Sun Yang Vs WADA: The Anti-Doping Tests, The Olympic Champion & The Hammer

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

Sun Yang Vs WADA – Montreux, November 15, 2019

From the shores of Lake Geneva

We’ve been at the Montreux Palace Hotel all day for the Court of Arbitration for Sport in the case of Sun Yang Vs WADA, the World Anti-Doping Agency. The hearing is now over after early evening summaries and rebuttals came to a close at just after 7.30pm. Below you can read how the live hearing unfolded before final summaries, the stories of which will be with you soon.

An important line from the conclusion: there will be no decision from the judging panel of Judge Franco Frattini, from Rome, Italy, Panel President; Romano F. Subiotto QC; and Prof. Philippe Sands QC this year. A verdict is expected in January, CAS told the media gathered here this evening.

What it’s all about: WADA is challenging a FINA Doping Panel decision to caution the Chinese swimmer over an acrimonious dispute with anti-doping testers last year which ended with neither urine nor blood samples being sent off for analysis and a vial of Sun’s blood smashed with a hammer by a security guard as the swimmer shone a smartphone torch on proceedings. WADA wishes to impose a penalty of between two and eight years on Sun Yang.

Sun’s mother, a twice banned doctor and a senior anti-doping official who recently won a prize for his role as Sun’s “Chief Scientist”,  were a part of the picture, as was a Doping Control Officer and two fellow Chinese assistants present for an argument that lasted for more than four hours through the night on September 4-5 last year near Sun’s home.

We heard today the details of what the argument was about – and still is – with new information coming to light at the hearing. IDTM and WADA say that, no matter what Sun’s objections to identification and/or qualification papers presented, he could and should have submitted to testing and, in common with every other athlete in the world, followed protocol by submitting any remarks and complaints with the official paperwork of the testing visit.

Sun and entourage argue that there were mitigating circumstances and 58 videos taken with CCTV cameras (it is not clear at this stage why the cameras were in use, who controlled those cameras and who knew that they were active during a doping control room?)

The hearing, the first to be held in public since the Michelle Smith de Bruin appeal in 1998, will decide who and how and when made mistakes – and whether the FINA Doping Panel went far enough – or not.

Live updates from proceedings appear below, latest news up top (the timeline from bottom to top), with the colour and context of the moments unfolding. What follows is a long and continuous contemporary note that is designed to follow the statements of witnesses and the responses and questions of legal teams. It is not designed as an edited and crafted piece of prose. It was filed live and at high speed over the course of almost seven hours and will remain, for the record, in that original form.

We will post separate news, sketch and opinion pieces in due course, including, on the day, the following:

The Swimming World View of the grand setting of the Montreux Palace Hotel where the CAS hearing is being held - Photo Courtesy: Craig Lord

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

Sun Yang Vs WADA – LIVE

The parties are now spending three hours summing up. We will close this live file here and return very soon with a series of articles that follow the live as soon as possible and considering the main arguments of those summing up. The legal arguments are key to the judgement that will follow in the weeks ahead (no date is set for a decision).

Summary of the hearing so far:

  • Ming Yang broke down when talking to Chinese journalists the hearing. She had not been allowed to fully explain her case. In reality then judges on the panel who will decide the case have her full witness testimony and Ming Yang began her testimony today by agreeing that she had nothing to add.
  • Intimidation and the protection of witnesses has raised an important issue give what the evidence and line of questioning there up, namely:
  • Ming Yang was pressed on why she threatened to call the police during the events of September 4-5
  • Dr Hao Chen, the head of the Chinese Swimming Association, admitted that he gave the DCO ‘friendly advice’ that she should not use the word refusal.
  • He reminded the DCO of “consequences” to raising the issue of “refusal” and he told her that another DCO had been dismissed in a multiple-refusal case (the details of which were not provided)
  • Dr. Ba emerged today as a man who may be facing the role of fall guy yet again: he took the wrap for the events of 2014 and was today singled out as a man who, with Art Han, might have given much deeper thought to the question of consequences to Sun if Ba and Han were actually calling it wrong.
  • Dr Han refers to Dr Ba as his pupil and acknowledges that he was the one who made the call to have the Sun entourage bring the test session to an end without letting the testers leave with Sun’;s blood sample
  • More on the Chinese witnesses later.
  • Rich Young, counsel for WADA, says that the DCO and her two assistants, are not at the hearing today because of “intimidation”
  • The second session came down to this theme: counsel for Sun are basing much on ‘guidelines’ of best practice, while counsel for WADA has focussed on the ISTI (standards) being the rules that count. 
  • Counsel for WADA has also nailed a key fact: at a key level, beyond the poor ‘fan’ behaviour of the DCA with a smart phone, there was nothing odd about notification, identification, “documentation” and protocol followed in the case of the Sun Yang test, September 4, 2018: and the vast numbers of tests that proceed on that universal basis far and wide without incident make the point. 
  • for the first time there is confirmation that the DCA, the man there to observe urine being provided, was NOT, as has been suggested in Chinese reports, was not a last-minute pick. The man had performed urine-observation duties for IDTM on other occasions with other athletes, Popa asserted.
  • FINA is in a very odd place: it is on the side of those defending Sun, and in that role is it questioning IDTM, the agency it uses, on issues that it could have raised with IDTM and pressed for changes on at anytime in the past quarter of a century – but has, according to IDTM, not done so.
  • Sun Yang changed his testimony on who took the blood container that would end up being smashed – originally, Sun testified to the FINA Doping Panel that it he took the bottle. Now, under cross-examination, he says that it was Dr. Ba.
  • Sun Yang has clearly been evasive on certain point
  • Lost in translation: The translation is very poor but the translators was brought to the hearing by Sun’s entourage
  • WADA agreed to use that translation service but appears not top have arranged its own international-standard professional service; Chinese journalists are offering to help by CAS are saying ‘we cannot change it now’

Tea Break… the last session of summing up top come…

16:18PM: Judge Frattini intervenes:

What is you knowledge of the rules in the region [in which testing took place]?

