25 July 2019

Yang & Sakho: the fine line between mob justice and integrity

The 18th FINA World Championships in the Republic of Korea have been largely overshadowed by protests against Sun Yang, the Chinese swimmer who has won two Gold medals. Australian Mack Horton refused to share a podium with him after he won 400m Freestyle Gold on 21 July. Following this, Briton Duncan Scott took the same action after Sun won 200m Freestyle Gold on 23 July, prompting ugly scenes that FINA would presumably wish to avoid.

Sun’s case is complex. In 2014, he he was sanctioned with a three month ban after returning an adverse analytical finding (AAF) for Trimetazidine, which had been added to the World Anti-Doping Agency’s (WADA) Prohibited List that year. It is normally given to combat angina, however it is understood that it also aids oxygen supply to tissues during exercise. Sun argued that he had been taking Trimetazidine to combat angina for a number of years, and was unaware that it had been added to the List.

Sun won three Golds at the 2014 Asian Games, September 19 to October 4. However, although his ban had expired by then, a ban issued to his doctor had not. A 25 October 2014 statement from FINA (since removed, as the sanction has been served) revealed that Ba Zhen, Sun’s doctor, had been sanctioned with a one year ban in relation to the same AAF. Ba was later sanctioned for administering treatment to Sun at the 2014 Asian Games, as his ban had yet to expire.

In January this year, The Sunday Times reported that blood samples taken from the athlete had been smashed with a hammer. It is understood that Sun provided blood samples, but refused to provide urine samples after questioning whether Doping Control Officers (DCOs) from International Doping Tests & Management (IDTM – contracted by FINA) had the correct paperwork. 

The Report submitted to FINA reportedly states that Sun’s doctor, Ba, arrived at the scene and suggested that the blood samples be smashed with a hammer. It is understood that Sun’s mother suggested that a ‘guard’ bring a hammer to the doping control station. 

It has been reported that notes made by the DCOs were torn up and the blood sample vials smashed with a hammer. FINA cleared Sun of charges involving evading and tampering with a doping control, ruling that the DCOs did not have the correct documentation. WADA has since appealed the decision to the Court of Arbitration for Sport (CAS), which has yet to issue a ruling.

But – and this point is crucial – Sun’s lawyer Zhang Qihuai told Xinhua that the three IDTM staff had fabricated the FINA Report. Why they might do this is unclear. However there are a number of obvious questions that arise from the above account of events. 

Firstly, is it usual to take both blood and urine samples from one athlete, in competition, at a doping control station? Secondly, why did Sun become suspicious about the paperwork and credentials of the DCOs? Thirdly, why would a hammer be needed to smash the glass blood collection vials? Presumably, these questions will be answered by the CAS when it rules on WADA’s appeal.

Both Horton and Scott have since been warned by FINA, which has reportedly changed its rules in order to allow the removal of medals from athletes who carry out similar protests in the future. Of course, everyone is entitled to an opinion. Many people have jumped on the bandwagon, praising Horton and Scott for their actions, including Olympians Greg Rutherford and Dawn Fraser. Horton has even been praised for being a ‘modern day hero’ for his stance.

However, mob justice is a dangerous crevice into which sporting organisations can easily fall, as Mamadou Sakho’s damages lawsuit against WADA illustrates. Sakho has launched legal action against WADA, which he holds responsible for a provisional suspension implemented by UEFA, which he alleges was not based on sound regulations or science. This is firstly because the 2016 Prohibited List did not name higenamine and, secondly, because WADA’s research at that time did not support its assertion that higenamine is a Beta-2-Agonist (and was therefore not covered by the 2016 ‘catch-all’ provision which made all Beta-2 Agonists prohibited).

In essence, Sakho’s case is possible because he alleges that sport sanctioned first, without doing its homework. Sun’s case at the CAS has yet to be heard. If FINA were to prevent him from competing – as commentators have suggested it should do – and he was later exonerated, FINA could face a similar lawsuit. 

In a fit of righteous indignation, it is very easy to tar an athlete with the ‘doping cheat’ brush. Just like Justin Gatlin, Yang’s status as a ‘doping cheat’ has yet to be proven. Of course, everyone is entitled to their opinion on whether they believe them or not. But both offered convincing arguments that their use of prohibited substances was due to genuine medical need, which is why life bans for doping can never work. 

Legally, proving that an athlete is ‘cheating’ through intentional doping is almost impossible, which is why the strict liability provisions of the World Anti-Doping Code exist. WADA knows that unless athletes are liable for proving the source of a prohibited substance, no sporting federation would ever secure a doping conviction. Every case would involve sporting organisations having to prove that an athlete intentionally took a substance in order to cheat.

The jury is still out regarding Yang. Or, more accurately, the CAS Panel has yet to sit. FINA should not be blamed for erring on the side of caution by allowing him to compete. Everyone is entitled to their opinion on Yang, including FINA.

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