Sun Yang Vs WADA: CAS Gavel Hovers Over Case Of Sample Smashed With Hammer

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Sun Yang - Photo Courtesy: Becca Wyant

Sun Yang Vs WADA

On Friday this week, the Court of Arbitration will consider the arguments of Sun Yang and the World Anti-Doping Agency in WADA’s challenge to a FINA Doping Panel decision to impose no penalty but issue the Chinese swimmer with a caution over an acrimonious and now controversial out-of-competition test visit in September 2018. Ahead of the hearing in Montreux, Switzerland, we consider the background and questions over alleged conflicts of interest on this day, the 20th anniversary of the foundation of WADA on November 10, 1999.

When Chinese Olympic champion Sun Yang, the World Anti-Doping Agency (WADA) and their lawyers square up on Friday at a long-awaited Court of Arbitration for Sport (CAS) hearing in Montreux in Lake Geneva, the swimmer’s career will not be the only thing on the line.

In one corner is an anti-doping system accused this week of having “failed to hold accountable those who corrupt sport”. WADA intends to show otherwise as it challenges a doping panel decision to issue Sun with a severe caution but, in what it called a “close-run thing”, impose no penalty after a dispute with anti-doping testers for four hours through the night of September 4-5 last year.

In the other corner is Sun, suspended for the first time in 2014 after he tested positive for a banned substance, the swimmer’s mother and manager Ming Yang, a security guard and Sun’s twice-suspended doctor, Ba Zhen, who were all in the doping control room on the night in question.

A hearing by the Doping Panel appointed by FINA, swimming’s regulatory body, heard that the dispute ended after 3am with a vial of the swimmer’s blood being smashed with a hammer outside the control room by the guard under instruction from Sun’s mother. The doping control officer and two assistants then left with no sample, neither blood nor urine, to test.

(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:

WADA challenged the panel’s decision in March after The Sunday Times revealed the details of a hearing report last January but Sun was able to race at the World Championships in Gwangju in July. Both Australia’s Mack Horton and Britain’s Duncan Scott refused to stand with the swimmer on the podium.

Both Horton and Scott found support among swimmers and coaches but also the head of USADA, Travis Tygart.

As CAS readies itself for the first public hearing of an appeal since 1998, when Irish triple Olympic gold winner Michelle Smith faced a panel that would bar her from swimming, Chinese sources contacted The Sunday Times and Swimming World to urge WADA and CAS to scrutinise what they describe as “a serious conflict of interest” of one of Sun’s key witnesses.

Dr Han Zhaoqi, the chief hospital doctor called by Ba for advice before the two attempted to convince the doping control officer (DCO) to abandon testing, is the deputy director of the Zheijiang Anti-Doping Agency. It is a position that demands neutrality in any dispute between anti-doping authorities and an athlete, according to a WADA source.

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Han, who has served as the leader of the Chinese Olympic team’s science division, was awarded a “Sports Celebrity of Jiaxing City” prize in Zhejiang Province in September for his role as the “chief scientist” of Sun Yang’s professional entourage.

Before the vote, Yang Wang, a Chinese journalist, urged swim fans on social media to vote for Han. Wang wrote:

“Since you like Sun Yang so much, it is time for you to give him some support. Friends it is time to recognise and vote for his chief scientist. Sun Yang is not doing this alone.”

On winning the prize, Han was introduced as an “athlete protector”. He was also credited for his work with Ye Shiwen, at 16 the double Olympic medley champion of London 2012 who became the first woman to swim the last 100m of any Olympic swimming race as fast as her male counterparts, and the 2004 Olympic 100m breaststroke champion Luo Xuejuan.

Han played a critical role in convincing Sun that he should take back the blood sample that he had already agreed to provide on the grounds that Huangfen Lin, the blood nurse present on the night, did not have a specific level of qualification required to take blood in such circumstances in China. Anti-doping procedures are supposed to be conducted universally under WADA international standards.

The doping panel noted that no evidence was presented to confirm whether such a higher level of qualification was required as described and concluded that it would “never know”.

According to the Fina doping panel report, Han called Ba, who was served a second WADA suspension in 2015 after evidence came to light that he had worked with Sun at the Asian Games while already suspended for his role in supplying the swimmer with a banned substance.

The report describes several alarming moments, including:

“The athlete and Dr Ba 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 collected. The DCO was horrified. She repeated her warnings that the intact blood in the cool box had to leave the doping control station with her.”

As the officer sought advice on the phone from Tudor Popa, a senior official at International Doping Test & Management (IDTM) headquarters in Sweden, “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 refused to do.”