PY states that a nurse who wants to practice in a region beyond her licence region, she must apply for a new licence.

16:12: Rychener indicates that Dr Pei is a witness providing too much opinion and too little fact. He confirmed he had no ideas whether the BCA had been asked to show a PNC on the fateful night.

  • N: You’re giving me an opinion that she committed a criminal act and you don’t know whether anyone on the night asked to see the PNC?
  • PY: No
  • N: No further questions

16:08: Rychener come back hard: Dr Pei Yang, he suggests is giving an opinion on what might be (but might not be) a criminal practice that is not listed in any of the official norms of the criminal code in China.

  • PY confirms it iOS his opinion. He goes on to say that the BCA acted illegally because she is only licensed to practice outside the Shanghai licence area. (A PNC is a licence that gets round that condition).
  • N: if a PNC is requested would a picture of the PNC be sufficient?
  • PY: no – it has to be the original.
  • N: Arte you familiar with Chinada?
  • PY: No
  • N: Are you saying that if Chinada does not provide the original PNC every time, is China committing a criminal offence?
  • PY: I don’t know; I’m not familiar with their code… He goes on to admit that “it may be a criminal” offence.
  • N: And involve a criminal imprisonment for that, right?
  • PY: Yes, it’s a possibility.

Rich Young for WADA earlier referred to “issues of intimidation and protection” surrounding the anti-doping officers and witnesses present on September 4-5. The issue is in keen focus: the BCA provide testimony away from the hearing, the DCA felt unable to contribute – and the DCO, the prime witness alongside Sun Yang, is not able to attend. 

15:57: Expert witness Dr. Pei Yang is up next. He’s here to confirm details of specialist qualifications required for nurses in China.

15:50: Prof. Sands QC, chosen for the bench by Sun’s entourage, drops the hammer in this room.

From the Bench to Dr Ba: “It was you who insisted the sample could not leave the building… so what has been described to us today is that the athlete was highly dependent on your advice. Against that background did you pause to think about the consequences if you were wrong about the documentation? Di you pause top ask ‘what If I’m wrong’ and what is the consequence of that two the athlete?”

  • BZ: I got this recommendation from Mr Han after calling him that night because he was the director of the provincial anti-doping agency and I trusted his judgement.
  • Prof. Sands: “… did you consider the consequences if he was wrong? … you were in the room and you could see what was going on?”
  • BZ: I trusted Mr Han’s judgement because he spoke to the DCO one the phone directly.
  • Sands: You have described top us your lengthy experience of ant-doping and … the [2014 violation], sure you must have thought that if you and Dr Han had hot it wrong the athlete will surely pay a very big price?”
  • I trust his knowledge of anti-doping and his measure of the eventWould it be fair against the background often its to say you did not turn your mind to the consequences for the athlete if you were wrong about your interpretation of the rules? Would that be fair?
  • BZ: But Dr Han spoke directly to the DCO on the phone.
  • Judge Frattini: yes, you already said that…

15:43: Subbiato QC intervenes from the bench: Wants to understand correctly that Dr Ba was satisfied with the the documentation of the DCO and he only had a problem with the other two officers … ?

Yes, says Ba but adds: “Even the DCO still didn’t provide her individual accreditation and did not provide the correct authorisation.”

15:41: Prompted by Meakin, for Sun, says of his 2014 suspension by WADA: “That anti-doping violation was a misuse because after years of competitive training because Sun suffered from heart problems and I prescribed a medicine…”  … he goes on to explain how the substance was added to the list in 2014 …

  • Meakin asks who was responsible for updating the prohibited list in China?
  • Dr Ba blames himself for not having picked it up as an addition.
  • The Chinese version of the story back in 2015 was that Chinada had not updated its list. Dr Ba now says he thinks it was just down to him.

15:37: Dr Ba confirms that he did tell the DCO not to take pictures of the blood bottle

15:35: N: Now the athletes says the bottle was handed by the guard to Dr Ba Zhen.

  • HZ: This was before the guard arrived
  • N: So the athlete is wrong…?
  • Ba admits to handling the bottle and seeking to see where it might be opened.
  • N: Now the athletes says the bottle was handed by the guard to Dr Ba Zhen.
  • HZ: This was before the guard arrived
  • N: So the athlete is wrong…?
  • Ba admits to handling the bottle and seeking to see where it might be opened.
  • N: Is the athlete statement wrong when he says ‘I picked up the bottle’?
  • BZ: What I saw was the DCO pick up the bottle and try to [see where it might be opened] and then hand the bottle to [Sun].

15:25 – Rychener is next to question.

You have worked continuously with SY since 2007?

  • BZ: Most of the time. (He took a two-year break from my career after 2008, so from 2010-18 there was cooperation)
  • N: you have a close personal relationship with Sun Yang
  • BZ: We have cooperated together for many years.
  • N: You accompanied him on many tests 2010-18
  • BZ: Yes.
  • N: Was that to Gove him advice on anti-doping rules?
  • BZ: I was just present, just to make sure he made no mistakes ate the control centre and provide the list of medication he had in the past seven days
  • N: Given the events of 2014, do you think you were the right person to give that advice.
  • N: You provided a banned substance to Sun Yang?
  • BZ: wants to explain but N wants to press on
  • N: how many IDTM tests have you accompanied him on?
  • BZ: I can’t remember
  • N: Were some of those tests you accompanied him on conducted by IDTM?
  • BZ: I’m not sure.
  • N: Had you ever objected to documentation in other tests before before?
  • BZ: There was another instant which was also with IDTM – and in that case Sun Yang;’s father complained about the IDTM team.
  • N: So he complained but he went ahead with the test, right?
  • BZ: Yes, Sun Yang cooperated in that session. However he wrote down his objections on the doping control form.
  • N: Did you say that the blood sample could not be take away?
  • BZ says he spoke to DCO but she did not “:pay much attention” and so Dr Ba spoke to Dr Han.
  • N: … you then reiterated the position that the samples could not be taken away, right?
  • BZ: Yes.
  • N: … you then discussed the possibility of separating the blood sample vials?
  • BZ: Actually it was the DCO who offered the solution because she had to take the glass bottles away.
  • NB: in your statement that happened AFTER you said that the samples could not be taken away.

