How A WADA Win Over Sun Would Promote Podium Protestors Horton & Scott & Matsumoto, Detti Too

(L-R) Second placed Mack Horton of Australia keeps his distance to winner Yang Sun of China while they pose with their medals for photographers after competing in the men's 400m Freestyle Final during the Swimming events at the Gwangju 2019 FINA World Championships, Gwangju, South Korea, 21 July 2019. Gabriele Detti of Italy finishes third.
Mack Horton, left, keeps his distance to Sun Yang for the photo-op with bronze medallist Gabriele Detti after medals in the 400m free at world titles in Gwangju ... podium protests followed after Sun Yang's latest brush with anti-doping authorities - Photo Courtesy: Patrick B. Kraemer

Podium Protestors Horton & Scott, Matsumoto, Detti Gain If Sun loses and WADA wins; and the possible consequences, too, if Sun’s argument prevails 

Mack Horton bumped up to World champion and Gabriele Detti to silver over 400m freestyle, Katsuhiro Matsumoto celebrated in Japan as his nation’s first World long-course freestyle champion and Duncan Scott up to shared silver over 200m and China demoted from the top of the overall, all-sports, medals table at the World Aquatics Championships.

Those are some of the wider consequences ahead if the World Anti-Doping Agency (WADA) wins its appeal against a decision to impose only a caution on Sun Yang after an acrimonious out-of-competition test visit in September 2018 ended with no samples being sent for anti-doping analysis.

Under FINA’s DC 10.8 anti-doping rules that follow the WADA Code, Sun forfeit the 200m and 400m freestyle titles he claimed in Gwangju back in July, along with more the $40,000 in prize money, if a panel of three Court of Arbitration for Sport judges impose any part of the penalty sought by WADA.

Should Sun”s argument prevail, he will be free to race at the Tokyo 2020 Olympic Games. Should WADA’s argument prevail, the decision of CAS judges could end his career.

The global doping police want Sun to be slapped with a two-to-eight-year suspension for “tampering” with evidence, namely a blood sample, that was provided, with a signature from Sun confirming that he had accepted the notification and all other processes along the way.

Sun said that it was Dr. Ba Zhen, the swimmers twice-suspended doctor, who had taken the sample back from testers. Both had given evidence that the Doping Control Officer in charge of the test visit to Sun’s home complex on September 4-5 last year had handed them the blood sample and container that ended up being smashed with a hammer by a security guard on the pavement outside the control room.

However, at the CAS hearing in Montreux last Friday, that line in testimony was removed, not repeated and Sun said that it had been Dr Ba who had take the sample away from the DCO even though by then it belonged to FINA in a chain of custody.

Sun, 27, the hearing in Montreux heard, had also been “incredibly careless” and “reckless” relying on the advice of Dr Ba, said Rich Young, counsel for WADA. Ba accepted that he had prescribed the swimmer a banned substance in 2014, because he overlooked that the medicine in question had been added to the list of prohibited substances from 2014. That landed both swimmer and doctor suspensions, Ba receiving a second penalty for working with Sun at the Asian Games in Korea during the time he was supposed to have been serving his first suspension.

Ba was guided by his mentor Dr. Han Zhaoqi, deputy director of the Zheijiang Anti-Doping Agency, a doctor and professor from Zhejiang College of Sports, who has advised Sun as a senior member of his science team and was a witness in Montreux. Said Han from the stand:

“I can’t call the vials of blood they took as doping test samples because they were taken by people who were not properly accredited and authorised. I take anti-doping lectures every year at China Anti-Doping Agency [Chinada]. And I know that Chinada issues DCO credentials to each and every DCO in China, and they also repeatedly stress that athletes should make sure they see the credentials and confirm DCOs’ indentifications.”

Dr Han had applied to his rationale WADA’s best-practice guidelines on notification and other issues but Young noted that those guidelines were not universally applied nor were they legally binding. The only measure that counted was the International Standards for Testing and Investigations (ISTI), the requirements of which, argued Young, had been met in full.

As such, Sun had no grounds to break with protocol, which was to comply with the request for urine and blood samples while registering any objections he had on the Doping Control Form.

