26th May 2021

Sun Yang is guilty of two ADRVs – but is he guilty of doping?

By allowing a sample collection bottle to be purposefully smashed during a 2018 doping test, Sun Yang is guilty of an anti-doping rule violation (ADRV). Just as the Chinese swimming star was guilty of another ADRV four years earlier for using medication containing Trimetazidine. 

But is he guilty of deliberately doping in order to cheat at sport? Amongst the geopolitics that have dogged his case, this important question appears to have been lost in the crossfire.

Under the strict liability principles at play within the World Anti-Doping Code, athletes are considered guilty unless they can prove their innocence. If a prohibited substance is found in their system they are considered guilty, unless they can show that they ingested it unintentionally. If tampering with a doping control occurs, it is up to the athlete to show that they were not responsible for such tampering.

Sun took medication containing Trimetazidine on the advice of his doctor, and the international swimming federation (FINA) accepted that the duo didn’t know that that the stimulant had been added to the 2014 Prohibited List because it hadn’t been published in Chinese. But they still sanctioned him with an ADRV and banned him for three months, because use of that prohibited stimulant without a therapeutic use exemption (TUE) is against World Anti-Doping Agency (WADA) rules.

This was his first ‘offence’. But it wasn’t his last.

Four years later, Sun Yang assisted a security guard to smash a glass container holding two blood vials that were retained by that same doctor. The Court of Arbitration for Sport (CAS) ruled that this extreme action constitutes tampering with a doping control, as defined by Article 2.5 of FINA’s Doping Control Rules. 

Accreditation of sample collection team

Much has been made about whether the three person sample collection team held the correct accreditation. The simple fact is that two of them didn’t. FINA found that the doping control assistant (DCA) and blood collection assistant (BCA) didn’t have proper accreditation from the ‘sample collection authority’ engaged by FINA – International Doping Tests & Management (IDTM).

The ISTI is clear that all sample collection personnel must hold authorisation…

As required under WADA rules, the DCO had an ID card from IDTM, as well as a letter of authority from FINA. The DCA only had a government ID card and the BCA a junior nurse qualification. The CAS Decision accepted that neither had the authorisation required by WADA’s International Standard for Testing and Investigations (ISTI), but argued that this wasn’t a ‘formal requirement’, despite it being specified in the ISTI (see right). 

Sun was confronted with a DCO about whom he had previously complained, flanked by a DCA who was photographing him and a junior BCA, neither of whom held any authorisation to test him. Even a saint would be suspicious. Yet despite what is outlined in the ISTI, the CAS Panel concluded that the DCO, DCA and BCA did’t require a specific letter of authorisation from IDTM.

The CAS Panel seemed swayed by WADA’s argument, backed by CAS case law, that the proper way to proceed was to allow the doping control to proceed ‘under protest’. This is despite no process for how this might happen being outlined in the ISTI.

As all of the above again illustrates, under the strict liability provisions of the Code, the athlete is always considered guilty. Even when they have a valid claim that whilst not constituting irrefutable proof, suggests that innocence may be a possibility.

Sun has never been ‘cleared’

An eight year ban issued by the CAS was set aside, after it was found that the head of the CAS Panel had published tweets considered biased against the Chinese. This ruling was issued by the Swiss Federal Tribunal, which ordered the CAS to rehear the case with a new Panel. Sun has never been cleared of tampering with a doping control.

The rehearing of the case is occurring this week. It is hard to see how a new CAS Panel will come to a different conclusion. Another hearing doesn’t change the fact that Sun tampered with his doping control, and it’s his second offence. A career ending eight year ban looms.

Is it doping?

On the face of it, Sun Yang is being sanctioned for breaking anti-doping rules without any suggestion that doping took place. This has led many to suggest that Sun is being punished due to some kind of western imperialist agenda against China and Chinese sport in particular. But is this assessment accurate?

It is accurate that the Trimetazidine is a stimulant used in medication to combat angina, but it is also understood to aid oxygen supply to tissue during exercise. Useful in swimming.

Bear in mind that Sun kept Dr. Ba Zhen on as his physician, despite him serving a one year ban due to breaching his own period of ineligibility by continuing to advise Sun. It is legitimate to ask why Sun didn’t change his choice of physician. Perhaps he didn’t have a choice.

WADA’s suspicions were aroused back in 2014 – it considered an appeal against the bans issued by FINA. Questions have been asked about whether FINA’s assessment that the 2014 List wasn’t published in Chinese is accurate. Such questions have been hotly contested (see below).

