Opinion 23rd June 2021

The CAS confirms what we already knew – Sun Yang is guilty

Yesterday, the Court of Arbitration for Sport (CAS) confirmed what anybody involved in anti-doping already knew. Chinese swimmer Sun Yang is guilty of two anti-doping rule violations (ADRVs) – evading a doping control and tampering with the doping control process. But the CAS has yet to publish its reasoning explaining how it came to that conclusion, and whether Sun was justified in committing those ADRVs.

In its statement welcoming the ruling, the World Anti-Doping Agency (WADA) argues that these basic facts were never in doubt. It maintains that the only reason that the Swiss Federal Tribunal (SFT) required CAS to rehear the case was due to the discovery of Tweets posted by the previous CAS Panel President that might be considered racist against the Chinese.

FINA accepted that the Blood Collection Assistant did not hold the correct qualifications under WADA’s ISTI…

However, the reason that the FINA Doping Panel decided to take no action against Sun in the first place is due to Annex E of WADA’s International Standard for Testing and Investigations (ISTI). This requires blood collection to be consistent with  local standards. Dr. Ba argued that the BCA didn’t hold the correct local authorisation to collect Sun’s blood, and this conclusion was supported by his colleague, Dr. Han. As such, FINA ruled the blood collection attempt as null and void. This isn’t mentioned in either CAS or WADA’s statements.

Sun’s ban hasn’t been ‘halved’. It has been cut from eight years from 20 February 2020 to four years and three months from 28 February 2020. His ban will now expire on 28 May 2024, rather than 20 February 2028. But as Sun is 29 years old, his elite career is effectively over.

Doping?

What is interesting about Sun’s case is that it may not involve doping at all. We still don’t know. He is being punished for a rash decision to smash a container holding blood vials. We know that Dr. Ba raised issues about whether the Blood Collection Assistant (BCA) held the correct qualifications to draw Sun’s blood, but we still don’t really know who was responsible for that extreme course of action and why.

WADA maintains that the correct course of action would be to proceed with the sample collection attempt under protest. Perhaps the full Decision, which the CAS says will be published in the ‘coming days’, will reveal more.

As previously highlighted, WADA cannot let such actions pass. To do so would highlight that there are circumstances in which athletes can get away with refusing a doping test. But does this apply even when there are apparently justifiable reasons for refusing a test?

The lengths to which some athletes will go to avoid a test is remarkable. In 2018, WADA alleged that some Russian athletes were locating themselves in ‘closed cities’ to avoid tests and that others ‘ran away’ or withdrew from events when DCOs appeared. As such, anti-doping is a bit cat and mouse. In 2016, UK Anti-Doping (UKAD) told the UK Parliament that it often ‘announces’ that testing will take place at an event to see who withdraws. It can then target those athletes for tests.

A key weapon in the fight against doping is the element of surprise. Testing teams need to be able to turn up unannounced knowing they can leave with an athlete’s sample. The anti-doping regulatory system needs to ensure that there are as few excuses as possible that an athlete can give for refusing a test.

Two versions of the ISTI…

Much has been made over whether the sample collection personnel on that ill-fated 4 September 2018 night held the correct identification documentation. Under the 2017 International Standard for Testing and Investigations (ISTI), all that is required is a letter of authorisation from the testing authority. In Sun’s case, the doping control officer (DCO) held the correct documentation, but the BCA didn’t, as previously mentioned.

It is easy to see how confusion may have arisen. Despite the high profile nature of Sun’s case, the ISTI is still not available in Chinese.

Two vials of Sun’s blood were retained by his Doctor, Ba Zhen, and are understood to be held at a Shanghai hospital. WADA argues that these vials are ‘no longer eligible to be tested because the chain of custody has been broken’. That may be the case, but many Russian samples have been tested by WADA for signs of manipulation. 

Why can’t the same process occur with Sun’s blood vials? It would be very revealing if they were found to have been manipulated. It is also odd that Sun and Dr. Ba appear to have made no effort to externally test the blood vials. Is Sun’s case about doping, or about reinforcing anti-doping rules?

Blame game

The CAS found that the initiative to prevent the sample collection process from being completed was taken by Sun…

If we are truly dealing with an angry athlete who smashed sample containers under his own initiative without justification, then Sun should be sanctioned accordingly. The CAS Decision and sporting rules don’t take into account whether Sun had any choice in his actions. Under anti-doping rules, the athlete is always guilty unless they can prove their innocence. It may be possible that Sun is innocent, but had no choice but to assist with the container smashing.

Sun has retained Dr. Ba despite his advice over Trimetazidine leading to his first ADRV in 2014. Dr. Ba was sanctioned for providing treatment to Sun at the 2014 Asian Games. Again, Sun retained him, and four years later Dr. Ba was at the centre of a test refusal – albeit with justifiable reasons – and took Sun’s blood vials from DCOs and put them into storage. Sun has yet to terminate his relationship with Dr. Ba or to question his actions. Why?

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

The original CAS Decision also raised serious questions about witness intimidation. Yet it doesn’t fully explore who was behind these apparent intimidation attempts. Perhaps the new CAS Decision will fill in the gaps.

The DCA suddenly changed his mind about testifying…

WADA now encourages whistleblowers to ‘Speak Up!’, however anti-doping jurisprudence offers them few opportunities to do this. The evidence suggests it is possible that Sun isn’t acting solely on his own initiative, yet the CAS and WADA have not explored this possibility – instead focussing on sanctioning Sun.

WADA knew about what was going on in Russia far in advance of the story becoming public. Is there something they’re not telling us about China?

A statement from his lawyer suggests that this may not be beyond the realms of possibility. ‘The results of the Sun Yang case expose the complexity of international cases and relations, as well as the weaknesses and deficiencies in the domestic system and in protection measures for athletes’, wrote Sun’s lawyer Zhang Qihuai on Weibo. ‘Sun Yang has fulfilled his responsibilities, but he has become a victim of political posturing in this international case. Nobody can understand the helplessness and hardship of athletes in his position. I can only say forevermore: Sun Yang didn’t violate the rules and there were no violations detected in the results of doping tests. Unfortunately for China and even for the world, an excellent athlete has failed into the hands of international organisations manipulated by some people.’

Yet WADA is pursuing two ADRVs, despite legitimate questions about whether they should be ADRVs in the first place. Why is WADA so keen to pursue this case? Perhaps the full CAS Decision will enlighten us…

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