12 June 2020

Should changes follow Sun Yang’s eight year ban?

I have been following the news about Sun Yang since the blood-sample-container-smashing headline story surfaced in January 2019. Sun is arguably the most controversial figure in swimming. A proud native of Zhejiang province in China, I do not feel any personal connection to him. Sun, also from Zhejiang, became famous long after I relocated to the States. My interest in news about his case was probably born out of my profession as a Professor of public relations and a researcher interested in human morality.

On 28 February 2020, the Court of Arbitration for Sport (CAS) banned Sun for eight years due to a tampering violation. It was a welcome decision for the World Anti-Doping Agency (WADA) and many swimmers who have spoken out against Sun over the years. Admittedly, tough sanctions are necessary for the arduous anti-doping campaign.

My reading of the Chinese media in the following days clearly showed some soul-searching and reflection on how to appropriately respond to international arbitration and in a situation with concerns toward doping control officers. Given the negativity surrounding Sun, anyone defending Sun will probably invite much backlash.

I thought hard about this. Did everyone else, except Sun, emerge as a winner? How would the public, activists or scholars react to this case ten or 20 years from now, when the public hysteria dies down?

Point of contention on testers’ qualifications

During the November 2019 public hearing before the CAS, Sun’s team argued in the most painstaking manner that guidelines should be used to help interpret Article 5.3.3 in the International Standards for Testing and Investigations (ISTI), a legally binding document. WADA countered loud and clear that guidelines are not mandatory and have been marked as such.

From a legal perspective, the court’s plain-language interpretation of Article 5.3.3 was correct. However, my reading of the Article immediately led me to question its completeness and reasonableness. Instead of simply explaining its Code, WADA’s guidelines detail higher standards and thus create inconsistencies between its own legally binding Code and non-mandatory guidelines.

The ISTI also states that the English version of the International Standards shall prevail when there are differences between the English version and the translated versions. I’m getting confused. How can the majority of the athletes in the world, who do not speak English, be held responsible for the differences in the Code they don’t understand?

I wonder if this world operates through laws only. The anti-doping campaign builds on the moral principle of fairness. From a moral perspective, should WADA be responsible for creating inconsistencies and not being able to harmonise its protocols in sample collection? While imposing strict liability on the athletes, should WADA impose strict liability on itself? All athletes, including Sun, need structure, consistency, and fair treatment.

Is WADA above the law?

I thought Sun’s team made a good argument that the blood collection officer, a nurse, did not possess a practice license to legally draw blood in Hangzhou, a violation of Article 2 in the Chinese Health Ministry’s 59th Decree. Additionally, article E.4.1 in the ISTI states ‘Procedures involving blood shall be consistent with the local standards and regulatory requirements regarding precautions in healthcare settings where those standards and requirements exceed the requirements set out below’.

However, this argument was sidestepped by a panel of three Arbitrators. My email to the CAS and the Panel members was not answered. At this time, there is no evidence from the Panel to refute Sun’s defence on this front.

Just as Philippe Sands, one of the three Arbitrators, worried about the floodgate effects of any court ruling, by ignoring this issue, the CAS has virtually given WADA a license to subject Sun and other athletes to illegal sample collection activities in the future. Just as the Panel stated, Sun was not ‘above the law or legal process’, WADA shouldn’t be either.

Was the Panel’s interpretation of the evidence fair and square?

Let me digress first. The Arbitral Award stated Sun showed disrespect in court by calling in an impromptu interpreter. But during the translation-marred public hearing, Judge Franco Frattini, President of the panel, explicitly consented to the use of this interpreter. The other two Arbitrators didn’t object either. The verbal consent was retracted shortly afterward.

My point here is that many altercations are fluid and chaotic. People may change their positions throughout an altercation. Just like Frattini did during the public hearing, an inexperienced doping control officer (DCO) could easily change her consent several times throughout that long night. After an event, people’s recollection of details can be selective and faulty. 

