Sun Yang Anti-Doping Controversy Case Put Back To Late October & Will Be Held In Public, CAS Reveals

Sun Yang Anti-Doping Controversy

The Court of Arbitration for Sport hearing into a FINA Doping Panel decision to issue Sun Yang with a series of rebukes over an acrimonious encounter with anti-doping testers last September has been set back to the end of October – and the case will be the first to be heard in public since the Michelle Smith hearing of 1998.

The case has not been postponed because that would only be possible had a date for a hearing been announced. CAS’s intended date for a hearing in September was tentative, never confirmed nor published. “Late October” is now the new tentative date for the hearing.

In a statement issued today, CAS noted that one of the parties to the case – which could be Sun and his lawyers and entourage or FINA or the World Anti-Doping Agency (WADA), the body challenging the Doping Panel decision to let Sun go free after the incident last year – has requested further time to prepare their case. CAS stated:

“At the parties’ request, the hearing, which will likely take place in Switzerland, will be open to the public (including the media). Full details of the arrangements for those who wish to attend the hearing will be made available once the new hearing date and location have been officially confirmed. This will be the second time in the history of CAS that a hearing is held in public. The first public hearing, which took place in 1999, was also related to the sport of swimming, in the matter Michelle Smith De Bruin v. FINA.”

Smith de Bruin, of Ireland, lost her case, was banned from the sport and never returned. Her triple-gold result at the Atlanta 1996 Olympic Games is not a matter of official celebration in Ireland, the national performance centre for swimming, which would have been named after Smith had she not fallen from grace, among venues void of any commemoration of her.

The Sun Yang case

Sun’s case is wholly different in many regards but also involves matters of process and procedure involving out-co-competition testers.

Sun tested positive for a banned substance in 2014. His doctor, Ba Zhen, was handed two WADA penalties as a result – one for supplying a banned substance, the other for working with the athlete at a time when he should have been serving a suspension. The latest controversial incident placed Dr Ba in an out-of-competition control room called the shots on which documents and qualifications the testers needed, including requirements he said had to be fulfilled under Chinese law beyond, the counter argument suggests, what the WADA Code requires.

While Sun objected to the identification provided by the man present to observe urine being delivered, Ba objected to the qualifications of the blood nurse. Instead of following the protocol of delivering samples and registering objections on the anti-doping control paperwork in writing, argument and acrimony reigned through the night between 11pm and 3.15am September 4-5, according to witnesses at the hearing of the FINA Doping Panel.

The testing session ended with no urine being supplied and a vial of Sun’s blood being smashed with a hammer by a security guard under instruction from the swimmer’s mother, according to the FINA Doping Panel report brought to light by a London Sunday Times exclusive in January this year.

The same author of that story and this one also broke the news of Smith de Bruin’s anti-doping case, in The Times back in 1998.

It was March this year when WADA appealed the FINA DP decision to CAS but in the absence of a request for an expedited process to ensure that the matter did not impinge on events at the World Championships in Gwangju in late July, Sun was free to race. His rivals were free, under an Olympic Charter that allows freedom of expression, to protest.

The delay in dealing with Sun led to podium protests, FINA warnings issued to Sun, Mack Horton and Duncan Scott during the World Championships last month and serious criticism from athletes of the way FINA has handled matters.

There are two main aspects to the case:

• conduct and accuracy of objection made, both off which drew serious criticism from the FINA Doping Panel;
• the technicalities of what constitutes appropriate identification by testing-team members below the main testing officer, the definition of documents as singular and/or plural (it can be both in the English language, while in FINA rules, the Constitution states that where a word can be interpreted as both, it should be and no singular nor plural definition should be applied), and whether a nurse in China must have a higher qualification than is required by a blood nurse working in the realm of international anti-doping that is required elsewhere in the world.

In the midst of FINA Doping Panel criticism levelled at testers representing the IDTM agency contracted by FINA to conduct out-of-competition testing was a suggestion that warnings given to Sun that a refusal to submit to testing could be registered were neither properly explained to the athlete (testers disagree with that) nor followed through on (no official “refusal” to submit to testing was recorded).

The CAS Statement in Full

Lausanne, 20 August 2019 – The Court of Arbitration for Sport (CAS) is conducting an appeal arbitration procedure brought by the World Anti-Doping Agency (WADA) against the Chinese swimmer Sun Yang and the Fédération Internationale de Natation (FINA) in relation to a decision issued by the FINA Doping Panel dated 3 January 2019 whereby Sun Yang was found not to have committed an anti-doping rule violation following an out-of-competition doping control.

The CAS confirms, further to consultation with the parties, that a hearing was tentatively scheduled for September 2019 but due to unexpected personal circumstances, one of the parties was obliged to request a postponement of the hearing. Such request was assented to by the other parties and accepted by the CAS Panel. A new hearing date will be fixed as soon as possible and but is unlikely to be before the end of October 2019.

At the parties’ request, the hearing, which will likely take place in Switzerland, will be open to the public (including the media). Full details of the arrangements for those who wish to attend the hearing will be made available once the new hearing date and location have been officially confirmed. This will be the second time in the history of CAS that a hearing is held in public. The first public hearing, which took place in 1999, was also related to the sport of swimming, in the matter Michelle Smith De Bruin v. FINA.