The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
Features
Are you allowed to be heard? How the Sun Yang case reveals the systematic prejudice against athletes in sport arbitration
The elite swimmer Sun Yang (the ‘Athlete’) has filed an appeal1 with the Swiss Federal Supreme Court (SFSC) in late April to set aside the WADA v Sun Yang (the ‘Case’) award2, imposing an eight year ban against the Athlete, delivered in February by the Court of Arbitration for Sport (CAS). The woeful translation service at the public hearing of the Case exposed how a legal proceeding handled by inexperienced and inattentive hands could hinder a party’s right to be heard3.
An in-depth study of the public hearing video and the CAS Award further revealed that there might have been systematic prejudice against the Athlete. This article discusses the following issues that illustrate how the Athlete’s right to be heard was violated in the arbitration process.
• Testimonies suffered from insufficient time and a translator with a conflict of interests;
• Remedial measure on mistranslation proven ineffectual;
• Key witnesses request to testify denied;
• Relevant allegation submitted but not assessed.
Testimonies suffered from insufficient time and a translator with a conflict of interests
The Panel gave each witness exactly the same amount of time to testify4. This seemingly equal time allocation resulted in unequal treatment, as the inefficiency of communication relying on translation was not taken into consideration. The chart on the right compares the effectiveness of testifying among the witnesses of each party5. Obviously, the Athletes’ witnesses did not enjoy as much time to answer as many questions as the WADA witnesses.
Many would think that the Athlete himself should be responsible for the translation fiasco, because he picked the translator himself. However, during the hearing, the panel took initiative to appoint a consecutive translator for the Athlete’s witnesses (the ‘Witnesses’)6. This consecutive translator was an employee of WADA7, yet neither during the hearing nor in the award did the panel bother disclosing this conflict of interest. The WADA translator not only made too many mistakes in translation, but also frequently interrupted the Witnesses, inadvertently or not. The table on the right shows the impact of translation on the Witnesses8.
Remedial measure on mistranslation proven ineffectual
After the hearing, the Panel invited the parties to prepare ‘an agreed-upon written transcript of the proceedings’9. Such a remedial measure had little effect because the translation procedure involved two steps: first Counsels’ questions being translated into Chinese for the Witnesses and then their answers being translated back into English. Where a question was mistranslated, the answer was deemed misleading. For instance, the panel accused Ba Zhen, the doctor of the Athlete, of being evasive as he testified that he was unable to recall whether any tests he attended were performed by International Doping Tests and Management (IDTM)10. The diagram on the right illustrates how such prejudice was developed.
Close analysis of the public hearing video shows that 47% of the Witnesses’ cross-examination questions were tainted with translation mistakes, many of which were serious enough to induce unjust implication, such as those listed on the right.
Key witness’ request to testify denied
The Case was pretty unique in the way that none of WADA’s witnesses, who were present onsite on the night of 4 September 2018, showed up at the public hearing. The doping control officer and the nurse opted for deposition; the chaperone (the Doping Control Assistant – DCA) asked to testify under the same conditions, but the panel refused to accommodate.
Initially, the panel ordered WADA to produce the DCA for examination at the hearing11. When the DCA indicated that he was not willing to provide oral testimony, the panel insisted to secure his testimony and indicated that it could be done with special conditions (by videoconference, confidential, etc.)12. In early November, the DCA asked to testify by telephone13. The panel denied his request on the grounds that his conditions to testify could not be accommodated at three days before the hearing14. In contrast, the deposition of the nurse under the same conditions was taken just one day before the hearing15. Moreover, the Athlete timely proposed to take the DCA’s testimony post-hearing16, but the panel never responded.
It is noteworthy that the panel changed the mind right after the DCA submitted a written statement in Chinese (the ‘Statement’), which says, translated into English, ‘I was not the Doping Control Assistant…no one had ever trained me regarding doping test17‘. It was very likely that had the DCA testified, his testimony would not have been in the favor of WADA. Stopping the DCA from testifying might give the panel an opportunity to weigh the evidentiary value of the Statement ‘accordingly’18.
