Without legal basis or in-depth study of this case, the general public will naturally be attracted by the bizarre and nearly dramatic scene conflict, or be drawn by some reports with little knowledge or different positions. In addition, the demonstrations of Horton, Scott and other foreign swimmers during the world championships in Guangzhou contributed to this process, which was a typical sports dispute resolution process, but inevitably involved factors other than sports.
In a fog, how to keep objective rationality as much as possible and form an independent judgment based on facts and laws? How to make use of the rules rationally but never to misunderstand the rules beyond the boundaries in the international sports where western thinking has absolute discourse power? What lessons should Chinese sports circles and practitioners learn from this case and the disputes surrounding this case? In order to explore the above issues, we joined hands with the author of this paper who went to the Sun Yang case public hearing to launch a series of special articles entitled rational thinking of Sun Yang case.
The author of this paper is a Chinese lawyer who focuses on sports law and international law. He is good at sports dispute resolution. He has completed legal literacy training and professional experience accumulation in law schools and law firms in China and the United States. He has the qualification of lawyer practice in China and New York state.
This case refers to Wadas independent right of appeal against international athletes granted by article 13.2.1 of the World Anti Doping regulations (2015 Edition) and appeals to the international sports arbitration court (CAS) the decision of finas internal Anti Doping Agency (finadopingpanel) on the same incident made on January 3, 2019, that Sun Yang did not violate the doping regulations in the incident on September 4, 2018 (sun yanghasnotco mmittedananti-dopingruleviolationu201duff09u3002
Finas conclusion is based on the fact that two of the three staff members (blood and urine inspectors) sent by IDTM, a sampling agency, lack the authorization required by the international standards for testing and investigation (ISTI) for sample collection personnel, so the test work that night was started on an inappropriate basis (not properly agreed) . Finadopingpanel agrees with Sun Yangs view that the blood taken that night is not a sample under ISTI or the World Anti Doping regulations; the test attempt made by IDTM on behalf of fina on that night is invalid (invalidandvoid) ; therefore, the test is unlikely to lead to doping violations.
Wada obviously has different understanding of ISTI rules, so it appeals the dispute to CAS. It should be noted that, according to Article 13.1 of the World Anti Doping regulations (2015 Edition), the validity of the appealed decision (in this case, the decision of finadopingpanel on Sun Yangs non violation) will not be affected before CAS makes a decision. Therefore, Sun Yang is not affected by the CAS appeal procedure. He participated in the world championships in Guangzhou, South Korea in July this year, which is not improper from a legal point of view. Facing the challenge or provocation of some foreign athletes, we can respond reasonably and reasonably from the legal level.
CAS has formed a three member arbitration tribunal in accordance with Article 54 of its arbitration rules, and both parties have the right to appoint one arbitrator; the third arbitrator (i.e. chairman of the arbitration tribunal) shall be appointed by the chairman of CAS appeal department.
The arbitrators appointed by Wada are Romano subiotto, a British / Italian lawyer; the arbitrators appointed by sun Yangfang are philippesands, a British / French lawyer, a professor of London University, and a scholar lawyer with high reputation in the field of public international law. The chairman of the arbitral tribunal is Franco Frattini, an Italian retired diplomat who has been a judge of the Italian sports court since 2014.
The three arbitrators are all white men in their sixties, which is also a common (and criticized) phenomenon in international arbitration. It is worth mentioning that the mission of arbitrators is to hear cases fairly. Even the arbitrators appointed by one party need to be impartial, but they can often help their appointees clarify their positions (for example, asking questions about key issues, or drawing the attention of other arbitrators to points beneficial to their appointees).
As will be mentioned below, Professor Philippe sands appointed by Sun Yang Fang asked many key questions that directly hit the heart of the case. Some of them, if debated, might be beneficial to Sun Yang.
On the night of September 4, 2018, Sun Yang will decide whether there is any doping violation or whether he should be banned. In short, his entire sports career and personal reputation will be decided by CAS arbitration tribunal composed of the three arbitrators in the form of award. Because the nature of CAS award is an arbitration award under Swiss law (and the case has international elements, because Sun Yang is a Chinese athlete), according to Article 190 of the Swiss private international code (pila), a party has the right to apply to the Swiss Federal Court for revocation of CAS award in specific circumstances (specifically the situations listed in article 190 (2) of pila).
