14 March 2022

The SII Anti-Doping Monitor – week ending 11 March 2022

Nine athletes from seven countries, competing in nine sports, were involved in anti-doping proceedings that came to light this week. From a legal point of view, perhaps the most interesting Decision came from the Swiss Federal Tribunal (SFT), which rejected Sun Yang’s appeal against the Court of Arbitration for Sport’s (CAS) Decision to impose a four year and three month ban on the Chinese swimmer for tampering with a doping control.

Article 35 of the PRC Anti-Doping Code (translated)…

‘The contested decision, which imposed a ban of four years and three months on Sun Yang from February 2020, does not violate fundamental principles of public order; nor was Sun Yang’s right to be heard infringed’, wrote the SFT in a media statement. Sun argued that the CAS had infringed his right to be heard. He specifically argued that CAS hadn’t considered that Article 35 of the the People’s Republic of China’s Anti-Doping Code specifically requires each member of a doping control team to present correct identification (see right). 

Sun’s team contends that lack of correct identification was the main reason that the sample containers were smashed. The SFT considered that CAS’s failure to fully consider Article 35 of China’s Anti-Doping Code as irrelevant to the outcome of the case. As such, Sun’s right to be heard hadn’t been infringed as had such arguments been entertained, they wouldn’t have affected the outcome anyway. 

‘The Arbitrators do not have an obligation to discuss all of the arguments put forward by the parties’, reads the SFT Judgement. ‘So they cannot be accused under the violation fo the right to be heard, in adversarial proceedings, of not having refuted, even implicitly, a means objectively devoid of any relevance’. Whether this assessment is accurate is for lawyers to debate. 

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

A very short history of the case (longer assessments are available here and here). Sun was initially cleared by the international swimming federation (FINA) in 2019; was sanctioned with an eight year ban after the World Anti-Doping Agency (WADA) appealed; and was later sanctioned with a four year and three month ban after Sun appealed.

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. 

Sun’s Dr. Ba argued that the Blood Collection Assistant (BCA) didn’t hold the correct local authorisation to collect Sun’s blood, and this conclusion was supported by his colleague, Dr. Han. FINA agreed and as such, ruled the blood collection attempt as null and void. 

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

Despite the above wording in the ISTI, the CAS took what it calls a ‘holistic’ reading of the ISTI in its final Decision. It took a two part view. Firstly, the testing team must be authorised by the testing authority and for that, a generic letter is sufficient. Secondly, each member of the testing team must carry ID.

It also accepted that the BCA held a Practicing Nursing Certificate (PNC), which authorised her to draw blood. This was ‘submitted into the record’ at a late stage. It also accepted that the BCA held a copy of her PNC on her phone, but was never asked to show it during the test attempt.

‘Because the ISTI only require a Letter of Authority and proof of a DCO’s identity in order to notify athletes, it follows that there was no requirement for the BCA to “produce unequivocal evidence” of her qualifications to draw blood, or indeed of any other evidence’, reads the CAS Decision. ‘It was enough that her qualifications (e.g., the PNC and the BCA’s Statement of Confidentiality) in fact exist, be kept on file, and be affirmed by the DCO. Professor Pei’s report is not inconsistent with this conclusion’.

This perhaps explains why the SFT considered that Sun’s argument that CAS had failed to fully consider Article 35 of China’s Anti-Doping Code didn’t violate his right to be heard. Because CAS considered this argument irrelevant to the outcome of the case.

Two blood vials were taken from Sun. They were not smashed along with the sample container, and are understood to be held by Dr. Ba at a Shanghai hospital.

WADA contends that these samples are ‘no longer eligible to be tested because the chain of custody was broken’. This suggests suspicion that they may have since been tampered with, which is the reason that sample containers are used in anti-doping. This suspicion is supported by the CAS Decision.