Meakin asks why Dr. Ba filled out the doping control form. Dr Ba is nervous and has a pronounced facial tick.

15:15: BZ: I was home that night and then I received a phone call from Sun Yang saying he had encountered some issues at a doping control visit. The DCA only had his national ID so Sun asked me to come over and help.

When I arrived at his home, I asked to see the details of the agents’ accreditation. The DCO provide her accreditation photocopy. The DCA only showed us his national ID. And the BCA showed us her junior nursing certificate from 2009.

I put all the three documents together and took a picture. Afterwards I asked them further whether they have additional accreditation oatmopdove. They said No.

Then I called the provincial anti-doping centre. I asked for the advice of Dr Han. He asked me to hand over the phone to the DCO to do further verification.

The DCO handed the form back to me after her conversation with Dr. Han. Dr Han emphasised on the phone.

According to the requirements if ISTI, besides the accreditation document, the DCA also needs to provide an authorisation letter. For the BCA, besides her nurse certificate she also needs to provide her authorisation to take part in that testing visit.

15:09: Dr Ba Zhen, one of Sun’s medical team, an Olympic team doctor and the doctor twice suspended by WADA in 2014-15, takes the stand.

14:58-15:08 – Rychener questions prompt this response from Hao after a halt for translations to be explained:

The person who talked to me on the phone was the DCO who did have correct accreditation.

The BCA only showed her nurse certificate and the DCA only showed his national ID.

  • N: you asked for one of these two conations top be me: IDTM accreditation or a FINA authorisation… correct?
  • HC: Yes.
  • N: the DCO did have an IDTM certificate, right?
  • HC: Yes, she had the IDTM DCO accreditation
  • N: In Paragraph 15 of your statement you say you gave the DCO ‘friendly advice’ that she should not use the word refusal. Correct?
  • DC: Yes.
  • N: And you told her that a Chinada DCO had been fired for using the world ‘refusal’, right.
  • HC: that’s not what I said.
  • N: But that’s what you said in your statement, right?
  • HC: I think its a mistranslation by me. I said to her that a DCO was fired because of a multiple refusal scenario
  • N: But you told the DCO that in resin se to the discussion about Sun Yang’s possible refusal, m correct?
  • HC: I was just trying to give her a reminder..
  • N: And that’s when the DCO brought up the potential refusal consequences,. Right?
  • HC: Can you repeat, I just want to make sure I got not right
  • N: repeats question.
  • HC: No.
  • N: Are you familiar with the Chinada control form
  • HC: Yes, very familiar.
  • N: Does it have a phrase in that set out there are consequences of refusal?
  • HC: You mean the doping control for to be signed by athlete
  • N: Yes
  • HC: I’m not sure.
  • N: No further questions.

14:55: Hao Cheng, the head of the Chinese Swimming Association. Is up next.

Meakin, for Sun, asks whether Hao got calls from other athletes to seek advice during an anti-doping test.

HC: very rarely.

14:50: Subbiato QC intervenes from the bench. It is on annual anti-doping training at Chinada.

During our training Wirth chinana it is repeatedly advised that the doping control personnel must present their accred and author documentation informing the athlete the test is being conducted by which organ isatin and what type of samples are to be collected.

After the athlete validates the above, the doping control can proceed. That respects the WADA Code.

14:45: Meakin comes back briefly: you were asked whether sun yang had signed a doping control form. Do you remember that?

Dr Han. My conversation with Sun Yang and the DCO focused on the accreditation and authorisation of the control personnel and I never asked about the signing of forms.

M: Where were you on the night in question?

HZ: I was home that night.

14:35: Rychener takes over questions.

  • He asks: You were aware that Sun Yang had already supplied the blood sample, correct?
  • HZ: Yes, I was aware…
  • N: And aware that he had signed the doping control form saying that he had been notified and advised that any refusal would be a doping violation?
  • HZ: I was not sure at that time whether Sun Yang had signed on the doping control form,.
  • N: do you know it now, that he signed both forms?
  • HZ: You told me this fact.
  • N: You never shown the signed doping control form (Sun has a copy)
  • HZ: I didn’t know if he has signed any control forms then… however, what I knew that night is that Sun yang a blood sample was taken from Sun Yang from an assistant without appropriate accreditation or authorisation.]. Therefore, that blood specimens not a doping control, same. It was an invalid control sample.
  • N: Are you familiar with the ISTI?
  • HZ: I have some knowledge of that international standard
  • N: as soon as signed a sample belongs to the testing authority, are you aware
  • HZ: But the prerequisite is that it must be legally take.
  • N: In your statement, you say that you told Dr Ba Zhen that the blood samples could not be taken away, correct?
  • HZ: first of all I would like to reiterate that the blood was collected by a person without valid accreditation or authorisation therefore it should not be considered a doping control sample.
  • N: Did you or did you not in your statement, you say that you told Dr Ba Zhen that the blood samples could not be taken away, correct?
  • HZ: this blood is not a doping control sample.
  • N: You told Dr Ba that twice, yes
  • HZ: Yes
  • You’re his boss, right?
  • HZ: I’m his teacher. (He explains that Dr. Ba turns to him for advice because of that
  • N: Had tour been aware that Dr Ba had been found to have committed a bvoilation years earlier?
  • HZ: Yes
  • N: That he had prescribed prohibited substance to Sun Yang?
  • HZ: I like til clarify that. Sun Yang sometimes had discomfort with his heart several times in training.
  • N: but you were away that he had prescribed a banned substance.
  • HZ: yes, it was a long time ago.
  • Now: did Dr Ba dod that intentionally out did he not understand the anti-doping rules
  • HZ: not international… it was abuse…
  • N: He violated the code and then committed a second offence by working g Wirth the athlete, right?
  • HZ: Dr Ba mentioned this to me.
  • Judge Frattini intervenes: “You knew he had made a mistake because you knew or you had heard; was it because he admitted it.”
  • HZ: Indirectly. I don’t know of any admission.
  • N: are you aware that IDTM issues a card to everyone who goes on control missions?Dr Han: Yes, I knowN: But that’s not required by the ISTI is it?Han gets very agitated and says: “I believe, according to requirement of the ISTI, the DCO must receive relevant training to get accredited and re-accredited to make sure they are qualified to take tests for the interests of athletes.”

