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A detailed analysis of the legal arguments in WADA v Sun Yang & FINA – a very public hearing

by ZwemZa on November 29th, 2019

Chinese swimmer Sun Yang poses after a public hearing of the Court of Arbitration for Sport (CAS) for the appeal filed by the World Anti-Doping Agency (WADA) against him and the Federation Internationale de Natation (FINA), at the Conference Centre of the Fairmont Le Montreux Palace, in Montreux, Switzerland November 15, 2019. REUTERS/Denis Balibouse

Twenty years ago, the Court of Arbitration for Sport (CAS) held its first public hearing: B v FINA[1]. The hearing was an appeal by a leading swimmer of the time, Ireland’s Michelle de Bruin, winner of three golds at the Atlanta Olympics of 1996. In 1998, and as a result of irregularities during a doping control test at her home, FINA, the world governing body for swimming, suspended her for four years. De Bruin’s appeal to CAS failed.

A similar factual matrix (and parties) were in dispute at CAS’s second ever public hearing held on 15 November: WADA v Sun Yang & FINA[2]. The applicant-athlete was again a multiple Olympic gold medallist in swimming, China’s Sun Yang. FINA was a party to the proceedings, though on this occasion in support of the athlete. The hearing similarly concerned allegations of procedural impropriety during an out of competition test at the athlete’s home and the specific anti-doping infraction at issue also related to tampering, now defined in Article 2.5 of the World Anti-Doping Code (WADC).

This is a brief review of the proceedings[3], examining principally:

  • The factual background;
  • WADA’s key legal arguments:
    • Guidelines” – the Blood Sample Collection Guidelines are not mandatory or legally binding;
    • “Uncompelling” – Sun Yang’s concerns could not have been “compelling” as they arose only after the sample was taken;
    • Experience” – why did Sung Yang react to this test in particular, when numerous others had passed without incident?
    • Reliance” – Sun Yang should not have relied upon his entourage/doctor; he is an experienced international athlete who knows the consequences of tampering.
  • Sun Yang’s key legal arguments;
  • Other parties: FINA, the Panel. and CAS
  • Outcomes and conclusions

Full access to all 11 hours of the hearing is accessible on CAS’s website[4].

Factual background

In September 2018, three doping control testers visited Sun Yang’s home to carry out a routine, out of competition test. Blood was taken from the swimmer and the tube placed in the doping kit or surrounding container. The doping control officers did not, however, leave with the blood. Concerned about both the actions and the accreditation of the testers, and on advice from his doctor, Sun Yang authorised members of his entourage to use a hammer to smash the container surrounding the blood vial and confiscate the sample. Interestingly, the sample itself appears not to have been destroyed and remains in the possession of Sun Yang’s doctor. Given that it has since not been stored in an appropriate anti-doping control container (and thus could have been tampered with subsequently) and has in any event been stored beyond the time limits set out mandatorily in Annex K of WADA’s International Standard for Testing and Investigations, (ISTI), it is unlikely that the sample will ever be tested.

FINA investigated the matter and in a report that was subsequently leaked to the press in the lead up to this year’s World Swimming Championships, noted that:

“…it is far more prudent to comply with the directions of a [doping control officer] and provide a sample in every case, even if provided “under protest”. Subsequently, all manner of complaints and comments can be filed, rather than risk any chance of an asserted violation when an aspect of the doping control process becomes a concern. Staking an entire athletic career on being correct when the issue is complex and contentious is a huge and foolish gamble.”[5]

Nevertheless, the FINA Panel in question held that the departures from standard by the doping control officers were collectively of such a “compelling” nature that Sun Yang’s response could be justified as proportionate and enough to exonerate him. In this defensive contest, the term compelling is analogous to its use in Article 2.3 WADC, which holds that evading or refusing or failing to submit to an authorised doping control test is, “without compelling justification”, an anti-doping infraction.

WADA, pursuant to Article 13.2.3 WADC, exercised its right of appeal to CAS and argued that a sanction of anything from 2-8 years should be imposed taking into account, per Article 10.7 WADC, that this was Sun Yang’s second anti-doping violation – he served a three-month doping-related ban[6] in 2014.

