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15 May 2020

Why the Sun Yang decision should be overturned

Rick Sterling [email protected]

• WARNING – this article features tweets containing images involving animal cruelty.

Introduction

One of the world’s all time top swimmers, Sun Yang of China, has filed an appeal to overturn the decision banning him from competition for eight years. That decision was made by the Court of Arbitration for Sport (CAS) based in Switzerland. CAS decisions can only be appealed to the Swiss Federal Tribunal on a limited number of grounds1.

A previous article described some reasons why the CAS decision against Sun Yang was unfair. This article explains why the Swiss Federal Tribunal should hear the appeal and overturn the decision. 

Three possibilities

There are three theoretical possibilities as to how this incident occurred: 

Possibility 1: Sun Yang was doping. As suggested by the WADA attorneys, he created a controversy and disrupted the test to avoid having his blood and/or urine tested. 

Possibility 2: Sun Yang was not doping and had nothing to hide. However, he impulsively aborted the test and refused to let the test team depart with the blood sample. Sun Yang is innocent of doping but guilty of interfering in a legitimate ‘Out of Competition’ sample collection. The CAS decision is unfortunate, but necessary to maintain anti-doping standards. 

Possibility 3: Sun Yang was not doping and had nothing to hide. The sample collection team from International Doping Tests & Management (IDTM) violated regulations to such an extent that Sun Yang was justified in aborting the test and retaining the blood sample. 

This case involves one athlete, Sun Yang, but it has wider importance. What are the constraints on private doping testing contractors? Are innocent athletes being victimised under the banner of ‘fair play’? Are international sports organisations neutral and impartial or politically biased? 

Background 

The controversy revolves around an aborted blood and urine sample collection on 4 September 2018. The Asian Games in Jakarta, Indonesia, had finished two days before. Sun Yang had won Gold medals in the 200, 400, 800 and 1,500 metres freestyle. He was tested five times during the Games, none of which resulted in an adverse analytical finding (AAF). The Asian Games ended on 2 September. Sun Yang’s swim coach, Australian Denis Cotterell, says; “I advised Sun Yang to have a break of about a month as I always have for my swimmers after the main International event of the year.” 

Leaving Jakarta in the early morning on 4 September, Sun Yang travelled by plane to Shanghai, then drove three hours to Hangzhou. Arriving after 10pm, he was met by a doping collection team from the private contractor IDTM. There were three persons on the team: a doping control officer (DCO), a blood collection assistant (BCA) and a doping control assistant (DCA). 

The test began normally, with blood being drawn from Sun Yang. The trouble began when Sun Yang observed the DCA surreptitiously filming and photographing him. Feeling this was an intrusion of privacy rights, Sun Yang asked to see the authorisation documents of each of the three person team. Only the DCO had this; the BCA and DCA had no anti-doping credentials, but did present a junior nurse qualification certificate and government ID card. 

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. 

According to Chinese Anti Doping Agency (CHINADA) rules, every member of a test team should be trained and certified. Sun Yang consulted the swim team captain and his doctor. Dr. Ba Zhen, came over to witness what was going on. 

Sun Yang asked the DCO to have a qualified assistant sent to continue the blood and urine collection. The DCO consulted with the IDTM manager in Sweden, but did not agree to this. 

Dr. Ba Zhen consulted his senior doctor who is also an anti doping expert. All agreed the test team was not qualified, the test should be aborted and blood sample not taken away due to the potential for malfeasance. 

The contention continued for several hours. Sun Yang’s advisors talked with the test team leader (DCO) who was also talking with her supervisor in Sweden. The DCO said they could not leave the equipment on the premises. Finally, a bottle holding the blood tubes was broken to allow them to be removed.

Dr. Ba Zhen wrote a statement saying that because BCO and assistant did not have proper certification ‘the urine test and blood test cannot be completed. (The blood sample that has been collected could not be taken away.)’ The test team members all signed as witnesses before departing. 

