WADA Press For Tampering Ban
The World Anti-Doping Agency (WADA) took a hammer to “Sun Yang’s Playbook” and the “grammar gymnastics” of the FINA Doping Panel when it summed up its challenge at the Court of Arbitration for Sport hearing in Montreux today.
Sun Yang, said WADA counsel Rich Young, had been “reckless” and “incredibly careless relying on Dr Ba Zhen”, the twice-banned doctor who prescribed the swimmer a banned substance in 2014 and landed both of them suspensions.
Dr Ba had helped Sun argue his way out of an acrimonious clash with out-of-competition anti-doping testers at his home complex in Zhejiang Province on September 4-5 last year.
Young said that Sun had broken the WADA Code long before a hammer was used to smash a blood-sample bottle. Having calmly talked through why Sun should not go free with a caution, Young told the panel of three judges:
“Tearing up the form, smashing the bottle, I mean that is pretty sensational but he was nailed on a tampering violation before any of that happened.”
The main Doping Control Officer working for IDTM, the Swedish testing agency, had sought to complete blood testing after Sun had agreed to submit to an anti-doping control. The swimmer had signed the paperwork before Dr Ba arrived after midnight on September 4-5 during a row that lasted more than four hours until after 3am.
Sun Yang had changed his testimony over the course of six months and had withdrawn his statement that the DCO had allowed him to keep the fated blood sample, said Young. The swimmer also agreed that he had not taken the blood bottle from the DCO as originally states. Dr Ba had picked up the blood bottle. There was definitive answer from Sun when he was asked to be precise about how the sample ended up in Ba’s hands and not in safe storage ready for transport to a laboratory for analysis.
Had it been Dr Ba who said that the sample could not be sent for analysis, the twice-banned doctor was asked. Dr Ba couldn’t recall, until Brent Rychener, counsel for WADA, reminded him that Sun had changed his story and now said that it had indeed been the doctor. Dr Ba’s memory improved and, indeed, it had been him, not the swimmer.
When Sun and entourage sought to stop the DCO from leaving his Hangzhou home complex with the blood sample, the offence, before the hammer had arrived, was tampering, said Young. That offence carries an eight-year ban. Even one of two would likely end Sun’s career. WADA counsel stated:
“The evidence you have heard is very, very clear that the DCO wanted to leave with the blood sample and the response from Sun Yang and his entourage was ‘absolutely no way was that going to happen’.”
Sun Yang and his counsel Ian Meakin, – Photo Courtesy: Craig Lord
A decision of the panel of three CAS Judges hearing the case will deliver their verdict from January onwards, a year after a FINA Doping Panel let Sun off with a warning after what Young described as a report that took “100 pages to come up with an interpretation that was consistent with their position.”
The bulk of Sun and WADA’s argument rests on the FINA Panel’s interpretation of “documentation” as a plural. That interpretation meant that the two chaperones to the main Doping Control officer, one a blood nurse and the other present to observe urine being produced, did not have sufficient accreditation and/or authorisation.
No valid paperwork to prove credential translated to no valued test sample, according to Ian Meakin, counsel for Sun Yang.
On the bench, London-based law professor Philippe Sands QC, a barrister appointed to the three-man CAS panel by Sun Yang (each party must choose a panelist from a list of high-flying legal eagles) wondered if Sun’s legal team had thought what the judges might be thinking.
“How do you put your case if you are wrong on the question of accreditation?” Prof. Sands asked Fabrice Robert-Tissot, counsel for Sun.
“Or, is it the case that your entire submissions are based on the accreditation point? Because if they are, it is hard to see how you make a case.”
All parties believed their view of events and rules and guidelines that would best serve fair play and athlete interests.
Young told the judges that whatever their verdict, it should not send a message to athletes that it was acceptable to “follow the Sun Yang playbook” by refusing to give samples to drug testers. Protocol allows athletes to register any objections and complaints on the anti-doping form when submitting samples for analysis, he noted.
The Olympic champion, as suggested by the FINA Doping Panel of January 3 this year, took “an incredibly reckless gamble”, said Young, when he did not follow that protocol.
Instead, Sun had called various officials, who weighed in on his side, their behaviour raising “issues of intimidation and protection”, as Young put it.
