The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
This past February the Court of Arbitration for Sport (CAS) delivered an opinion (the ‘Award’)1 that sanctioned Sun Yang (the ‘Athlete’) with an eight-year ban for an Anti-Doping Rule Violation (ADRV) during a sample collection attempt on the night of 4 September 2018 (the ‘Collection Attempt’). The Award is currently under review with the Swiss Federal Supreme Court2.
One key issue of the case is the interpretation of ‘official documentation’ required under the International Standard for Testing and Investigations (ISTI)3. On the one hand, Counsels of the World Anti-Doping Agency (WADA) claimed that an annual letter of authority (the ‘Letter of Authority’) issued by the International swimming federation (FINA) satisfies the official documentation requirement. On the other hand, the Athlete’s team attacked the legitimacy of the Collection Attempt, arguing that the Letter of Authority alone is insufficient under ISTI.
Swiss law requires that statutory interpretation, rather than contractual interpretation, should be applied to the rules of important international federations4. The case law has laid out the method of statutory interpretation as follows5:
‘Any interpretation begins with the letter of the law (literal interpretation), but this is not decisive; the interpretation still has to find the true scope of the norm, which also derives from its relationship with other legal provisions and its context (systematic interpretation), the aim pursued, particularly the protected interest (teleological interpretation), as well as the will of the legislator (historical interpretation).’
The first clause of ISTI Article 5.3.3, governing ‘official documentation’, reads:
‘Sample Collection Personnel shall have official documentation, provided by the Sample Collection Authority, evidencing their authority to collect a Sample from the Athlete, such as an authorization letter from the Testing Authority’. (emphasis added)
Read in plain English, ‘official documentation’ in the above provision has at least two descriptors:
(i) it is issued by a Sample Collection Authority, not a Testing Authority; and
(ii) it delegates authority to Sample Collection Personnel, i.e., natural persons.
The Letter of Authority, presented to the Athlete during the Collection Attempt, was a generic authorisation issued by FINA, a Testing Authority; it gave authorisation to International Doping Tests and Management (IDTM), an institute rather than a natural person.
Neither does the delegator nor the delegate of the Letter of Authority match the official documentation requirement under ISTI Article 5.3.3. Therefore, literal interpretation would not recognise the Letter of Authority alone as sufficient official documentation.
Systematic interpretation reads the statutory language in context and focuses on internal consistency among different provisions. The official documentation requirement under Article 5.3.3 is part of the accreditation-authorisation scheme adopted by the ISTI. Such a scheme demands sample collection personnel to complete training and accreditation before a sample collection authority could authorise them for a specific sample collection.
A specific authorisation from the sample collection authority to sample collection personnel, rather than a generic Letter of Authority from a testing authority, is the key element to the scheme. That is evidenced by various provisions throughout the ISTI. Below are a couple of examples to illustrate:
‘The Sample Collection Authority shall appoint and authorise Sample Collection Personnel to conduct or assist with Sample Collection Sessions…’6
‘Only Sample Collection Personnel who have an accreditation recognised by the Sample Collection Authority shall be authorised by the Sample Collection Authority to conduct Sample collection activities…’7
Furthermore, the ISTI requires that when initial contact is made, the Doping Control Officer (DCO) and Chaperone shall ‘identify themselves to the athlete’ using the ‘official documentation’8. The Letter of Authority, as a generic authorisation, does not contain names of any individuals. It could not establish a connection between the sample collection authority and the sample collection personnel, let alone fulfilling the identification purpose.
The official documentation provision of the ISTI is codified under Section 5 ‘Notification of Athletes’, the expressed objective of which is to ensure that:
(i) an Athlete who has been selected for Testing is properly notified of Sample collection;
(ii) the rights of the Athlete are maintained;
(iii) there are no opportunities to manipulate the Sample to be provided; and
(iv) the notification is documented9.
It is clear that the notification process strives to protect the interest of all parties by adopting a systematic and accountable accreditation-authorisation scheme, rather than an ad-hoc system where the sample collection authority can be undermined by insufficient documentation – such as the provision of only a Letter of Authority.
Historical interpretation takes into account the legislative intent, sources of which include pertinent formal documentation reflecting the will of a legislative body. Legislative intent is different from drafting intent; the latter is used in contractual interpretation to reflect the mindset of the signing parties. During the public hearing, counsels for WADA frequently invited Stuart Kemp, WADA’s expert witness, to interpret ISTI provisions with the ‘drafting intent’10. After the Athlete’s Counsel pointed out that statutory interpretation, rather than contractual interpretation, should be applied, Counsels for WADA began to label the drafting intent as the legislative intent11.
The legislative body of the ISTI was the WADA Executive Committee, which put together a 2012 Code Drafting Team that comprised members as follows12:
Kemp was a member of the Code Drafting Team, and although he may have been the claimed ‘individual primarily involved with the drafting of [the ISTI]’13, it should be noted he never sat on the WADA Executive Committee. The drafting intent of a non-legislator is not the will of the legislator.