WADA’s arguments at CAS

WADA was chiefly represented by Richard Young[7], a leading US sports lawyer who has represented the US Anti-Doping Agency in arbitrations involving Marion Jones and others involved in the BALCO doping scandal and against Tour de France winners Lance Armstrong and Floyd Landis[8]. Interestingly, it is somewhat forgotten that the first instance Landis vs USADA arbitration held at the moot court at Pepperdine University School of Law and at which Young represented USADA, was also live streamed. Young was assisted by another [WADA] lawyer, Brent Rychener,

WADA’s submissions were straightforward and can be summarised in four ways – the guideline; compelling justification; experience and reliance arguments.

WADA’s Blood Sample Collection Guidelines are not mandatory or legally binding

First, WADA argued that under anti-doping regulation there are three categories of provisions:

  1. the WADC, which has “constitutional” importance as the harmonising document for anti-doping policy globally;
  2. the accompanying Prohibited List of performance enhancing substances and methods and the various, mandatory international standards on code compliance, laboratories, therapeutic use exemptions, privacy and personal information and the aforementioned ISTI; and
  3. a set of model rules, guidelines and protocols which WADA has developed to provide signatories with recommended practices for several aspects of anti-doping programming.

Sun Yang’s argument was that the doping control team departed markedly and unfairly from their strict procedural obligations laid down in one set of guidelines – those on blood sample collection[9].

WADA’s submission, reinforced in witness testimony by WADA Deputy Director on Standards & Harmonization, Stewart Kemp, was that the model guidelines in dispute, as explained clearly on WADA’s website, are not mandatory; rather, they offer technical guidance to anti-doping organisations who carry out testing as to what is generally considered good practice and WADC-compliant procedure in testing. It must be remembered here that WADA does not carry out testing itself; operationally that is done mainly by national anti-doping organisations and, in this instance, the doping control process was contracted out to an established, independent testing organisation called International Doping Tests and Management[10] (IDTM) based in Sweden.

WADA’s argument was that the non-mandatory, non-legally binding status of the blood collection guidelines weakened Sun Yang’s case and that in any event the departures from the guidelines by the testers (relating to the taking of photos during, and paperwork regarding, the test) were relevantly minor in nature did not justify Sun Yang’s reaction.

Uncompelling – Sun Yang’s concerns could not have been “compelling” as they arose only after the sample was taken

The second argument (“uncompelling”) is an estoppel-type argument: why was it that Sun Yang’s “compelling” concerns regarding the conduct of the doping control tests only came to light after the sample had been taken, when, logically, if the conduct of the testers was so markedly awry, they would likely have manifested themselves right from the beginning of the process, one that lasted over 4 hours in total? Moreover, in this, WADA referred to a line of authority at CAS suggesting that the defence of a compelling justification should be interpreted restrictively.

In the Laura Dutra de Abreu Mancini de Azevedo v FINA[11] where a swimmer refused to undergo a test, the Panel noted (at paragraph 75):

“No doubt, we are of the view that the logic of the anti-doping tests and the doping control rules demands and expects that, whenever physically, hygienically and morally possible, the sample should be provided despite objections by the athlete. If that does not occur, Athletes would systematically refuse to provide samples for whatever reasons, leaving no opportunity for testing.”

The applicable test as to a compelling justification is objective in nature and thus based not on whether the athlete/swimmer was acting in good faith but whether objectively they were, in the circumstances, justified by compelling reasons to forgo the test[12]. This is a very difficult standard to make out[13] and it appears unless there is a genuine emergence leaving the athlete with no choice, athletes’ overriding duty is to comply with doping control.

One of the few examples of the defence being successful is an arbitration involving United States Anti-Doping Agency v Jonathan Page[14] where the cyclist in question missed an immediate post-race test. A “confluence of personal circumstances”, including a concussion suffered in a fall during the race, and the procedural failure of the doping control testers to notify him that his name was on the post-race test list were sufficient for the USADA panel to find for Page.

Experience” – why did Sung Yang react to this test in particular when numerous others had passed without incident?

