Opinion 3rd July 2020

Deep State: deep inside Olympic sports – Sun Yang v. WADA

Jim Walden, Managing Partner at Walden, Macht & Haran LLP and Attorney for Dr. Grigory Rodchenkov, issued a statement on June 24, 2020 regarding the White House Office of National Drug Control Policy (ONDCP) Report on the World Anti-Doping Agency (WADA). He said: 

“The White House deserves applause for this rigorous report that quantifies the deep problems with international sports governance that make the Rodchenkov Anti-Doping Act a necessity. This Report reveals that WADA is at a minimum incompetent when dealing with serious, endemic corruption, and that it disregards even its own investigators to protect its bottom line. The Executive and Legislative branches are clearly of one voice on this issue. This desperately needed legislation will finally give the Department of Justice the license to do the job of protecting clean athletes and U.S. interests that WADA has failed at for decades.” 

There has been a meticulously orchestrated, fully-funded white glove approach on behalf of the International Olympic Committee (IOC) and World Anti-Doping Agency (WADA) over the past year to ‘express their concerns’ in Washington regarding the new Rodchenkov Anti-Doping Act (RADA) now passed by the US Congress and Senate. The soft and gentile lobbying efforts mask a below the surface, vigorous intensity no less deadly to limit or stop RADA entirely. 

Why? What does this mean? 

First. The IOC and WADA control the Court of Arbitration of Sport (CAS) ‘justice system’ and investigations in anti-doping. One system. One approach. 

Second. ‘This is the first major bipartisan legislation that will create a legal framework for prosecution of doping conspiracies that frequently include elements of other crimes such as money laundering, extortion, fraud, bribery, murder and others, creating a legal remedy to the deep problems that have afflicted the international sports community for decades’, states RADA. Sport has a murky history in these areas.

Third. Now sport will not be able to control or stop investigations funded by the US government – wherever they may lead. 

In this situation, the Sun Yang cases exposed WADA’s system and legal infrastructure failures, which were predicted and warned about years ago, and are now being eclipsed in an attempt to blame the athlete. The issues at stake are far greater than a smashed sample container. 

Deep State: deep inside Olympic sports 

In the film ‘Icarus’ by Bryan Fogel, it was outlined that the FSB, the Russian State security agency that is a successor to the KGB, was active up and down the entire echelon of sports in Russia going back decades. Numerous Russian sport federation executives and others in anti-doping were FSB officials with relationships going directly to the Kremlin. 

The global media-generated outrage at the smashed sample container by a member of Sun’s entourage offered WADA an opportunity to grab a public relations fig leaf, hiding their own failures to expose and prosecute State sponsored doping in Russia. The international swimming federation (FINA) Doping Panel Report immediately called into question: Who was obeying who? What are the real underlying chain of authority relationships in the Sun Yang cases? 

The Chinese have made swimmers attend military camps. State-sponsored doping and the independence of the Chinese Anti-Doping Agency (CHINADA) is being called into question, going back to Beijing 2008 and earlier. Reports alleged that Chinese intelligence officials were involved in anti-doping.  If true, it was the responsibility of WADA and the IOC to expose and stop it, long before Sun Yang came along. 

Questions remain unanswered: Where do the DCOs, DCAs and other anti-doping officials come from? Who picks the individuals? Who sends them for interviews? How was the DCO assigned to Sun the year before that resulted in the first incident assigned to Sun a second time, resulting in the second incident? How and why was she permitted to return? 

The Chinese government passed a new security law in 2015 stating that all western technology must be ‘secure and controllable’, meaning multinational organisations are forced to build ‘back doors’ or third-party access to systems, or provide encryption keys and source code. Other laws in China have technology falling under Chinese military oversight and jurisdiction. Does that include anti-doping laboratories? The data base(s) there? Names and test results of athletes? And any anti-doping related technology and anti-doping personnel? 

Those questions are vital. They remain unanswered in the Sun Yang cases and concern the independence and accreditation of the WADA accredited lab. Calls and emails to CHINADA have not been answered – ever. 