WADASun’s “success” in receiving only a caution, “ultimately hinged on” the panel’s interpretation of the word “documentation”.

The Fina-appointed lawyers judged that the word must be plural and therefore the IDTM representative there to observe Sun pass urine needed more than his national identity card to prove his official status. IDTM and Fina witnesses took a different view in the original hearing.

In its caution to Sun, the panel noted that “the athlete’s entire athletic career hung in the balance — on what amounted to a gamble that the athlete’s assessment of the complex situation would prevail. That strikes the panel as foolish in the extreme.”

Sun’s chief complaint beyond arguing over what identification papers was that the urine observer had taken fan photos of him with a phone before the party entered the doping control room. That had been “highly improper and extremely unprofessional”, the panel concluded. The report noted, however, that it had “rejected many of the athlete’s contentions and positions as being unfounded and invalid.”

The Court of Arbitration must decide whether the FINA Doping Panel decision to issue a caution but no penalty because of its doubts about the details of rules and WADA International Standards will stand or whether WADA has the better argument and can convince the panel of judges that the WADA Code was broken and the offence merits penalty for a swimmer already towing a doping offence from 2014.

Commentary: The further test for the anti-doping system – and one that all anti-doping authorities, including CAS, must consider, say many athletes and others in a plea for greater support for clean sport – is this: is this one athlete or any other exempt from the same standards of accountability expected of others far and wide, including circumstances in which a mother, a twice-banned doctor, an anti-doping chief who doubles as science adviser to Olympic athletes and joins an argument against an international anti-doping agency, are a part of a picture that would be almost impossible to imagine in the context of many leading sports nations in the world?

The significant background to the case:

THE FINA DOPING PANEL REPORT

The Key Criticisms Of The Testing Team

1. Failure to comply and why the Doping Control Officer did not register a refusal:

The DCO must go further and clearly articulate that she is treating the Athlete’s conduct as a Failure to Comply and that the following consequences will apply.

2. The conduct of the officer present to observe Sun produce a urine sample

With regard to the attempt to collect urine: The Doping Panel is satisfied that the DCA did surreptitiously take pictures and/or videos of the Athlete using his personal cell phone. He took more photos than described by the DCO in her testimony. The Doping Panel heard believable and compelling evidence from various witnesses that there were pictures on the DCA’s phone that contained images of the Athlete. The Athlete witnessed their deletion. Critically, the DCA provided no evidence or testimony whatsoever. He was the best person to disprove the serious allegations against him that were raised – but he failed to do so. In the result, none of the Athlete’s direct evidence regarding the DCA taking pictures and videos of him during the mission was effectively challenged.

This conduct on the part of the DCA is highly improper and extremely unprofessional. This should never happen. Chaperoning an athlete is a sensitive, personal and serious matter. It is not for ‘fans’. The Athlete was initially suspicious and eventually discovered that there were photos of him on the DCA’s phone. The pictures were deleted. Proof of this conduct by a DCA prior to the Athlete providing a chaperoned urine sample is unquestionably reason to immediately suspend the DCA’s involvement in the testing mission. With no other male DCA’s to perform this role – the mission with regard to urine collection must be abandoned. Such facts, once established, are a compelling justification for the Athlete to refuse to have any further personal and sensitive contact with the DCA.

SIGNIFICANT EXTRACTS FROM THE FINA DOPING PANEL REPORT

CAUTION TO THE ATHLETE IN FULL

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;

  • 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 events in 2017 involving the Athlete and the DCO (when she was in training to be a certified ITDM Doping Control Officer) did not give rise to a conflict of interest so as to disqualify the DCO from acting in her role at the sample collection session on September 4, 2018. Complaints were made and comments were written at the conclusion of the session in 2017, but in no way did that disqualify the DCO from continuing to test the Athlete, now or into the future. Likewise, the Athlete’s testing history and the latest negative test result were not relevant to the issues before this Doping Panel.

FAILURE TO COMPLY CONSEQUENCES – BLOOD AND URINE

There was certainly much discussion and heated debate over what was proper and allowed pursuant to the ISTI and what was not. It is abundantly clear that the DCO tried constantly to explain why the complaints and deficiencies raised by the Athlete were not valid, in her view. It is equally clear that the Athlete and his entourage were insistent that their views were correct. This debate continued all night and the parties were at a stand-off. Unfortunately, the ongoing debate had the result that the consequences of the Athlete’s proposed course of conduct became ‘lost in the noise’.

