26th May 2021

Human rights trump WADA rights 

There was slight movement in the links of a chain dragging, then “Click! Ka-Ching!” The sound of a trap snapped shut. Excruciating pain began to set in. Not for Sun Yang, but for others. 

The Court of Arbitration for Sport (CAS) announced on 1 April that WADA will continue its appeal against a decision to clear Sun Yang of a doping offence. It is seeking an eight year ban. The hearing is scheduled for 25-27 May. 

This raised some serious questions. 

WADA exercising its right to appeal to ban Sun Yang for eight years is one of the most gruelling examples of injustice in the history of Olympic sports and WADAs reign in governing anti-doping. 

The injustice is on multiple levels. 

Basic Human Rights? A fair trial? 

The basic tenets of the rule of law on which any legitimate judicial process rests, including the World Anti-Doping Code, are basic human rights and the right to a fair trial. Does anyone really think it is possible in this case? 

Sun Yang is a Chinese citizen. In the current Chinese government climate, basic human rights and the right to a fair trial are not only in danger but in many cases entirely absent. There is no ‘freedom of speech’, not according to any western standards. 

How terrifying are the possible consequences facing athletes like Sun Yang or anyone else? Be successful or say the wrong thing and anyone can quickly disappear into the black hole of China. 

Look at the numerous Chinese businessmen and media executives who have disappeared. Gone. Forgotten. You can’t even name them. Yesterday’s news. Out of sight. Out of mind. They were arrested and removed from their companies, homes and families. Many have never surfaced again. 

Are Olympic Partners Safe? 

How about Jack Ma, Chairman of Alibaba, an Olympic Partner and President Bach’s friend? Are Olympic Partners safe? Ma ‘disappeared’ for three months. He is now the former Chairman of his own company and is ‘embracing supervision’. His other company’s initial public offering (IPO) has been cancelled. 

In the previous and upcoming CAS appeal against Sun Yang, believing that he is able to speak freely borders on being absurd. Because of this, it is nearly impossible for his defence team to gather evidence that might implicate the State but exonerate the athlete. 

Especially with the current events of the past year in China regarding violations of basic human rights from A-Z across the board. The IOC, WADA officials and the prosecuting team (especially if any are American) can’t say “They don’t know.” 

The athlete is trapped between the Chinese Communist Party ruling government and WADA. Both hold the death penalty” in their hands. One for real and the other for Sun’s sporting career. 

US Secretary of State Mike Pompeo reminded Silicon Valley leadership in a speech delivered on 13 January 2020, “We must see China for what it is, not what we wish it would be… China by nature is a police state.” 

Proportional? Fair? 

WADA is seeking an eight-year ban against Sun Yang. Let’s compare that to what happened regarding the Russian Anti-Doping Agency (RUSADA) and the State doping scandal in Russia. 

As the doping scandal emerged, the two senior anti-doping executives at RUSADA dropped dead. Vyacheslav Sinev, former Chairman of RUSADA died and 14 days later Vice Chairman, Nikita Kamaev, died of a ‘massive heart attack’. Both were collaborating on a book exposing what had been going on in Russia. 

Vitaly Mutko

Russian Sports Minister Vitaly Mutko said: “It’s a very unexpected death. [Mr Kamaev] seemed healthy and everything was fine.” Mutko has since been named Deputy Prime Minister of Russia. 

An interesting point is that when Putin arch rival Alexei Navalny was poisoned with a nerve agent Novichok and treated at a Russian Hospital #1 in Omansk, the Deputy Chief Physician Sergey Maximishin who treated Navalny died “suddenly”. This was followed by the death of Rustam Agishev, who was head of the trauma treatment at the hospital that saved Navalny. 

Former WADA President Dick Pound spoke about the Russian doping scandal and Russian Sport Minister Mutko: “It was impossible for him [Mutko] not to be aware of it. And if he’s aware of it, he’s complicit in it.” 

On 5 December 2017, Mutko was banned for life by the IOC for his role in the doping conspiracy. And then CAS completely overturned the lifetime ban in July 2019. 

The Russian 2014 Sochi Olympic Games doping scandal was the greatest scandal in Olympic sport history – so far. This triggered the McLaren Independent Investigation and Reports Part l and ll, the IOC’s Oswald Commission, the fleeing of Dr. Grigory Rodchenkov and the Stepanovs from Russia to the USA to live in protective custody, the ongoing corruption with the Laboratory Information Management System (LIMS) from the Moscow Laboratory and other aspects that would take pages to cover. 