14:21: Next witness: Dr. Han Zhaoqi – his only change to statements is that he is one year younger than the record shows (laughter)

14:18: Meakin asks Ming Yang about calling the police.

  • “My Intention to call police is to have them come and monitor the procedure. If I had told the police would not have been so bad.”
  • Meakin says: Thank you. No further questions.
  • MY: But I’m not finished

She is unhappy but must leave the stand.

14:05-14:15: Rychener, for WADA, asks did you understand that the DCO objected to Sun going to the bathroom alone.

  • Ming Yang seems to confer but adds: I think this is a very critical moment in the event.
  • I think this is cut an important details which Is why I want tot provide more details.
  • Rychener points to that being the job of Sun’s counsel. He needs to press on in limited time.
  • Rychener asks Ming Yang if she insisted on calling the police, as her statement indicates.
  • Ming Yang answers: We find there is a significant difference between the DCO version of events and …
  • Rychener intervenes: Yes or no – did you insist on calling the police?
  • Ming Yang: I said that I will report it to the police.
  • Nowocki asks did Ming Yang propose to take the blood sample and leave?
  • It seems so but there is no definitive affirmation.
  • Ba Zhen strongly opposed her taking away the samples. Is that correct?
  • MY: yes.
  • Ba Zhen was under order from Dr Han Zhaoqi, right?
  • MY: Yes.
  • She adds that the DCO wanted to take the glass bottles away and she asked for a solution to get the blood out of the bottles so she could take the bottles away.
  • Ming Yang is on record as saying she went outside then in order to make sure the bottles were not broken. Correct, asksRychener.
  • Ming Yang goes back to the argument that the Sun entourage had no confidence in the authority of the testing team.
  • On top of that the DCO took the bottle out of the box and checked around and it seemed possible to open the bottle from the bottom… it was our impression then that that was the way woe could break the bottles.
  • “Sun Yang went out with his smart phone to make sure the security guard does not damage the blood vial”. Correct, asks Rychener.
  • “Our intention is to separate the tube and the bottle … our intention was not to damage the bottle,” says Ming Yang.
  • That would be a violation of the rules, right?
  • Yes.
  • Then your son tore up the doping control form, yes?
  • MY: What happened is, we observed a number of discrepancies between the DCO report and … the doping control form was right in from of my son, not in a binder….
  • Rychener: But there is no doubt, your son tore up the doping control form he had earlier signed, correct
  • In the video it shows that the form was right in. From os Sun and was his natural reaction to take away his form, which is completely different from the DCO version that he took the form away from her and tried to rip it up.

13:57-59: Ming Yang confirms her statements on record and says she has no additions to make.

Ming Yang was in the control room when her son, Sun, was being being asked to comply with anti-doping testers on September 4-5 last year.

Counsel for Sun, Meakin asks where his mother was during the time in question.

I was in the testing room some of the time and other times I was outside the testing room. I have provided witness to what I saw inside the doping control room but cannot provide witness for what I did not see.

13:56: a new translator is to sit with the Chinese witnesses after the problems of a ‘lost in translation’ first sitting this morning when Sun was on the stand.

13:55: Ming Yang, mother of Sun Yang, takes the stand.

Summary of Key Points So Far:

  • Rich Young, counsel for WADA, says that the DCO and her two assistants, are not at the hearing today because of “intimidation”
  • The second session came down to this theme: counsel for Sun are basing much on ‘guidelines’ of best practice, while counsel for WADA has focussed on the ISTI (standards) being the rules that count. 
  • Counsel for WADA has also nailed a key fact: at a key level, beyond the poor ‘fan’ behaviour of the DCA with a smart phone, there was nothing odd about notification, identification, “documentation” and protocol followed in the case of the Sun Yang test, September 4, 2018: and the vast numbers of tests that proceed on that universal basis far and wide without incident make the point. 
  • for the first time there is confirmation that the DCA, the man there to observe urine being provided, was NOT, as has been suggested in Chinese reports, was not a last-minute pick. The man had performed urine-observation duties for IDTM on other occasions with other athletes, Popa asserted.
  • FINA is in a very odd place: it is on the side of those defending Sun, and in that role is it questioning IDTM, the agency it uses, on issues that it could have raised with IDTM and pressed for changes on at anytime in the past quarter of a century – but has, according to IDTM, not done so.
  • Sun Yang changed his testimony on who took the blood container that would end up being smashed – originally, Sun testified to the FINA Doping Panel that it he took the bottle. Now, under cross-examination, he says that it was Dr. Ba.
  • Sun Yang has clearly been evasive on certain point
  • Lost in translation: The translation is very poor but the translators was brought to the hearing by Sun’s entourage
  • WADA agreed to use that translation service but appears not top have arranged its own international-standard professional service; Chinese journalists are offering to help by CAS are saying ‘we cannot change it now’

12:56: LUNCH Break

12:50: The role of FINA counsel is somewhat bewildering. Among his questions are some that appear to elicit answers in which both question and answer have no connection to the case in question.

His focus is a “Mission Order” – that is a numbered mission and that “should never be shown to an athlete”. The letter of authority is what is required.

FINA counsel appears to be suggesting that no mission was created in the Sun Yang case but he does not say so.

12:45-49: Meakin asks Sonderstrom whether he was aware that the blood nurse “yesterday” testified that she did not have a IDTM card for. authorisation.

Sonderstrom repeats: ISTI regulations are what count, not the guidelines.