However, the power of the Swiss Federal Court to revoke the CAS award is quite limited, because the supreme judicial body of Switzerland will not make substantive examination on the fact determination, interpretation, application and reasoning of the rules, but only on the legality of the arbitration procedure, that is, only in the composition, independence and neutrality of the arbitration tribunal, the serious defects of jurisdiction, or in violation of the due process of Arbitration (dueproc Only in the case of ESS) and public policy can CAS arbitration award be revoked by Swiss Federal Court. Since the establishment of CAS, this case rejection rate is extremely low, about 7%. [4
At the end of Sun Yangs public hearing, the arbitral tribunal confirmed to Sun Yang, fina and WADA that all parties were satisfied with the legitimacy of the arbitration procedure. Therefore, the possibility of sunyang case overturning in Swiss federal court only exists at the theoretical level, and in reality, the probability is basically zero. The widely criticized translation problem is serious enough to affect due process, which constitutes the reason to apply to the Swiss Federal Court for revocation of the adverse ruling. However, because the translation was selected by Sun Yang and subsequently corrected by both parties through proofreading, it is difficult to apply for dismissal on the basis of translation defects.
It can be said that the CAS award issued by the above three arbitrators is the final conclusion of Sun Yangs sports career.
Part 2: focus of dispute
CAS public hearing clarified the following facts: on September 4, 2018, IDTM extracted Sun Yangs blood on behalf of fina, but the sealed box where the blood was placed was damaged, and the blood was not taken away; according to Sun Yang Fangs insistence (and WADA did not explicitly object), the blood still existed; the urine test procedure was not carried out that night due to Sun Yang Fangs objection. Therefore, there is no adverse blood test or urine test result for athletes in this case, because the test on that night was not completed, and it can no longer be completed (the blood taken on that night has been separated from the custody of IDTM, which can not meet the requirements of custody chain and sample in transit time in Appendix K of ISTI); the focus of this case is whether Sun Yang has the right to use IDTM personnel qualification Reasons for non-compliance, refuse to accept its inspection.
According to the statement of Wada lawyer at the hearing site, Wada accused Sun Yang of doping violations as tampering and / or refusing, reusing or reusing to submit to sample collection. Article 2.5 of the World Anti Doping regulations (2015) defines tampering as the act of interfering with the doping testing process, such as deliberately or attempting to interfere with doping testing officials, intimidating potential witnesses, etc.
If Wadas accusation against Sun Yang is established, it will be Sun Yangs second doping violation (the first occurred in 2014, and was banned for three months), and the punishment will double. Depending on the extent of Sun Yangs fault determined by the arbitration tribunal, Wada appealed to CAS judge Sun Yang to be suspended for two to eight years. If CAS arbitration tribunal finds that Sun Yang has indeed violated doping regulations, Sun Yang will not only be disqualified from the 2020 Tokyo Olympic Games, but also be deprived of two gold medals won in July 2019 moonlight state world championships, regardless of the punishment period. This also means that Horton, who refuses to join Sun Yang on the podium, will have the chance to supplement the gold medal of the mens 400 meter free tour in the Guangzhou World Championships. [5
Although there are different doubts in this case, and the disputes surrounding this case even go beyond the scope of sports and law, when we get rid of the chaos and make it clear that the focus of this case is whether Sun Yang has the right to refuse to accept the inspection for the reason that IDTM personnel are not qualified enough, we can judge that CAS arbitration tribunal needs to make a decision on the following issues:
(1) Fact level: what is the qualification document issued by IDTM sampling personnel to Sun Yang that night? (2) Rule level: what are the requirements of Wada and ISTI for the qualification of sampling personnel? (3) Application of the rules to facts: did the qualification documents issued by IDTM sampling personnel to Sun Yang on that night meet the requirements of item (2) above?
If CAS arbitral tribunal gives a negative answer to the above question (3), it means that it agrees with finadopingpanels characterization of the event (but not necessarily with finadopingpanels handling results of the event); otherwise, it means that CAS arbitral tribunal will completely reverse finadopingpanels decision.
Part 3: sketch of public hearing
At 8:00 a.m. on November 15, 2019, just after dawn, the hearing room located in the annex building opposite the Montreux palace has been opened; the public and media have arrived, many of them from home. The most noticeable audience was coach Dennis, Sun Yangs mentor for many years. He flew with his family from Australia to Switzerland and focused on the hearing. At around 8:35, the arbitral tribunal and both parties entered the venue, and set aside time for the media to take photos and record videos. Sun Yang noticed that coach Dennis, who was in the first row, came to fight with him and encouraged each other. At 9:00, CAS broadcast the introduction video specially made for the hearing, and the hearing procedure officially kicked off.
