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Sun Yang before the men’s 800m freestyle final at the 2019 World Swimming Championships in Gwangju, South Korea. Photo: AFP

Sun Yang hearing: lawyer slams ‘white European men’ CAS panel, saying integrity of anti-doping justice system is also on trial

  • Former Canada Olympic swimmer turned human rights lawyer Nikki Dryden says Chinese swimmer’s first hearing failed to offer any confidence in judicial procedure
  • Dryden says ‘I saw a group of white men running a system that was extremely complicated and biased towards Western ideals of justice’
Sun Yang

A leading human rights lawyer has slammed the appointment of “three white European men” on the panel for Sun Yang’s second hearing, adding that next week’s case before the Court of Arbitration for Sport (CAS) not only puts the Chinese swimmer on trial but the entire anti-doping justice system.

Nikki Dryden, a two-time Olympic swimmer for Canada, said Sun’s first hearing brought by the World Anti-Doping Agency (Wada) in November, 2019 – resulting in an eight-year ban that was quashed on appeal – left her bewildered at what she perceived to be a flawed system.

She is also surprised that no Mandarin speaker is on the CAS panel, even though Sun has the right to select an arbitrator. CAS has 10 Chinese-speaking arbitrators on its register.

“I am already disappointed in the second appeal, having seen that again three white European men have been appointed to the second panel,” Dryden told the Post. “In 2021, it is pathetic that there is no diversity of legal expertise, personal experience, and cultural background on a case that has already been found to have had racial and cultural bias.

“Sun is a Chinese man, that no Chinese arbitrator is on the panel is shocking to me. I don’t understand why he [Sun] hasn’t selected a Chinese arbitrator, or even someone from a similar legal system as his.

“I saw a for profit entity [Wada], funded by global tax payers, not be able to clearly articulate their rules and procedures for coming to an athlete’s private home to collect bodily fluids. I saw a group of white men running a system that was extremely complicated and biased towards Western ideals of justice. At no point did I think to myself, ‘wow, this is a fair system’.”

Human rights lawyer Nikki Dryden says at no point did she feel Sun Yang’s first hearing was conducted under a fair system. Photo: EPA
The case of three-time Olympic gold medallist Sun’s second hearing is slotted for May 24-28. Switzerland’s Hans Nater will preside over Sun’s second hearing and will be joined by France’s Jan Paulsson and Belgian Bernard Hanotiau.

The performance of Sun’s lawyers for the first hearing was generally panned by legal experts. The swimmer was represented by Zhang Qihuai, of Beijing firm Lanpeng; Frabrice Robert-Tissot, of Bonnard Lawson, Geneva; and Ian Meakin, of XXIV Old Buildings, London and Geneva. It is not known if the same team will represent him next week.

In September, 2018, three dope testers arrived at Sun’s house in Hangzhou, Zhejiang province, to conduct a random test. During the procedure, one of the testers took a picture of the swimmer, who then became suspicious. Sun again asked for identification and only the lead tester was able to provide the correct papers.

Sun Yang and his lawyers at a CAS public hearing in November, 2019. Photo: Xinhua

After asking his doctor to come to his house and consulting Chinese swimming officials, Sun refused to complete the test. The testers declined to leave any equipment behind, prompting Sun’s security guard to smash the blood vial to allow the team to retrieve the broken glass.

Swimming body Fina gave Sun a warning but Wada took the case to CAS, which found him guilty and handed him an eight-year ban in February, 2020.

The Swiss Federal Tribunal, on appeal, sent the case back to CAS after one of the Italian panellists, Franco Frattini, was found to have a history of posting anti-Chinese comments on social media.

Franco Frattini chairs the CAS hearing on Sun Yang. Photo: Handout

The first hearing in Montreux, Switzerland – made public at Sun’s request – was also beset with translation problems, with the original interpreter, who was chosen by Sun’s legal team, replaced halfway through by a Wada official.

Dryden said Sun’s case paints a picture of an anti-doping justice system skewered towards the accusers.

“The lack of due process in the anti-doping system was on full display during Sun’s case, from the incident itself to the hearing,” said Dryden. “Sun has access to financial resources, but even he is an outsider due to his cultural and language background.

Australia’s Mack Horton refuses to share the podium with Sun Yang after the Chinese swimmer wins the 400m freestyle world title. Photo: AP

“Most Olympic athletes have no money. There are several other Olympic swimmers currently asking friends and other swimmers for money on social media to pay for their anti-doping appeals because they have nothing left to defend themselves.

“There must be a transparent legal aid system to provide pro bono counsel where applicable and more broadly the sport arbitration system needs to be more transparent.”

This article appeared in the South China Morning Post print edition as: Lawyer slams panel in Sun case
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