According to FINA, Sun Yang has always been cooperative and polite at all events, including in-competition and out-of-competition doping protocols. There is only one person, a Chinese female DCO that there has allegedly been a problem with in the past and it was the same person involved in the second incident. 

There is something wrong with the system here. A single individual, with apparently no background in sports, should never have the power to stop the entire career of a distinguished Olympic athlete and destroy his name and reputation for the rest of his life. 

This is not about ‘defending Sun Yang’. WADA has the right to seek an eight year ban on an athlete due to two anti-doping rule violations (ADRVs). But are they both of the athlete’s making? The more the cases are analysed, the more evidence comes to light that they are not. 

Maybe it’s not the athlete who is trapped? It’s time to ask some questions. 

Legal Opinion par excellence 

Jean-Paul Costa, is the former President of the European Court of Human Rights, honorary member of the Council of State (France) and Arbitrator for the Court of Arbitration for Sport. He was asked for his Opinion by WADA on the World Anti-Doping Code in 2015 and “was asked to answer several questions concerning the revised World Anti-Doping Code (the ‘2021 Code’)”. 

Reading his opinions and reasonings on the Code is an education in itself. You’ll quickly realise that he is an outstanding legal expert and scholar striving to the finish line for balance and justice in the application of sport law. Going through all 38 pages, you’ll find it thorough and detailed with a sustained effort to recognise and balance human rights in the fight against doping in sports. All important. All good. All necessary. 

However, in his writing on page five he mentions the Pechstein case(s), where a German speed skater was convicted of doping. ‘And especially (due to doping) Ms Claudia Pechstein, a speed-skater of German nationality, suspended for doping by the disciplinary committee of the International Skating Federation’.

If even the best legal mind like Mr Costa feels free to assert that Pechstein was ‘doping’, despite the history of the case with what happened with the statistics, the graphs, the blood values and in Hamar, Norway , then maybe there are other cases where ‘outside factors’ can affect justice and a fair trial in cases against athletes. 

Ethics in the spotlight 

WADA has named Professor Michael McNamee as Chair of its Ethics Expert Advisory Group effective 1 May 2021. Professor McNamee holds Professorships in Ethics at KU Leuven, Belgium, and Swansea University, Wales, UK. 

It’s good he’s the Chairman. Ethics has been one of the more underfunded and marginal pillars in anti-doping. The high-speed WADA train is run by Attorneys in an engine that is careening towards a bridge knocked out. The train car that holds the Ethics Expert Advisory Group is near the rear and is the only car not equipped with an automatic emergency brake on the wall to stop the whole thing. 

There are ethical issues that have emerged in the Sun Yang case that WADA has refused to tackle before. 

Translation Issues 

It would be interesting to sit down with Mr Costa and Mr McNamee and ask how ethical the Code is if you can’t obey it? If we were to place 20 or 30 medications in front of each US Congressman and women and US Senators, could they go online to determine if it featured on the Prohibited List? If the boxes are in Chinese? Russian? Or Greek? 

It’s about industrial scientific pharmaceutical identification from English to Chinese, or Russian, or Greek for substance identification, per Prohibited List substance, per medication, per brand, per language, per country. 

We should also carry out the same exercise for any WADA and NADO personnel. And if they get any box wrong, apply the bans specified by the Code. They’re banned from sport for four (4) years or eight (8) years if they get two (2) wrong. Let them spend millions of Euros and lose their marriages and homes trying to get their job or reputation back. 

Being able to use and apply the Prohibited List should be a basic qualification for any position in WADA. It should apply to everyone up and down the anti-doping chain of command. If the athletes are held 100% responsible under strict liability, shouldn’t WADA personnel be able to obey it? The reason they don’t use it as a qualification is because… they can’t. 

The Prohibited List and its application in real time is far too complicated for any one person to understand. You cannot look at a box of medication and instantly know if it is safe or not. This is illustrated by WADA’s recent recognition that medication can suffer from contamination. If WADA personnel also cannot pick up a box of medication and know if it is safe or not, then this is a major problem that falls in the lap of ethics, human rights and law.

As a Chinese citizen, Sun Yang is ultimately responsible for interpreting any pharmaceutical translations for any medications on the Prohibited List. So are any young children who are considered ‘athletes’ in any country, according to the Code. It’s time to test this in front of the Organisation for Security and Cooperation in Euorope (OSCE) in Washington. 

Communications Audit 

It would be interesting to see what WADA’s reaction would be to a communications audit. This concerns Sun Yang’s first ‘offence’. WADA was warned about these scenarios long before Sun Yang came along. 