Four years later, the same doctor refused to let doping control officers (DCOs) take Sun’s samples away. The two blood vials were not smashed along with the sample container, and are understood to be held by Dr. Ba at a Shanghai hospital.

A seemingly obvious question is why haven’t these two blood samples been tested? The answer perhaps gives more away about WADA’s suspicions than it does about Sun Yang. The CAS Decision outlines that the samples are ‘no longer eligible to be tested because the chain of custody was broken’.

Does WADA think that the blood samples have been doctored to cover up any doping? If this was the aim, why didn’t Sun’s team simply pour the samples away when they smashed the container? Unless they were retained as future evidence that Sun wasn’t doping.

During its investigations into Russia, WADA was confident that manipulated urine samples could be effectively identified. Why can’t it examine Sun’s blood samples to see if they have been tampered with? 

If there is resistance to this approach, who is doing the resisting would be very revealing indeed. Is WADA simply hiding behind its own rules in order to secure an ADRV? Or is Sun’s team refusing to hand over the blood vials?

If WADA does think that Sun is doping, it appears to have made no active efforts to discover whether this is actually the case. It appears to be happy to sanction Sun for breaking its rules without discovering whether he is actually doping. As such, could there be an alternative explanation?

System threat

The World Anti-Doping Code contains a series of rules designed to be used to prosecute athletes. Article 2 of the World Anti-Doping Code outlines eleven ADRVs. Only one of these involves the detection of prohibited substances in samples provided by an athlete. The strict liability principles of the Code mean that an athlete can be found guilty of any of these eleven ADRVs unless they can conclusively prove they are innocent.

In October last year, it emerged that WADA spent US$600,000 in appealing FINA’s Decision to clear Sun to CAS. It seems reasonable to assume that a rehearing of the case could take these costs to over $1 million. Why is it so keen to secure victory?

Richard Young, one of the chief drafters of the Code, represented WADA in Sun’s previous hearing…

The conspiracy theorists could be right. WADA could be hell bent on securing a career ending sanction against a Chinese swimmer. It could be a case of western imperialism over China and its athletes, ensuring that they cannot succeed at the Olympics. After all, it appears that a similar situation occurred with meldonium’s addition to the Prohibited List ahead of the Rio 2016 Olympics, nobbling many of Russia’s athletes.

However, it is more likely that WADA is keen to secure an ADRV against Sun to defend its ability to prosecute athletes based on presumed guilt. WADA isn’t asserting that Sun has doped; it hasn’t attempted to procure the two blood vials from the Shanghai hospital for further tests; and it has been alleged that its Counsel misled Sun’s defence team by providing wrong citations for case law (see below – from 38 minutes in).

Instead, it is asserting that Sun has broken its rules. If WADA was keen to uncover whether the action that surrounded Sun’s 2018 test are part of a bigger picture, it wouldn’t be taking this approach. It would be investigating, and would seek to secure the two blood vials from the Shanghai hospital. It would realise that Sun has little choice in his actions and might consider him a whistleblower to whom protection is afforded. 

That it doesn’t appear to be taking this approach indicates that WADA isn’t attempting to uncover any potential State action, although it is possible that it could be making such moves behind the scenes. It is also important to point out that there simply isn’t any evidence for State doping in China beyond conjecture. WADA wants to prosecute Sun for breaking its rules, and it wants to protect the legal system it has created.

If Sun is successful in his appeal, every testing authority will have to ensure that all doping control staff are fully and properly accredited. Athletes will know that unless doping control staff hold the proper qualifications, they can refuse a test and extreme action – such as smashing doping containers – can be justified. This is the last thing that WADA and its sporting partners want.

The previous CAS Sun Yang hearing…

Sun’s 2019 CAS hearing was the first to be held in public. It is also likely to be the last. Analysis of the videos revealed serious translation problems; Arbitrators mocking the reliability of evidence given by Sun’s mother; and the dodgy document references alleged above. 

Was Sun doping? Only he and perhaps his team know the answer to that. This week’s hearing won’t get us any closer to knowing if Sun was doping, or whether he was acting under his or somebody else’s initiative. WADA appears to have its fingers in its ears to protect its own face. 

It is hard to see how under current anti-doping rules, things could be any different. It’s a shame that it appears Sun’s career will have to end prematurely without getting to the bottom of these difficult questions.

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