SII Focus 6th March 2020

Sun Yang Decision raises further questions

Sun Yang assisted a security guard to use a hammer to smash a glass container containing two blood samples using the torch on his mobile phone, allowing his doctor to retain the blood vials, the Court of Arbitration for Sport’s (CAS) Decision (PDF below) in his case reveals. The CAS Panel expresses bewilderment at why this was necessary, as the ‘correct course of action’ would be to allow the Doping Control Officer (DCO) to leave with the blood samples under protest. It also outlines that although Sun wasn’t satisfied with the identification provided by doping control personnel, they had all the documentation required by the World Anti-Doping Agency’s (WADA) International Standard for Testing and Investigations (ISTI).

The Decision outlines that the blood vials, still held by Sun’s doctor Ba Zhen, are ‘no longer eligible to be tested because the chain of custody was broken’. This raises questions as to why the blood vials were retained by Dr. Ba rather than being destroyed, along with the outer storage box container. 

Sun was tested 180 times between 2012 and 2019 and 60 of those tests were carried out by International Doping Tests and Management (IDTM), the testing agency contracted by the international swimming federation (FINA) to conduct the contested 4 September 2018 test attempt. That Sun and Dr. Ba apparently made no effort to externally test the two blood vials retained initially appears odd. 

The CAS Decision found that Sun took the initiative to prevent the blood sample collection process from being completed (see right). The Decision specifically finds Sun guilty of tampering with the doping control process under Article 2.5 of FINA’s Doping Control Rules.

This appears to contradict a statement made by Sun’s lawyer, which read: ‘Mr Sun Yang did not have any part in tampering with the doping control process, or refusing to provide samples’.  The CAS Panel did not agree that the DCO ‘voluntarily abandoned the testing’, as asserted by Sun’s lawyer. 

Witness intimidation

Sun Yang said that WADA’s contention that he had attempted to intimidate the DCO on social media was incorrect…

The Decision also outlines numerous attempts to intimidate witnesses. Sun’s legal representatives denied being behind such attempts, which specifically targeted the Blood Collection Assistant (BCA). This included contacting the hospital where she worked to request a meeting.

WADA indicated the public release of a video recorded by Sun’s mother, Ming Yang, depicting the DCO and BCA. It also said that Sun had attempted to intimidate the DCO on social media. Sun’s legal team admitted that Ming had approached the BCA and DCA to ‘gather information about the case and seek assistance from them’. Sun argued that the translation of the social media post was incorrect and, in any case, didn’t mention the DCO by name. Sun and his legal team denied any attempt at intimidation.

The DCA suddenly changed his mind about testifying…

The BCA would only consent to testify via video, and the DCA withdrew his willingness to testify ‘on the eve of the hearing’, however the CAS Panel pointed out that it didn’t draw any inferences from this. The Decision also outlines an extraordinary number of procedural challenges, including questioning whether CAS Arbitrators and WADA’s legal team held conflicts of interest. 

Identification and suspicion

Doping control personnel had the ID required…

Sun requested ID from the DCO, the BCA and the DCA, all of which was provided. The DCO had an IDTM ID card and a generic letter of authority from FINA; the DCA presented his government ID card; and the BCA her junior nurse qualification. Sun then signed the Doping Control Form (DCF) and provided two blood samples.

The Decision outlines that the DCA, a builder who had been trained by the DCO and who had participated in two other doping test procedures, took photos of Sun without his consent. Sun contents that this took place in the clubhouse adjoining his residence, where the test attempt took place. Video surveillance doesn’t confirm that the photos were taken, only that Sun asked the DCA to delete images from his phone.

The written testimony from the DCA…

A written testimony (right) from the DCA admits taking pictures on the way to the clubhouse, adding that Sun thought he was taking pictures of him in the clubhouse. Sun said that although he had signed the DCF and consented to blood and urine collection, the discovery of the DCA’s photos led to his loss of confidence in the test procedure. He then questioned the ID of the DCA, who withdrew from the procedure with the apparent consent of the DCO. As the DCA was the only male member of the testing mission, urine testing became impossible. 

