Sun Yang’s Hammer Is Not Yet Done As The Light Turns Towards The Men In Suits

Cornel MARCULESCU, Fina Executive Director, is pictured during the 12th Fina World Short Course Swimming Championships held at the Hamad Aquatic Centre in Doha, Qatar, Thursday, Dec. 4, 2014. (Photo by Patrick B. Kraemer / MAGICPBK)

Commentary

The hammer blow of an eight-year ban on a tainted three-times Olympic champion will not be the last gavel that falls on the case of Sun Yang and his friends at FINA Vs WADA.

Don’t stop at the obvious, an appeal at the Swiss Federal Tribunal (SFT), confirmed by the swimmer’s Chinese lawyer, Zhang Qihuai, in a rant against “evil” forces yesterday.

Extend the thought to a FINA leadership being asked this day by swimmers, coaches, fans and media commentators to resign en masse. There is just too much of that this day to link to: a tidal wave on the digital ocean, this from Andy Bull at the Guardian among the very many explanations in print and on the airwaves as to why the world swimming community is at odds with its governors. I can’t say I will add my voice to the swell: it’s been out there afloat for many a long year.

For much of that time, it felt as though the bond between realms and levels of the status quo was hard, fast, all but untouchable. In the past couple of years, the glue has been coming apart and FINA’s leadership now finds itself in need of taking down from its barricade the notes nailed home by the International Olympic Committee (IOC), the Court of Arbitration for Sport (CAS) and others. Namely, for starters:

You cannot appoint your the Doping Panel – that must be a truly independent process separate from all activities of your commissions and committees and the “FINA Family”
You cannot have an Ethics Panel that is contained by a top table that gives itself the authority to hear what cases the Ethics Panel will hear
You must establish an independent integrity unit that once in place will develop a life of its own within ethical boundaries that speak to international legal standards and works within the WADA Code when deciding the direction of travel for doping cases; gone are the days when FINA HQ should have any say whatsoever in who gets tested when for what and what happens next.

And how about the notes hammered to the FINA door by athletes of late? Like:

Do not try to stop us racing at events held under FINA rules but not in your control
Do not appoint your own athlete representatives to represent us – we will be sending our own representatives to talk to you on our behalf on issues we require you to take action on
Do not continue to use our images to promote your events without direct recompense or permission
Do not try to gag us by telling us we cannot bring ‘politics’ into a sport soaked in politics
Actions, please, not words, when it comes to ‘zero-tolerance’ on doping
Decide which role you want to play: regulator and policeman or promoter of aquatic sports: you cannot be both
Stop spending the money we do an enormous amount to generate on litigation aimed at silencing and controlling us
Stop spending the money we do an enormous amount to generate on the legal costs of standing up for favourite sons when neutrality is the key to your integrity and our protection in your hands

The Men In Suits

It was 2014/15 when Bill Sweetenham and leaders at the World, American and other national Swimming Coaches associations called on FINA to submit to independent review with a view to betterment and the adoption of stronger, more independent processes and structures of governance. Jon Rudd spoke to Swimming World’s European Correspondent Liz Byrnes this week about why swimming had just had its Good Friday early, while Oceania Correspondent Ian Hanson summed up the feeling Down Under.

The coaches in those and other regions of the world never heard back – not a single, solitary official word. No reply. It was as if a membership of some 20,000 stakeholders in FINA sports was invisible to the leadership.

Cornel Marculescu has been the director of FINA since 1986, while 84-year-old Uruguayan Julio Cesar Maglione, president, has been at the top table off the federation since 1984. Their day is done, though their positions at the exit are not the same.

Maglione is a ‘volunteer’ who has lived off the fat of swimmers for decades. He and the rest of the current executive and Bureau – a top table body that has included more than a handful of figures investigated and/or charged for criminal offences in the past decade – should be told by the leading federations of the world that it is time for them to step down at the start of an independent review process on the way to a new start from the 2021 World Championships onwards.

Marculescu is a paid employee and, approaching 80, can surely see the logic of a happy retirement pondering his achievements – and those there have been – and the pathways down which he was unwise to have taken swimming and swimmers.

One of Marculescu’s biggest successes – attracting commercial partners and raising income for aquatic sports – is also his biggest failure: when financial interests spill over the line into the realm of integrity and ethics and a federation ends up sacrificing itself on the bonfire of a single athlete’s career, one with a doping record in tow at that, it is time to call in pest control just to check if all that should be clean and watertight is just that.

The Swimmers’ Class Action against FINA

FINA’s leadership is in dispute – a class action case in the United States among ongoing processes – with its major stakeholders. Time to end the misuse of funds fighting swimmers with their own money.

The case for an independent review and reform of FINA, beyond which the structures of the international federation must be bolstered by truly independent systems of checks and balances with the power to demand transparency of processes and finances, is more solid than the sturdiest stretches of the Great Wall of China and as obvious as that edifice is from space or while standing on it.

As Ming Yang points to the men in suits in her own country making decisions and taking courses that rattle the WADA Code like the proverbial wind, baby, cradle and tree top, CAS prepares to release the full judgement of her son’s case. There’ll be a call for heads to roll.

The Sun Yang case at CAS shone a torch into some of darkest, dustiest corners of world swimming. The picture wasn’t pretty.

FINA put itself centre stage. Here was a policeman and regulator taking sides, the side in fact of an athlete with a doping record and a doctor with two WADA penalties to his name. The side of two people with a poor record on their files who were then found to have removed a blood sample signed off for analysis from the chain of command.

A FINA Doping Panel said the whole case hinged on the word ‘documentation’ being plural. They were wrong in language and missed the main issue by the length of the Great Wall.