Professor Pei Wang, an expert put on the stand by Sun’s legal team, had said that one of the chaperones from the IDTM testing team, the Blood Control Assistant Huangfen Lin, was likely to face criminal charges and face a jail term. Her ‘crime’ was not any lack of qualification as a blood nurse, simply that she had taken blood outside the Shangahi province her licence pertained too. Brent Rychener, for WADA, objected to Wang’s testimony on two grounds: the professor was giving his opinion but that was not based on all known facts; and his statement was not part of any previous testimony in the case.
The Swimming World View of the grand setting of the Montreux Palace Hotel where the CAS hearing into Sun Yang Vs WADA is being held – Photo Courtesy: Craig Lord
During the summing up at the hearing at the Montreux Palace Hotel, Young recalled how the DCO had been threatened on various levels by members of Sun’s entourage. Hao Cheng, head of the Chinese Swimming Association, admitted that he had given the DCO ‘friendly advice’ that she should not use the word “refusal” and had reminded her on the phone during the test visit of September 2018 of the “consequences” to raising the issue of registering a “refusal” to comply with testing. Another DCO had been dismissed in a multiple-refusal case (the details of which were not provided), Hao had told the DCO.
Little wonder, perhaps, that both the DCO and the BCA gave their testimony in private yesterday and were not available to tell their story in public. That left Tissot free to call them both liars at the arbitration hearing today without them being present to respond in the same forum.
Physically, Hygienically and Morally’ – All Conditions Satisfied?
In his rebuttal of arguments from Sun’s counsel, Young referred to precedents, including one case in which an anti-doping ruling judged that if a sample can be provided “physically, hygienically and morally”, then it should be provided, with any objections by the athlete recorded on the doping control form.
In the quoted case, the athlete had to submit the sample, register objections and then down the line of inquiry, if any required, request that the sample be tested at a different laboratory. said Young:
“That’s what should have happened here … physically, hygienically and morally it was possible to provide the sample and register objections on the … form.”
All set for Sun’s entrance – Photo Courtesy: Craig Lord
Counsel for Sun and FINA argued that notification (telling the athlete that a test is about to take place, providing accreditation and authorisation to test) had not been carried out properly.
Young would have none of it. He said that if Sun had legitimate concerns about the accreditation or behaviour of the doping control team, he should have registered those on the doping control form and submitted to testing. Indeed, he had followed that protocol before during the course of some 60 out-of-competition tests in his career.
Sun had relied heavily on Dr Ba to sort out the problem on the night, Prof. Sands suggested from the bench. That would not save Sun, Young suggested, adding: “The bottom line is even if he relied on Dr Ba that is not a defence.”
Had The Risk To The Athlete Been Overlooked?
Had Dr Ba paused to consider the implications for Sun Yang if he made a second, terrible mistake such as that in 2014, which landed doctor and swimmer with penalties under the WADA Code, Prof. Sands asked Dr Ba.
“Surely you must have, against that background, thought for a moment if you or Dr Han, both of you, have got it wrong, the athlete risks paying a big price?”
Dr Ba gave no indication that he did, repeating twice that he had put his trust in the judgment of his mentor Dr Han Zhaoqui, the deputy director of the Zhejiang Anti-Doping Agency (and also a leading figure in Sun’s science team).
Sun Yang and his legal team arrive for the hearing Photo Courtesy: Craig Lord
Sun maintained his innocence throughout, while his counsel kept returning to the WADA guidelines that he noted were not met by testers on the fateful night last year. T
ime and again, counsel for both CAS and WADA referred to guidelines relating to best practices recommended for anti-doping test visits. Some of those were said to be applied by Chinada, the Chinese anti-doping authority, among other national equivalents elsewhere in the world.
However, counsel for WADA emphasised, such guidelines are not legally binding. The only thing that counts, said Rychener, backed by Young, is the WADA Code and the accompanying International Standards for Testing and Investigations (ISTI).
In summing up, Sun concluded:
“Myself and my team had nothing to hide in this incident. I believe every individual and every anti-doping organisation must respect the requirements of the relevant international anti-doping regulations. Then the integrity of sport will be protected. If sport organisations won’t follow or respect their own rules, what is the point of talking about the spirit of fair play? If an athlete’s basic right and privacy cannot be respected and protected what is the point of talking about the dream of Olympic spirit?”
Sun likened the arrival of testers with insufficient paperwork at his home in September last year to police knocking on the door and refusing to show you their badge.
Young rejected that and noted that all three testing officers had been trained and had attended previous doping-control missions. “This wasn’t a group of rogue imposters,” he said.