Over the coming days, both Sun Yang and the DCO filed reports about the incident. The DCO flagged Sun’s ‘failure to comply’ with the testing mission, which constitutes an anti-doping rule violation (ADRV) under Article 2.3 of the international swimming federation’s (FINA) Doping Control rules. FINA charged Sun with an ADRV on 5 October 2018, and on 3 January 2019 it issued a decision that Sun Yang had NOT committed an anti-doping rule violation (ADRV). They agreed that as the test team did not have proper credentials, Sun Yang was not given the required notifications. 

For reasons that are subject to debate, the World Anti Doping Agency (WADA) was reportedly “furious” about the FINA doping panel decision. They decided to file an appeal with the arbitration body which handles high level international sports cases, the Court of Arbitration for Sport (CAS). On 15 November 2019, CAS conducted a public hearing on the case WADA vs. Sun Yang and FINA. On 28 February 2020, CAS issued its decision that Sun Yang is guilty of a doping offence and should be sanctioned with an eight year period of ineligibility.

Sun Yang insists that he is innocent. The following facts and factors are relevant to this particular case and the broader issue of ‘Fair Play’. 

The composition of the CAS panel indicates bias

The CAS panel was comprised of three adjudicators: two from the UK and one from Italy. The hearing was marred by severe translation problems. If at least one of the judges had been proficient in Chinese, some of the problems would have been reduced.

On the list of Arbitrators on the CAS website, there are 11 who speak Chinese. Why were none of these on the panel? If nationality is considered to be a potential source of bias, why were all three judges from countries from the West? By contrast, in the CAS case regarding the American sprinter Gil Roberts, one of the three panelists was from the USA. That case did not have the complexities and translation difficulties experienced in the Sun Yang case yet CAS chose to not have a Chinese speaker in the panel. Why?

Cultural and language issues complicated this case. The bias of the panel is shown by their written accusation that Sun Yang did not respect the court’s authority, tried to shift the blame, did not have regrets about the incident and ‘appears to have a forceful personality, and seems to have an expectation that his views should be allowed to prevail. This was apparent during the hearing’. 

On the contrary, this is NOT apparent in the public hearing, which was recorded on video (see references at the foot of this article). Sun Yang was never asked if had regrets about the night. His reliance on the swim team captain and his doctor were not presented as excuses; they were presented as facts. There may be cultural differences and a different type of relationship between coaches and trainers than in the West. The Panel’s extremely negative assessment suggests bias and prejudice. 

The public hearing video shows that Sun Yang was respectful of the court. Even the Italian judge presiding over the hearing initially saw nothing wrong with his effort to get a better translation. Judge Franco Frattini said, “I hope the parties will not object if you support a better translation. You can go ahead please.” Ultimately, Sun Yang could not go ahead with a better translator and was required to continue with the WADA translator. The Panel Decision distorts this event and suggest Sun Yang ‘did not respect the authority of others, or established procedures’. 

The panel bias is also evidenced in the mocking comment after Sun Yang’s mother testified. When calling the next witness to the stand, Frattini, quietly commented to other panelists; “A very strong witness, ha-ha”. (https://vimeo.com/373377323 at 52:20). The mother wanted to continue in her description of events but was not allowed, because of the carefully controlled hearing process. 

If the panel had included a Chinese panelist, he could have explained that courts of law in China are much less constrained and it is common for there to be emotional and longer testimonies. Instead, the President of the CAS panel disrespected the mother (without intending for it to be heard). What mother would not be upset when her son’s career and reputation is under severe threat? The issue is not that the court should change to suit different personalities or cultures, but it should be respectful and not prejudiced. 

Judge Frattini, the panel President, appears hostile to China to the point of racism. This is shown on his social media account. Less than six months before the CAS hearing, Frattini wrote: ‘This yellow face chinese monster smiling while torturing a small dog deserves the worst of hell!! Shame on China pretending to be a superpower and tolerating these horrors!!’

