While I am watching the Tokyo Olympic Games and cheering for the Olympians these days, I have spent some time in reading the 88-page Court of Arbitration for Sport’s (“CAS”) award on Sun Yang’s (”Athlete”) doping offense case rendered on June 22, 2021 (CAS 2019/A/6148 World Anti-Doping Agency v. Mr Sun Yang & Fédération Internationale de Natation (FINA)). The Athlete is sanctioned with a period of ineligibility of 4 years and 3 months, beginning on 28 February 2020 according to the 2021 FINA Doping Control Rules (“FINA DC”) based on the principle of lex mitior. This article summarizes tribunal’s analysis of the following question: Did the Athlete commit an anti-doping rule violation?
The International Doping Tests & Management (“IDTM”) scheduled a sample collection for the Athlete at his residence in Hangzhou, Zhejiang Province, China on September 4, 2018. It was planned to occur within 60 minutes between 10:00 and 11:00 p.m.
During the sample collection process, the Athlete requested the IDTM team presented its credentials. The Doping Control Officer (DCO) presented a copy of her IDTM card. The Blood Collection Assistant (“BCA”) provided a junior nurse’s certificate. The Chaperone/DCA showed his national identity card. The DCO also presented a “Letter of Authority” signed by Fédération Internationale de Natation’s (FINA) Executive Director.
The blood samples were collected without any apparent initial difficulty and were placed by the BCA in the secure containers inside a cool box.
During this process, the DCA took several photos and videos with his personal cellphone of the villa, the complex and the Athlete without legitimate reasons. The Athlete, then, questioned DCA’s credentials. The Athlete asserted that the DCA was acting as an annoying fan, if not a paparazzi, infringing on the Athlete’s privacy. The DCO explained that she had appointed the DCA and instructed him as to how he would witness the passing and collection of urine.
While the Athlete and his entourage were arguing with the IDTM team on the procedural requirements for the sample collection, DCO insisted on asking DCA to observe Athlete’s urine sample collection process. The Athlete refused. While DCO explicitly warned the Athlete that his refusal may constitute a rule violation, no urine sample collection was done on September 4, 2018.
Dr. Ba Zhen, the personal physician of the Athlete who arrived at the scene an hour after midnight, took the position that not only the DCA, but also the BCA lacked proper authorization to perform their assigned tasks. Thus, the Athlete and his entourage insisted that the blood samples could not be taken neither.
The DCO, after calling and consulting with her boss, proposed to send the blood to the World Anti-Doping Agency (WADA) accredited laboratory in Beijing pending solution of the issue of authorization. This was refused by the Athlete and his entourage.
Following further discussion about the blood samples, the blood collection vessels were broken by a guard from the Athlete’s side with a hammer.
On October 5, 2018, FINA wrote to the Athlete informing him that he was found to have committed a violation of the FINA Doping Control Rules, specifically of two rules: “Refusing or Failing to Submit” (FINA DC Art. 2.3) and “Tampering or Attempted Tampering” (FINA DC Art. 2.5).
On November 19, 2018, the FINA Doping Panel conducted a hearing on this issue.
On January 3, 2019, the FINA Panel ruled in favor of the Athlete, determining that he has not committed an anti-doping rule violation, and ordering the Chinese Swimming Association to bear all costs.
On February 14, 2019, WADA filed a Statement of Appeal with the CAS.
On November 15, 2019, a public hearing was conducted by CAS in Montreux, Switzerland.
On February 28, 2020, the First Panel rendered its award, setting aside the FINA Doping Panel’s decision and imposing an 8 years ineligibility on the Athlete.
On December 22, 2020, the Athlete appealed to the Swiss Federal Tribunal. He requested that the arbitral award be set aside on the ground that there was evidence of bias on the part of the presiding arbitrator by reasons of his prior comments on social media. And the award by the First Panel was annulled.