Three senior judges at CAS saw through the charade with some ease. And when their full report comes out, expect to see some savage commentary from keen minds in the arbitration system reserved for figures at FINA and their friends in authority in China.

Release of the full judgement hangs on whether there are objections to that happening from any of the parties involved. WADA is happy to tick the transparency box. FINA? It better be. And Sun’s entourage in China, the same people who wanted a transparent, open, public process? We assume they want the same now, heading into a challenge to process at the last-stand Swiss Federal Tribunal (SFT).

When the full CAS report comes out, there may well be harsh words for testers and IDTM, too. Sun claimed to be an athletes’ champion, standing up for the rights of all to a process in which testers and testing agencies are held to high standards, just as athletes are. In general a fair point. For an athlete towing a doping record and with a twice-penalised doctor by his side, it was a point he would have needed to have made in a very different fashion.

Whatever faults may be identified in any camp in the battle, nothing will beat what the CAS judges delivered as their verdict: a test sample was given, signed off for and then removed from the chain of custody. Impossible to let that stand without what the WADA Code and related standards make provision for beyond standard rights. Exceptional circumstances are set out in the International Standard for Testing and Investigations. The CAS Panel of judges did not believe any of Sun’s reasons for removing his blood sample from the chain of custody after he had signed off on it met the criteria of “exceptional” circumstance.

Sun-ny Side Up Or Thumbs Down?

Sun Yang, with his counsel Ian Meakin to the left, in Montreux at the CAS hearing – Photo Courtesy: Craig Lord

When Sun and team lodge there appeal at the SFT sometime during the next 30 days, it will mark the fourth time they have done so in this case. On the three previous occasions, they have lost. The SFT is the court that heard Team Sun & FINA’s wish to have Richard Young, WADA lead counsel, thrown off the case on the grounds of conflict of interest: Young had been a member of the FINA Legal Commission but had resigned in order to take the WADA brief. The SFT begged to differ, as it did on two other matters of procedure – and the CAS hearing went ahead on November 15 in Montreux.

Against that backdrop, Sun’s fourth visit to the SFT is also likely, as Jack Anderson, Professor of Sports Law at the Melbourne Law School, University of Melbourne, puts it in a fine analysis today, “likely to end in disappointment”.

Writes Anderson:

“He will not get a full re-hearing at the SFT, and the grounds of appeal will be limited to narrow procedural issues only. An example would be whether the CAS hearing in some way unfair – ironically, the fact that it was held in public at Sun’s request may tell against him here. Another consideration may be whether the sanction was disproportionate – given the eight-year ban is mandated in the World Anti-Doping Code, this ground would likely not succeed. One final consideration may be whether the poor translation service at the CAS hearing might be a ground of appeal – again, unlikely, given that it was Sun’s legal team that hired the translator.”

Anderson then notes what may, “arguably”, be the strongest part of Team Sun’s argument at the SFT, and even there he concludes “unlikely”:

“Arguably, Sun’s strongest point has always been the general one, outlined in the seminal CAS case of Quigley v UIT. It is that, while the principle of strict liability applies to athletes in anti-doping control, it should equally apply to testers to strictly comply with all administrative aspects of the anti-doping process. Whether the SFT would entertain an argument that goes right to the heart of the current anti-doping policy globally is unlikely.”

Anderson sums up with words that echo what this author, coaches, swimmers and others are saying and have been saying for at least two decades:

“FINA must now reflect on its governance of its sport.”

He recommends an integrity commission as “a vital next step”. Spot on, with one proviso, that commission must be selected by independent, legal entities, not “the FINA Family”.

“FINA’s dictatorial leaders now need to quit – or be fired – because their credibility is beyond repair after the botched handling of Sun’s case plunged the sport into fresh crisis”, the Australian Daily Telegraph boomed in its editorial today.

The comment advocating independent processes and accountable structures of governance continues: “New executives need to be appointed who will not only change FINA’s fishy policy on dealing with doping cases but will also permit an independent review into how the sport has been run for decades so the public can see all the skeletons in the cupboard.”

Swimming is trailing other sports, including World Athletics. The IOC should make a note: Aquatics now gets as much Olympic broadcast money as Track and Field as a result of the latest decisions on the funding share from Games HQ. Time to tell FINA bosses: submit to independent review, get that process underway before Tokyo 2020, step up to standards embraced elsewhere and start to cut the cancer of poor governance from your sport before we cut your funding share.

As the Aussie Telegraph notes:

“Most other sports federations have already followed the lead of the International Olympic Committee (IOC) by delegating the handling of drug cases to the Anti-doping Division of the Court of Arbitration for Sport (CAS) because it’s fully independent so removes any hint of bias.The division was created in 2016 as a critical part of the IOC’s Agenda2020 reforms – and every international sporting federation was clearly told why they need to be fully transparent on doping matters.

While other sports have signed up to that aspect of the IOC’s Agenda 2020, FINA has steadfastly refused to consider anything other than appointing their own arbitrators to their own doping panel, that same panel that spent 50-odd pages explaining why Sun should stand before the CAS before concluding “naughty boy, don’t do it again”.

It simply wasn’t good enough. Not nearly good enough – which is why this author believed then in January 2019 and believes now, March 1, 2020, that the secret report of the Panel’s deliberations belonged in the public domain wearing a banner screaming “in the public interest”.

Down Under, the campaign has begun to have Sun hand over his medals. Fitting that track legend Raelene Boyle – who was robbed of gold by East German drug cheats in the 1970s – is backing the #GIVEMACKGOLD campaign at the Aussie Telegraph.

Her presence is there to remind all from the start just how long the wait can be, as all who raced against the GDR between 1973 and 1989 know only too well.

Swimming World’s coverage of Sun Yang & FINA Vs WADA At the Court of Arbitration for Sport

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