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:

[5] 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 had "violently resisted the test" and destroyed the sample bottles during the process, while Sun Yang stated that he "fully cooperated with the test, but the testing personnel committed multiple violations during the procedure." The World Anti-Doping Agency (WADA), which hired IDTM, believed that Sun Yang interfered with the sampling work of its staff and used violent means.

On November 19, 2018, FINA held a 13-hour hearing in Lausanne, Switzerland, regarding Sun Yang's "violent refusal of 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 images, but none of the IDTM personnel appeared in court. The main testing officer participated via video from China, while the "blood testing officer" and "urine testing officer" were absent.

On January 3, 2019, the FINA hearing panel ruled that the doping control officer's violations of standards were generally "convincing," and Sun Yang's reaction might have been reasonable, sufficient to prove his innocence. Therefore, Sun Yang was found not to have violated FINA Doping Control Rules 2.3 or 2.5. However, the ruling noted that Sun Yang only won by "a close-run thing" and issued a warning to him.

On March 12, 2019, the World Anti-Doping Agency (WADA) persisted in pursuing Sun Yang, opposing the FINA investigation panel's decision and appealing to the Court of Arbitration for Sport (CAS).

At 5 p.m. on February 28, 2020, the Court of Arbitration for Sport (CAS) announced the arbitration result of the case brought by WADA against Chinese swimmer Sun Yang and FINA: Sun Yang was banned from competition for eight years starting from that day. According to CAS regulations, if dissatisfied with the ruling, an appeal could be filed with the Swiss Federal Supreme Court within 30 days on very limited grounds.

　　 The key disputes in this case were: first, whether the procedures of the sample collection personnel were legal; second, whether the flaws in the inspection procedure were sufficient to justify Sun Yang's refusal to cooperate.

　　Reasons for winning the first instance:

The FINA hearing expert panel concluded that the doping control officer's violations of standards were generally "convincing," and Sun Yang's reaction may have been reasonable, sufficient to prove his innocence.

　　The reasons are as follows:

Regarding whether the sample collection personnel were legally authorized, and whether the DCO, DCA, and BCA provided the athlete with appropriate IDTM documentation as per ISTI regulations to prove their authority to collect samples from the athlete, there were indeed contradictions between clauses and operational flaws.

According to the ISTI definition of terms, "Sample Collection Personnel" is indeed a collective term, but in connection with other sections of the ISTI, FINA's assertion regarding Article 5.3.3 that "only one authorization document is required" may not hold.

First, the ISTI definition requires that each official composing the sample collection personnel be pre-authorized by IDTM and included in the IDTM pool. Additionally, each official should receive "appointment and authorization" from IDTM (Article 5.3.2), and each official will receive "identifiable accreditation" from IDTM (Annex H.2). ISTI Annex H.5 requires that the sample collection authority must provide "identifiable accreditation" to each official who may become sample collection personnel, and this accreditation must be updated in a timely manner. This "identifiable accreditation" is not personal identification; the term "accreditation" used in ISTI refers to a document generated by the sample collection authority indicating that the official (regardless of their duties) has received appropriate training for their role from the sample collection authority. The SoC signed by the DCA and BCA and kept in the IDTM headquarters archive meets this requirement.

Second, the first sentence of Article 5.3.3 states: "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." Here, the word "their" is plural, altering the definition of sample collection personnel; "documentation" is also plural. If only one document were sufficient to prove that the sample collection personnel as a group were properly authorized by IDTM, the singular form "a document" would have been used.

Third, FINA absolutely needs to issue a general authorization letter to delegate sample collection over a period of time to IDTM; otherwise, IDTM, as a commercial entity, has no doping control authority. But this is not enough. The ISTI governs all doping control situations. Similar authorization letters arise when authority needs to be transferred from an authorized testing authority (e.g., an International Federation or National Anti-Doping Organization) to a sample collection authority (e.g., IDTM). However, when the authorized authority is also the sample collection authority, there is no inter-organizational authorization, and there will be no "authorization letter from the authorized authority." For example, when an International Federation tests its own athletes, or when a National Anti-Doping Organization tests its national athletes. If FINA's interpretation of the "authorization" required by Article 5.3.3, paragraph 3 is accepted, then in a testing mission, if the authorized testing authority is also the sample collection authority, no authorization would be needed at all to conduct doping control. How, then, would an athlete identify the doping control officer?