As an aside, Meakin notes that the DCA refused to testify at the hearing.

12:43: Sonderstrom insists: Given that FINA have never consulted or instructed us to use this document (the one Meakin refers to), they have provided a yearly letter of authority for use each year. IDTM should not be using documents that FINA are not aware of.

The type of document that Meakin is referring to was “not part of the documents agreed between FINA and IDTM” for 2018, says Sonderstrom.

12:41: Meakin has a case before him in which an athlete was presented with an individual(ised) FINA letter of authority. This takes Meakin back to the argument of guidelines versus the ISTI.

Sonderstrom notes that that goes beyond what is required.

Meakin returns to the one case before him at which a higher level of authority from FINA was presented.

12:38: Meakin questions Sonderstrom’s presence when it was his assistant who had failed the report for ITDM in this case.

Meakin objects that none of the evidence Soderstrom just gave was in the document submitted by Sonderstrom’s assistant (perhaps making the point that counsel can’t prepare on the basis of evidence not before it).

12:30-36: Neal Soderstrom, IDTM officer since 2006, takes the stand. Rychener asks him, in various questions, whether in his experience the requirements set out by FINA have been the same down the years.

  • Yes, says Sondestrom.
  • Had FINA attempted to make any changes top those requirements and protocols down the years:
  • “Not to my knowledge
  • How many sports did IDTM work with using the same system and protocol as that used ion the Sun Yang case?
  • 30, says Sonderstrom
  • Had FINA ever challenged IDTM to on its paperwork and protocol and suggested changes.
  • No.
  • How many testing sessions using the same protocol and paperwork took place in 2018:
  • Answer: 19,000 samples
  • Had FINA had cause to question it? No.
  • Had any other athlete in those 19,000 tests raised any objections to the protocol and authorisation procedure? No.

12:26: Prof Sands, from the bench asks how often doctors of athletes are present when an athlete is tested. Popa says that at training camps is more common “but at an athlete’s home less common”.

How often would the doctor fill in comments? Popa – “not very often.

12:23: Popa said that once it was obvious that the test became “a bit out of control, soon after I sent refusal instructions to the DCO and told her to make the athlete aware that this could be registered as refusal to comply.”

12:22: Rychener takes over questions and Popa confirms that he thought it was “incredible” that an athlete of Sun’s status could take a blood sample and “destroy it”.

12:15: FINA counsel, of CPV Partners, Lausanne, wants to know details of procedure, including when anti-doping test paperwork is filled out, both in paper form and online.

Hew focusses on the training received by officers. Such questions are interesting because they come from FINA counsel to the company it has, for many years, hired for its testing program. One might imagine FINA would know the answers to such questions given its anti-doping responsibilities.

12:10: Meakin takes an aggressive line that has Popa inviting Sun’s entourage to take charge of the blood sample.

Popa rejects that. Meakin stops him. Rychener objects to the intervention.

12:04: Meakin says his interpretation is that an “authorisation” letter was required. He points to a provision in guidelines.

  • The weakness in Meakin’s argument, Popa suggests, is that already raised: guidelines are guidelines not requirements.
  • Meakin says who showed what ID:
  • DCO: all required, including an IDTM card of authority and ID
  • BCA: a nursing certificate
  • DCA; showed his personal ID
  • What we are saying is that this provision requires identifiable accreditation for the athlete to be notified.
  • The BCA had no identification linking him to IDTM.
  • Popa agrees but says all that was required Wass presented.
  • Yesterday, says Meakin, she testified and has no IDTM card… Popa says she doesn’t need need one.

11:57- 12:03: Meakin refers to the FINA letter of authorisation that mentions the DCO. Was Popa aware that that documentation was not shown to Sun Yang on the night in question?

Meakin notes that the DCO told Popa on the phone what documentation was presented. Could Popa confirm that the FINA letter of authority was presented but a different kind of “Authorisation” document was not presented.

Popa confirms that the DCO presented the FINA Letter of Authority and says that was what was required.

Meakin presents an authorisation document NOT related to the Sun case and suggests that would have been the paperwork that should have been produced on September 4, especially given the nuance and difference in Chinese of “authority” and “authorisation”.

Popa reiterates his view that what was required of the DCO was presented to Sun Yang.

11:55: Meakin, counsel for Sun Yang, is next to question Popa and ask him to confirm where he was on the night in question.

Popa was in Sweden

11:52: for the first time there is confirmation that the DCA, the man there to observe urine being provided, was NOT, as has been suggested in Chinese reports, was not a last-minute pick. The man had performed urine-observation duties for IDTM on other occasions with other athletes, Popa asserted.

11:48: Rychener is asking the questions. Popa confirms that all three officers in question were trained for the assignment and accredited by IDTM.

He describes the roles of the officers, the DCA.

Popa says that the statement of confidentiality of IDTM, confirms that the officers at any test sessions are trained and qualified to performed their tasks. That was signed by all officers present on September 4, 2018.

11:45: Tudor Popa of IDTM takes the stand – he is the man on the phone to the DCO from Sweden during the argument with Sun yang and entourage.

11:40-43: Prof Sands notes that in this case there was evidence that the chaperone took photographs of Sun Yang.

Kemp says: “It would not be a typical practice whatsoever. Chaperones should be well trained and know what they’re doing. I don’t know if that’s the case here… but chaperones are encouraged to keep their phones to themselves”.

The rules make no provision for what should happen but good practice would be for the chaperone to be asked to out the phone away, Kemp suggests.

11:39: Prof. Sands returns to the main thread off his argument so far: was the documentation presented on September 4-5 in common with that presented on many other occasions.

Kemp said he could not account for every single case but in general, yes, on the evidence before him.

11:33-38: Rich Young, of Bryan Cave Leighton Paisner LLP, Colorado Springs, USA – a practice that has represented USA Swimming but in this case represents WADA – asks Kemp about the language or notification requirements.

“Official documentation”: is it satisfied by a single document.

Yes, says Kemp.