He made other posts including: ‘Torturing innocent animal is a flag of chinese. Sadics, inhumans with the protection of chinese authorities …. Shame on china and their protectors!’

‘Show the HORROR. THIS IS CHINA TODAY!! I’m sure nobody will have the courage to respond to me!!! Ambassador of China to Italy, where are you?? Are you silent on the tortures on dogs in Yulin??’

‘Old yellow-face sadic trying to kill and torture a small dog this is China’s picture!!! Westerners doing rich business with China bear in mind these atrocities.’

Judge Frattini is, perhaps justifiably, upset at the controversial practice of eating dog meat and reports he has read about the Yulin festival. They may or may not be accurate. Yet he negatively characterises 1.4 billion ‘yellow face’ Chinese and chastises them for ‘fake’ produce sold in Western countries, defending himself against accusations that such views might be considered racist. It appears that Frattini has a strong bias and prejudice. 

Frattini is formerly Italy’s foreign minister and was instrumental in supporting the overthrow of the Libyan government in 2011. As reported in the Wall Street Journal, ‘Italy has recognized the governing body of rebel forces opposed to the regime of Col. Moammar Gadhafi as Libya’s sole “legitimate interlocutor,” Italian Foreign Minister Franco Frattini said Monday as Rome seeks a way to re-establish its access to Libyan oil and natural gas’. The foreign sponsored overthrow of the Libyan government has been a nine year disaster with competing war lords and slave markets. Frattini’s political bias is shown in his messages condemning China at the UN Security Council. 

It would also appear that Belgian/UK Arbitrator Romano Subiotto displays bias. In early 2019 he sent a message to the American arch hawk John Bolton suggesting how to overthrow the Venezuelan government. ‘Parachute the aid into Venezuela: remember Berlin! This would multiply the points where aid is received and make it practically impossible for the Venezuelan military to control the influx.’He sent a similar message to the US appointed unelected Venezuelan leader, Juan Guaido. It would appear that Mr. Subiotto does not respect the UN Charter regarding intervention in the internal affairs of other countries. 

The third and final arbitrator is Mr. Philippe Sands. He was Counsel for the Philippines in its dispute with China over claims in the South China Sea. As such, one can question his impartiality in a case concerning a Chinese national. 

The distinction between ISTI and Guidelines is NOT clear

There was much debate regarding the requirements and regulations for conducting a legitimate blood and urine test sample of an athlete. Did each member of the team need to be authorised or could anyone act as an assistant? Did the test team need to show evidence that they were authorised to go to the athletes home at this time? Supposedly the Guideline documents indicated ‘best practices’, while the document titled International Standard for Testing and Investigations stated the requirements. 

The CAS decision reads; ‘The Panel does not dispute Mr. Kemp’s testimony and fully adheres to his logic that WADA’s Guidelines are not binding. Such Guidelines are merely intended to promote best practices, whereas binding provisions are only set out in the ISTI.’ This was an important point, because the test team requirements in some Guidelines supported the Sun Yang case. 

But in reality the distinction is not so clear. For example:

• Blood Sample Collection Guidelines have ‘ISTI’ on the cover page.
• Urine Sample Collection Guidelines have ‘ISTI’ on the cover page.
• Sample Collection Personnel Guidelines do NOT have ‘ISTI’ on the cover and explicitly limits its scope (unlike the other Guidelines).
• There is a requirement in the Blood Sample Collection Guidelines which explicitly has priority over the ISTI. Section 1.0 says, ‘Blood Sample collection shall be consistent with the local standards and regulatory requirements regarding precautions in healthcare settings where those standards and requirements exceed the requirements set out in ISTI Annex E – Collection of Blood Samples’. This is highly significant in Sun’s case. It is understood that under Chinese legislation, anyone involved in blood collection is required to hold a valid certificate of practice. The certificate presented to Sun by the BCA is understood to have expired in 2009. And, as mentioned, it would appear that local regulations on blood sample collection trump the ISTI, according to WADA’s own Guidelines.

