The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
In February, the Court of Arbitration for Sport (CAS) rendered its decision in the World Anti-Doping Agency (WADA) vs. Sun Yang (the ‘Athlete’) case, and sanctioned the Athlete with an eight-year ban for an anti-doping rule violation (the ‘CAS Award’) during a sample collection attempt on the night of 4 September 2018 (the ‘Collection Attempt’). The Athlete appealed to the Swiss Federal Supreme Court (the ‘SFSC’) to set aside the CAS Award1. The appeal was successful, and the CAS must now reconsider the Athlete’s case2.
In the past, only in one out of every 13 cases before the SFSC was the arbitration decision reversed. The major reason is that the substantive merits of the case are not examined on appeal; rather, the review is limited to certain procedural issues statutorily listed, including where ‘the right of the parties to be heard was violated’3.
Failure to assess the relevant allegation (FARA) is recognised by Swiss case law as a violation of the right to be heard. The CAS Award is silent on the allegation of unlawful off-site phlebotomy (the ‘Allegation’) made by the Athlete, which underpins the attack the legitimacy of the Collection Attempt.
At present, the SFSC’s Reasoned Decision has yet to be published, however it appears that it set aside the CAS award based on evidence that the CAS Panel Chairman, Franco Frattini, was biased. As such, the CAS rehearing must afford a substantive review of Sun’s Allegation in order to avoid another appeal to the SFSC based on FARA.
• In a 2012 decision, the SFSC summarised the FARA rule as follows: ‘The right to be heard in contradictory proceedings within the meaning of Art. 190(2)(d) PILA…imposes upon the arbitrators a minimal duty to review and deal with the pertinent issues. This duty is breached when inadvertently or by misunderstanding, the arbitral tribunal does not take into account some statements, arguments, evidence and offers of evidence submitted by one of the parties and important to the decision to be issued.4’
• In application of the FARA rule, Swiss case law has long established that if an Arbitral Award is silent as to some apparently important elements it should consider in deciding the dispute, it is for the arbitrators to justify that omission by demonstrating that the elements omitted were ‘implicitly rebutted’ by the Arbitral ribunal, in order to avoid the award being set aside5.
• However, the SFSC has made it clear that it will not easily and simply credit an Arbitral Tribunal’s assertion of implicit rebuttal. Merely mentioning a relevant allegation without substantive review is not sufficient to prove an implicit rebuttal; more specifically, rejection of a relevant allegation for absence of foundation rather than legal analysis of the merits does not justify the omission6.
• Most importantly, the FARA rule invites the (in)famous doctrine of deni de justice formel. Where the pertinence of an allegation is undeniable, failure to assess such allegation ‘would be tantamount to disregarding the formal nature of the right to be heard, which would invoke the necessity to annul the decision under appeal irrespective of the Appellant’s chances of obtaining a different result’7 (emphasis added).
With regard to the qualification of Blood Collection Officers (BCOs), WADA’s International Standard for Testing and Investigations (ISTI) requires:
• BCOs shall have adequate qualifications and the practical skills required to perform blood collection from a vein8.
• Procedures involving blood shall be consistent with the local standards and regulatory requirements9.
The Chinese laws and regulations (the ‘Chinese Laws’) regulating nursing practice provide:
• A Nurse Practice Certificate, properly registered with and issued by a provincial public health authority, is a prerequisite for lawful practice within such province10.
• It is unlawful to conduct nursing practices outside the province of registration without prior administration on change of registration place (the ‘Off-Site Practice’), except temporary Off-Site Practice authorised by the relevant public health authority11.
The following facts, acknowledged by both the parties and the CAS Panel, come from the CAS Award, the video recording of the public hearing on 15 November 2019 (the ‘Hearing’) and the Doping Panel Decision by the Federation Internationale de Natation (FINA) issued on 3 January 2019 (the ‘FINA Decision’).
• The BCO possessed both a Nurse Qualification Certificate (NQC) and a Nurse Practice Certificate (NPC), although she only presented the NQC to the Athlete during the Collection Attempt12.