He then re-questioned the ID of the DCO and the BCA, receiving erroneous advice that their ID documentation was insufficient. The CAS Panel was satisfied that the DCO warned Sun about the consequences of his action but, nonetheless, his suspicions culminated with the tearing up of the DCF and smashing of the blood sample storage box container. 

The CAS Panel was satisfied that Sun was warned about the consequences of his action…

Article 5.3.3 of the International Standard for Testing and Investigations (ISTI) outlines that ‘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 authorisation letter from the Testing Authority’. The CAS Panel interpreted this to mean that presenting a single letter of authority from the testing authority – as provided to Sun – is sufficient, and letters of authority from all involved are not required. 

But due to the wording outlined above, it is easy to see how confusion may have arisen. Especially as the ISTI is not available in Chinese.

Bad advice and explanations

On the face of it, Sun Yang is guilty of acting on bad and incorrect advice, and for not giving a full account of his actions. The CAS Decision doesn’t contain any explanation as to why Sun refused to allow the sample collection process to continue, under protest. 

Sun doubted whether the doping control personnel held the correct documentation. But tearing up a DCF and smashing sample containers appears extreme, when he could have proceeded and later contested the ID of the personnel. A possible explanation is that he thought that the testing mission was an attempt to set him up. Who might do this and why is not explored or explained in the CAS decision.

The CAS Decision calls into question Sun’s character. ‘The Panel notes that the Athlete appears to have a forceful personality, and seems to have an expectation that his views should be allowed to prevail’, it states. ‘This was apparent during the hearing’. It also questions the credibility of Dr. Ba, labelling him ‘evasive’.

Those who watched the CAS proceedings were critical of the translation issues that dogged the hearing. The CAS Decision blames this on Sun’s legal team. ‘It is understood that the Athlete’s team (which includes native Chinese speakers) took the lead in selecting the company and the interpreters, who were ultimately agreed upon by WADA and FINA’, it reads. ‘The Panel is bound to note that it was extremely disappointed with the quality of the translation and interpretation, in particular at the beginning of the hearing […] Noting that both the Athlete and WADA had native Chinese speaking counsel/interpreters present in the room, the Parties were invited to agree on using one of their own counsel/interpreters to interpret for the remainder of the hearing. Without reservation or hesitation, the Parties agreed on a new interpreter who diligently interpreted the remaining witnesses, to the satisfaction of the Panel and Parties’.

Travis Tygart, CEO of the US Anti-Doping Agency (USADA), recognised that there may be more to this story than bad advice and bad explanations. “I would say his best opportunity to get a reduction on the eight years is not some appeal to the Swiss Tribunal, but to come clean with everything he knows”, Tygart told Australia’s Daily Telegraph. “If I was advising Sun Yang at this point, what I would say is sit down and come clean about the things his mom said recently about FINA and CHINADA [China’s Anti-Doping Agency], because all that information would be extremely valuable”.

Sun’s mother, Ming, has alleged that the Chinese Swimming Association (CSA) kept secret a three month ban issued to Sun from May 2014 in order not to jeopardise his results in the September 2014 Asian Games, by which time his ban had already been served. FINA and the CSA waited until October 2014, after the Asian Games, to publicise a three month ban issued to Sun and a one year ban issued to Dr. Ba for prescribing trimetazidine. However, it later sanctioned Dr. Ba for coaching Sun at the 2014 Asian Games, as his one year ban – which it appears he may not have known about – hadn’t expired. Trimetazidine, a stimulant, was added to the 2014 Prohibited List, which was not available in Chinese. 

As such, it appears that Sun’s story may go further than a simple testing mission cock up explanation. Why were Sun’s team so insistent in their advice that his blood shouldn’t be taken away? Why did Dr. Ba retain Sun’s blood? Especially as he must have known that any retesting would be of little value, as WADA would argue that its chain of custody had been broken and the blood could have been substituted and/or manipulated? If witness intimidation took place and Sun wasn’t responsible, then who was? What were they afraid might be revealed?

The CAS Panel found that Sun is guilty of tampering with the doping control process, as he took the initiative to prevent the testing team from leaving his residence with blood and urine samples. We still do not know why he would do this. There are other cases where athletes have received lengthly bans despite apparent logical explanations. In the absence of any logical explanation, the CAS had little choice but to increase his ban to eight years for a second anti-doping rule violation. 

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