The facts and legal arguments in this case have already been submitted through written submissions and evidence submitted by both parties. The purpose of the hearing is to let the witnesses relied on by both parties appear in court to be cross examined by the lawyers of the other party, and to give the arbitral tribunal the opportunity to observe the performance of the witnesses, analyze the answers of the witnesses, and raise the questions concerned by the arbitral tribunal, so as to make a judgment on the credibility of the witnesses and the weight of their testimony.
Sun Yang, as the party concerned, was the first to sit on the witness seat for cross examination. The order of cross examination is first direct examination by ones own lawyer, and then cross examination by the others lawyer. The first thing Sun Yang dealt with was that Sun Yang had been suspended for three months in 2014 - because the first suspension was also related to doping violations, which inevitably attracted the attention of the arbitral tribunal, so he adopted the strategy of facing the issue directly. Sun Yangs response was not unexpected, explaining that he took the medicine by mistake because of illness.
In the description of the incident that night, Sun Yang (and the witness in court at that time) said that it was the prosecutor who proposed that she must take away the sealed box used to place the blood bag, so it was the prosecutor who proposed to Sun Yang that the blood bag and the sealed box should be separated (Note: separation is Sun Yangs wording for the incident that night), and the nurse who was the blood inspector also demonstrated to them How to open the seal box. When accepting the cross examination of Wada lawyer, Sun Yang said that he never insisted on leaving blood, because Dr. Ba thought that blood could not be taken away; Wada lawyer pointed out that this explanation was inconsistent with Sun Yangs written testimony, because Sun Yang had said in the written testimony that it was his decision (to leave blood). Different statements about the incident that night, whether between the inspectors and sun Yangfang or the same witness, have little impact on the outcome of this case.
In fact, there is much more to be doubted (who decides that the blood cant be taken away), such as whether the urine examiner took a picture of Sun Yang (this seems to be the fuse of this case in Sun Yang Fangs version of the incident); whether the chief prosecutor had clearly informed sun Yang of the consequences of the refusal; whether the chief prosecutor gave or implied permission to destroy the sealed box to take out the blood (or whether it was Sun Yang Fangs mistake) Will... In case of numerous disputes, both parties cannot provide audio and video recordings that can be used as evidence, so they will never reach a definite conclusion, and the arbitral tribunal will not make a determination on the facts with doubts. They only need to answer the three questions with legal significance listed above.
Part 4: three issues of decisive significance to the outcome of the case
1u3001 Fact level: what is the qualification document issued by IDTM inspectors to Sun Yang that night?
There is no dispute on this factual level. Evidence shows that the qualification documents issued by IDTM sampling personnel to Sun Yang that night are:
(1) Fina, as a testing agency, issued a formal power of attorney to IDTM, a sampling agency, in 2018, authorizing IDTM to sample athletes on behalf of fina, but the power of attorney did not indicate the names of Sun Yang and the chief prosecutor (as well as the blood and urine examiners); (2) the IDTM identity document and personal identity document of the chief prosecutor; (3) the nurse qualification certificate of the blood examiners; (4) the identity of the urine examiners Card. [7
2u3001 Rule level: what are the requirements of Wada and ISTI for the qualification of testing personnel?
Since both parties have no dispute about the fact that the IDTM sampling personnel issued the qualification documents to Sun Yang, and the third question (i.e. whether the above qualification documents meet the requirements) is actually the application of the rules to the fact, it can be seen that the understanding difference between the two parties on the rules is actually the lifeline of this case, and the key rule is isti5.3.3.
