CAS award in Sun Yang case annulled for arbitrator bias

In a recent French-language decision, the Swiss Supreme Court admitted an application for revision and annulled an award rendered against Chinese swimmer Sun Yang (Athlete) by the Court of Arbitration for Sport (CAS) on grounds of bias of the presiding arbitrator.

In September 2018, during an unannounced doping control, the Athlete refused to release his samples to the testing personnel, as he considered that they had not provided the necessary credentials and certifications. In January 2019, the anti-doping panel of the International Swimming Federation (FINA) cleared him of any anti-doping rule violation in that regard.

The World Anti-Doping Agency (WADA) appealed this decision before the CAS. On 28 February 2020, a CAS panel rendered a final award in which it found the Athlete guilty of violating the FINA Doping Control Rules and suspended him for a period of eight years.

On 15 June 2020, the Athlete filed a request for revision before the Swiss Supreme Court, seeking the annulment of the CAS Award and the disqualification of the presiding arbitrator. The Athlete submitted that on 15 May 2020, he had become aware of a number of tweets posted by the presiding arbitrator between 2018 and 2019 that contained unacceptable comments against Chinese nationals that gave rise to legitimate concerns as to the arbitrator's impartiality.

The Swiss Supreme Court granted the Athlete's request. It held that he had sufficiently met his duty to investigate the arbitrator's background during the arbitration proceedings and was therefore not precluded from relying on the tweets at this stage. Furthermore, the court considered that in view of all the relevant circumstances, the doubts as to the impartiality of the arbitrator were objectively justified. As a result, it annulled the CAS Award and disqualified the presiding arbitrator. A new award will therefore have to be rendered by a newly-constituted CAS panel (Decision 4A_318/2020) (22 December 2020).).