The panel indeed ruled that the Statement was less reliable than a statement of confidentiality indicating that the DCA was trained and certified by IDTM19. This weighing method is quite problematic. Although the panel strived to interpret the statement of confidentiality submitted by WADA as a statement made by the DCA20, it was just a piece of unauthenticated hearsay denied by the DCA, an alleged declarant. On the contrary, the Statement, hand-written by the DCA specifically for the on-going proceeding, was a self-authenticated sworn statement, which should be afforded more probative value.
Furthermore, the DCA clearly stated that he did not understand English, but the statement of confidentiality was entirely in English. Therefore, either the DCA’s signature was acquired without informed consent, or the document was forged. In response to this potential forgery claim, electronic copies of such documents kept by IDTM would be a solid defense. However, after the Athlete requested production of the metadata of the iPad used by the doping control officer, the panel let WADA off the hook easily, with a lame excuse that ‘no metadata of the type requested was currently recoverable’21. In dealing with failure to preserve electronically stored information, the widely accepted rule is to order measures to remedy the prejudice caused thereby, or even presume that the lost information is unfavourable to the responsible party22.
Relevant allegation submitted but not assessed
The case law of the SFSC has long established that it is a violation of the right to be heard ‘when, due to oversight or misunderstanding, the arbitral tribunal does not take into consideration some allegations, arguments, evidence and offers of evidence submitted by one of the parties and important for the decision to be issued’23. ‘If the award totally overlooks some elements which appear important to the disposition of the dispute, (the arbitrators) have to demonstrate that the items overlooked were not pertinent to decide the case at hand or, if they were, that they were implicitly rebutted by the arbitral tribunal’24.
China’s nurse regulatory scheme requires that a nurse must have registered with a specific province before he or she can lawfully engage in nurse practice25. This is not an alien concept though, as a US lawyer can only practice law in the State from which he or she obtained a license. The Athlete’s expert witness cited relevant Chinese law to support the allegation that the nurse who was not registered in Zhejiang province breached the regulatory requirements by engaging in nurse practice, i.e. collecting a blood sample, at the Athlete’s residence located in Hangzhou, the capital city of Zhejiang province26. WADA’s International Standard for Testing and Investigations (ISTI) requires that ‘procedures involving blood shall be consistent with the local standards and regulatory requirements’27. Therefore, the allegation duly submitted by the Athlete was essential to the legitimacy of the attempted sample collection by IDTM, which was, in turn, decisive on the outcome of the Case.
The CAS award was totally silent on this allegation. Neither the relevant Chinese law nor the specific ISTI requirement was discussed or even mentioned. Instead of discussing its pertinence and validity, the panel’s only comment that remotely touched upon the allegation was to dismiss that a similar argument by the Athlete was post fact justification28. Two mistakes here:
(i) the allegation was not raised as a defence to justify the Athlete’s non-cooperation, but to attack the fundamental element of the claimed anti-doping rule violation, i.e. whether the attempted sample collection was valid?
(ii) the SFSC case law has established that mere mentioning of the pertinent issues is not enough, and arbitrators have the obligation to reason in order to guarantee the right to be heard29. Where the pertinence of an allegation is undeniable, subjective dismissal instead of legal analysis does not amount to ‘implicit rebuttal’30.
Conclusion: Systematic prejudice does exist, but should athletes’ careers matter?
Any one of the above discussed violations of the right to be heard should be severe enough to trigger the SFSC setting aside the Arbitration Award. Yet, there are more.
• A member of WADA’s management, Mr. Stuart Kemp31, was allowed to be WADA’s expert witness, despite the mandatory requirement that ‘the expert shall be independent of the parties’32.
• Although the doping control officer was fluent in English and previously testified in English at the FINA proceeding, she was allowed to testify in Chinese at the deposition where none of the Athlete’s counsels at deposition could understand Chinese. Such blatant deprivation of right to cross-examination was euphemised by the Panel as merely ‘uncooperative’33.
