The Supreme Court of the Swiss Federation is located in Lausanne, which is the highest judicial body in Switzerland. The main responsibilities are to deal with legal cases involving federal law, public international law, state to state relations, and to manage the revision of federal (or state) political rights. At the same time, it is necessary to solve the disputes of the international sports arbitration tribunal.
Since 2009, there has been a sharp increase in sports arbitration appeals, accounting for about half of all arbitration appeals accepted by the Supreme Court of Switzerland. The Supreme Court of the Swiss Federation reviews the revocation of the arbitration award, and the arbitration procedure is the top priority of the courts attention.
Can Sun Yang catch the last straw to Tokyo?
According to Article 190, paragraph 2, of the Swiss Federal private international law, the parties may object to the award only if: (1) the appointment of the arbitrators or the composition of the arbitral tribunal is not in accordance with the rules; (2) wrongly accepting or refusing to exercise jurisdiction over the case; (3) beyond the scope of the parties request or failing to award on the parties request; (4) the arbitration does not embody the principle of equality, Failure to protect the rights and interests of the parties; (5) the result of the ruling is contrary to public policy.
From the above five points, we can see that the arbitration procedure of sunyang case is the top priority of the Supreme Court of Switzerland, and the facts and relevant rules judged by CAS are not within the jurisdiction of the federal court of Switzerland. In other words, the Swiss Federal Court will not pay much attention to what happened on the night of Sun Yangs drug test. The international sports arbitration tribunal needs to deal with the compliance of swimming drug test. Next, I will analyze Sun Yangs hearing case one by one from the above five points.
u30101u3011 Composition of arbitration tribunal
Judging from the composition of the arbitration tribunal in this case, the arbitration panel of Sun Yang hearing is composed of three members. Wada appointed Romano subito, a legal adviser in Brussels, Belgium, while Sun Yang chose Philippe Sanders, a famous lawyer in London. Judge Franco Frattini, former Italian foreign minister, served as chairman of the arbitration panel, which was established by the chairman of the CAS appeals department.
In addition, in the process of Sun Yangs drug inspection hearing, CAS Secretary General MATIER Leibo was responsible for supervising the organization, and Brent J. Nowicki, head of the Anti Doping Department of the international sports arbitration tribunal, and a temporary staff member participated in the assistance to ensure that the hearing was all right.
u30102u3011 CAS jurisdiction
The international sports arbitration tribunal, established in 1984, has a history of more than 30 years. CAS is also defined as the Supreme Court of sports in the world. Almost all IFS recognize the jurisdiction of CAS and include it in their statutes.
CAS was established for the purpose of solving sports disputes. Generally speaking, CAS has five main functions:
1. Solve ordinary disputes;
2. To resolve cases appealed to the court in accordance with the constitution of sports organizations;
3. Mediate disputes between social sports organizations;
5. Mediate general disputes within the scope of sports.
In response to Sun Yangs violent anti prosecution incident, CAS deals with Article 5, namely the case of mediation of general disputes within the scope of sports.
In addition, CAS has opened this hearing, which is the second time in the history of CAS, and the first time goes back to the 1999 case of DeBruine, an Irish swimmer. 200 social people were allowed to attend the hearing, which was broadcast live on CAS official website.
u30103u3011 Wada requires Sun Yang to be banned for 2-8 years
In Wadas view, Sun Yangs actions constitute anti inspection regardless of the cause of the incident, so it does not recognize the finas ruling that Sun Yang is not at fault, and finally appeals to CAS against Sun Yang and fina.
The reason for requiring CAS to ban Sun Yang for 2-8 years stems from the provisions of article 2.3 and 2.5 of the World Anti Doping regulations. 2.3 refers to the behavior of evading, refusing or not completing sample collection, while 2.5 includes tampering or attempting to tamper with any link in the process of doping control, tampering includes but is not limited to deliberately interfering or attempting to interfere with doping prosecutors, providing false information to Anti Doping organizations, intimidating or attempting to intimidate potential witnesses, etc. Violations of both of the above are considered doping violations.
According to article 10.3.1 of the World Anti Doping regulations, the ban period for violation of article 2.3 or 2.5 is four years; if the sample collection is not completed and the athletes can confirm that the doping violation is not intentionally implemented, the ban period is two years.