‘The correct approach, in cases where an athlete has a good-faith concern regarding a particular Sample Collection Session, is to “allow the samples to be collected under protest,” while simultaneously “documenting any objections and preserving the athlete’s rights”’, argued WADA. Sun took this course of action when he lodged a formal compliant against a doping chaperone in a 2017 test attempt. Amazingly, International Doping Tests & Management (ITDM) assigned that same chaperone as DCO in the 2018 test attempt that led to the smashed sample containers.

Yet during its investigations into Russian State doping, WADA was confident that it could identify manipulation of urine samples through sample analysis. It would appear that no effort has been made to retrieve or test Sun’s blood samples. Why?

A clue is perhaps given in the CAS Decision. ‘The [ISTI identification] threshold seeks to ensure that an athlete understand that a demand for his samples is legitimate and duly authorized—all the while avoiding the imposition of unnecessarily burdensome administrative criteria or the creation of yet more opportunities for gamesmanship by bad actors’, it reads. 

Put another way, if Sun had been successful in his appeal, every testing authority would 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. All past Decisions where doping control staff didn’t hold correct ID would be null and void. The ‘surprise’ element of a doping control could be compromised by such concerns leading to aborting or delaying sample collection. 

Unfortunately for Sun, these issues are the last thing that WADA and its sporting partners need. WADA had to win its case in order to maintain strict liability in anti-doping procedures.

But consider Sun’s position. He was confronted with a DCO about whom he had previously complained; flanked by a Doping Control Assistant (DCA) whose photographing of him raised initial suspicions; and a junior BCA – none of whom he considered held the correct authorisation to test him. Even a saint would be suspicious. 

Which brings us to Varvara Lepchenko. The US tennis player, originally from Uzbekistan, appears to have been extremely unlucky in her interactions with anti-doping procedures. In 2016, she tested positive for Meldonium due to being prescribed Midronate tablets in 2015 – before Meldonium was added to WADA’s Prohibited List. Six years later, she has been sanctioned with a four year ban for a second anti-doping rule violation (ADRV) involving Modafiil/Andrafinil, despite being judged not to be at fault for her first ADRV.

The full Decision from the International Tennis Federation (ITF) reveals that since her 2016 case, Lepchenko had been consulting with a ‘holistic nutritionalist’ Dr. Aoun. He assured her that the supplements she had been using were not a risk. The first item recommended on Dr. Aoun’s internet site under ‘fitness’ is ‘Gorilla Mind Turksterone’. He also works with a number of other athletes. 

She tested negative seven days prior to the 12 July 2021 positive test and 15 days after. However, she didn’t declare any supplements on her doping control form. 

‘The Tribunal found the evidence provided by the player to be vague to the point of non-existent in respect of what, when and in what does the supplements were taken especially in the period immediately prior to the positive test of 12 July 2021’, reads the Decision. ‘The witness statement did not address this in any detail and the oral testimony did not either, with one notable exception. During oral testimony the Player was able to recall for the first time that she consumed Bemetyl and explained that she had bought it in a shop in Ukraine.’

Bemetyl is apparently used by Ukrainian teams in preparing for international competition and is not on WADA’s Prohibited List. However it was added to the WADA Monitoring Programme in 2018 and was only removed this year. It is also listed on Dr. Aoun’s internet site, which perhaps explains the ITF’s suspicion. As Lepchenko hadn’t proven the source of her positive test, she was sanctioned with a four year ban.

Please continue to send any cases we may have missed or suggestions through to our editor by clicking here. Also, if you’re an athlete, national anti-doping organisation (NADO) or other Results Management Authority and you’d like us to cover a case that you’re involved with, please get in touch! Also – a reminder. The SII Anti-Doping Monitor only features confirmed AAFs (‘positive tests’) or confirmed anti-doping rule violations (ADRVs).

Decision links

Thando Dlodlo;

Varvara Lepchenko (Statement, Decision, and 2016 Sanction);

Sheryl Louise Wigg;

Sun Yang (Statement, Decision);

Keenan Simpson (Statement, Decision);

Adam Scott;

Seid Dzemaili and Husein Kadimagomaev (Statement);

Ahje Palmer

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