Comparison of the first and second trials of the "Sun Yang case": after reading it, you will understand why he lost.
[4] Key milestones in this incident:
On September 4, 2018, three staff members from the International Doping Tests & Management (IDTM) went to Sun Yang’s residence to conduct an out-of-competition anti-doping test. IDTM subsequently reported to FINA that Sun Yang “violently resisted the test” and destroyed the sample bottles in the process, while Sun Yang stated that “he fully cooperated with the test, but the testing personnel committed multiple violations during the process.” The World Anti-Doping Agency (WADA), which employs IDTM, believed that Sun Yang interfered with its staff’s sample collection work and used violent means.
On November 19, 2018, FINA held a 13-hour hearing in Lausanne, Switzerland, regarding Sun Yang’s “violent resistance to a doping test.” Sun Yang himself, as well as witnesses from both Sun Yang and IDTM, were questioned. During the hearing, Sun Yang presented 58 videos and photographs, but none of the parties from IDTM appeared in court. The lead doping control officer participated in the hearing via video link from China, while the “blood collection officer” and the “urine collection officer” were absent.
On January 3, 2019, the FINA Doping Panel rendered its decision, finding that the doping control officer’s departures from the standards were collectively “compelling,” and that Sun Yang’s response may well have been reasonable, sufficient to establish his innocence. Accordingly, Sun Yang did not commit any violation of FINA Doping Control Rules 2.3 or 2.5. However, the decision noted that Sun Yang had achieved only “a close-run thing,” and issued a warning to him in its ruling.
On March 12, 2019, the World Anti-Doping Agency (WADA) persisted in its pursuit of Sun Yang, opposing the ruling of the FINA investigation panel and appealing to the Court of Arbitration for Sport.
On the afternoon of February 28, 2020, at 5 p.m., the Court of Arbitration for Sport (CAS) announced its arbitral award in the case previously brought by the World Anti-Doping Agency (WADA) against Chinese swimmer Sun Yang and the International Swimming Federation (FINA): Sun Yang is banned for eight years starting today. According to CAS rules, if dissatisfied with the ruling, an appeal may be filed with the Swiss Federal Supreme Court within 30 days on very limited grounds.
The issues in dispute in this case are: first, whether the sample collection personnel followed lawful procedures; and second, whether the procedural defects in the testing process were sufficient to justify Sun Yang's refusal to cooperate with the test.
Reasons for winning the first instance:
The FINA Doping Panel found that the doping control officer’s departures from the standard were, on the whole, “compelling” and that Sun Yang’s response may well have been reasonable, sufficient to establish his innocence.
The reasons are as follows:
Regarding whether the sample collection personnel had been legally authorized, and whether the DCO, DCA, and BCA provided the athlete with appropriate IDTM documentation under the ISTI to demonstrate their authority to collect samples from the athlete, contradictions between provisions and operational deficiencies did indeed arise.
According to ISTI's definition of terms, "Sample Collection Personnel" is indeed a collective term, but when read in conjunction with other sections of ISTI, FINA's claim regarding Rule 5.3.3 that "only one authorization document is required" may not hold.
1. The definition requirements of ISTI stipulate that each official composing the sample collection personnel shall be authorized in advance by IDTM and included in IDTM's talent pool. In addition, each official shall receive IDTM's “appointment and authorization” (Article 5.3.2), and each official will receive IDTM's “identifiable accreditation” (Annex H.2). ISTI Annex H.5 requires that the sample collection authority must provide “identifiable accreditation” to every official who may in the future become sample collection personnel, and such accreditation must be kept up to date. This “identifiable accreditation” is not a personal identification document. The term “accreditation” as used in ISTI refers to a document produced by the sample collection authority indicating that the official (regardless of the duties to be performed) has received appropriate training from the sample collection authority for their duties. The SoC signed by the DCA and BCA and kept in the archives at IDTM headquarters satisfies this requirement.
2. The first sentence of Article 5.3.3 mentions “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 authorization letter from the Testing Authority”. The word “their” is in the plural form, which alters the definition of Sample Collection Personnel; the official “documentation” is also in the plural form. If only one document were sufficient to prove that the Sample Collection Personnel, as a collective, have been duly authorized by IDTM, the singular form “a document” should have been used.
3. FINA absolutely needs to issue a general authorization letter to delegate sample collection for a period of time to IDTM; otherwise, IDTM, as a commercial entity, has no doping control authority. But this is not enough. ISTI governs all doping control situations. Similar authorization letters arise whenever authority needs to be transferred from an authorized testing body (such as an International Federation or a National Anti-Doping Organization) to a sample collection agency (such as IDTM). However, when the authorized body is also the sample collection agency, there is no inter-agency delegation, and there will be no “authorization letter from the authorized body.” This is the case, for example, when an International Federation itself tests athletes under its sport, or when a National Anti-Doping Organization tests athletes of its country. If FINA’s interpretation of the “authorization” required under Article 5.3.3, paragraph 3, is followed, then in a testing mission, if the authorized testing body is also the sample collection agency, no authorization would be needed at all to conduct doping control, so how would the athlete identify the doping control officer?