According to isti5.3.3, the samplecollectionpersonnel shall hold the official documents provided by the sampling authority (IDTM in this case), such as the power of attorney of Testing Authority (FINA in this case), to prove that the samplers have the authority to take samples from athletes. The prosecutor is also required to hold a supplementary identification (e.g. ID card, drivers license, health card, passport or similar valid certificate) indicating his name, photo and effective date
(original text: samplecollection personnel shall have official documentation, provided by the samplecollectionauthority, evincingtheirauthority tocollectionasample from the atlete, suchasaauthorizationletter from the testing authority. Dcosshallalsocarrycomplementation identification which includes the irname and photograph (i.e, identificationcardfromtheSampleCollectionAuthority,driveru2019slicence,healthcard,passportorsimilarvalididentification)andtheexpirydateoftheidentification.u201duff09
Wada party believes that, according to this article, sampling personnel as a whole can issue an authorization document issued by fina to IDTM; the authorization document can be a format document without indicating the names of the sampling personnel and the sampled athletes. This article also makes an additional requirement for the chief prosecutor, that is, in addition to the above-mentioned authorization documents, the chief prosecutor also needs to issue additional identity documents. However, there are no additional requirements for blood and urine examiners in this article; if there are additional requirements, this article should refer to the certificate requirements for blood and urine examiners.
Sun Yang Fang insisted that according to another document, ISTI blood sample collection guidelines, every member of the sampling personnel should issue an authorization document. Section 2.5 of the ISTI blood sample collection Guidelines means each individual in the sample taker is trained and authorized to perform his or her assigned functions.. uff08u201cTheseindividualsmustbetrainedandauthorizedfortheirassignedresponsibilities.u201duff09u30108u3011
Wada invited the staff who participated in the compilation of ISTI, namely Stuart Kemp, deputy director of Wada standards & harmonization department, as an expert witness to testify in court, proving that the ISTI blood sample collection guide relied on by Sun Yang Fang is actually a proposal for best practice, rather than a mandatory provision with the same effect as ISTI. Stuart Kemp confirmed Wadas understanding of article 5.3.3 of ISTI (note to the author: This is no mistake, because Stuart Kemp is an official of Wada, and WADA is the creator of ISTI). At the same time, Stuart Kemp also answered the third key question of the case from the perspective of the rule maker, that is, the qualification document issued by the sampling personnel that night complies with the mandatory provisions of ISTI.
It is worth noting that Stuart Kemp also explained that although the ISTI blood sample collection guide cited by sun Yangfang is an ideal model operation, it is impossible to operate according to this best practice in some cases. For example, if the test athletes are determined according to the results of the competition, before the final, the test objects are uncertain, and it is impossible to prepare the sports in advance Authorization document of the members name - this is exactly the case in this case, because Sun Yang was tested precisely because he just won the swimming gold medal from the Jakarta Asian Games.
From this point of view, Stuart Kemp thinks that it is reasonable that the authorization document does not indicate the names of the sampling personnel and the athletes to be tested. When Sun Yang asked Stuart Kemp whether the blood and urine examiners should have the same identity documents and authorization documents as the chief prosecutor, Stuart Kemp gave a strongly disagree response, and again stressed that Sun Yang was referring to documents of the nature of the guide, rather than documents of compulsory effect.
On the issue of this rule level, it is almost difficult for Sun Yang Fangs witness to strongly refute Stuart Kemp.
On the one hand, sun Yangfangs Witness repeatedly stressed that the practice of Anti Doping in China is that each sampling person should have the corresponding authorization qualification, and have the identity document issued by the testing agency (such as China Anti Doping Center), but this is not the same level as the rules applicable to this case, because this case involves the international sports organization (FINA) in accordance with the World Anti Doping regulations For line detection, CAS arbitration tribunal only needs to decide what rules fina needs to abide by, not necessarily what rules China implements - Chinas implementation standard may be higher than international mandatory standard (i.e. ISTI); different sampling agencies may also implement different standards on authorization documents - just need not violate ISTI.
On the other hand, almost all the witnesses arranged by Sun Yang Fang to appear in court are factual witnesses (the only expert witness to appear in court is to testify on the nurse qualification of the blood inspector and the criminal law of China); on the issue of how to understand the rules, these factual witnesses are unable to give any convincing explanation to the arbitral tribunal. It should be said that Sun Yang Fang is at a natural disadvantage against Wada on the issue of how to understand the relevant rules, because Wada is the rule maker of ISTI, and the witnesses they sent to appear in court also participated in the formulation of ISTI. Unless there are serious flaws in the rules, or there are suspicions of violating jus cogens, its an attempt to argue with rule makers about how the rules should be interpreted.