The third argument is an “experience” type argument and it is a factor (along with age and other personal circumstance of an athlete) that can arise in the assessment of “fault” in the sentencing process for doping cases at CAS[15].

WADA highlighted that the testing organisation in question, IDTM, had carried out as many as 19,000 doping tests using the same documentation and had no complaints. Similarly, Sun Yang had undergone many tests of this kind under the same procedure and without issue, apart from one incident in 2017 where he had a disagreement with a tester regarding their identification. Indeed, from 2012 to 2018 Sun had been tested 180 times[16], of which 117 were out of competition and of those 60 were carried out by representatives of IDTM.  In sum, why in contrast to the other 59 times which passed without incident, did Sun Yang react in the way that he did with this particular test – why now[17]?

Although not in any way raised by WADA (who at all times strictly and correctly argued that this was a tampering case) in the court of public opinion the answer to the above question would likely be met with another – was Sun Yang’s reaction to perceived procedural irregularity on this particular occasion motivated by the fact that he now had something to hide which his sample might reveal? To reiterate however, the case against Sun Yang, similar to Michelle De Bruin two decades ago, was never one of an adverse finding of positively using a prohibited substance; it was a tampering charge.

“Reliance”– Sun Yang should not have relied upon his entourage/doctor; he is an experienced international athlete who knows the consequences of tampering

The final argument used by WADA built on the previous estoppel and experience arguments and can be called the reliance test.

Sun Yang argued in his testimony that he did not realise the consequence for him in retrieving the sample. WADA’s counsel found it hard to believe that an experience international competitor, who had presumably undergone anti-doping training on multiple occasions and who had been through a disciplinary process for an anti-doping infraction, could reasonable hold this view as to the consequences of his actions.

Yang also mentioned, and in this there appeared to be a slight change in emphasis compared to that reported in the FINA investigation, that he communicated his concerns to his entourage and only acted on their advice. His entourage included his mother. Mothers and anti-doping hearings have a history; in the Marin Cilic case[18], the glucose tablets responsible for his positive test were bought, as he repeatedly noted in evidence, by his mother. Sun Yang’s mother in her combative testimony at CAS stated that her concerns with the misconduct of the doping testers on the night in question was such that she considered calling the police.

As it happens, the key calls on the night in question appear to have been made by Sun Yang’s doctor, Dr Ba Zhen and also involved was Dr. Han Zhaoqi, head of the Zheijang Anti-Doping Centre. Under anti-doping’s strict liability policy, responsibility for such decision making ultimately rests with the athlete even if they in good faith rely on the expertise of an experience sports physician familiar with their history[19].

Moreover, and specific to the case at hand, WADA pointed out that a combination of poor advice and inaction by the same doctor was directly causative of Sun Yang serving his previous doping ban –  the doctor continued to give Sun Yang medication for a heart condition despite the fact that the product had (albeit only recently) been placed on WADA’s Prohibited List and could only continue to be used on granting of a Therapeutic Use Exemption (TUE) – a factual matrix very similar to Maria Sharapova’s ban for the continuing use of meldonium[20].

Finally, one argument made by WADA summarises all of the above and it is that Sun Yang’s reaction on the night in question was disproportionate and unnecessary – instead of getting a member of his entourage to smash the doping kit, he could simply but formally registered his disquiet with the irregularities he had seen (and which the security cameras at his compound had fully recorded) on the doping control form and used this formal protest to later contest the evidential admissibility of the doping sample – for the most recent example of such a form see here[21].

Sun Yang’s arguments at CAS

Sun Yang in his direct testimony and in submissions made by his lawyers countered all four elements of WADA’s case.

Guidelines

Sun Yang’s contention here was that if the “on the ground” operational provisions on the doping control process are merely guidelines only, then in practice they are empty of legal or regulatory meaning and effect and give athletes no protection from any irregularities during such a process. Implied in this were very important points on fairness[22], procedure and practice in anti-doping policy.

