Sun Yang & FINA Vs WADA Verdict To Be Announced By CAS Tomorrow, February 28

by Craig Lord

27 February 2020, 07:17am

The Background

The CAS hearing into the case was held in November last year after WADA challenged the decision of a FINA Doping Panel to issue Sun Yang with a series of serious warnings about his behaviour but not a penalty after an acrimonious four-hour argument with a team of out-of-competition testers who visited the swimmer’s home in September 2018.

It was January 2019 when the FINA Doping Panel issued its verdict to the parties involved.

The Hearing In Montreux

WADA challenged a FINA Doping Panel decision to issue a caution to Sun over an acrimonious dispute with out-of-competition testers in September 2018 that ended with a vial of Sun’s blood being smashed by a security guard operating under instruction from the swimmer’s mother and no sample, neither blood nor urine, being sent for analysis.

• Swimming World considered the background to the case in this feature. 

Proceedings were conducted in English, with Chinese translations (translators had to be changed mid-way because of poor quality and understanding).

The judging panel was made up of Judge Franco Frattini, from Rome, Italy, Panel President; Romano F. Subiotto QC; and Prof. Philippe Sands QC .

Sun Yang – Photo Courtesy: Becca Wyant

The case: Following a conflictual anti-doping test, initiated on 4 September 2018 at the residence of Mr Sun Yang, resulting in the testing not being completed, the matter was referred to the International Swimming Federation (FINA) Doping Panel (FINA DP). The FINA DP determined that the International Standard for Testing and Investigations (ISTI), the protocol adopted by the World Anti- Doping Agency (WADA) for the conduct of doping controls, had not been properly followed in the circumstances and that accordingly, the sample collection was invalid. As a consequence, the FINA DP ruled that the athlete had not committed any anti-doping rule violation.

WADA filed an appeal at CAS against that decision, considering that Sun Yang voluntarily refused to submit to sample collection and requesting that a period of ineligibility of minimum 2 years and maximum 8 years be imposed on him.

The parties have exchanged written submissions to present all their arguments and requests. They are now called to appear at a hearing in the presence of the Panel of arbitrators. The hearing will give the opportunity to the CAS Panel to hear the parties, their witnesses and experts and to ask them questions.

Who is deciding the case?

The Panel of arbitrators constituted to decide the matter is composed as follows:

•  Judge Franco Frattini, from Rome, Italy, Panel President
• Mr Romano F. Subiotto QC, Solicitor-Advocate in Brussels, Belgium and London, UK(appointed by WADA)
• Prof. Philippe Sands QC, Professor of Law and Barrister in London, UK (appointed by Sun Yang with the approval of FINA)

Mr Matthieu Reeb, CAS Secretary General, supervised the hearing. The Panel was assisted by Mr Brent J. Nowicki, CAS Managing Counsel, and by an ad hoc clerk, Mr Dennis Koolaard.

WADA was represented by

• Lead counsel, Richard Young, Bryan Cave Leighton Paisner LLP, Colorado Springs, USA.

Sun Yang was represented by:

• Bonnard Lawson Law Firm, Geneva, Switzerland XXIV Old Buildings, London, UK
• Beijing Lanpeng Law Firm, Beijing, P.R. China

FINA will be represented by

• CPV Partners, Lausanne, Switzerland

Why was the hearing held in public?

Michelle Smith Photo Courtesy: Tim Morse 1996

It has always been possible for CAS hearings to be held in public so long as all parties to the procedure agreed to the proceedings being conducted in public. The first public hearing, which took place in 1999, was in the matter Michelle Smith De Bruin v. FINA. At the beginning of 2019, following a decision taken by the European Court of Human Rights (ECHR) in the cases Pechstein & Mutu v. Switzerland, the CAS updated its procedural rules to widen the scope for hearings to be held in public, which can be held at the sole request of the athlete when the dispute is of a disciplinary nature.