Together with the WADA Code and the ISTI, the Sample Collection Personnel Guidelines (the 14 ‘Guidelines’) are essential elements of the World Anti-Doping Program14. Although not mandatory, the Guidelines are pertinent legal documentation enacted by the same legislative body of the ISTI. Various provisions of the Guidelines15, as external evidence of the legislative intent, endorse the specific authorisation theory, thus discrediting the interpretation that a generic Letter of Authority alone is sufficient.
Since both sides agreed that the statutory interpretation approach should be adopted16, Kemp’s testimony, self-introduced as drafting intent applicable only to contractual interpretation, was inadmissible on the ground of irrelevance. On separate grounds, Kemp’s testimony should be excluded due to conflict of interest. CAS’s own arbitration rules expressly stipulate that ‘the expert shall be independent of the parties’17.
When the public hearing took place, Kemp was the Deputy Director of WADA’s Standards and Harmonisation department. As an executive of a party to the case, Kemp had a constructed conflict of interest. In addition, his department was responsible for auditing sample collection authorities and reviewing their operational practices18; more specifically, IDTM did submit its notification protocol to WADA for review19. If it turns out that the documentation presented by IDTM was insufficient, the oversight and review protocols of Kemp’s department would come under question, suggesting he had a direct interest in the outcome of the case; a classic ‘actual’ conflict of interest.
Surprisingly, the learned panel not only admitted Kemp’s testimony, but also heavily relied on the drafting intent in construing the official documentation provision20. The Award is also clogged with unreasonable arguments, some of which are illustrated and discussed as follows:
■ ‘The Panel finds that the wording of Article 5.3.3 ISTI indicates that presenting only the (generic) Letter of Authority from FINA to IDTM (plus identification of the DCO, which is discussed separately below) will be sufficient. Indeed, presenting this document is specifically referred to in Article 5.3.3 ISTI (“[…] official documentation, […] such as an authorisation letter from the Testing Authority”)’.
– CAS Award, Paragraph 223
First, ‘documentation’, though strictly speaking is not a ‘number specific’ word, is more often than not put in plural sense21. The terms ‘document’ and ‘documentation’ are both used in the ISTI, where the former always appears in the context of a single document and the latter comes with reference to a collection of documents. By picking the term ‘documentation’ in Article 5.3.3, the legislator most likely intended to require multiple documents, one of which may be the ‘authorisation letter’ enumerated in the ‘such as’ clause. Therefore, it follows that the Letter of Authority alone is insufficient.
Secondly, all the documents together should satisfy the descriptors in the main clause (i.e., from the sample collection authority to the sample collection personnel). Again, the Letter of Authority alone is insufficient.
Finally, will the Letter of Authority, coupled with the identification of the DCO, satisfy the official documentation requirement? Still negative, because trained and accredited sample collection personnel are not automatically qualified to conduct sample collection22. They need to clear a conflict-of-interest check before being appointed and authorised to a specific mission23. The identification of the DCO merely demonstrates association with the sample collection authority, but is not evidence of having the authority to conduct the specific sample collection.
■ ‘…Moreover, the Athlete had previously been subject to a Doping Control by this DCO, and he provided no evidence that on such occasion she had provided such (specific and individual) Authorisation Letter’.
– CAS Award, Paragraph 225
The first encounter between the Athlete and the female DCO was on 28 October 2017. At that time, she was not yet a DCO; she participated in that sample collection as a trainee. The Athlete filed a complaint against her for lacking the required authorisation documentation, which formed part of the Athlete‟s testimony and was discussed by counsels for WADA during the public hearing24. Unless the CAS Panel were absent-minded at the hearing, they would have known that the lady, having not become a DCO in 2017, was not at all in the position to provide any authorisation documentation.
■ ‘Consequently, the Panel finds that in presenting the Athlete with a (generic) Letter of Authority, the DCO acted in compliance with Article 5.3.3 ISTI’.
– CAS Award, Paragraph 246
This is the concluding paragraph to a question the CAS panel set out in Section IX.A.1.(a)(i) of the Award: ‘Did IDTM‟s Sample Collection Personnel have to provide the Athlete with a (specific and individual) Authorization Letter besides the (generic) Letter of Authorisation?’ Yet the answer is flawed in basic logic – even if it is true that an additional specific Authorisation Letter is not mandatory, that does not mean presenting a generic Letter of Authority alone is sufficient under ISTI Article 5.3.3.
The CAS panel was composed of seasoned Attorneys and an honourable Judge, who are well versed in the trade of lawyering. There must be a reason to explain their mysterious behaviour, including foregoing the approach of statutory interpretation, forgetting the rules of evidence admissibility, and fermenting ill-founded arguments.
There was some clue, though, during the public hearing. Half-way through the closing statement by the Athlete’s counsel, the CAS Panel interrupted him with the following question25:
‘And of course one of the concerns tribunal would have is what if you are right. Then the tens of thousands of tests that we’ve heard about in the course of this hearing arguably are all illegal. And do we not in that context expose ourselves, if we adopt your argument, of opening the floodgates to all of the cases where only [a generic Letter of Authority] was shown?”