To the best of my knowledge there has never been any independent outside oversight into how WADA approves/accredits which laboratories, how and when, or how anti-doping personnel are picked for NADOs and testing athletes around the world. During Hajo Seppelt’s investigations into the Russian scandal, secret videos were made by Yuliya Stepanova when she was tested by DCOs. They didn’t follow procedures. In addition, the first Report into Russian State doping produced by Richard McLaren mentions the FSB’s involvement in anti-doping, including during the Sochi 2014 Olympics.

Are we dealing with a similar situation in China? Anyone thinking the Sun Yang scandal is “just a doping case” may need time to clear their heads for a few months in a Chinese hard labor re-education camp to “understand the error of their ways” and to “rededicate themselves to do better and strive harder!” 

Do Chinese athletes have any basic human rights? 

Following the passage of RADA, if in any future US Senate and House OSCE hearings it is discovered that there is any Chinese Communist Party, Chinese intelligence, or military involvement in CHINADA, the Laboratory, anti-doping personnel, the Chinese swimming federation, doctors, DCOs, or other individuals around the athlete(s), then both cases against Sun Yang should be thrown out. 

Given the current political climate in China, it could be argued that there is a sinister cruelty in prosecuting an individual like Sun Yang. He has been held singularly responsible for the conduct of those in positions of authority around him, but a number of factors have not been taken into account. Billionaires who have criticised the State have disappeared1, and there appears to be a State campaign to target religious institutions. 

Chinese swimmers (including minors) were required to attend a Chinese military camp for the second time and were seen standing in military uniforms for ‘motivation, self-examination’ and ‘education’ after ‘failing’ at the Gwangju 2019 FINA World Championships due to worse than expected team results. In such an environment, it would be reasonable to assume the involvement of the Chinese Communist Party, Chinese intelligence and People’s Liberation Army in Olympic sports and the anti-doping system. 

If the Chinese athletes (and minors) fall under the jurisdiction of Chinese military code, then are the athletes responsible for the translation and updates of the Code and Prohibited List? Are they responsible for the appointment of team doctors they receive their medications and treatment from? Or the anti-doping personnel appointed around them? 

The answer is unequivocally “No.” Yet under the Code, the athletes are responsible.

Saying China is a ‘signatory to the Code’ as an excuse to prosecute an individual athlete for the actions of others around him in a communist one party State is irresponsible and grossly negligent. Especially since the conduct outlined above is now visible on the world stage prior to Beijing 2022 Winter Olympics. 

Sun Yang v. WADA 

In the CAS hearing at the Fairmont Le Montreux Palace Hotel in Switzerland, the discourse by Sun Yang and others was revealing. The answers were perfectly neutral to the point. Not one mention of anyone else’s authority or any possible conflict of interests of others by the athlete. There was not one reference or slip referencing anyone around him or any other Chinese organisation. None. 

The intelligence community has a couple words that describes the testimony: tight and sanitised. Nothing outside the boundaries. 

He perfectly described his body movements, his involvement, the events that night and his attempts to adhere and uphold the anti-doping Code. There was no reference to anything or anyone else. 

It could be argued that Sun Yang can’t say anything else. Statements and strategic thinking behind the eyes are mastered by a lifetime under a communist one party state. 

Any athlete must remain silent and show only their allegiance to China, their dedication and loyalty. Any other course of action could result in punishment by the Chinese authorities for revealing or mentioning anything or anyone else as responsible. Such a course of action would risk placing the athlete’s family, friends, coaches, girlfriends, neighbours, classmates, and friends on social media in potential danger.

Connecting the dots 

After ‘Icarus’ and the Russian doping scandal investigations, it emerged that the FSB was involved either as personnel and/or in orchestrating the Sochi 2014 Olympic doping operations. The question is: Is China similar to Russia? How many Chinese intelligence or military officials are or have been inside Chinese sport? Connected to CHINADA? A part of WADA? The IOC? International sport federations? 

Travis Tygart, the CEO of USADA, suggested that Sun Yang should come forward and tell everything, which he termed “swimming’s darkest secrets”, in return for a reduction in his eight year suspension and entry into a witness protection programme, similar to the one offered to Dr. Rodchenkov and the Stepanovs.  That’s pure hubris, grandstanding and foolhardy. The Department of State will be able to tell Mr. Tygart that it is highly unlikely to be able to guarantee the protection of Sun Yang anywhere around the world, due to his global recognition. 