As Sun Yang once suffered a penalty in 2014, according to the provisions of 10.7.1, athletes or other parties who violated the regulations for the second time can be banned twice the competition period. Therefore, Wada put forward the request of suspension for up to 8 years, and CAS finally awarded the penalty according to Wadas request. Sun Yang Fang could not raise any objection to this point.
u30104u3011 Principle of equal hearing
From the current appeal against CAS decision, violation of the principle of equal hearing has become one of the most appealing reasons. The so-called principle of equality refers to that the arbitration tribunal gives the parties equal rights to submit evidence related to the award, participate in the hearing, state their arguments, and obtain the arbitration award and other documents. In addition, the parties have the right to examine and question the evidence submitted by the other party, participate in the debate, and raise objections against the relevant arguments.
If, due to the negligence or misunderstanding of the arbitral tribunal, the evidence, claims and arguments put forward by the parties related to the award result are not considered, the Swiss Federal Court will conduct an investigation.
During Sun Yangs hearing, Sun Yang, fina and WADA have confirmed that they have no objection to the arbitration procedure. As for the video evidence part, Sun Yang asked Wada at the scene: we have all the videos, monitors and photos on hand, but we didnt see them at the scene today. Its a pity. I dont know if you have the courage to watch todays video on the spot?
In response, Frattini, chairman of the arbitration tribunal, also responded to the incident. He said that we will watch the video mentioned by Sun Yang completely and make the best of it.
After the hearing, Coates, chairman of the international sports arbitration tribunal, said, Sun Yang should have fewer complaints. We always provide translators by the parties and all materials are provided to the translators in advance to help them understand the terms so as to ensure that no accidents occur during the hearing.
Because of the translation problem, CAS delayed the decision time, but this can not be the reason for Sun Yangs appeal, because the translation was found by Sun Yang Fang himself.
u30105u3011 Swiss public policy
At present, the official did not give a definition of the concept of public policy. We can broadly understand it as prohibition of abuse of rights, good faith, prohibition of discrimination, protection of minors, etc. According to the data, in 1989, the Swiss Federal private international law came into force, and the Swiss Federal Court for the first time revoked the decision of CAS on the basis of public policy, dating back to 2010, which is the first time in 21 years that CAS revoked the decision on the basis of public policy.
Daniel joined Atletico after he signed a three-month contract with Benfica football club in Portugal, which clearly upset Benfica. Benfica will appeal to FIFA for training compensation and win. However, Atletico refused to pay compensation and appealed the case to the Zurich commercial court, which ruled that FIFAs ruling was invalid on the grounds that the 1997 player transfer regulations violated the competition laws of the European Union and Switzerland. As a result, Atletico is not required to pay this compensation. In 2004, Benfica filed a claim for compensation to FIFA, and the club appealed the case to CAS. In 2009, CAS ruled in support of Benficas claim, and Atletico needed to compensate Benfica for 400000 euros.
Atleticos compensation for 400000 euros was unacceptable and appealed the ruling to the Swiss Federal Court. Finally, the judgment of Swiss Federal Court pointed out that the principle of closed case is part of procedural public policy. CAS ignored the basic facts of the judgment of Zurich Commercial Court in the previous judgment, and its behavior violated the principle of closed case, so Atletico did not need to pay 400000 Euro compensation to Benfica.
Looking at Sun Yangs hearing case, although fina recognized that Wada was invalid for Sun Yangs test, fina, as a sports organization, decided that it had no legal benefit, so there was no closed case.
u30106u3011 Its hard for Sun Yang to provide new evidence
At present, Sun Yang can only provide new evidence for the hearing process. As for what happened on the night of drug test, Sun Yang can no longer provide relevant evidence, and now it has passed the acceptance time.
We can refer to the incident of Kenya national football team in 2006. In that year, FIFA determined that the Kenyan government had intervened in sports and deprived it of its membership. Subsequently, Kenya Football Association filed an arbitration application with CAS to restore its membership, but CAS refused its request. Kenya Football Association refused to accept the judgment and appealed to the Supreme Court of the Swiss Federation.
During the appeal, the Kenya Football Association said CAS had received a letter from Kenyas Ministry of youth and sports, but the arbitral tribunal did not mention it in the award. In response, the Supreme Court of the Swiss Federation explained that: Kenya Football Association did not put forward in the previous arbitration procedure, and the Supreme Court of the Swiss Federation did not adopt it. In other words, before Sun Yangs hearing, both parties can provide evidence on the disputed event itself. However, no new evidence shall be submitted beyond the time limit.