At the end of the hearing, the lawyer of fina tried to argue that Wadas interpretation of article isti5.3.3 violated Swiss law. This kind of unconstitutional debate is a very difficult attempt. If we decide to break up Wadas position from this perspective, we should focus on attacking its violation of international compulsory law or basic human rights, rather than throwing out this argument in a routine way when the hearing is almost over and all parties are not in their best state. This is not only useless, but even gives the impression to the arbitral tribunal, that is, agency I did not make the most of our limited time in response to the most concerned issues of the arbitral tribunal. The tribunal cautioned that the limited time available for public hearings should be used to summarize submissions, focusing on core arguments rather than repeating what has been elaborated in the pleadings. In addition, the agent should also speculate on the intention of the arbitral tribunal and answer or argue against the possible questions of the arbitral tribunal.
3u3001 Application of the rules to facts: did the qualification documents issued by IDTM sampling personnel to Sun Yang on that night meet the requirements of item (2) above?
(1) as like as two peas, IDTM has been working with FINA since 1995, representing FINA for athletes sampling over ten thousand 000 times, representing the same format authorization document as in this case (and in 2018, the same format authorization document was used over three thousand times), and FINA has never stated that the authorization document is defective, but this time it is considered that the format authorization document is not compatible. Regulations;
(2) As a top international athlete, Sun Yang has received up to 180 doping testing procedures, 60 of which have been executed by IDTM through the issuance of authorization documents that are no different from this case, but only this time, Sun Yang has questioned the authorization documents in this format.
The arbitration tribunal repeatedly asked Sun Yang why he questioned the authorization documents of IDTM in this test process - shouldnt he be familiar with IDTM after 60 samples of IDTM? Sun Yang said he was not familiar with IDTM and stressed that the staff was not professional that night. However, this answer failed to address the concerns of the arbitral tribunal and to explain the key issues in their minds. Sun Yang said that he was not familiar with IDTM, even though the facts were not in line with the thinking logic of the three arbitrators as western legal persons -- typical western legal training, both in the common law system and the civil law system, which emphasized logical reasoning based on rules and matters The logical deduction of syllogism is based on fact and evidence.
The three questions raised in this part are the typical syllogism. Through the answers to the three questions, the typical western legal person will not have too different conclusions. In addition, when dealing with some problems that need free evaluation, western legal thought also advocates the life of law lies in experience . Based on the fact that Sun Yang has been tested by IDTM 60 times, the typical western legal thinking arbitration tribunal thinks that Sun Yang is not familiar with IDTM, which is contrary to common sense, except that Sun Yang can provide a reasonable explanation. There are many points similar to contrary to common sense but not effectively explained in this case, and it is through the accumulation of these details that the judgment of the arbitral tribunal on the whole matter is affected.
Part 5: other key questions
As mentioned above, Professor Philippe sands, the arbitrator chosen by sun Yangfang, raised many key questions that directly hit the key point of this case, from which we can also see the thinking mode of arbitrators in common law system. As professor philippesands himself is also an excellent scholar and lawyer of public international law, his questioning style is extremely sharp, and it is inevitable to be nervous when he meets Professor sands in court as a lawyer. But this time, as a bystander, it is a very addictive thinking collision to compare his own thinking with that of Professor sands in real time.
After sun Yangfangs witness testified, Professor sands pointed out that there was a high-level of dependence of athletes on their doctors and teams in this case. In fact, this is beneficial to Sun Yang Fang to a certain extent. If we focus on this discussion, although it has no qualitative impact on whether the athletes violate the rules, it is related to the fault of the athletes, which can affect the severity of the punishment (if any), and it seems to be able to save the public image to some extent.
Although Sun Yang does not seem to use high dependence as a defense strategy, judging from Professor sandss attitude, he will emphasize this factor to at least two other arbitrators. Because, in Wadas closing speech, Professor sands also asked Wada how to consider the high dependence of athletes on the team. The response of Wada lawyers is that such dependence is incredibly reckless gamble, if it can also be considered as no serious fault, it will subvert the whole no serious fault case system.
In addition to clearly pointing out that the athletes in this case are highly dependent on their team, Professor sands also pointed out that Sun Yang Fangs debate strategy is entirely based on his understanding of the relevant rules of ISTI - have you stopped to think about it, have you changed to think about it, in case your understanding of the authorization document is wrong, what should you do?? He asked more than once. Sun Yangs team was unable to respond effectively to this enlightening problem.
