that the relevant comments gave rise to justifiable doubts as to the impartiality of the president of the Panel and that, as consequence, the Panel had not been properly constituted.

Following that decision of the Court, a new CAS Panel was formed and the case was reheard. In June 2021, the second Panel rendered its award ("the new Award"), finding (again) that Mr Yang had breached anti-doping rules and banning him for a period of four years and three months.

Mr Yang filed a setting-aside application against the new Award before the Court, invoking, inter alia, a breach of his right to be heard as well as of public policy.

In its decision of 14 February 2022, the Court dismissed Mr Yang's application, finding in particular that there was no violation of Mr Yang's right to be heard and that the award did not breach public policy. The Court pointed out that Mr Yang was effectively trying to challenge the new Panel's interpretation of the applicable testing rules, i.e. the International Standard for Testing and Investigations (ISTI). The Court agreed with WADA's position that the interpretation and application of these rules could not, as such, be reviewed in setting-aside proceedings. In any event, the Court held that the alleged breaches of provisions relating to the accreditation and notification of doping controls did not allow Mr Yang to act as he had done by participating in the destruction of an already collected blood sample. Under the circumstances, the outcome of the arbitration in no way violated public policy.