On 23 and 24 May 2021, WADA and FINA respectively objected to the Athlete’s request that the Award be kept confidential.
From 25 to 27 May 2021, a hearing was held under the auspices of the CAS, by videoconference. 12 witnesses provided their testimony during this virtual arbitral hearing.
On June 22, 2021, the CAS ruled that the decision issued on January 3, 2019 by the Doping Panel of the Fédération Internationale de Natation was set aside and that the Athlete was sanctioned with a period of ineligibility of 4 years and 3 months, beginning on 28 February 2020.
Main Issue to Analyse
Did Athlete commit an anti-doping rule violation?
In determining whether the Athlete committed an anti-doping rule violation, the Panel first analyzes whether the Sample Collection personnel complied with International Standard for Testing and Investigation (“ISTI”) requirements during the sample collection process on two aspects: the sufficiency of the documentations and the qualification of the Sample Collection Personnel. Then, the Panel analyzes whether the Athlete and his entourage’s conduct on 4-5 September, 2018 was justified in light of the circumstances.
- Did the Sample Collection Personnel provide sufficient authorization and identification documentations during the Sample Collection process according to the ISTI requirements?
a. The key legal provisions are the following articles of the ISTI Rules.
“5.3 Requirements prior to notification of Athletes
5.3.3 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. DCOs shall also carry complementary identification which includes their name and photograph (i.e., identification card from the Sample Collection Authority, driver’s licence, health card, passport or similar valid identification) and the expiry date of the identification.
5.4 Requirements for notification of Athletes
5.4.1 When initial contact is made, the Sample Collection Authority, DCO or Chaperone, as applicable, shall ensure that the Athlete and/or a third party (if required in accordance with Article 5.3.8) is informed:
b) of the authority under which the Sample collection is to be conducted . . .
5.4.2 When contact is made, the DCO/Chaperone shall:
b) Identify themselves to the Athlete using the documentation referred to in Article 5.3.3 . . .“
b. In Salmond v. IIHF, CAS 2018/A/5885 & 5936, the CAS held that “DCO will have satisfied this requirement under the ISTI by carrying an authorization letter from the testing authority as well as an identification which includes his name, photograph, and the expiry date of the identification.” The Panel noted that the letter before the Salmond panel was similar to the Letter of Authority shown to the Athlete in this case. In the meantime, the Panel stated that it does not rely on Salmond decision. The Panel interprets the ISTI de novo.
c. The Panel first examines the object and purpose of ISTI as the Athlete is urging that the ISTI be interpreted in conformity with his fundamental human rights. The objective of the ISTI’s notification requirements, as stated in Article 5.1 is fourfold: “to ensure that an Athlete who has been selected for Testing is properly notified of Sample collection as outlined in Article 5.4.1, that the rights of the Athlete are maintained, that there are no opportunities to manipulate the Sample to be provided, and that the notification is documented. ” These objectives represent a careful balancing of countervailing interests: to respect athletes’ rights and to eliminate the scourge of doping from international sport.
While the Athlete argues that the documentations provided by the Sample Collection Personnel did not conform with the WADA-issued guidelines and the CHINADA-specific practice (see paragraphs 228-229 of the Award), the Panel notes that those guidelines are recommendations, not law, and they do not alter the minimum requirements of the ISTI.
Having regard to the text, structure and purpose of the ISTI rules, the Panel concludes that the requirement for “official documentation” was met.
ii. Were the Sample Collection Personnel, more specifically, the DCO, BCA and DCA adequately credentialed?
a. The DCO
The DCO has acted in that capacity since late 2017. The DCO had taken part in approximately 20 Sample Collections prior to the night in question. None of the Parties contested her official credentials to act as DCO in the past.
The Panel concludes that DCO had the appropriate training in order to lead sample collections on behalf of IDTM as Sample Collection Authority.
b. The BCA
The Athlete argued that the BCA appeared to lack a Practicing Nurse Certificate (“PNC”), a document which is required under Chinese law to draw blood and that the BCA was only authorized to draw blood within the “place of practice” listed on the PNC, i.e. “Changhai Hospital, No. 2 Military Medical Science University”.