• The NQC (No. 09092081), which was not a valid qualification document for BCOs, was issued in 2009 by Zhejiang authority13, while the NPC that the BCO produced at her deposition just one day before the Hearing was issued by Shanghai authority14.
• Prof. Pei Yang testified, after WADA’s objection being overruled, that under the Chinese Laws Off-Site Practice without authorisation by a relevant public health authority was unlawful; therefore the BCO holding an NPC issued by Shanghai authority was not qualified to conduct phlebotomy in Zhejiang, where the Collection Attempt took place15.
In assessing the pertinence, the SFSC will not evaluate whether the allegation is true or false, but examine if the allegation would have any weight on the arbitration decision. In other words, pertinence is established as long as the dispute would be resolved differently should the allegation be correct. The CAS Award recognised that a material deviation from the ISTI requirements would exculpate the Athlete:
‘In the view of the Panel, it cannot be excluded that serious flaws in the notification process, or during any part of the Doping Control process, could mean that it might not be appropriate to require an athlete to subject himself to, or continue with, a sample collection session. Rather, they could invalidate the sample collection process as a whole, so that an athlete might not be perceived as having tampered with the Doping Control, or as having failed to comply with the sample collection process.16’
So, if the BCO’s Off-Site Practice was unlawful by local standards, then she lacked the qualification to collect blood sample under the ISTI requirements; consequently, this ‘serious flaw’ invalidated the Collection Attempt, hence rendering the Athlete not guilty of any anti-doping rule violation. Therefore, the Off-Site Practice allegation raised by the Athlete is not only pertinent to, but also decisive in the result of the case.
Once the pertinence of the omitted allegation is undeniable, the CAS Panel will be burdened with justifying such omission with implicit rebuttal. The only place in the CAS Award that may be linked to the Off-Site Practice allegation was in Paragraph 292, where the CAS Panel dismissed the Athlete’s argument as ex post facto, reasoning that there was no evidence suggesting that the procedural flaw was ever raised or addressed during the Collection Attempt. However, such exclusion was flawed in three aspects.
• Firstly, the Panel’s conclusion was built on a wrong assumption that the Athlete could have discovered the Off-Site Practice during the Collection Attempt. On the night of question, the NQC presented by the BCO carried a red seal conspicuously demonstrating that it was issued by authority of the Zhejiang province, where the Collection Attempt took place. The Athlete was thus misled by the BCO’s misrepresentation.
• Secondly, adequate qualification in compliance with local standards is mandatory under the ISTI. If the Off-Site Practice was unlawful according to the Chinese Laws, then the BCO was not qualified under the ISTI, regardless of the Athlete’s knowledge or compliant.
• Finally, the ‘ex post facto argument’ defence was to reject the Athlete’s allegation for absence of foundation, rather than rebut it based on legal analysis of the merits. As Swiss case law repeatedly emphasises, dismissal without substantive review does not amount to implicit rebuttal.
During the CAS proceeding, the Athlete formally submitted the Off-Site Practice allegation to attack the legitimacy of the Collection Attempt, which was the foundation of the alleged anti-doping rule violation. Since the CAS Award was silent on the allegation and hardly alluded to any implicit rebuttal, it would most likely be set aside under the FARA rule for violation of the right to be heard, unless the CAS reconsiders this point. Should the CAS Panel attempt to rebut the allegation on the merits before the SFSC, it would be too late to do so; the doctrine of deni de justice formel would nevertheless guarantee the Athlete a landslide on appeal.
The company International Doping Tests and Management (IDTM) was the sample collection authority handling the Collection Attempt17. An IDTM supervisor testified that a statement of confidentiality was the only documented record18 of the training exclusively provided by the doping control offer (DCO) to the sample collection personnel she recruited19; the CAS Panel considered that a one-page statement signed by the DCO ‘amounts to a confirmation of accreditation recognised by IDTM’20. It sounds like the DCO was the only gatekeeper at IDTM with regard to the BCO’s qualification; the DCO’s knowledge about the NPC being a necessity of such qualification creates a fascinating bifurcation.