This public hearing was requested by Sun Yang. Neither WADA, nor FINA raised any objection to such request and the CAS Panel confirmed that a public hearing should be organised.

At the hearing, Sun’s key arguments were based on the authenticity of documentation and anti-doping team members set by the IDTM testing agency working on behalf of FINA.

WAD rejected those arguments and argued instead that a blood sample submitted by and signed off by Sun was subsequently removed from the chain of custody.

From the Archive – November 2019

WADA Press For Tampering Ban

The World Anti-Doping Agency (WADA) took a hammer to “Sun Yang’s Playbook” and the “grammar gymnastics” of the FINA Doping Panel when it summed up its challenge at the Court of Arbitration for Sport hearing in Montreux today.

Sun Yang, said WADA counsel Rich Young, had been “reckless” and “incredibly careless relying on Dr Ba Zhen”, the twice-banned doctor who prescribed the swimmer a banned substance in 2014 and landed both of them suspensions.

Dr Ba had helped Sun argue his way out of an acrimonious clash with out-of-competition anti-doping testers at his home complex in Zhejiang Province on September 4-5 last year.

Young said that Sun had broken the WADA Code long before a hammer was used to smash a blood-sample bottle.  Having calmly talked through why Sun should not go free with a caution, Young told the panel of three judges:

“Tearing up the form, smashing the bottle, I mean that is pretty sensational but he was nailed on a tampering violation before any of that happened.”

• Sketch: Hammer Hearing: Sun Yang Lost in Translation – From Babylon Dawn To Cameo Dusk

The main Doping Control Officer working for IDTM, the Swedish testing agency, had sought to complete blood testing after Sun had agreed to submit to an anti-doping control. The swimmer had signed the paperwork before Dr Ba arrived after midnight on September 4-5 during a row that lasted more than four hours until after 3am.

Sun Yang had changed his testimony over the course of six months and had withdrawn his statement that the DCO had allowed him to keep the fated blood sample, said Young. The swimmer also agreed that he had not taken the blood bottle from the DCO as originally states. Dr Ba had picked up the blood bottle. There was definitive answer from Sun when he was asked to be precise about how the sample ended up in Ba’s hands and not in safe storage ready for transport to a laboratory for analysis.

Had it been Dr Ba who said that the sample could not be sent for analysis, the twice-banned doctor was asked. Dr Ba couldn’t recall, until Brent Rychener, counsel for WADA, reminded him that Sun had changed his story and now said that it had indeed been the doctor. Dr Ba’s memory improved and, indeed, it had been him, not the swimmer.

When Sun and entourage sought to stop the DCO from leaving his Hangzhou home complex with the blood sample, the offence, before the hammer had arrived, was tampering, said Young. That offence carries an eight-year ban. Even one of two would likely end Sun’s career. WADA counsel stated:

“The evidence you have heard is very, very clear that the DCO wanted to leave with the blood sample and the response from Sun Yang and his entourage was ‘absolutely no way was that going to happen’.”

Sun Yang and his counsel Ian Meakin, – Photo Courtesy: Craig Lord

A decision of the panel of three CAS Judges hearing the case will deliver their verdict from January onwards, a year after a FINA Doping Panel let Sun off with a warning after what Young described as a report that took “100 pages to come up with an interpretation that was consistent with their position.”

The bulk of Sun and WADA’s argument rests on the FINA Panel’s interpretation of “documentation” as a plural. That interpretation meant that the two chaperones to the main Doping Control officer, one a blood nurse and the other present to observe urine being produced, did not have sufficient accreditation and/or authorisation.

No valid paperwork to prove credential translated to no valued test sample, according to Ian Meakin, counsel for Sun Yang.

On the bench, London-based law professor Philippe Sands QC, a barrister appointed to the three-man CAS panel by Sun Yang (each party must choose a panelist from a list of high-flying legal eagles) wondered if Sun’s legal team had thought what the judges might be thinking.