Some brief analysis of this argument, as it is probably Sung Yang’s strongest.  In terms of fairness, anti-doping policy has long been premised on the principle of strict liability. Strict liability as a legal and regulatory approach – which circumvents the presumption of innocence and reverses the onus of proof – is permitted in gun-rights law and even in criminal law but only within reasonable limits: a balance must be stuck between the importance of what is at stake (e.g. the rights of the defence); and whether the means employed are reasonably proportionate to the legitimate aim that is being sought to be upheld (see for example Flak v the Netherlands[23]).

In anti-doping policy, the WADC, as underpinned by the principle of strict liability, has been assessed by leading human rights lawyers as striking the right balance in pursuit of the legitimate aim of ethical, healthy sporting competition in vindication of the rights of clean athletes, as against the burdens it places on athletes defending themselves against lengthy doping-related suspensions – see the human rights assessment[24] of the WADC by Jean-Paul Costa, former President of the European Court of Human Rights, who was, for example, President of the ECtHR in Falk v the Netherlands[25].

And yet, doping allegations against professional athletes (and the serious reputation and economic impact they may have) must be one of the few if only professional misconduct disciplinary schemes to exist which is based on strict liability rather than fault-based liability. In addition, there is an important check on the application of strict liability in doping and it is one found in the oft quoted principle from what is arguably the seminal CAS case on anti-doping. In USA Shooting & Quigley v Union International de Tir, the Panel, although acknowledging that the fight against doping is “arduous” and may require strict rules, nevertheless held (at paragraph 34):

“But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be a product of an obscure process of accretion. Athletes and officials should not be confronted with a thicket of mutually qualifying or even contradictory rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.”[26]

The CAS Panel in Quigley (paragraph 35) called these principles of legality or certainty – found analogously in international human rights provisions such as Article 7 European Convention of Human Rights and Article 15 International Covenant on Civil and Political Rights – the prerequisite of good sports administration. In Quigley, the sports governing body was found to have breached both principles to the extent that the disputed anti-doping infraction was quashed.

This fairness argument is probably the strongest element of Sun Yang’s case: the Quigley precedent means that anti-doping policy is “Janus-like” i.e. it faces both ways; Sun Yang argues that while doping liability strictly applies to him, doping procedure only loosely applies to his testers, which cannot be fair or right.

Sun Yang’s arguments here are buttressed by two further pillars. Normally a procedural defect in a first instance doping hearing can be “cured” by a de novo (new) hearing at CAS or on identification of the fault by the appellate court by remittal (a central point in Michelle de Bruin v FINA[27]). In contrast, Sun Yang was not arguing that there was a procedural defect at the first instance hearing by FINA, he was of course taking a step further back and highlighting the procedural flaw in the doping control process itself. A correction by way of a de novo (new) test or remittal for a re-test is not possible and therefore Yang cannot get a second chance to cure any procedural defects at that stage which necessarily makes strict adherence to the sample collection guidelines a significant safeguard for athletes’ rights.

In addition, while WADA rightly polices the training, quality and accreditation of its testing laboratories under the International Standards for Testing and Investigations (ISTI – and regularly suspends labs[28] for breaches) the same level of oversight does not apply to those who carry out the sample collection process and again the argument is that the only safeguard athletes have in regard to collection are the applicable guidelines, which WADA themselves argued have no legal standing.

A slightly forgotten element of the above line of argument is that clear, mandatory doping control testing regulations would also assist and protect the doping control testers. A feature of the Michelle de Bruin case in 1999 and again in Sun Yang is an intense and sometime speculative even conspiratorial focus on what they did or did not do on the day in question. In de Bruin, one of the testers said that she felt like she wason trial[29]; in the Sun Yang hearing not all of the testers testified and those that did, did so in private[30].

Uncompelling

It may have been the first public hearing for quite some time and, given Sun Yang’s prominence as sports person in China, the hearing likely attracted a significant online audience. And yet, Sun Yang’s testimony contained little not already covered by the FINA investigation. Sun Yang principally tried to emphasise the incongruous behaviour of the tester from the fact that one of them starting acting like a fan and taking photos during the process, to the problems he said he encountered in verifying the accreditation and qualifications of the nurse who took his blood sample – revelations that continued post-hearing in the Chinese media[31].