This is the argument that the FINA Doping Panel said the whole case “hinged on”: they said “documentation” must be plural, those there had to be more identification for the DCO to present authorising the BCA and DCA.

The English dictionary holds that “documentation” is not singular and plural.

Kemp reinforces that and replies to various questions that come to the same answer: there was no requirement in the ISTI for the higher level of paperwork demanded by Sun and entourage on September 4-5.

11:26-31: FINA counsel keeps referring to the guidelines on notification and the names of athlete and officers should be given. He presses Kemp three times.

Kemp notes that the ISTI is the standard, the guideline is a recommendation. And it says ‘shall’ not ‘should’. The International Federation (such as FINA) cannot name the athlete and officers on letters of authority because it does not know who the athlete is nor is it responsible for naming the officers for any particular test.

11:21-25: FINA counsel asks kemp to explain the task of the DCA.

  • Kemp: notification – and witnessing the passing of a sample.
  • And the BCA: Kemp notes that the BCA takes blood.
  • FINA counsel questions whether the task can really be described as limited.
  • Kemp indicates he does not play down the role but makes the point that the responsibilities of the DCO are greater.
  • FINA counsel asks whether Kemp thinks the athlete has a right to have confidence in the qualification of chaperones.
  • Kemp suggests the authority of the relevant testing body is enough to confirm that the person in question is qualified for the task.

11:20: Meakin notes that the paperwork contains no athlete name nor names of officers. Kemp says “correct” and says that is how it should be.

Meakin makes much of the guideline that advices best practice on identification of officers at notification n stage but Kemp rejects the notion that that is the standard. Kemp notes that the ISTI is the overriding rule.

11:10-15: Kemp makes clear to Meakin that the DCA and BCA did not need more identification than that which they presented on September 4 and the general authorisation for them held by the DCO.

11:05: Young asks Kemp to take him through two articles of the WADA Code an d explain the drafting content that covers the arrival, notification and identification process at the start of a testing visit.

It is the only moment the rules provide for presentation or documentation. Kemp notes that athletes have a right at any stage to ask to see documentation.

Meakin intervenes and objects to Young being given too many questions.

11AM:Kemp confirms that the standard identification letters do not name the officers.

Kemp notes that Identification Card of the DCO from IDTM on September 4 met the standard required.

10:50: Rich Young, WADA lawyer, is asking the questions.

Kemp confirms to Young that the relevant authority (FINA level) does not need to name the athlete and testing officer as part of the process of issuing an authority letter for a test session to proceed.

Kemp explains that it is in the interest of all that [FINA etc] cannot identify the athlete by name.

Kemp explains that the role of the DCA and BCA behind the DCO is ‘limited in scope – ie, take blood, witness urine being produced) and they did not need the same authorisation level as the DCO.

SUNYANG1

Sun Yang and Dennis Cotterell heading to the hearing – Photo Courtesy: Craig Lord

10:45: Next sitting:

Stuart Kemp of WADA is the next witness. He explains his career background: that includes drafting the International Standards for Testing and Investigation – ISTI –  (and audits of that).

In the public gallery is Sun’s Australian coach Denis Cotterell.

First Break Time: 

Summary of Key Points:

  • Sun Yang changed his testimony on who took the blood container that would end up being smashed – originally, Sun testified to the FINA Doping Panel that it he took the bottle. Now, under cross-examination, he says that it was Dr. Ba.
  • Sun Yang has clearly been evasive on certain point
  • Lost in translation: The translation is very poor but the translators was brought to the hearing by Sun’s entourage
  • WADA agreed to use that translation service but appears not top have arranged its own international-standard professional service; Chinese journalists are offering to help by CAS are saying ‘we cannot change it now’

10:25-35: Prof. Philippe Sands QC intervenes and asks Sun to confirm the paperwork before him confirms that the number of samples taken in respective careers shows the following count:

  • IDTM 64,000 (plus) tests ……
  • Sun’s count is – 180 samples, 63 in competition and 117 out of competition.
  • That’s a lot of samples”, says Prof. Sands
  • He invites Sun to look for the number of tests taken by IDTM: 60 of Sun’s out-of-competition tests were by IDTM.
  • Does that sounds right? Sun: … just wanted to do the right thing…
  • Sands: Thanks for that but is the figure correct?
  • Sun: I’be nee checked so many time by different associations and authorities… I just do what I need to do.
  • Sands: just to confirm that you have come across IDTM before?
  • Sun: no I’m not familiar with who they are – I just do what IO need to do.
  • Sands: The evidence before its is that they have taken 60 tests out of competition tests … he asks if it is correct t that this is the only time there has been a problem?
  • Sun answers too the wrong question…
  • Sands: could Sun recall if he was presented with different documents on othe occasions that those on September 4 last year.
  • Sun: seems to suggest he had seen much variety…
  • Sands: how often was Dr Ba present in those 60 tests?
  • Sun: basically he can’t remember. He jokes about the number of times he swam backstroke … and can;’t remember…
  • Sands says ‘not what I asked you. Was Dr Ba more there than not on those test occasions?
  • Sun: I lost track. Sometimes he’s around, sometimes he’s not.

10:16-24AM: Romano F. Subiotto QC intervenes from the top table and asks Sun to confirm that he had been satisfied with the DCA paperwork.

Sun says the BCA didn’t provide a certificate to prove she was qualified to move from city to city to collect blood.

Pressed to clarify, Sun describes the moment the DCA (the man there to observe urine being produced) – NB: NOT THE BCA but the translation says ‘he’ when kit should be ‘she’ and vice-versa and the two officers are referred to incorrectly – takes pictures of the swimmer with his smart phone. This, says SUN, was ‘ridiculous’.

Sun keeps alive the notion that both the BCA and the DCA took film and photos but the FINA Doping Panel report from January only refers to the DCA (urine) as having used his smartphone inappropriately.

10:10AM: Rychener: You knew that the DCO wanted to keep the bottles?

Sun: repeats that he did not think the DCA had the right authority. “I wanted to keep all the samples”, for his own safety.