“How do you put your case if you are wrong on the question of accreditation?” Prof. Sands asked Fabrice Robert-Tissot, counsel for Sun.

“Or, is it the case that your entire submissions are based on the accreditation point? Because if they are, it is hard to see how you make a case.”

All parties believed their view of events and rules and guidelines that would best serve fair play and athlete interests.

Young told the judges that whatever their verdict, it should not send a message to athletes that it was acceptable to “follow the Sun Yang playbook” by refusing to give samples to drug testers. Protocol allows athletes to register any objections and complaints on the anti-doping form when submitting samples for analysis, he noted.

The Olympic champion, as suggested by the FINA Doping Panel of January 3 this year, took “an incredibly reckless gamble”, said Young, when he did not follow that protocol.

Instead, Sun had called various officials, who weighed in on his side, their behaviour raising “issues of intimidation and protection”, as Young put it.

Professor Pei Wang, an expert put on the stand by Sun’s legal team, had said that one of the chaperones from the IDTM testing team, the Blood Control Assistant Huangfen Lin, was likely to face criminal charges and face a jail term. Her ‘crime’ was not any lack of qualification as a blood nurse, simply that she had taken blood outside the Shangahi province her licence pertained too. Brent Rychener, for WADA, objected to Wang’s testimony on two grounds: the professor was giving his opinion but that was not based on all known facts; and his statement was not part of any previous testimony in the case.

The Swimming World View of the grand setting of the Montreux Palace Hotel where the CAS hearing into Sun Yang Vs WADA is being held – Photo Courtesy: Craig Lord

During the summing up at the hearing at the Montreux Palace Hotel, Young recalled how the DCO had been threatened on various levels by members of Sun’s entourage. Hao Cheng, head of the Chinese Swimming Association, admitted that he had given the DCO ‘friendly advice’ that she should not use the word “refusal” and had reminded her on the phone during the test visit of September 2018 of the “consequences” to raising the issue of registering a “refusal” to comply with testing. Another DCO had been dismissed in a multiple-refusal case (the details of which were not provided), Hao had told the DCO.

Little wonder, perhaps, that both the DCO and the BCA gave their testimony in private yesterday and were not available to tell their story in public. That left Tissot free to call them both liars at the arbitration hearing today without them being present to respond in the same forum.

Physically, Hygienically and Morally’ – All Conditions Satisfied?

In his rebuttal of arguments from Sun’s counsel, Young referred to precedents, including one case in which an anti-doping ruling judged that if a sample can be provided “physically, hygienically and morally”, then it should be provided, with any objections by the athlete recorded on the doping control form.

In the quoted case, the athlete had to submit the sample, register objections and then down the line of inquiry, if any required, request that the sample be tested at a different laboratory. said Young:

“That’s what should have happened here … physically, hygienically and morally it was possible to provide the sample and register objections on the … form.”

All set for Sun’s entrance – Photo Courtesy: Craig Lord

Counsel for Sun and FINA argued that notification (telling the athlete that a test is about to take place, providing accreditation and authorisation to test) had not been carried out properly.

Young would have none of it. He said that if Sun had legitimate concerns about the accreditation or behaviour of the doping control team, he should have registered those on the doping control form and submitted to testing. Indeed, he had followed that protocol before during the course of some 60 out-of-competition tests in his career.

Sun had relied heavily on Dr Ba to sort out the problem on the night, Prof. Sands suggested from the bench. That would not save Sun, Young suggested, adding: “The bottom line is even if he relied on Dr Ba that is not a defence.”

Had The Risk To The Athlete Been Overlooked?

Had Dr Ba paused to consider the implications for Sun Yang if he made a second, terrible mistake such as that in 2014, which landed doctor and swimmer with penalties under the WADA Code, Prof. Sands asked Dr Ba.

“Surely you must have, against that background, thought for a moment if you or Dr Han, both of you, have got it wrong, the athlete risks paying a big price?”