Practice-within-authorised-region is not an alien concept to professionals. For example, a lawyer may practice law only in a jurisdiction in which he or she is authorised to practise21. Being the person in charge of recruitment, training and accreditation of IDTM BCOs in China, the DCO should have known that an NPC, rather than an NQC, is the must-have qualification for nursing practice in the country; otherwise, the whole qualification administration of IDTM would have been compromised.
The FINA Doping Panel observed that during the FINA hearing, IDTM described the NQC as the ‘nurse certificate’ but never produced the NPC, a piece of evidence so critical that lack of which finally dictated the outcome of the FINA Decision22. Had IDTM kept a record of that NPC, it would have submitted it to the FINA Doping Panel without hesitation. Had the DCO known the importance of the NPC, she would have managed to obtain a copy of it from the BCO in preparation for the FINA hearing.
An educated guess could be that the DCO had no knowledge of the NPC at all; she never verified the BCO’s NPC, let alone keeping a copy of it in record. In that case, WADA does need to revisit all the sample collection procedures conducted by IDTM in China, which are potentially illegitimate due to tampering by unqualified personnel.
Alternatively, if the DCO did appreciate the nature of the NPC, what happened during the Collection Attempt might prove something worse: a collusion to cover the Off-Site Practice. Assuming the DCO knew that the BCO possessed a valid NPC and that the NQC was not a qualification document, then why did she direct the BCO to present the NQC, rather than the NPC or a photocopy of it, on the night of question? The answer lies in a tiny detail that was missed out by the CAS Panel – the NQC was issued by Zhejiang authority and the NPC was issued by Shanghai authority.
Here is a plausible rendition of the plot: Knowing that the BCO who was registered in Shanghai was not qualified to conduct phlebotomy in Zhejiang the DCO, instead of restaffing her team, directed the BCO to present her NQC issued in Zhejiang in order to conceal the Off-Site Practice, with the hope that the Athlete could not differentiate the NPC from the NQC. If this is accurate it would appear that the trick worked well, as neither the Athlete nor his entourage discovered the Off-Site Practice during the Collection Attempt.
The above NPC-knowledge bifurcation casts heavy doubt on the credibility and/or integrity of the DCO and IDTM. Maybe it’s time for WADA to seriously consider beefing up ‘harmonisation’ among third party service providers and extending ‘non-guideline’ standards on accountability.
1. CAS 2019/A/6148.↩
2. A_318/2020: https://www.bger.ch/files/live/sites/bger/files/pdf/en/4a_0318_2020_yyyy_mm_dd_T_e_08_43_21.pdf↩
3. Private International Law Act, art. 190(2)(d).↩
4. 4A_360/2011, para. 5.1.↩
5. 4A_433/2009, para. 2.1.↩
6. 4A_460/2013, para. 3.2.2.↩
7. 4A_46/2011, para. 4.3.2.↩
8. ISTI (2017), Annex H Sample Collection Personnel Requirements, H.4.1(b)(ii).↩
9. I.d., Annex E Collection of Blood Sample, E.4.1.↩
10. Rules on Nurse Practice Registration Administration (2008), art. 2.↩
11. I.d., art. 16.↩
12. CAS 2019/A/6148, para. 290.↩
13. I.d., para. 291. See also, FINA Doping Panel Decision, para. 6.44.↩
14. CAS Public Hearing, 15 Nov. 2019, Video Part III, Meakin @02:34:21. ↩
15. I.d., Pei @02:50:05.↩
16. CAS 2019/A/6148, para. 208.↩
17. CAS 2019/A/6148, para. 7.↩
18. CAS Public Hearing, 15 Nov. 2019, Video Part II, Popa @01:14:03.↩
19. I.d., Popa @01:45:58.↩
20. AS 2019/A/6148, para. 287.↩
21. Model Rules of Professional Conduct (2019) American Bar Association, R. 5.5 Unauthorized Practice of Law.↩
22. FINA Doping Panel Decision, paras. 6.46 and 6.47.↩
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