Professor sands undoubtedly felt strongly about this issue. He used such strong tone as didyoupausetothink and didyouturnyormins, which to some extent revealed his attitude towards this case after the hearing - that is, its unbelievable that Sun Yangs team completely attached a world top athletes career to their own subjective understanding of the rules. In particular, after having a record of doping violations, shouldnt Dr. Ba consider that athletes will pay a huge price if he or his teacher (Dr. Han) misunderstands the rules, so he should think twice? (Professor sands asked Dr. Ba, sure you must have, against that back ground, think for a moment of your Dr Han, both of you, have got it wrong, the atheleterisk spaying a price?)
Coincidentally, even though finadopingpanel was on Sun Yangs side and believed that there was no violation of regulations in its behavior that night, fina also believed that betting the whole sports career on the understanding of the complicated situation of the athletes at that time, arguing with (the prosecutor) who is right and who is wrong is just like a solitary note throw, stupid to the extreme. [10
In addition, Professor sands asked a question that, although controversial in international arbitration, arbitrators had to consider when they made a decision. That is, what would happen if arbitrators made a decision? Professor sands asked sun Yifang, a lawyer acting for fina, if the arbitral tribunal ruled that the lack of qualification documents of IDTM company led to the invalidity of the test in this case, would it lead to the invalidity of all doping test procedures using the same qualification documents, and open hundreds of valves appealing to CAS for the same reason?
Fina lawyers response is that the case has particularity and specific case analysis. The Wada side insisted that the sunyang playbook effect would be formed (if the arbitration tribunal agreed with Sun Yangs argument), and the anti doping test system would not be implemented.
If the athletes do have questions about the qualification of the testing personnel, if the fierce response of Sun Yangs team that night is not desirable, do the athletes have relief measures? Finadopingpanel and WADA are consistent at this point, that is, athletes should always cooperate with sampling and testing, unless physical, health and moral conditions are objectively not allowed. If the athletes have doubts, they can cooperate with the sampling and raise objections, that is, accept the test with objections. u301011u3011 Wada specifically cited Laura dutradeabreu mancinideazevedov.fina (cas2005 / A / 925), who was also a swimmer who refused to be tested.
The principle established in this case and recognized in the field of anti excitation is: the logical rules of anti doping test determine that athletes need to provide samples even if they have objections as long as the physical, health and moral conditions permit; otherwise, athletes will refuse to provide samples for various reasons, and the test will not be carried out. u301012u3011 Whether physical, health and moral conditions allow sampling? CAS case establishment should be reviewed by objective criteria rather than subjective identification [13
After Dr. Ba came to the scene on the night of the incident, he actually made an objection (i.e. he wrote a comment that the qualification of the testing personnel was insufficient and they were unrelated persons, so the urine test and blood test could not be completed, and the extracted blood could not be taken away). u301014u3011 Unfortunately, he did not stop here, but put into action, so that IDTM personnel can not complete the urine test and take the blood that has been extracted.
Wada stressed in the closing statement that when the fact that the inspectors were prevented from taking away the blood that had been drawn occurred, it had violated Article 2.5 of the World Anti Doping regulations (2015 version), namely tampering. The subsequent events may be more eye-catching, but before the seal box broke, tampering violation had happened, and WADA believed that the evidence was conclusive, because Sun Yangs written testimony said that the prosecutor tried to take photos of the damaged seal box and take blood away at that time, and Sun Yang told her not to take it away. The other side argued that the rules were unfair to the athletes and didnt protect the athletes, OK? Richard young, a lawyer acting for Wada, raised his eyebrows and continued his blatant statement, first persuade Wada to change the rules..