The debate between the DCO and the Athlete (and his entourage) inevitably focused on who was ‘right’ and whether there could be a Failure to Comply or a risk of a violation in that evolving situation. The Athlete consistently denied that this was ever a possible outcome. The ISTI is clear in Annex A 3.3.a) that the DCO must tell the Athlete, in a language he can understand, the consequences of a possible Failure to Comply. Explaining the risks that certain conduct might lead to a violation is not sufficient. The DCO must go further and clearly articulate that she is treating the Athlete’s conduct as a Failure to Comply and that the following consequences will apply.

This critical message to the Athlete regarding the consequences of his conduct, while attempted many times by the DCO, never got through. The Athlete, and every witness for the Athlete, testified they were never told by the DCO the consequences that would apply. This is likely true. All that was ‘heard’ from the DCO in the ongoing debate regarding whose interpretation of the rules was ‘correct’ was the message that certain conduct might constitute a rule violation. This message would be immediately denied.

There was no clarifying and crystalizing moment (a metaphorical “bang”) ensuring that the Athlete clearly knew, in the face of the identified conduct, that his conduct was being treated by the DCO as a Failure to Comply and that serious consequences would apply.

This is the very reason that Refusal Forms are utilized by many Sample Collection Authorities. They provide clear evidence to the athlete (when pulled out to be signed at the critical moment by a DCO) that the DCO considers the athlete’s conduct to be a breach of the rules and the consequences specified will apply. There is no room for ambiguity. While use of such a Refusal Forms is not mandatory, this clarity was never achieved at the testing mission on September 4, 2018. In contrast, the Athlete and his entourage all testified that as the evening ended they believed, perhaps naively, that they had been successful in the debate regarding who was ‘right’. They believed that they had eventually convinced the DCO and IDTM to back down and accept the Athlete’s position. There was absolutely no “bang” involved.

ON THE QUESTION OF REFUSAL

In places apart in the report, the topic of ‘refusal’ is much in focus. Here are some examples:

During the course of the evening the Athlete eventually needed to urinate. As there was no DCA available who was acceptable to the Athlete to witness the urine sample collection, the DCO proposed that the Athlete’s mother watch/witness the DCA witnessing the Athlete passing urine. This was refused. Alternatively, it was 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. The DCO told the Athlete that urinating without being chaperoned, once notified, may be a Refusal violation. The Athlete replied that with no authorized male DCA, there could be no valid notification and thus no Refusal.

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 consistently stated that this was not a refusal or a Failure to Comply and the situation was entirely the DCO’s fault for coming to test him with improper officials. 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 authorized DCA arrived. The DCO refused to countenance this idea.

The advice provided to the DCO by Tudor Popa [IDTM], speaking in English, was that the DCO should tell the Athlete very clearly the consequences for refusing to allow the collected blood to be taken away to be analysed. Refusal instructions were provided by Tudor Popa to the DCO. The DCO claims that she communicated the refusal instructions to the Athlete and to others who were at the doping control station.

WHERE THE PANEL HAD DOUBTS

With regard to the collected blood: This issue is raised merely to identify a point of confusion. Doping Panel is left with some uncertainty regarding the role an IDTM BCA can properly play in the collection of blood from an athlete. The ISTI does not refer anywhere to a BCA – it is apparently a term specific to IDTM. The ISTI only refers to a BCO. To cloud the issue, the evidence at the hearing made clear that IDTM does certify BCOs but only if they are also a DCO. In that event, IDTM provides the BCO/DCO with official documentation evidencing their authorization to collect a sample from an athlete which is similar to that which a DCO receives.

WHAT THE PANEL SAID THE CASE HINGED ON

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.

In a place apart:

Article 5.3.3 refers to “official documentation”. This reference to “documentation” is plural. If a single document was all that was required to demonstrate that the Sample Collection Personnel (as a collective unit) were properly authorized by IDTM it would have stated that the Sample Collection Personnel must have “a document”.

The Doping Panel finds that in Article 5.3.3, the use of the words “official documentation…evidencing their authority to collect a sample from the athlete” means, when applicable, “official documentation” evidencing both (i) the authority conferred on IDTM to be the Sample Collection Authority and (ii) the authority from IDTM that must be granted to each individual official (drawn from the “pool” of IDTM officials created and maintained by IDTM, pursuant to Article 5.3.2), who are sent on a testing mission to collect a sample from the athlete.

NB: the Panel’s interpretation of the word ‘documentation’ is open to question: the English dictionary and many other references and examples hold that ‘documentation’ can be and is both singular and plural. A passport, for example, is one item and can be described as ‘official documentation’ – and is not described as ‘a document’.