Fourth, Article 5.3.3 stipulates that "official documentation" should be provided by the sample collection authority. FINA's general authorization letter comes from FINA, not IDTM; the FINA authorization letter provided by IDTM is not issued by IDTM; IDTM merely transmits it to show it is authorized. IDTM, as the sample collection authority, is responsible for appointing and authorizing each official who will become a sample collection personnel. The official documentation presented to the athlete should be provided by IDTM. IDTM did not provide any documentation to the DCA and BCA, so they had no documentation to present to the athlete.

Fifth, presenting the athlete with FINA's general authorization letter to IDTM is sufficient to satisfy ISTI 5.4.1(b). However, Article 5.4.2(b) requires each sample collection personnel (DCO and/or DCA) to use "documentation referred to in Article 5.3.3" to identify themselves. "Documentation" is a plural term; it is not only the FINA general authorization letter, nor is it only the DCO's supplementary identification mentioned in the second sentence of Article 5.3.3. Chaperones and all other officials involved in the testing must present "official documentation" provided by the sample collection authority to prove their right 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 prove their right to collect samples from the athlete; the second sentence describes the additional supplementary identification that the DCO must carry. "Official documentation proving their right to collect samples from the athlete" should include: (1) proof that FINA has authorized IDTM as the sample collection authority; (2) IDTM's authorization of each official, delegating them to carry out the testing mission and collect samples from the athlete.

Sixth, when analyzing the requirements of the ISTI, it is necessary to distinguish between proper identification (who the official is), proper appointment (the official holds a specific position), and proper authorization (allowing the official to hold that specific position, including having received appropriate training and qualifications). These pieces of evidence are needed to demonstrate a clear link between the sample collection authority, the doping control officer, and the athlete who will provide the sample, in relation to the ongoing testing mission. It is not sufficient for the DCO to merely tell the athlete orally, "They are with me, I am in charge, everything is fine."

It is for the above reasons that the FINA Hearing Panel concluded that the athlete was not properly notified by the DCO. Other personnel involved in sample collection failed to comply with the ISTI requirements regarding notification. No official documentation properly authorized by IDTM was presented to the athlete to identify the DCA and BCA. Due to the lack of proper notification, the sample collection conducted by IDTM on behalf of FINA on September 4, 2018, did not properly 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 was not suitable as a "sample." Consequently, the sample collection initiated by IDTM on September 4, 2018, was invalid and does not constitute an anti-doping rule violation.

　　 Lost the appeal, banned for 8 years.

The CAS arbitrators unanimously agreed that Sun Yang's refusal to cooperate lacked the "compelling justification" established by CAS.

　　The reasons are as follows:

WADA stated during the hearing that even if the notification procedure had flaws, they were minor, and the inspectors' deviations from the guidelines (such as taking photos during the inspection and issues with inspection documents) were trivial in nature, did not affect the integrity of the collected blood samples, and should not invalidate the entire testing mission.

Furthermore, FINA argued that this testing constituted a legitimate test. The general authorization letter is the only document that sample collection personnel need to present to the athlete. Sample collection personnel can hold a single authorization letter as a group, without requiring each individual involved in sample collection to possess a separate authorization letter. WADA believes that Sun Yang's refusal to be tested lacked a "compelling justification," and his concerns were unconvincing because he raised them only after the samples were taken.

The above opinions were accepted by CAS.

　　A lawyer from Guangdong Zhiming Law Firm believes that,In any matter governed by the rule of law, sports testing must follow rules. The Court of Arbitration for Sport should base its decisions on whether rules were followed. When the rules are unclear, how should they be reasonably handled? A "ban" penalty may affect an athlete's entire career, making it an extremely severe punishment with strong "quasi-criminal" characteristics. Given this, when the anti-doping penalty rules are insufficiently clear, should the principle of "in dubio pro reo" (when in doubt, favor the defendant) be followed? That is, when there are reasonable doubts about the facts due to unclear legislation, 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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