Dr Ba gave no indication that he did, repeating twice that he had put his trust in the judgment of his mentor Dr Han Zhaoqui, the deputy director of the Zhejiang Anti-Doping Agency (and also a leading figure in Sun’s science team).

Sun Yang and his legal team arrive for the hearing Photo Courtesy: Craig Lord

Sun maintained his innocence throughout, while his counsel kept returning to the WADA guidelines that he noted were not met by testers on the fateful night last year. T

ime and again, counsel for both CAS and WADA referred to guidelines relating to best practices recommended for anti-doping test visits. Some of those were said to be applied by Chinada, the Chinese anti-doping authority, among other national equivalents elsewhere in the world.

However, counsel for WADA emphasised, such guidelines are not legally binding. The only thing that counts, said Rychener, backed by Young, is the WADA Code and the accompanying International Standards for Testing and Investigations (ISTI).

In summing up, Sun concluded:

“Myself and my team had nothing to hide in this incident. I believe every individual and every anti-doping organisation must respect the requirements of the relevant international anti-doping regulations. Then the integrity of sport will be protected. If sport organisations won’t follow or respect their own rules, what is the point of talking about the spirit of fair play? If an athlete’s basic right and privacy cannot be respected and protected what is the point of talking about the dream of Olympic spirit?”

Sun likened the arrival of testers with insufficient paperwork at his home in September last year to police knocking on the door and refusing to show you their badge.

Young rejected that and noted that all three testing officers had been trained and had attended previous doping-control missions. “This wasn’t a group of rogue imposters,” he said.

A reminder of the key findings and warnings issued:

THE FINA DOPING PANEL REPORT

Extract from the FINA Doping Panel report.

Swimming World has had sight of the report in full. The following are some of the key takes from the 59-page FINA Doping Panel report:

The controversial 27-year-old Sun, the first Chinese man to win an Olympic swimming gold and claim that status in all three freestyle events from 200m (2016), 400 and 1500m (2012), had agreed to a window of between 10pm and 11pm on September 4 last year at his athlete’s villa in Zhejiang Province for independent drug testers from International Doping Tests and Management, contracted by FINA, to collect out-of-competition blood and urine samples to test for performance enhancing substances.

Last the outset of presenting the FINA case, the Doping Panel Report includes reference, as reported by The Sunday Times, to previous disagreement between the main testing officer and Sun. In its conclusions, however, the Panel believes that previous incidents should have no bearing on the case and argument before it.

In the mix of the report is the story now told:

Witnesses for FINA:

• The female Doping Control Officer (DCO) who works for IDTM and is not named, by agreement of all parties, and her two assistants, a male Doping Control Assistant (DCA) as urine observer and a Blood Collection Assistant (BCA), a nurse, arrived at the agreed time.
• Sun arrived by car with several family members as the testing window was about to close. His entourage included his mother Ming Yang
• All parties moving to a nearby clubhouse where Sun was to give the samples.
• Sun objected to the accreditation of the assistant (the urine observer) claiming they were not authorised to conduct the testing and insisted he leave the doping control station.
• “The Athlete took pictures of the DCA’s identification card and sent the pictures to unknown persons. The athlete’s mother threatened the DCO, claiming she had police contacts and could determine if the DCA was, in fact, properly authorised to test her son … at the Athlete’s insistence, the DCA was excluded from the doping control station.”
• Sun agreed to provided a blood sample and did so by 11.35pm but again refused to provide a urine sample. He also refused to allow his mother to act as an observer; it was also “proposed by the DCO that the Athlete urinate under the supervision of the DCA but the Athlete could retain custody of the collection vessel. This was also rejected.”
• Sun is then warned that urinating without being chaperoned may be a “refusal violation”. The swimmer insists that is not possible because there is no acceptable DCA present.
• Sun is reminded, according to FINA witnesses, that there is provision on the doping control form to lodge such objections.
• China team doctor Ba Zhen, also one of Sun’s personal doctors, arrives at the clubhouse at 1am.
• Tensions quickly escalate when Dr Ba insists that not only is the DCA rejected but the main Doping Control Officer is also lacking proper accreditation. As such, the doctor refuses to allow any of Sun’s samples to be taken away.
• “The DCO consistently warned the Athlete and Dr Ba that if she did not leave the doping control station with the collected blood containers intact and suitable for analysis, this could constitute an anti-doping rule violation …
• “The Athlete insisted that he was cooperating and would continue to do so and that he would wait at the doping control station until a properly authorised DCA arrived. The DCO refused to countenance this idea.”
• “Sun’s mother asked a guard to bring a hammer into the doping control room.”