u30101u3011 See Sun Yangs tweet on Nov. 19, 2019 on Phoenix News. u30102u3011 Finadopingpanel decision (hereinafter referred to as fina decision) page 48, paragraph 6.35. u30103u3011 Fina decision 48, paragraph 6.35. u30104u3011 According to the preface of Swiss international sports arbitration report (Xavier Favre bullet) published by jurisnet LLC in 2012, as of the reports publication in 2012, more than 80 CAS arbitration awards have been sued to the Swiss Federal Court for revocation, of which six CAS awards have been successfully revoked, with a success rate of about 7%. u30105u3011 Section 10.8 of the fina doping control rules. u30106u3011 According to Article 57 of CAS arbitration rules, CAS arbitration tribunal has the right to conduct a new review of the case from the factual and legal level (the panel has full power to review the facts and the law). Even if CAS agrees that the qualification documents issued by IDTM personnel on that night are insufficient, CAS has the right to independently judge whether the defect seriously leads to the invalidity of the test procedure on that night, and whether the athlete refuses to accept the test for violation. u30107u3011 Fina decision page 8, paragraph 4.10. u30108u3011 Istibloodsamplecollectionguidelines, Article 2.5, https://www.wada-ama.org/sites/default/files/resources/files/guidelines ue5e5 bloodue5e5 sampleue5e5 collectionue5e5v5ue5e5 septue5e52016.pdf  remarks by Justice Holmes of the U.S. Supreme Court at the beginning of the 20th century. u301010u3011 Fina decision, p. 55, para. 6.55 (the athletes essential care in the balance u2013 on what amount to, essentially,  fina decision 56, paragraph 6.56 (asmanycasawardshared, itisfarmoreprudenttocomplywiththedirectionsofaDCOandprovideasampleineverycase,evenifprovidedu201cunderprotest.u201d)u301012u3011LauraDutradeAbreuMancinideAzevedov.FINA(CAS2005/A/925),u201cNodoubt,weareoftheviewthatthelogicoftheanti-dopingtestsandthedopingcontrolrulesdemandsandexpectsthat,wheneverphysically,hygienicallyandmorallypossible, See Jack Anderson, Advanced analysis of the legal arguments in Wada, Sun Yang & fina u2013 a very public hearing, published in lawinsport, November 28, 2019 (see https://www.lawinsport.com/topics/item/a-detailed-analysis-of-the-legal-arguments-in-wada-v-sun-yang-fina-a-very-public-hearing), footnote 12, quoting troickiv.itf (cas2013 / A / 3279), paragraph 9.15. u301014u3011 Fina decision, P. 24, para. Source: lazy bear sports Author: Cai Guo editor in charge: Zhao Ruiqi and nb12596
u30101u3011 See Sun Yangs tweet on Nov. 19, 2019 on Phoenix News. u30102u3011 Finadopingpanel decision (hereinafter referred to as fina decision) page 48, paragraph 6.35. u30103u3011 Fina decision 48, paragraph 6.35. u30104u3011 According to the preface of Swiss international sports arbitration report (Xavier Favre bullet) published by jurisnet LLC in 2012, as of the reports publication in 2012, more than 80 CAS arbitration awards have been sued to the Swiss Federal Court for revocation, of which six CAS awards have been successfully revoked, with a success rate of about 7%. u30105u3011 Section 10.8 of the fina doping control rules. u30106u3011 According to Article 57 of CAS arbitration rules, CAS arbitration tribunal has the right to conduct a new review of the case from the factual and legal level (the panel has full power to review the facts and the law). Even if CAS agrees that the qualification documents issued by IDTM personnel on that night are insufficient, CAS has the right to independently judge whether the defect seriously leads to the invalidity of the test procedure on that night, and whether the athlete refuses to accept the test for violation. u30107u3011 Fina decision page 8, paragraph 4.10. u30108u3011 Istibloodsamplecollectionguidelines, Article 2.5, https://www.wada-ama.org/sites/default/files/resources/files/guidelines ue5e5 bloodue5e5 sampleue5e5 collectionue5e5v5ue5e5 septue5e52016.pdf  remarks by Justice Holmes of the U.S. Supreme Court at the beginning of the 20th century. u301010u3011 Fina decision, p. 55, para. 6.55 (the athletes essential care in the balance u2013 on what amount to, essentially,  fina decision 56, paragraph 6.56 (asmanycasawardshared, itisfarmoreprudenttocomplywiththedirectionsofaDCOandprovideasampleineverycase,evenifprovidedu201cunderprotest.u201d)u301012u3011LauraDutradeAbreuMancinideAzevedov.FINA(CAS2005/A/925),u201cNodoubt,weareoftheviewthatthelogicoftheanti-dopingtestsandthedopingcontrolrulesdemandsandexpectsthat,wheneverphysically,hygienicallyandmorallypossible, See Jack Anderson, Advanced analysis of the legal arguments in Wada, Sun Yang & fina u2013 a very public hearing, published in lawinsport, November 28, 2019 (see https://www.lawinsport.com/topics/item/a-detailed-analysis-of-the-legal-arguments-in-wada-v-sun-yang-fina-a-very-public-hearing), footnote 12, quoting troickiv.itf (cas2013 / A / 3279), paragraph 9.15. u301014u3011 Fina decision, P. 24, para.