• WADA was permitted to have Mr. Neal Soderstrom, who had never participated in the proceeding, testify in lieu of Ms. Jenny Johannesson, whose witness statement was admitted to the file, under the excuse that it needed to “narrow its witness list”34. The panel further allowed Mr. Soderstrom to testify relying on the witness statement of Ms. Johannesson while she was available and in fact appeared at the hearing.
The panel somehow compiled a playbook illustrating how to violate Athletes’ right to be heard in various ways. But why did they do that? Here are a couple of interesting observations.
• During the public hearing, Mr. Sands, a panelist, interrupted the Athlete’s counsel during his closing statement several times, with comments similar to that which follows:
“One of the concerns tribunal would have is 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 for all of the cases…35”
• This seemed to be a common position of the Panel, as the CAS Award reiterated the same concern:
‘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. The evidence before the Panel indicates that tens of thousands (or more) samples have been collected by IDTM’s Sample Collection Personnel without a (specific and individual) Authorisation Letter. If the Athlete is correct, then it would appear that such 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 consequence36.’
It sounds as if the Panel had a mandate to protect previous tests, whether legitimate or not, from being invalidated. The Athlete therefore never had chance to win the Case before CAS from the onset.
Footnotes
1. 4A_192/2020.↩
2. CAS 2019/A/6148.↩
3. Dr. Ben Koh & Tracey Holmes: Are you being heard? How the Sun Yang public hearing exposes a gap in athletes’ rights, www.lawinsport.com, 3 January 2020. ↩
4. The actual testifying session time for each witness varied, depending on whether, other than the WADA counsel and the Athlete’s counsel, the FINA counsel and/or the panelist questioned the witness. ↩
5. Statistics are derived from the public hearing video, Parts II and III. The comparison does not include the data from two of the Athletes’ witnesses: Prof. PEI Yang whose session was in English, not relying on translation, and Mr. CHENG Hao whose session was too short, compared with other witnesses. ↩
6. The public hearing video, Part III, from 00:25:33 to 00:26:34; see also, CAS 2019/A/6148, Pargraph 126. ↩
7. The LinkedIn profile of Ms. CUI Ying shows that she was WADA’s manager of Program Development and NADO/RADO relations at the time of the public hearing. ↩
8. Statistics are derived from the public hearing video, Part III.↩
9. CAS Media Release, WADA v. SUN Yang & FINA Post-hearing Update, 10 December 2019.↩
10. CAS 2019/A/6148, Paragraph 240.↩
11. CAS 2019/A/6148, Paragraph 68.↩
12. Id., Paragraph 69 and 96.↩
13. Id., Paragraph 102.↩
14. Id., Paragraph 103.↩
15. Id., Paragraph 108.↩
16. Id., Paragraph 107.↩
17. Id., Paragraph 277.↩
18. CAS 2019/A/6148, Paragraph 115.↩
19. Id., Paragraph 278.↩
20. Id., Paragraph 276.↩
21. Id., Paragraphs 71 and 77.↩
22. See US Federal Rules of Civil Procedure (2020), Rule 37(e).↩
23. 4A_433/2009, Paragraph 2.1.↩
24. 4A_360/2011, Paragraph 5.1.↩
25. China Nurse Regulations (2008), Articles 7-9.↩
26. The public hearing video, Part III, at 02:50:05.↩
27. International Standard for Testing and Investigations (2017), Annex E ‘Collection of Blood Samples’, Article E.4.1.↩
28. CAS 2019/A/6148, Paragraph 292.↩
29. 4A_46/2011, Paragraph 4.3.2.↩
30. 4A_460/2013, Paragraph 3.2.2.↩
31. The LinkedIn profile of Mr. Stuart Kemp shows that he was WADA’s deputy director of Standards and Harmonization in November 2019.↩
32. Code of Sport-related Arbitration (2019), R44.3.↩
33. CAS 2019/A/6148, Paragraph 82.↩
34. Id., Paragraph 96.↩
35. The public hearing video, Part IV, at 01:35:48.↩
36. CAS 2019/A/6148, Paragraph 243.↩