Extract from the FINA Doping Panel report.

Sun and Dr Ba, witnesses claim, then “proposed that the secure blood container be broken with a hammer to access the blood vial and thus destroy the integrity of the blood samples that had been taken.

• After the report notes that “The DCO was horrified”, we read:
• “The DCO was on the phone to Mr. Popa when she heard the sound of glass breaking. She went outside the clubhouse and discovered that the Athlete and a guard had broken one of the secure sample containers with a hammer. The Athlete was beside the guard using his phone as a flashlight. The DCO was asked to destroy the second blood sample container which she adamantly refused to do.”
• “When it was apparent that the collected blood samples had been damaged and could not be taken away by the DCO to be analysed, the DCO attempted to create a paper version of the doping control form to record the events that had transpired. This was suddenly taken by the Athlete without permission and destroyed. Once again, the DCO told the Athlete that such conduct was improper and could result in an anti-doping rule violation.”
• At 3.15am, FINA witnesses tell the Doping Panel, Sun’s mother collected all the “used and unused materials from the testing session, including damaged and used blood tubes, needles and the shredded doping control form and left the clubhouse”.

Sun and his witnesses:

Extract from the FINA Doping Panel report.

Beyond the objections outlined by the FINA witnesses, there was also:

• Sun claims he became suspicious of the DCA and feared they had been “surreptitiously taking pictures and videos of him … This caused the athlete significant concern and sparked his belief that the DCA was not well-trained and could not possibly be appropriately certified …”
• After arriving, Dr. Ba Zhen consults Dr Han Zhaoqi, the deputy director of the Zheijang Anti-Doping Centre, and Cheng Hao, the team leader for the Chinese National Swimming team: those three men conclude that the blood nurse is not sufficiently qualified under Chinese hospital rules and there was no fault when Sun left the main control room on several occasions and “urinated without supervision” because he did so with the DCO’s knowledge. There is no mention, from them, of the permission needed from the DCO.
• Despite the extraordinary events of a fraught night that will end in the FINA Doping Panel issuing Sun with a series of serious rebuke over his conduct, the judges let him walk free on a technicality, namely whether to interpret the term “official documentation” as “singular or plural.

There is no mention the report of a FINA Constitution that lists under definitions:

C 3.21 Whenever the fact or context so requires in order to give effect to the FINA Rules, words in the singular shall include the plural, words in the plural shall include the singular;

• In cautioning Sun, the Doping Panel notes it has “significant concerns regarding the conduct of the Athlete and his entourage” and the decision to clear him “was a close-run thing.”
• Sun’s lawyers maintain he did not break any rules, while the position of witnesses for FINA set out in tyhe report why they believe he did.

In its analysis, the Doping Panel sets out its thinking and the case for and against. Those issues will be critical when the case comes before the CAS.