FINA’s lawyer is given time to question Sun. He says he has no questions for Sun.

10:03-08: Prof. Philippe Sands QC intervenes from the top table:

You say [in your original testimony]: I therefore insisted on keeping the blood sample…

Prof. Sands asks several times if Sun can clarify: who insisted.

He finally sates that it was Dr Ba Zhen (Sun’s doctor and twice penalised by WADA in 2014 and 2015) who insisted. He says he had to defer to his leaders and follow their advice.

Rychener asks Sun to confirm that he has changed his testimony from Sun picking up the blood bottle to Dr Ba doing it.

Sun: the DCA was asked to bring the bottle over and give it to Dr. Ba.

Rychener: did you change your statement to put more responsibility on your doctor and less on you? Why did you change that?

Sun does not answer the question and then says the agent had “lied to the end”.

9:56-10AM

Rychener: the DCO said that [paragraph 25, top line of text on page 10 of the file in front of SUN] the DCO ‘told you that she had to take the sample away with her, did she not’? Sun confirms that in previous statements.

Sun: Yes, she mentioned she had to take it away. .. but without authorisation, they were not allowed to take away the blood sample.

Pressed by Rychener that the blood nurse was not authorised to take blood in my city so how could I allow her to take away my blood.

Rychener: you also invited that you should take the blood sample away

Sun: I never insisted. I said they ad to prove their identification., I told them I can wait for you to show me and bring all the documents that prove you are authorised to do so. The DCVO was insisting that that was not necessary.

He says he Wass trying to find a solution so ‘why was she not [agreeing] to my proposal?’Rychener: You took the bottle and gave it to the security guard.

Sun: The DCA tried to open the bottle [blood sample]… she provided it for us.

9:46-54: Rychener asks if Sun recognised the DCO when she arrived (given that the two had met before). And did she present the IDTM letter from FINA.

Meakin objects and says Rycheneri used “authorisation letter” from FINA. It should be “letter of authority”. Judge Frattini asks Sun if he sees any difference between these two things?

Sun: Because of my limited English ability, I could not understand the document. The DCO showed me an ID card and each DCO has them. He then turns from DCO to DCA when arguing about the paperwork, though the two things are clearly not the same.

  • Rychener: After they arrived and showed you their documentation, you willingly provide a blood sample, correct?
  • Sun indicates that he was unhappy with he paperwork but he followed what he was asked to do…
  • Rychener: That’s what the rules ask for, right?
  • Sun: Yes but…
  • Rychener: But you did provide a sample
  • Sun: … because [I was] following what they asked me to do
  • Rychener: at that point it was the same as any other tests you’;ve [ever] had, right?
  • Sun: he acknowledges he knew he had to follow their instructions.
  • Rychener: you later refused to allow the DCO to take away the [blood] sample, is that correct?
  • Sun: Because – after the blood sample,. my doctor, an expert said they don;’t have authority and identification… so the sample was provide to people without the right identification so we were afraid that there had been a mistake.

9:39: Brent Rychener, Counsel for WADA, is asked to repeat his question because the translator made an error.

Rychener asked “you have provided some 200 samples to testers in your career … are you saying after all those time that you are not aware of the legal consequences of failing to provide a sample?

(After Sun says ‘They never told me about this speech… but based on how they behaved it was not professional… during the two hours they were in and out and making phone call and I had no idea what was going on.

Sun: No, I did not realise : I never heard of that ‘speech’, meaning rule.

The translator made the 200 times 200mg of blood

Start again: Sun does not answer yes or no.

Rychener says: Let me put this another way: Had the DCO had warned you about the possible consequences of refusing a sample, would you have allowed her to take away your sample?

Sun: there is no consumption. The DCO did not mention (the warning).

Rychener: My question is ‘had the DCO given you a warning … would you have allowed the DCO to take away your blood sample’.

Sun: In reality, she did not mention (the warning)… Sun says this would not have happened had the officers been professional.

NRychener is about to try again but the Judge Frattini asks him not top prompt Sun … “we heard the answer”.

SUNYANG3

Sun heads into the hearing – Photo Courtesy: Craig Lord

9:30-36AM – Sun says that the process of arguing over the paperwork involved the DCO (Doping Control officer, the main agent) was on the phone (to Sweden) and all of that took “almost two hours”.

Meakin clarifies: “you were invited to separate the blood from the equipment…. I’m sorry for leading but the translation is so bad…”

“Describe what happened outside with the blood”? – Meakin

We followed the instruction of the DCO we were looking for some tools and my mother asked the security guard if we had any device to break the vial … during this period of time the security guard didn’t have any idea … he

The explanation is all but incomprehensible because of the translation, which is a burst of stilted, disjointed part sentences.

Who gave you the blood container before you went outside?

The DCO told us all that explanation. The DCA would try to open the vessel containing the blood… therefore during the process the DCO and the DCA agreed how to open the bottle.

I’m confused with the interpretations. Are you saying the nurse gave you the blood container?

She handed it to Sun, says Sun, to see if he could open the bottle “from the bottom”.

This appears not top clarify the situation.

9:29: Meakin repeats Sun’s statement that he provided blood and only then realised that the paperwork of the blood nurse meant that she was “not qualified”.

9:28: I will move to paraphrasing… the translation is too stilted to quote directly.

9:24: “During there inspection I realise they did not have the right paperwork to identify themselves. I therefore contacted my doctor [and the CSA] to inform them of this mistake.”

9:23: Sun claims that his security guard noticed the visitors at the main gate of the complex where he lived and so his parents drove him round from their block to the entrance where the testers awaited.

9:20: He is asked to explain his positive test of 2014:

“I had been world champion 200, 400 800m along of events.., to be able to manage the training… I have some problem with the heart and fainted after training. The doctor then prescribed me the wrong medication.”

He mentions that the banned substance was not ‘recognised’ by the Chinese Swimming Association but the translation is poor and the explanation bypasses the key line from China: that Chinada had failed to translate the latest WADA Side banned substances list, which included, for the first time in 2014, the addition of the drug he had taken.

