The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
• A neglected but critical issue haunting WADA v. Sun Yang
The legal fight launched by the World Anti-Doping Agency (WADA) against Chinese swimming star Sun Yang (the ‘Athlete’) has almost come to an end1. On 22 June 2021, the Court of Arbitration for Sport (CAS) delivered a new Decision on WADA vs. Sun Yang (CAS 2019/A/6148) after a re-hearing ordered by the Swiss Federal Tribunal (SFT) before last Christmas.
Like the previous Decision set aside by the SFT2, the new Decision (PDF below) again ruled that a generic Letter of Authority from a Testing Authority fulfils the authorisation documentation requirements under WADA’s International Standard for Testing and Investigations (ISTI), thus rendering the sample collection attempted by International Doping Testing and Management (IDTM) on the night of 4 September 2018 valid3. This conclusion is obviously based on a presumption that the ISTI is the only standard on whether a doping control notification is conducted properly4.
Much ink was spilled in whether a generic Letter of Authority alone satisfies ISTI’s documentation requirement. Annex E of the ISTI does require blood collection to be consistent with local standards. This article largely leaves that argument aside, but turns to a different angle – Are there any other requirements beyond the ISTI and if so, would non-compliance result in a failure regarding the test notification process, hence invalidating the sample collection?
The new Panel recognised that the ‘customary practice’ of the Sample Collection Authority also bears weight on the notification requirements. However, the new Decision did not elaborate as it found that IDTM had not provided enough evidence regarding its own rules5.
Nevertheless, the Doping Panel of the Federation Internationale de Natation (FINA) preserved IDTM’s own rules on notification in the FINA Decision (PDF below) issued on 3 January 2019. This recorded that Jenny Johannesson, IDTM’s Legal Counsel, produced a Report to the Doping Panel, which ‘contained information relevant to IDTM’s typical authorisation and notification procedures6’ and listed that certain documents ‘must be carried to a mission and shown to a tested athlete, on request7’ including:
• At IDTM, Blood Collection Officials (BCO) are also valid IDTM DCOs who have been trained and are qualified to draw blood. All BCOs are issued a DCO Card by IDTM. BCOs must possess and show valid DCO Cards and other identification required of a DCO at a testing mission.
• Both BCOs and BCAs must carry and show the athlete at every testing mission where blood is to be drawn, a valid Certificate or document demonstrating that he or she is qualified to draw blood in the geographic location of the test.
• All Sample Collection Personnel must carry and show the athlete valid national identification.
According to IDTM’s own rules, as outlined above, its sample collection team failed the following notification requirements on the night in question:
(i) the BCO neither carried nor showed the IDTM DCO Card;
(ii) the BCO did not possess, let along did they show, a valid qualification to draw blood at the location of test;
(iii) the whole team, except the chaperone, did not show any valid national identification.
The ISTI categorises Sample Collection Authorities into two groups:
(i) the Testing Authority itself, or
(ii) another organisation to which the Testing Authority has delegated or subcontracted sample collection responsibility8.
By definition, the authority of the delegated/subcontracted group, where IDTM fits in, builds on a contractual relationship. Consequently, any material breach of the delegation agreement, usually taking the form of a Letter of Authority, would invalidate the authorisation thereunder.
WADA recognises that in addition to the ISTI, doping control processes must be in conformity with the terms of the delegation agreement, such as a Letter of Authority. Mr. Stuart Kemp, WADA’s erstwhile Deputy Director of Standards and Harmonisation, testified that while WADA uses its model Letter of Authority to subcontract a doping control test, the doping control officers are required to conduct the test in accordance with the agreements in that model Letter9.
Such a position is also endorsed by CAS. In citing an unpublished CAS decision10, the new Decision specifically quoted an International Ice Hockey Federation (IIHF) Letter of Authorisation, which contains the following sentence: ‘Sample collection will be in accordance with the IIHF Anti-Doping Rules and the WADA International Standard for Testing’11.
The 2018 annual Letter of Authority issued by FINA to IDTM contained an almost identical sentence (see right). The applicable FINA rules are the 2017 version FINA Doping Control Rules12, which stipulate that doping controls ‘shall be conducted in conformity with the provisions of the International Standard for Testing and Investigations and any protocols of FINA supplementing that International Standard’. One such protocol requires the Doping Control Officers to present, as part of the notification process, the following FINA Doping Control Authorisation, which contains information on the authorisation period, the name of the athlete, the identity of the doping control officers, etc.
Although FINA’s specific authorisation had been used by IDTM on multiple occasions, WADA’s Counsel argued that its presentation didn’t engage the protocols of FINA, as the testing mission was following the rules of the International Testing Agency (ITA), which was managing the sample collection for FINA13. ITA is not a sample collection subcontractor like IDTM; instead, it is a non-profit foundation, promoted by the International Olympic Committee (IOC) and supervised by WADA, tasked with implementing anti-doping programmes for international sports federations and other anti-doping organisations. Where ITA acts on behalf of FINA, as clearly stated in the signature block of the FINA Letter of Authorisation on the right, the rules of ITA become the protocols of FINA. Even if ITA does not have special status, the principles on agency law will support the same conclusion.
International sport laws are composed of a series of umbrella agreements, hence governed by the law of contract; whereas sovereignty laws are recognised as a State’s exclusive power over its geographic territory, subjects and domestic affairs. It is generally accepted that where sport laws and sovereignty laws regulate the same activity, the higher standards adopted by sovereignty laws apply.
Such a principle is respected by WADA. For example, the ISTI defers to the higher local standards and regulatory requirements in blood sample collection14. CAS also observes this principle, as the Panel indicated that had Athlete’s expert produced explicit provisions of relative Chinese laws, the issue on phlebotomy qualification would have been reviewed in more detail15.
Serendipitously, Chinese laws do have specific regulations directly governing the notification process for doping controls taking place in China16 – ‘While carrying out the doping control duty, doping control officers shall present doping control officer identification cards […] when sample collection is involved, doping control officers shall present in addition a duly-issued specific authorization’. This is not some internal rules or the protocols of an anti-doping organization such as the Chinese Anti-Doping Agency (CHINADA). Rather, it is a statutory provision under the PRC Anti-Doping Regulations first promulgated by the State Council on 13 January 2004.
The new CAS Decision effectively makes any non-ISTI requirements regarding the notification process – whether they are the rules of the Sample Collection Authority; the protocols of the Testing Authority or the laws of the hosting sovereignty – a white elephant. WADA needs to fashion a quick reconcilement of this matter, especially in preparation for the anticipated appeal with the SFT.
1. The Athlete may file a new petition with the SFT to set aside the new CAS Decision.↩
2. The first CAS Decision was set aside by the SFT, which ordered a re-hearing. SFT 4A_318/2020.↩
3. New CAS award, CAS 2019/A/6148, 22 June 2021, para. 328.↩
4. Id., para. 304.↩
5. Id., para. 324.↩
6. FINA Doping Panel Decision, 3 January 2019, para. 4.5.↩
7. Id., para. 4.41.↩
8. ISTI (2017), sec. 3.2.↩
9. New CAS Decision, para. 275. ↩
10. Salmond vs. IIHF, CAS 2018/A/5885 & 5936.↩
11. New CAS Decision, para. 308.↩
12. FINA Doping Control Rules (2015), DC 5.1.↩
13. CAS public hearing video, 15 November 2019, part IV @02:11:04.↩
14. ISTI (2017), Annex E, sec. E.4.1.↩
15. New CAS Decision, paras. 336 & 338.↩
16. PRC Anti-Doping Regulations (2004, amended twice in 2011 and 2014 respectively).↩
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