The plain truth is there is ambiguity and confusion over some requirements. In addition to the ambiguities in English, consider the situation when it is translated to Chinese. Is it any wonder that athletes, their doctors and trainers are sometimes confused or have misunderstanding? The Chinese Anti Doping Agency goes by the ‘best practices’, but in this case the test team from IDTM did not. Is it ‘playing fair’ to destroy the career of an athlete because of this confusion? 

The Doping Control Officer had a conflict of interest

Doping Control Officers are required to have no conflict of interest in the outcome. Yet the actions of this DCO suggest she intentionally provoked the situation. She may have sought revenge on Sun Yang because of a dispute the year before. At that time she was an assistant, but did something so abnormal that it caused Sun Yang to complain in writing about her. 

The CAS panel says this is not credible, because Sun Yang did not immediately complain and because Dr. Ba Zhen did not include this in the written summary of events. But this interpretation seems unrealistic. It seems that Sun Yang chose to give her a second chance rather than immediately complain. And it was not included with Dr. Ba Zhen’s statement because she had not revealed what she was going to do.

The Blood Control Assistant did not have valid credentials 

The Blood Control Officer did not have IDTM documentation and her Shanghai nursing credentials were not valid in Sun Yang’s city of Hangzhou. This may be because Shanghai falls under a ‘municipality administration’ as defined by the national government while Hangzhou is part of the standard provincial administration. ISTI E.4.1 says ‘Procedures involving blood shall be consistent with the local standards and regulatory requirements’. The CAS panel ignored this and asserted ‘She was duly accredited and authorised to be involved in collecting samples from the Athlete’. The Panel offered no evidence for this and according to the expert witness at the public hearing, it is incorrect. 

The test manager in Sweden provoked the conflict instead of resolving it

The test team manager in Sweden, Tudor Popa, played a big role on the controversial night. According to his LinkedIn profile, Popa has no background in doping testing or sports. His previous job was with a travel/tour agency. He was new to the field, hired to the position just nine months earlier. His job was to assign the DCO for the sample collection and to advise her in the event of trouble. 

The way Popa acted calls into question whether he was trying to resolve the situation or provoke it. He assigned as DCO the one person whom Sun Yang had previously written a complaint about.

When it became clear that the assistant was unqualified, Tudor Popa may have been able to resolve the conflict by getting a replacement. IDTM has tested Sun Yang dozens of times so they must have a network of qualified people in China. Why did the manager refuse to bring in a qualified assistant? Finally, why did Tudor Popa tell the DCO that the equipment could not be left at the residence, requiring Sun Yang to remove the blood tubes? The equipment could have been left there without harm and picked up later, after discussion with authorities and resolution how to proceed. By insisting on removal of the equipment, it would appear that the IDTM manager unnecessarily forced the situation [Editorial comment – doping control officials must keep samples in sight at all times before the chain of custody involving the sample’s transport to the Laboratory starts, otherwise there could be suspicion that an athlete has tampered with the sample]. 

The Doping Control Officer did not document the situation as required 

An athlete’s career and livelihood can be destroyed by an ADRV. Thus it is essential that an athlete understands if their actions are being considered a ‘refusal to comply’, and thus an ADRV. Instead of warning Sun Yang that she considered that he was refusing to comply and tampering with a valid sample, the DCO said to Sun Yang “go ahead” and “do what you have to”. Instead of writing a statement of events as she saw them, the DCO signed the statement prepared by Dr. Ba Zhen.

Clearly something of this importance cannot be left to such “he said, she said” ambiguities. That is why it is common practice in society to document warnings in writing. Whether it is for a driving traffic violation or school suspension or housing infraction, warnings are put in writing to make it clear and unarguable. Obviously, this should also be the case with anti-doping. 