For FINA, the consequences of a WADA win, when judges issue a decision expected from January next year, include acute embarrassment.

In his summing up of the World Championships in Gwangju, the international federation’s director Cornel Marculescu criticised Horton and Scott for their podium protests against Sun but failed to include in his remarks the third swimmer to receive a warning and reprimand: Sun Yang.

duncan-scott-sun-yang

Stand-off: Britain’s Duncan Scott, right, refuses to pose with Sun Yang, flanked by Katsuhiro Matsumoto, left, and Martin Malyutin, after the 200m free medals ceremony – Photo Courtesy: Patrick B. Kraemer

Scott then got in the water and landed historic gold for Britain in the 4x100m medley relay with the fastest 100m free split in the history of textile suits, while both protestors enjoyed the backing of USADA’s boss, Travis Tygart, in comments made sometime after the championships.

Should medals need to be reshuffled, FINA is likely to be called on to organise the kind of “Take the Podium” reallocation-of-medals ceremonies that the International Olympic Committee has started to promote. That would mean celebrating Aussie Mack Horton and Japan’s Katsuhiro Matsumoto as World champions who had been robbed of their moment. A decision on Sun is expected early in 2020, though no date has been set after a hearing was help in Montreux on Friday.

The Medals Table at Gwangju 2019 would be shuffled in the event of a CAS decision that included forfeit os results for Sun. China, which claimed 16 golds, to 15 for the United States, would slip to 14 golds and 30 overall, leaving the USA on top with 15 golds and 36 medals overall.

The Rule in Focus

In the event of a WADA’s argument prevailing and a penalty of 10 months or more being imposed

DC 10.8 Disqualification of Results in Events subsequent to Sample Collection or Commission of an Anti-Doping Rule Violation

In addition to the automatic Disqualification of the results in the Event which produced the positive Sample under DC 9, all other competitive results of the Athlete obtained from the date a positive Sample was collected (whether In-Competition or Out-of-Competition), or other anti-doping rule violation occurred, through the commencement of any Provisional Suspension or Ineligibility period, shall, unless fairness requires otherwise, be Disqualified with all of the resulting Consequences including forfeiture of any medals, points and prizes.

[Comment to DC 10.8: Nothing in these Anti-Doping Rules precludes clean Athletes or other Persons who have been damaged by the actions of a Person who has committed an anti-doping rule violation from pursuing any right which they would otherwise have to seek damages from such Person.]

The Potential Challenge From Others If Sun’s Argument Prevails

A “floodgate” of possible anti-doping appeals could be opened across 30 sports if the Olympic gold-medal winning swimmer Sun Yang is successful at an appeal hearing which took place last week, according to judges at the Court of Arbitration for Sport (CAS).

One of the key things the three judges who must decide the case, as WADA presses for a ban of 2-8 years for tampering, have to consider is the consequence of their judgement not just for Sun Yang but the entire anti-doping system.

What, for example, asked Professor Philippe Sands, one of the CAS judges, happens to the many doping cases conducted after the same International Standards of Testing and Investigations (ISTI) protocols and notification processes were followed as those faced by Sun on many occasions, including the one in question?

One consequence is that success for Sun would open the floodgate for appeals from any problematic outcomes among more than 60,000 tests across 30 sports conducted on the same lines with no higher standard of notification recommended as best practice in guidelines that are not legally binding.

2 comments

  1. avatar
    Lorenz

    @Craig Lord are you able to tell me what happens with for example Belgium if Sun Yang gets DQ’ed? 13th in the 4x200m at Worlds, Sun Yang gets DQ’ed which means China’s 4x200m gets DQ’ed. Belgium will move up to 12th and be qualified according to fina rules voor Tokyo 2020.

    • avatar
      Craig Lord - Swimming World Editor-in-Chief

      Hi Lorenz… “based on the results achieved” is the stipulation set … Belgium finished 13th in heats: as you suggest, if Sun Yang’s result is cancelled (and yes, he did race in heats so the heats swim is affected), it would mean China falls out and Belgium becomes No 12 and inside the cut for automatic entry to the 4x200m at Tokyo 2020.