A legal challenge by Sun Yang against one of the judges who banned the Chinese swimmer for eight years in a now overturned decision was not accepted by a Swiss federal judge.
The Swiss Supreme Court said it referred to the Court of Arbitration for Sport to decide whether Romano Subiotto was eligible to sit on the jury in Sun’s retrial.
Subiotto was chosen by the World Anti-Doping Agency last year to be part of the panel of three referees who imposed the ban on three-time Olympic champion Sun for breaking the rules while taking samples.
The ban was lifted last week by the Swiss Federal Tribunal, whose panel of five judges upheld an appeal from Sun’s lawyers that CAS panel chairman Franco Frattini was biased. He did not consider the merits of the evidence.
Frattini, Italy’s former foreign minister, posted anti-Chinese comments on social media ahead of Sun’s hearing at the CAS in November 2019.
With the first CAS process canceled, the federal judge ruled that she did not have authority over an arbitrator’s challenge application, the Supreme Court said.
Subiotto and the other judge at the initial hearing, Philippe Sands, a British lawyer selected for the hearing by Sun’s legal team, could be selected for the retrial next year.
However, Sun’s lawyers would likely oppose them – during a CAS panel that assesses these challenges – as they were already part of a unanimous 3-0 verdict against him.
Sun’s attorneys have always opposed the attorneys involved in the case.
Subiotto was selected by the AMA after his initial choice was ruled out amid repeated challenges by Sun’s attorneys, and AMA’s senior US prosecutor remained on the case despite an unsuccessful appeal to federal court saying ‘he had a suspected conflict of interest.
The new trial faces a tight schedule, and complications during the coronavirus pandemic must be decided ahead of the Tokyo Olympics.
Sun, 29, is the current world champion in the men’s 400-meter freestyle, which is one of the first Olympic events to begin competition on July 24.
At the 2019 world championships, which were held in South Korea while Sun’s hearing at CAS was pending, silver medalist Mack Horton of Australia refused to take the podium in protest against permission from Sun. There was a second protest after Sun won the 200 freestyle title.
Sun’s ban, the second in his career, was imposed for failing to cooperate with the sample collectors during a visit to his home in China in September 2018.
WADA filed an appeal with CAS for a more severe sanction after Sun was simply warned by an anti-doping tribunal appointed by the world swimming body FINA.
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