The CAS panel came to the conclusion that the DCO gave Sun Yang sufficient warning and he failed to heed the warning. They say, ‘The Panel is satisfied the DCO did repeatedly warn the Athlete’. One reason they came to this conclusion was that the apparent warning was ‘corroborated’ by the test manager in Sweden. The Panel says Mr. Popa ‘testified that he actually heard the DCO warn the Athlete as to consequences while he was on the phone to her’. We can be skeptical how he would know this since they were conversing in Mandarin, which he does not speak. 

This is key example of the disastrous consequences of fuzzy regulations. The Sun Yang case could be a milestone, either giving a green light to sloppy unprofessional doping tests or a turning point to strengthen and improve essential regulations. 

The rules need to be clarified further, but they are clear enough to suggest that the CAS panel conclusion is wrong on this essential point. The requirement to document events is confirmed at ISTI 5.4.8: ‘If Sample Collection Personnel observe any matter with potential to compromise the collection of the Sample, the circumstances shall be reported to and documented by the DCO’. The requirement is also at ISTI 7.4.6, which says, ‘At the conclusion of the Sample Collection Session the Athlete and DCO shall sign appropriate documentation to indicate their satisfaction that the documentation accurately reflects the details of the Athlete’s Sample Collection Session…’

The Blood Sample Collection Guidelines require an effort to get witness signatures if there is a problem. ‘The DCO shall endeavour to obtain Witness signatures to confirm the Athlete’s refusal, and shall contact the Testing Authority and/or Sample Collection Authority for further instructions as soon as possible’.

The DCO failed to write a statement or get witness signatures. On the contrary, she signed the statement describing the events as seen by Sun Yang’s doctor! If she disagreed with the description of events by Dr. Ba Zhen, the onus was on her to write a contrary statement. 

It is an obvious failing that the requirements are not spelled out more clearly in the ISTI, but what is there is clear enough. The DCO needed to document events not just after the event, but at the event. She did not. 

This is important because if the DCO had done as required, the entire situation would have changed. If she had documented that Sun Yang’s actions could constitute a failure to comply and tampering, as she did AFTER the event, Sun Yang and advisors would probably have reconsidered their actions. On the face of it, this tragic episode with all its costly consequences has been caused by the failure to follow the rules by the DCO. 

Conclusion

It is highly probable that Sun Yang was innocent of doping and did not intentionally disrupt the doping test. He was coming from successful competition where he was tested many times. He was about to start a vacation. He was again tested shortly after the night in question. All tests were clean. If he had anything to hide, he could have skipped the test, since an athlete is allowed two missed tests and he had not missed any in the previous 12 months. 

On the night in question, the situation spiralled out of control. Sun Yang may have made a mistake by not allowing the blood sample to depart. But the test team did not meet standards and the DCO failed to give the required warning. The FINA Doping Panel ruled in favour of Sun Yang. The CAS court which ruled against him was influenced by prejudice, bias, poor translation, conflicted witnesses, and confusing regulations. 

This case is important because it will indicate whether ambiguous rules can be used to exonerate a private test team contractor and punish an athlete who appears to be innocent. WADA should be encouraged to clear up the areas of ambiguity and contradiction. The rules about test team members should be reviewed so that athlete rights are protected. 

This is not just about Sun Yang. The Swiss Federal Tribunal should reconsider this case in the interests of all international athletes and the public. 

Footnotes

1. For a detailed description of the grounds on which a CAS decision can be appealed to the SFT, see ‘The Role of the Swiss Federal Tribunal and its impact on the Court of Arbitration for Sport (CAS)’. by Despina Mavromati: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845237 ↩

References

The Sun Yang Public Hearing before CAS

Part 1: https://vimeo.com/373204016
Part 2 https://vimeo.com/373351335
Part 3 https://vimeo.com/373377323
Part 4 https://vimeo.com/373416320

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