The FINA Doping Panel issued the following warning to Sun Yang:

A Caution to the Athlete:

• Although not required to decide the case, the Doping Panel feels compelled to point out its very significant concerns regarding the conduct of the Athlete and his entourage. Avoiding an anti-doping rule violation in this matter should not be equated with the Doping Panel condoning such a strategy in future situations. While ultimately successful, it was a close-run thing.
• The Athlete’s success ultimately hinged on the Doping Panel’s interpretation of what “official documentation” was required to be provided by the Sample Collection Authority. The Athlete’s entire athletic career hung in the balance – on what amounted to, essentially, a gamble that the Athlete’s assessment of the complex situation would prevail. That strikes the Doping Panel as foolish in the extreme.
• As many CAS awards have stated, it is far more prudent to comply with the directions of a DCO and provide a sample in every case, even if provided “under protest.” Subsequently, all manner of complaints and comments can be filed, rather than risk any chance of an asserted violation when an aspect of the doping control process becomes a concern. Staking an entire athletic career on being correct when the issue is complex and contentious is a huge and foolish gamble.
• In fact, the Doping Panel rejected many of the Athlete’s contentions and positions as being unfounded and invalid. The Athlete and his entourage were not correct regarding many aspects of the sample collection session. That should be a sobering lesson to the Athlete. The following are but examples;

Photo Courtesy: David E. Klutho-USA TODAY Sports

• Signing the Declaration prepared by Dr. Ba was not evidence that the sample collection personnel agreed with its substantive contents. In contrast, it was a form of Report that any athlete may submit at the conclusion of a sample collection session (see ISTI Article 7.4.4). DCOs are instructed to sign any and all such athlete provided comments. Others may sign as a witness. ISTI Article 7.4.6 references the need to have the DCO sign the documentation to confirm that the comments provided by an athlete (or Dr. Ba) reflect the athlete’s concerns – not to confirm that the DCO is in agreement with them.
• The time of the testing mission (commencing at about 11 p.m.) was perfectly appropriate. That it continued so long into the night was unfortunate, but no ground to fault the conduct of IDTM or FINA. This was at the very end of the “60-minute” time period specifically identified by the Athlete when he would be available to be tested. Indeed, the Athlete narrowly avoided a potential Missed Test allegation as he arrived just as the 60-minute time period was ending.
• The Athlete’s entourage continually asserted that the IDTM DCA should have presented to the Athlete DCO accreditation and related authorizations. This is absolutely not required – despite testimony that in China it is standard for all individuals who attend at a sample collection session to be trained as DCOs. In the ISTI, and for all tests performed by other Sample Collection Authorities while in China, it is perfectly proper for DCAs or Chaperones to perform their limited roles and tasks with no DCO accreditation. This so-called “higher standard” claimed by the Athlete’s witnesses is not required in the ISTI, and is absolutely not a justification to refuse to accept the credentials of an otherwise properly authorized DCA, who is not a DCO.

The Doping Panel concludes that Sun Yang “has not committed an anti-doping rule violation under FINA DC 2.3 or FINA DC 2.5.”

That was unacceptable to WADA.

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Steve Clark

4 years ago

Based on the above, I would be very surprised if CAS finds for Sun Yang. I am also surprised and shocked that FINA only gave him a warning. Seems very clear that the swimmer was deliberately avoiding a test that would have proved a doping violation. He should be severely penalized for that.
Steve Clark, ’60 and ’64 USA Olympian

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Chris P

4 years ago

Reply to  Steve Clark

Good point on the part “Based on above”, from my knowledge of more details on the case, this article is more like story on one-side. Many has been missed. Somethings like the DCA was a contruction worker who was just asked to to be a driver that night. He became the DCA because the DCA role was missed that night. He was never appointed, trained or performed before. Also, there was a video clip shot that night saying all DCO, nurse, Sun Yang are agreed to not finish the test due to lack of credential.

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HJ Oxie

4 years ago

Hmmmmm….I wonder what the verdict will be….lol. I’m sure everyone who needs to be has been paid off, such a joke.

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Casey Jacob

4 years ago

Reply to  HJ Oxie

HJ Oxie yup. The fix is in. Joke is right.

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Scott Coombs

4 years ago

Cheating Scum getting away with it!

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Samani Bhusumane

4 years ago

Matt Kovacs

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c.pope

4 years ago

Please remove my previous email, Name & contact information, as I requested in url segment ASAP please.

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