A legal challenge by Sun Yang against one of the judges who banned the Chinese swimmer for eight years in a now-overturned ruling has not been accepted by a Swiss federal judge.
Switzerland’s supreme court said Monday it deferred to the Court of Arbitration for Sport to decide if Romano Subiotto is eligible to serve on the judging panel at Sun’s retrial.
Subiotto was picked by the World Anti-Doping Agency last year to sit on the panel of three arbitrators that imposed the ban on three-time Olympic champion Sun for violating rules at a sample collection.
The ban was voided last week by the Swiss Federal Tribunal, whose bench of five judges upheld an appeal by Sun’s lawyers that CAS panel chairman Franco Frattini was biased. It did not consider the merits of the evidence.
Frattini, the former foreign minister of Italy, had posted anti-China comments on social media before Sun’s CAS hearing held in November 2019.
Because the first CAS process was quashed, the federal judge ruled she did not have authority over a request for an arbitrator to be recused, the supreme court said.
Retrial faces tight schedule
Subiotto and the other judge at the original hearing, Philippe Sands, a British barrister selected for the hearing by Sun’s legal team, could be picked for the retrial due next year.
However, Sun’s lawyers would likely object to them — at a CAS panel that assesses such challenges — because they were already part of a unanimous 3-0 verdict against him.
Sun’s lawyers have consistently objected to lawyers involved in the case.
Subiotto was selected by WADA after its original choice stepped aside during repeated challenges by Sun’s lawyers, and WADA’s American lead prosecutor stayed on the case despite a failed appeal to federal court that he had an alleged conflict of interest.
The retrial faces a tight schedule and complications during the coronavirus pandemic to be decided before the Tokyo Olympics.
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The 29-year-old Sun is the current world champion in the men’s 400-metre freestyle, which is among the first Olympic events scheduled to begin competition on July 24.
At the 2019 world championships, held in South Korea when Sun’s CAS hearing was pending, silver medallist Mack Horton of Australia refused to stand on the podium in protest at Sun being allowed to compete. There was a second protest after Sun won the 200 freestyle title.
Sun’s ban, the second of his career, was imposed for failing to co-operate with sample collectors at a visit to his home in China in September 2018.
WADA filed an appeal to CAS seeking stronger punishment after Sun was merely warned by a doping tribunal appointed by world swimming body FINA.