8th June 2021

CAS, CAS, the fairest of them all – but can athletes be spared?

The rehearing of the WADA vs. Sun Yang case took place at the end of May. Unlike the first hearing held in public last November, this time the hearing was conducted behind closed doors. The entirely new CAS Panel composed in April will issue an award before July, in order to clarify Sun’s eligibility to compete before the Tokyo Olympic Games.

WADA vs. Sun Yang is doomed to be a milestone, not for its involvement of a phenomenal Chinese swimmer, but for being the only case in a decade to enjoy a public hearing, which affords us a rare opportunity to take a peek into the black box of CAS proceedings. This article picks a few examples illustrating how the stood-down Panel manoeuvred an ill-founded award by conveniently disregarding evidence not in favour of WADA.

WADA’s Letter of Authority form

Excerpt from the CAS Decision…

One key question involved in the case is whether the annual letter of authority, issued by FINA to IDTM but containing no names of any sample collection personnel, by itself satisfies the official documentation requirement under the version of WADA’s International Standard for Testing and Investigations then in force (ISTI 2017). If the finding is negative, then IDTM’s notification was seriously flawed, which the CAS found could invalidate the sample collection as a whole, meaning there would be no anti-doping rule violation to start with1 – although the CAS added that the proper path would be for an athlete to proceed with the test under protest, otherwise they would face ‘serious consequences’.

The ambiguity lies in the subordinate clause ‘such as an authorisation letter from the Testing Authority’ that follows the description of official documentation2. In order to argue that the FINA letter of authority is not the kind of authorisation letter contemplated by the ISTI, Sun’s Counsel distinguished a specific letter of authorisation, which specifies the sample collection mission and the name of the Doping Control Officer (DCO), from a generic letter of authority, which contains neither information.  

However, the stood-down Panel concluded that a generic letter of authority is sufficient for the purpose of notification3, mainly relying on the testimony of the WADA staff that they are not aware of any difference between a letter of authorisation and a letter of authority4. Kudos to the almighty internet; here is a letter of authority form used by WADA.

The title of this document is clearly Letter of Authority. It is a generic authorisation from WADA to the sample collection authority, as it specifies neither the sample collection mission nor the sample collection personnel. At the bottom of this document, the athlete is asked to verify that the DCO holds a Letter of Authorisation from the sample collection authority, which, pursuant to the DCO Training Manuel published by WADA, shall include the test mission code, date rage of the testing mission, and the DCO’s name5.  

This letter of authority form is undeniable evidence that WADA not only understands the difference between a generic letter of authority and a specific letter of authorisation, but also knows how to use them for different purposes. Furthermore, by demanding that the DCO holds a letter of authorisation in addition to its own letter of authority, WADA’s own practice recognises that a generic letter of authority alone is not sufficient.

Previous versions of the ISTI

Sun, WADA and the stood-down Panel all accepted that ISTI 2017 should be interpreted as a statute. When there is any ambiguity interpreting a statute, the legislative intent is one of the keys to decipher the code. There is no better evidence than previous versions of the same statute to show the legislative intent. Below is a side-by-side comparison of the pertinent text between ISTI 2017 and the preceding versions of the ISTI. 

One observation is that, in the previous versions of the ISTI, the official documentation was always required to spell out the DCO’s name. There might be an argument that the ISTI 2017 somehow removes such a long-standing requirement, but that argument needs to be backed with serious evidence (such as Code drafting memorandum, Executive Committee meeting minutes, documented floor debate, etc.), not merely hearsay. 

Another observation is that the ‘authorisation letter from the Testing Authority’ refers to the specific letter of authorisation deriving from the mission order generated by WADA’s ADAMS6 system. This is echoed by WADA’s Consultation Report on ISTI 2017, which states that ‘the current Letter of Authorisation available through ADAMS states the name of athlete to be tested’7.  This is further confirmed by the testimony of the IDTM staff that the ADAMS documentation process starts from identifying the athletes to be tested, creating a mission order, and then generating a specific doping control authorisation8.

Therefore, it is safe to conclude that up to 2017, the ISTI expressly required that the official documentation includes a specific authorisation containing the name of the DCO. To argue that ISTI 2017 has loosened such a requirement, WADA needs to produce concrete evidence of the legislative intent to that effect.  

Here is an interesting sidebar. The CAS Award cited the testimony of the IDTM staff claiming that over the years, IDTM consistently adopted the same notification protocol that only uses a generic letter of authority without the DCO’s name specified.

Isn’t this a confession that from 2013 to 2016 IDTM was consistently violating the notification process under the ISTI then in force? Isn’t it an ironic abuse of the stood-down Panel’s unreserved trust in IDTM’s self-discipline?  

The above-mentioned evidence, WADA’s Letter of Authority form and previous versions of the ISTI, is so decisive to the outcome of the case that Sun’s Counsel would not have left them out of the submission; however, neither was mentioned, let alone discussed, in the CAS Award. A public hearing would give us the chance to observe whether any key evidence is ‘inadvertently’ neglected by the Panel. Since the rehearing in camera deprives our opportunity to discover any such irregularity, any prayer for relief can only bank on the integrity of the new Panel. 

As it stands, the CAS has ruled that an athlete must always go through with an anti-doping test, even when there are questions about whether credentials are correct. While the logic behind this is understandable (preventing athletes from avoiding tests), one has to ask if an eight year ban for refusing a test when such credentials are lacking is proportionate.


Footnotes

1. See CAS Award, 2019/A/6148, para 208.
2. See WADA’s ISTI 2017, art 5.3.3.
3. See CAS Award, 2019/A/6148, paras 223 and 244.
4. See CAS Public Hearing Video, Part II, @01:01:15.
5. See DCO’s Training Tool Kit (v 3.0), May 2011, sec 4.1.
6. Anti-Doping Administration & Management System.
7. See ISTI Consultation Report – First Phase, 12 April 2018, p 21.
8. See CAS Public Hearing Video, Part II, @01:38:20.

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