The Court for Arbitration in Sports (CAS) will hold its second hearing of a case involving the Chinese swimmer Sun Yang Sports this week, May 25-27. The ruling of the first panel was overturned by the Swiss Supreme Court (Swiss Federal Tribunal) because it was conclusively demonstrated the president of the first hearing was biased. The case will be followed closely in the sporting world and can be seen as laden with geopolitical ramifications. For background on the case see here and here and here.
If an American swimmer was having a controversial case adjudicated by a panel of three judges, would you consider it fair if none of the judges spoke English? Would it seem biased if all the judges were from Asia?
That is the situation facing Chinese swimmer Sun Yang in this second hearing before the Court of Arbitration for Sports (CAS). According to their own website, there are numerous qualified adjudicators who speak Chinese. Yet they have again chosen to NOT have a Chinese speaker on the hearing team. They have again chosen a panel which is exclusively European and this time, where every panelist is associated with the United States.
More than Racist Tweets
The previous CAS decision was overturned by the Swiss Federal Tribunal because the chairman of the panel, Franco Frattini, was publicly racist. It was embarrassing to have a CAS adjudicator lashing out on twitter about a “yellow faced Chinese monster”. It was also embarrassing that he quietly mocked Sun Yang’s mother.
But these revelations were only the tip of the iceberg. The first panel was biased against China in a geopolitical sense. Frattini was Italian foreign minister supporting both the invasion of Iraq and overthrow of Libyan government. Another member of the panel openly supported the US campaign to overthrow the government of Venezuela. And the third panelist was the counsel for Philippines in a dispute with China.
The new panel appears similarly biased. The jurists in the new CAS panel are:
– Jan Paulsson from France. He studied at Harvard and Yale and taught at the University of Miami. He has served as counsel for numerous oil corporations in their court fights against countries seeking damages, e.g., Chevron vs Ecuador, Conoco Philips vs Venezuela, Total vs Argentina. Always on the side of the oil corporation.
– Bernhard Harotiau from Belgium. He studied and was a visiting scholar at Columbia University in the US. He is former vice chairman of the Center for American and International Law in Dallas Texas.
– Hans Nater from Switzerland. He studied at Harvard and practiced law in New York.
Politicization of Sports in USA
One might ask: What difference does it make if they all worked in the USA? This is hugely significant because the US government has politicized sports to an incredible degree. In 2020 US Congress passed the “Rodchenkov Act”. With this law, the US now claims extraterritorial rights to punish anyone in any country deemed to be involved in doping and harming a US athlete. The US will be prosecutor, judge, and executioner. What could go wrong? Even the World Anti-Doping Agency (WADA) has expressed alarm at this power grab. They warn, “No nation has ever before asserted criminal jurisdiction over doping offences that occurred outside its national borders – and for good reason.”
The Congressional act is named after the Russian doping expert, Grigory Rodchenkov, who was transformed from villain to hero when he moved from Russia to the USA.
As another example of the politicization of sports and anti-China hysteria, political leader Nancy Pelosi has called for a diplomatic boycott of the 2022 Winter Olympics in China. She suggests it is a “moral” imperative. Another US Democratic Party leader is calling for postponement of the games so they can be moved to another country.
The US establishment seems desperate to stop China’s rise; hence the effort to prevent China holding a successful Olympics Games. In this context, it is naïve to expect an impartial hearing for a Chinese athlete before a US – centric panel.
WADA vs FINA
It is seldom mentioned that this hearing is not just against Sun Yang. It is also against the World Swimming Federation FINA. The reason is because FINA had a hearing to review the controversy and determined that Sun Yang was NOT guilty of an anti-doping rule violation. The FINA panel agreed that the test team was not properly accredited. They also determined the Doping Control Officer failed to give an appropriate warning to Sun Yang as required. This is necessary because an anti-doping rule violation can be life altering and career ending. In Sun Yang’s case, this did not occur.
The World Anti-Doping Agency, based in Canada, did not like the FINA panel decision in support of Sun Yang. Hence the long and expensive case before the Court of Arbitration for Sports.
The deck is stacked
Although Sun Yang has a strong case and much evidence to support his defense, he will have to overcome a biased panel under the influence of pervasive and growing anti-China propaganda,
The Court of Arbitration for Sports has failed a basic test of fairness by selecting this all European and American biased adjudication panel.