9:19: Why had he wanted a public hearing, asks Meakin. – “Because last year in events in September … during the whole issue last year, 2018, some things were false. The whole incident was very confidential. I wanted to take this opportunity to make a statement that everyone can hear me (provide).”

9:18: Sun, smart in a dark suit and blue tie, is nervous. Understandable. He is now being invited to look through witness statements in paperwork before him and confirm that he recognises them. “Yes”.

9:15AM: Counsel for Sun, Ian Meakin, wants Judge Frattini’s opening remarks translated into Chinese for Sun but the interpreter had not realised that, compounding the technical issue. They are about to try again. Sun says he can now hear. “Telling the truth… refraining from speculation… we want only the facts, the events and only the truths…”… says the Judge. Sun says he has understood.

9:10AM: Sun takes the ‘stand’; he is seated. The translation system is not working and technicians are called. Judge Franco Frattini, takes the moment to call on all to stick to the truth and not speculation.

9AM: an introductory video explaining the purpose of CAS and how the proceedings will unfold is rolling. It covers the basic details, starting with a visit by IDTM testers to the home of Sun Yang on September 4-5 last year. Four hours and more of argument ensued. Sun Yang and team argue that testing protocol was not followed and that the session was therefore invalid. The FINA Doping Panel, ruling on January 3 this year, agreed that there were procedural problems but in issuing a caution to Sun stated that he had placed his “entire career” on the line and that it has been a “close run thing” for him not to have been suspended.

WADA disagrees. It holds that Sun voluntarily refused to provide samples for analysis. IDTM did not register a refusal but that, says WADA, does not exonerate the swimmer.

Proceedings will be conducted in English and Sun Yang will give his testimony from 9.15am local time and then be given an opportunity to make his closing remarks at 8pm before the hearing is due to end at 8pm.

The judging panel will be made up of Judge Franco Frattini, from Rome, Italy, Panel President; Romano F. Subiotto QC; and Prof. Philippe Sands QC (further details below).

The hearing will be held in public and at least some of it will be live streamed. The arbitrators in the case, as set out below, will not speak to the media but the parties to the case are allowed to do so if they wish. CAS indicated today that Sun Yang will not answer media questions. The court noted:

“Mr. Yang intends to issue a brief statement to the media at the conclusion of the hearing.”

There will be no judgment on the day, the judges due to consider the witness statements and case at large over the days and weeks following the hearing.

The Panel will deliberate and prepare an Arbitral Award setting out its decision and the grounds for it in the days after the hearing. CAS noted: ” …  it is not possible to give a precise indication of the date of notification at this time.”

Any decision is likely to be final. As CAS pointed out: “Arbitral Awards issued by the CAS can be challenged before the Swiss Federal Tribunal on very limited grounds. The time limit for appeal is 30 days.”

Today, CAS issued further details about the hearing due in Montreux on Friday, including:

What is the case about?

sun-yang-

Sun Yang – Photo Courtesy: Becca Wyant

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 will decide 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, will supervise the organization and smooth running of the hearing. The Panel will be assisted by Mr Brent J. Nowicki, CAS Managing Counsel, and by an ad hoc clerk, Mr Dennis Koolaard.

Who is representing the parties?

WADA will be represented by

  • Bryan Cave Leighton Paisner LLP, Colorado Springs, USA.

Sun Yang will be 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 is this hearing being held in public?

Michelle Smith

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.

8:35am: Legal counsel, Sun Yang and all other parties arrive in the hearing room at the conference centre that is more accustomed to hoisting the Montreux Jazz Festival.

8.30am: 

First up, a touch of where we are and why.

Where: Montreux on the shores of Lake Geneva a 20-minute drive or train ride northeast of Lausanne, home to the International Olympic Committee, FINA and various other Olympic bodies and institutions.

If you look out from the hotel along the front, you see a statue of Freddie Mercury, the late Queen front man, on the shore of Lake Geneva in front of the Montreux Palace Hotel. Several Queen albums were recorded in the Swiss City and Mercury spent some of his last days “finding peace” in Montreux, where he spent a part of his life.

The hotel’s Panorama Lake View Suites are dedicated to Mercury and to Claude Nobs, the founder of the Montreux Jazz Festival. The suites are lined with pictures and photographs of the two men.

Here is the schedule of the day ahead. Sun Yang will be the first to be heard after opening remarks.

Then, the IDTM testing agency based in Sweden and hired to conduct FINA out-of-competition testing are putting up three of its officials this morning, the three Chinese officers at the heart of the dispute notable by their absence.  Sun Yang’s team will take up the afternoon with five witnesses, whose roles we will bring you more detail on as the hearing proceeds.

  • 9h00 Opening of the hearing and General remarks
  • 9h15 Mr Sun Yang (Appellant; in-person)

10h30 BREAK

  • 10h45 Mr Stuart Kemp (witness/expert Appellant, in-person)
  • 11h25 Mr Tudor Popa (witness Appellant, in-person)
  • 12h05 Mr Neal Soderstrom (witness Appellant, in-person)

12h45 LUNCH

  • 13h45 Ms Ming Yang (witness First Respondent, in-person)
  • 14h25 Dr Han Zhaoqi (witness First Respondent, in-person)
  • 15h05 Mr Hao Cheng (witness First Respondent, in-person)
  • 15h45 Dr Ba Zhen (witness First Respondent, in-person)
  • 16h25 Prof. Pei Yang (expert First Respondent, in-person)
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

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

17h05 BREAK

  • 17h35 Appellant’s closing statements
  • 18h20 First Respondent’s closing statements
  • 19h05 Second Respondent’s closing statements
  • 19h30 Appellant’s rebuttal
  • 19h40 First Respondent’s rebuttal
  • 19h50 Second Respondent’s rebuttal
  • 20h00 Mr Sun Yang’s final remarks
  • 20h10 Panel’s closing remarks
  • 20h20 End of hearing