The attitude of the CAS Panel is further displayed in the Award, with the following comments blaming the counsels for the Athlete and crediting the practice of IDTM:
‘There is a further point to be made with regard to the consequences of the Athlete’s position as to the documentation that is required…If the Athlete is correct, then it would appear that [tens of thousands IDTM] samples are, potentially at least, at risk of being invalidated, on the basis that a (generic) Letter of Authority is somehow insufficient. The Athlete’s Counsel offered no helpful response as to how to avoid such a consequence.’
– CAS Award, Paragraph 243
‘The Panel considers it unlikely that a large Sample Collection Authority such as IDTM would consistently have been non-compliant with the notification requirements set out in the ISTI…IDTM itself plainly understood the documentation to comply with the requirements set out in the ISTI.’
– CAS Award, Paragraph 245
Was there a realisation that finding in favor of Sun Yang would open a can of worms the CAS was either reluctant or unwilling to entertain? Is WADA v. Sun Yang a wake-up call to take measures that hold not just the athletes, but also the arbitration system, accountable?
1. CAS 2019/A/6148, World Anti-Doping Agency v. Sun Yang & FINA (the ‘CAS Award’).↩
2. Swiss Federal Supreme Court (SFSC), 4A_192/2020.↩
3. CAS Award, para. 210, (quoting FINA Doping Panel Decision) ‘The Athlete’s success ultimately hinged on the…interpretation of what “official documentation” was required to be provided by the Sample Collection Authority’.↩
4. SFSC, 4A_600/2016, para. 22.214.171.124., ‘For the interpretation of the statute of large associations, we use methods of interpreting the law’.↩
5. I.d., para. 126.96.36.199.↩
6. World Anti-Doping Code, International Standard of Testing and Investigations (ISTI 2017), Art. 5.3.2.↩
7. I.d., Annex H – Sample Collection Personnel Requirements, H.5.4.↩
8. I.d., art. 5.4.2(b).↩
9. ISTI 2017, art. 5.1.↩
10. CAS Public Hearing, CAS 2019/A/6148, 15 Nov. 2019 (‘CAS Hearing’), Video Part II, Young @00:27:39, “I would like you to…explain the drafting intent that goes with those words”, and Young @00:57:25, “…you can tell me what was the intent in drafting”, etc.↩
11. I.d., Video Part IV, Young @02:14:10, “…you look at the legislative intent, that’s what Mr. Kemp told you”.↩
12. Minutes of the WADA Executive Committee Meeting, 17 May 2012, pp.23-24, and 11 May 2013, p.71.↩
13. CAS Hearing, Video Part II, Kemp @00:21:30.↩
14. World Anti-Doping Code (2015), p. 10, ‘The World Anti-Doping Program encompasses all of the elements…The main elements are: Level 1: The Code, Level 2: International Standards, Level 3: Models of Best Practice and Guidelines.’↩
15. Sample Collection Personnel Recruitment, Training, Accreditation and Re-Accreditation Guidelines (2014), p. 10, ‘…the DCO may use a government-issued photo ID accompanied by an authorisation letter from the Sample Collection Authority’, and p. 17, ‘…accreditation consists of an authorisation letter provided by the Sample Collection Authority that includes the full name…’ etc.↩
16. CAS Hearing, Video Part IV, Vittoz @01:47:15, and Young @02:13:05.↩
17. CAS Code of Sports-Related Arbitration (2019), R44.3.↩
18. CAS Hearing, Video Part II, Kemp @00:17:32, “So our department also takes care of audits worldwide…where we review in detail the operational practices of [sample collection] agencies”.↩
19. I.d., Video Part II, Soderstrom @02:14:41,“…they needed the [notification protocol] for the WADA Compliance Questionnaire. That was sent in May, and we sent documents again in December of 2017 for the 2018 year.”↩
20. CAS Award, para. 226, “Mr Kemp also testified that the (generic) Letter of Authority provide to the Athlete by the DCO was sufficient under the ISTI to test the Athlete”, para. 227, “The Panel does not dispute Mr Kemp’s testimony and fully adhere to his logic…”, and para. 242, “The Athlete’s argument…was persuasively rebutted by Mr Kemp. He made it crystal clear that…”, etc.↩
21. Cambridge Dictionary, Documentation (Business English): ‘official or legal documents that are needed in order to prove something’.↩
22. ISTI 2017, art. 5.3.2., ‘The Sample Collection Authority shall appoint and authorise Sample Collection Personnel to conduct or assist with Sample Collection Sessions…who do not have a conflict of interest in the outcome of the Sample collection.’↩
23. Anti-Doping Administration and Management System (ADAMS) User Guides, ‘DCOs and participants can be excluded from participating in missions where a potential conflict exists’.↩
24. CAS Hearing, Video Part I, Sun @01:22:49, “When I saw the DCO, I recognised that she was the person I filed a complaint against in 2017, for participating in sample collection without credentials…however, I haven‟t heard any response on my complaint so far.” See also, Video Part IV, Young @00:46:20, “And he particularly remembered her because…he filed a complaint about her.”↩
25. CAS Hearing, Video Part IV, Sands @01:35:48.↩
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