WADA is an information agency. Communications is their DNA. What is needed is a communications audit on how substances placed on the Prohibited List go from the Expert Working Group(s) to the Prohibited List, to Publication, to the NADOs to the athletes on the track or at pool side – per country. And another Communication and Technology Audit is necessary on the whole process of DCO IDs, selection and testing information flow streams. 

There is no Communication or Technology Commission or a Communications or Technology Expert Working Group in WADA. Yet WADA was warned about these issues years ago yet they remain at the eye of the hurricane between WADA, CHINADA and Sun Yang. 

Both cases are to do with WADA and its NADO partners’ substandard communications and technology platforms. Yet Sun Yang is being held responsible for this.

If human rights and ethics are respected, then both of Sun Yangs cases should be thrown out immediately. 

No one has to be a preeminent legal scholar like Mr Costa or a distinguished Professor like Mr McNamee to understand these issues and their consequences. 

No barrier between civilian and military 

“President Xi has called upon the entire Chinese system to implement ‘military-civil fusion'”, the Trump administration announced. “To arrive at this goal, Xi has personally directed the entirety of the Chinese system – civilian, military, state-owned and private – to eliminate the barriers between China’s civilian and defence economies in order to pursue simultaneous economic and military advancement.” 

Former Secretary of State Mike Pompeo said: “We must ask ourselves questions, like, ‘Who am I dealing with?’ in China.”

OSCE 

Now that the Rodchenkov Anti-Doping Act is law in the USA, the WADA appeal demands answers to questions regarding basic human rights and a fair trial. Ms Yang Yang is Vice Chairman of WADA and is a member of the 14 person WADA Executive Committee. 

The Russian doping scandal unearthed FSB or KGB involvement in sport. Questions: 

1. Were there any deliberations internally on WADA’s decision to appeal the Sun Yang case, and did Ms Yang excuse herself?
2. Is Ms Yang, or members of CHINADA, or any Chinese anti-doping lab, or personnel affiliated with testing part of:
a.) The Chinese Communist Party?
b.) State security?
c.) Chinese Intelligence Agencies?
d.) The People’ s Liberation Army?
3. In light of the Russian doping scandal, is CHINADA independent and fully compliant according to the World Anti-Doping Code?

One can assume Sun Yang has no authority or power in choosing Chinese team coaches, doctors, CHINADA or testing personnel or security members around him on the night of the incident. Both of Sun Yang’s cases expose WADA system failures, which were predicted years ago. And it brings to light the probability that Chinese military, security, intelligence and Communist Party operations are involved in anti-doping and sports, a revelation now being eclipsed by an attempt to blame the athlete. 

Are members of Sun Yang’s entourage, or any of those mentioned in the FINA Report involved in the CAS Appeal part of: 

a.) The Chinese Communist Party?
b.) State security?
c.) Chinese Intelligence Agencies?
d.) The People’s Liberation Army? 

Or a better question: Is anyone not? 

There is no fairness at the CAS this week without full, verifiable answers to those questions. The injustice in these two cases is embedded on multiple levels and has nothing to do with Sun Yang. WADA knows it. Many believe that this is not about doping. It never was. 

Unchecked power intoxicates and dulls a sense of judgement. In light of the technology and communications issues, the two WADA cases against Sun Yang reveal a structural failure with an absence of checks and balances in WADA between human rights, ethics and prosecution. The ethics team needs to run to the front of the train and pull the emergency brake. 

FINA was right 

It’s time to admit that after a more thorough analysis FINA came to the right conclusion the first time. It was not the fault of the athlete. WADA needs to withdraw and disengage, giving everyone room to save face. 

The ‘smashed sample’ was a media driven sensational trap. It was the athlete who attempted to honour and obey the Code. Isn’t that correct? 

The surrounding ethics and intelligence questions in the current Chinese political climate prevent a fair trial for Sun Yang. What also has been on everyone’s mind and is important to think about is:

a.) Does China have a State-sponsored doping system? 

Well, if it does it’s not up to Sun Yang to expose it. It’s up to WADA and the IOC. 

b.)  What evidence do they have?
c.)  Is the anti-doping lab and its technology, communications and databases likely compromised by the Chinese military, security or intelligence agencies?
d.)  What is the threshold required to launch an investigation?
e.)  Why haven’t they done it?
f.)  In who’s interest is it not to investigate and hold China accountable for compliance before Beijing
2022?

Now that we have RADA, we many only get answers to those questions in OSCE hearings. Mr Costa said at the conclusion of his Legal Opinion: “I am all the more convinced that and I repeat this, the fight against the scourge of doping and respect for human rights can be reconciled. The two can and must be reconciled.” 

We agree. Let’s hope it happens this week for Sun Yang’s sake – and WADA’s. 

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