However under RADA, it’s not what Sun Yang knows. It’s what Travis and WADA already know that counts. 

Athletes should not be held solely responsible for exposing State sponsored doping or corruption, especially when the intelligence agencies are involved. That’s the job of WADA and others. 

Washington lobbying – the new Olympic sport? 

It is interesting to see how hard and long the IOC and WADA have lobbied in Washington against RADA. On the one hand, WADA has vigorously prosecuted an athlete like Sun Yang with a death sentence ban, jeopardising his entire swimming career (due to issues beyond his control). On the other, it remains to be seen if WADA can successfully investigate any Chinese State sponsored doping historically, or any other issues related to CHINADA and the WADA accredited Laboratory, now that his cases are concluded. Such an investigation is vital, now that the Beijing 2022 Winter Olympics and two other World Championships are coming up in China. 

CBC Canada reports that ‘The World University Games in Chengdu in western China open 10 days after the Tokyo Games close, with up to 8,000 athletes. Next come the Beijing Winter Olympics beginning on Feb. 4, 2022, and the Asian Games in Hangzhou starting on Sept. 10. The previous edition of the Asian Games in Indonesia drew 11,000 athletes and featured more sports than the Olympics. A fourth major event, soccer’s 24-team Club World Championship, was to open in China in June of 2021, but has been postponed because of scheduling conflicts created by the pandemic.’ 

Exposing any doping structure within China on the eve of the upcoming Beijing 2022 Winter Olympics or the other two sport world championships is apparently not in Beijing’s, WADA’s or the IOC’s interests. There is no Olympics without an accredited anti-doping Laboratory for testing athletes. And keeping the WADA Lab accredited (no matter what) is a major concern for China. 

Questions for WADA, FINA and the IOC 

The value of WADA has been called into question by the White House ONDCP and the US Senate and Congress. They say that is is ‘incompetent when dealing with serious, endemic corruption’, and is unable to fulfil ‘the job of protecting clean athletes’. Given that Russian FSB intelligence officers were involved in RUSADA, the Sochi Olympics and/or anti-doping in Russia, there are a few questions that should be asked in the Sun Yang CAS case: 

• Are any of the individuals involved in anti-doping, DCOs, doctors, or related entourage known Communist Party, or Peoples Liberation Army? Or Chinese intelligence personnel? 

If the answer to any of these questions is: “Yes”, then the Sun Yang cases should be dropped and dismissed. Following RADA, it is only a matter of time before those questions must be answered in Congress publicly. 

Only with the full disclosure of the personal relationships between the positions around Sun Yang, including the doctors, anti- doping personnel, CHINADA, and the WADA accredited Laboratory can we even begin to piece together what an athlete is actually responsible for and what they are not. Especially if a mandatory cradle-to-Olympic podium State-sponsored doping program is involved. But the opportunity to discover such a system – if it exists at all – may have been lost.

According to reports, Sun Yang has had no problems with anti-doping personnel anywhere in his entire career as an athlete. Officials say he has always been polite, cooperative. The situation at CAS is regarding events only in China and only with one person. Then it was repeated. 

The Great Misinformation Wall of China 

We are currently living through a situation where it is alleged that Chinese governmental authorities are involved in fraud, lies, denials, corruption, and cover-ups regarding the corona virus, which has killed over half a million people worldwide to date. This includes misleading statements from President Xi Jinping and Wang Yi, Minister of Foreign Affairs. Given these allegations, how can anyone be certain over whether we have given a true portrayal of events and Chinese government personnel involvement around Sun Yang? 

If Chinese authorities cannot be held accountable or give basic honest answers regarding the corona virus, the Wuhan Laboratory, the disappearance and arrests of doctors who spoke out issuing warnings concerning COVID-19 and the virus outbreak, then how can anyone expect truthful answers on State sponsored doping, CHINADA, the anti-doping Laboratory and personnel in the Sun Yang cases? 

• To view this article in its original PDF format, please click here.

Footnotes

1. See: https://www.nytimes.com/2020/03/14/world/asia/china-ren-zhiqiang.html; https://www.abc.net.au/news/2019-01-06/the-people-who-china-disappeared-in-2018-and-where-they-are-now/10676016; 

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