In the present case, during the sample collection process, BCA failed to show her PNC to the Athlete. During the hearing, BCA testified that she possessed one but she was not required to show to the Athlete on 4-5 September 2018. While the Athlete emphasized that the Sample Collection Personnel was required to respect the local standards and regulatory requirements, i.e. Chinese law, the Panel considers it sufficient to dispose of the matter by reference to Professor Pei’s concession that “[n]o explicit provisions on [the question] are found in Chinese law, regulation or diagnosis and treatment norms.”
On the other hand, the Athlete failed to meet his burden to prove how the Chinese law may impose a geographic limitation for the professional credential.
Thus, the Panel concludes that as a registered nurse, the BCA possessed all relevant medical qualifications to carry out her duties on 4-5 September 2018.
c. The DCA
The DCA’s testimony left the Panel an impression that he has been recruited at little notice, had been given minimal instruction, was swiftly excluded from the Sample Collection after being confronted by the Athlete regarding his unauthorized photography, and preferred to leave the entire episode behind him.
Although the Panel notes that “this does not indicate a high level of training under even the most charitable of views”, the Panel finds that “what constitutes adequate training depends on the complexity of the assigned task.” In Panel’s view, the DCA has had brief but enough training to undertake his task of observing the passage of urine.
In light of the foregoing analysis, the Panel concludes that the Sample Collection Personnel is adequately credentialed.
iii. Did the Athlete have a compelling justification in light of the conduct of the Sample Collection Personnel?
The Panel has found that the Sample Collection Personnel appropriately notified the Athlete under the ISTI, and that each member possessed the necessary qualifications for his or her role. In paragraph 371 of the Award, the Panel notes that ” Professional athletes are presumptively familiar with the doping control process. They are also well aware of the consequences of refusing to submit to a sample or of interfering in the process, and of the weighty sanctions that may befall should they be found guilty of an anti-doping rule violation. Mr. Sun, who has been tested at least 180 times, is certainly no exception. The Panel would expect an athlete as experienced as he to exercise the highest duty of care when disputing the validity of a Sample Collection.” In the present case, the Athlete was notified by the DCO of the potential consequences of his refusal multiple times. However, the Athlete, perhaps ill-advised, ended in a sample’s destruction. The Panel finds that the Athlete is staking his entire splendid athletic career on being correct on disputed doping test, which is a huge and foolish gamble.
In light of the foregoing analysis, the Panel is comfortably satisfied that the Athlete violated Article 2.5 of the FINA DC (“Tampering or Attempted Tampering”) and Art. 2.3 of the FINA DC (“Evading, Refusing or Failing to Submit”).
1. The principle of lex mitior occupies a central place in sports law. It prevents the “continued applicability of a disciplinary rule after it has been replaced by a more lenient one, and reflects, in favour of the accused, the evolution of a legislative policy.” Pursuant to lex mitior, the “set of rules most favorable as a whole is to be applied”. The 2021 FINA DC offers more favorable terms to athletes with respect to the imposition of sanctions for violations of Article 2.5 of FINA DC than the previous version of the rules. Thus, the Athlete is sanctioned with a period of ineligibility of 4 years and 3 months instead of 8 years ineligibility beginning on 28 February 2020.
2. The period of ineligibility could be shorter if an athlete is able to prove that his commission of the anti-doping rule violation was not intentional according to Art. 2.3 of 2021 FINA DC. However, in the present case, the Athlete has not argued an absence of mens rea in any explicit sense, although he insisted that his actions were guided by the belief that the Sample Collection was unlawful. The Panel concludes that the Athlete intentionally violated the rules as he acted recklessly and in manifest disregard of the risk of the potential consequences of his actions.
(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention.)