4. Article 5.3.3 provides that "official documents" shall be provided by the sample collection authority. FINA's general authorization letter comes from FINA rather than IDTM. The FINA authorization letter provided by IDTM was not issued by IDTM; IDTM merely passed it on to demonstrate that it was authorized. IDTM, as the sample collection authority, is responsible for appointing and authorizing each official who will serve as sample collection personnel, and the official documents presented to the athlete should be provided by IDTM. IDTM did not provide any documents to the DCA and BCA, so they had no documents to present to the athlete.
5. As long as the general authorization letter issued by FINA to IDTM is presented to the athlete, Article 5.4.1(b) of the ISTI is satisfied. However, Article 5.4.2(b) requires that each Sample Collection Personnel (DCO and/or DCA) identify themselves using the “documentation referred to in Article 5.3.3.” The term “documentation” is plural in nature; it refers not only to the general authorization letter from FINA, but also to more than the DCO’s supplementary identification mentioned in the second sentence of Article 5.3.3. Chaperones and all other officials participating in the inspection must present the “official documentation” provided by the Sample Collection Authority to demonstrate their authority to collect samples from the athlete. The first sentence of Article 5.3.3 describes the necessary “official documentation” provided by the Sample Collection Authority to demonstrate their authority to collect samples from the athlete; the second sentence describes the additional supplementary identification that the DCO must carry. “Official documentation demonstrating authority to collect samples from the athlete” should include: (1) documentation from FINA authorizing IDTM as the Sample Collection Authority; and (2) documentation from IDTM authorizing each official and dispatching them to carry out the inspection mission of collecting samples from the athlete.
6. In analyzing the ISTI requirements, it is necessary to distinguish between proper identification (who the official is), proper appointment (the official holds a specific position), and proper authorization (the official is permitted to hold a specific position, including receiving appropriate training and possessing appropriate qualifications). Only such evidence can establish a clear link between the sample collection agency, the doping control officer, and the athlete who is to provide the sample, on the one hand, and the ongoing testing mission, on the other. It is not sufficient for the DCO to merely orally assure the athlete that “they are with me, I will take responsibility, and everything is fine.”
For the above reasons, the FINA Hearing Panel finds that the Athlete was not given proper notice by the DCO. The other personnel involved in the sample collection failed to comply with the notice requirements under the ISTI. No official documentation duly authorizing IDTM was presented to the Athlete to establish the identity of the DCA and BCA. Due to the lack of proper notice, the sample collection process conducted by IDTM on behalf of FINA on 4 September 2018 did not formally commence. The request to provide a urine sample was not properly executed; the blood initially collected (and later destroyed) was not properly authorized and therefore did not qualify as a “sample”. Accordingly, the sample collection initiated by IDTM on 4 September 2018 was invalid and does not constitute an anti-doping rule violation.
Lost the appeal and received an eight-year ban
The CAS arbitrators unanimously held that Sun Yang's refusal to cooperate lacked the "compelling justification" established by CAS.
The reasons are as follows:
WADA argued at the hearing that even if there were deficiencies in the notification process, they were minor, and the inspectors’ deviations from the guidelines (taking photographs during the inspection and issues with the inspection documentation) were trivial in nature, would not affect the integrity of the blood samples collected, and should not invalidate the entire inspection mission.
FINA argued that the inspection constituted a lawful inspection. The general authorization letter was all the documentation that the sample collection personnel needed to present to the athlete. The sample collection personnel could possess a single authorization letter as a whole, and it was not required that all personnel involved in sample collection each hold a separate authorization letter. WADA considered that Sun Yang had no “compelling justification” for refusing the test, and that Sun Yang’s concerns were unconvincing because he raised them only after the sample collection.
And the above opinion was adopted by the CAS.
A lawyer from Guangdong Zhiming Law Firm believes that,Everything must be governed by the rule of law, and sports testing must follow rules. The Court of Arbitration for Sport, in deciding who wins and who loses, should base its rulings on whether the rules were followed. So when the rules are not sufficiently clear, how should this be handled reasonably? A “ban” may affect an athlete’s career for the rest of his or her life, and for the athlete it is undoubtedly an extremely severe penalty. Such a penalty carries a strong “quasi-criminal” character. Given this, when the rules for doping penalties are not sufficiently complete, should the principle of “in dubio pro reo” be followed? That is, when there is reasonable doubt about the facts because the legislation is unclear, a judgment or ruling favorable to the defendant should be made.
References:
Ou Peng, "Red Star News"
Han Yong, "Sports and Science"
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