Not surprisingly, the DCO and Sun offered two vastly different accounts regarding what happened on the night of 4 September 2018 – a “he said, she said” situation. However, the panel was willing to tread into this situation based on translated verbal exchanges and behavioural indications. It ruled in favour of Sun on the charge of evading a urine sample collection and to the panel’s ‘comfortable satisfaction’, it ruled against him on a tampering violation.

But what was being said and the circumstances surrounding the two charges were similar. On both charges, WADA claimed the DCO warned the athlete of an anti-doping violation for not complying. The athlete and his entourage stated the DCO did not warn him and she voluntarily aborted the sample collection mission because of the deficiencies in the notification process. Thus, the Arbitrators should have reached the same decision on both charges. But they didn’t.

Indeed, the Arbitrators’ interpretation of the evidence was at odds with the FINA Doping Panel’s interpretation and mine. For example, in the Award, the Arbitrators reached a ‘factual conclusion’ that the DCO warned Sun about the anti-doping violation based on the following sentence: ‘It is abundantly clear that the DCO tried constantly to explain why the complaints and deficiencies raised by the Athlete were not valid, in her view’.

The plain language interpretation of this sentence is that instead of stating the anti-doping rule matter-of-factly, the DCO stated ‘in her view’. I am not surprised that the DCO, like many Chinese, could have used “I think,” “I feel” or “my opinion is” before addressing any ‘complaints and deficiencies’.

The Arbitrators interpreted the DCO’s statement “you find your way” as a result of her not having any option. As someone who grew up in Zhejiang, I would see it as a clear consent to remove the blood sample. The DCO did not publicly testify.

Meanwhile, it appeared the panel put much more weight on WADA’s evidence and tried to discount Sun’s witnesses’ testimonies. For example, Tudor Popa ‘testified that he actually heard the DCO warn the Athlete as to consequences while he was on the phone with her’. But Popa is Swedish and does not understand Chinese. On the other hand, although the CAS Panel did not consider the inconsistency important, it took the time to point out Dr. Han Zhaoqi’s use of his ‘ID card’ in his initial written submission and ‘resident ID card’ before the Panel. But an ‘ID card’ is a ‘resident ID card’ in Chinese and does not refer to any other types of identification. There was no inconsistency here.

The Award Decision also contained a factual error. Paragraph 192 states that for an athlete who is accused of an anti-doping violation to ‘rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability’. Yet in paragraph 212, the panel required Sun to establish a compelling justification to ‘the comfortable satisfaction of the Panel’, a higher standard. These are just a few of the many examples.

The need for fair treatment and culturally competent Arbitrators 

Unfortunately, I felt uneasy following the panel’s interpretation of many pieces of the evidence, whether it was the panel’s interpretation of the English language itself, or the panel’s cultural competency in understanding a confrontation between the Chinese. During the public hearing, Sands asked Sun’s team whether they had ever paused to think if they were wrong in interpreting the Code regarding the qualifications of the testers.

While reading the Arbitral Award, I wondered whether the three European male arbitrators, who do not understand the Chinese language and culture, ever paused to think if they were wrong in interpreting how the Chinese should understand other Chinese. This high-profile case has offered a glimpse into the CAS’s process and reasoning. I worry if the CAS is capable of appointing culturally competent Arbitrators in order to offer a fair trial for many other athletes in the future, particularly those from non-English speaking countries.

Sun’s case is currently under appeal with the Swiss Federal Tribunal. The Arbitral Award can only be challenged on a few very narrow grounds. Darren Kane, deputy chair of FINA’s legal committee, believed Sun’s chance of succeeding to be slim. 

I do not condone many of Sun’s behaviours. But I would be remiss if I did not point out the Panel’s interpretation of the evidence was forced and selective, and the writing prejudiced. After all, a system meant to ensure fairness ran against its core principle of fairness. Will this be a forever dark chapter in the history of WADA and the CAS?

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