In sum, Sun Yang said that he had compelling reasons to act as he did on the night in question and retrieve his sample and that FINA in its investigation agreed and exonerated him.

Experience

On this ground, Sun Yang was consistently adamant in his responses that he did not know the consequences of tampering with the sample. Moreover, if somewhat inconsistently, he argued that his experience as an athlete who had been tested 200 times meant that he would be sensitive to any irregularities to the normal doping control process and indeed that, after a previous spat with a doping control officer he had installed CCTV cameras in his compound and which he was willing to show to the CAS Panel as evidence of the sequencing of events on the night in question.

Reliance

On this point, Sun Yang’s argument was in effect that while his actions in permitting the smashing of the doping kit were in part in reliance on his medical advisor, it was also an action that was permitted by the doping control team who he pointed out had phoned their headquarters in Sweden for further advice. Put another way, by agreeing to allow Sun Yang and his team to hammer the doping kit and confiscate the doping sample, Sun Yang contended that the doping control team and relevant doping authorities should now be estopped from claiming that he had tampered with the sample.

In sum, Sun Yang’s argument was that his circumstance resulted in that rare occurrence in sports disciplinary procedures where the procedural unfairness or irregularities were of such gravity that they conflate to substantive unfairness against the athlete and undermine the charges against him.

Other parties

FINA

Given that FINA had already completed a comprehensive investigation of this matter, the FINA representative had understandably little to add at the hearing. One point of interest for FINA is whether, given developments in sports such as tennis and athletics, it should consider establishing an independent integrity unit for the aquatic sports under its remit.

The CAS Panel

The CAS Panel was chaired by a recent CAS appointment but nevertheless an experience lawyer, Franco Frattini, a former prosecutor in Italy, former Minister for Foreign Affairs of Italy, former Vice President of EU Commission and current President of Italian Court of Sport Justice. Professor Philippe Sands QC an outstanding scholar and advocate from England (not one of the more frequent appointees to CAS but when selected it is usually on cases of import) was nominated by Sun Yang; and by WADA, Mr Romano F. Subiotto QC, a barrister in England who is in the top 20[32] list of arbitrators with the most published decisions.

Overcoming the translation problems which beset the earlier part of the hearing, the hearing went, as one would expect from a seasoned Panel, smoothly. One interesting question[33] asked of Sun Yang’s legal representative while summing up was that, if Sun Yang’s case was upheld, then, by implication, would thousands of other tests conducted with similar (lack of) authorisation also be illegitimate? Sun Yang’s counsel rejected the implication, stating simply that his client’s specific sample collection problems were unique, so much so that they, as FINA agreed, gave him compelling reasons to act as he did. The bigger question here is whether in a private, self-contained arbitral setting such as CAS, the wider (precedential) nature of the case at hand should ever be taken into account and/or influence the arbitrator’s deliberations on the resolving the dispute at hand?  This aspect of arbitration in all its forms (commercial etc) has long been debated in theory and in practice by leading thinkers and practitioners in the area such as Jan Paulsson[34], who is also a CAS arbitrator.

One other aspect of the above question is that it could be interpreted as being overly concerned with the implication for the anti-doping system and not athletes’ rights. The question could equally have been reframed and asked of WADA: if there are flaws in the accreditation, training etc of doping control officers, how many hundreds of athletes have had samples processed irregularly and including some used to sustain lengthy bans?

The CAS

As for CAS itself, even though de jure public hearings could always be agreed to by parties to a CAS proceeding; de facto they never a factor in CAS application after the Michelle de Bruin hearing. Oddly, in a carefully crafted media release[35] prior to the Sun Yang hearing, the CAS Secretary General only indirectly referred to the fact that it had taken a decision of the ECtHR (Mutu & Pechstein v Switzerland[36]) to ensure that, in a spirit of transparency for all potential users of CAS, it ought to amend its rules and better facilitate requests for public hearings. That apart, in the author’s view the hearing reflected well on CAS and, for the benefit of sports law students and practitioners, illustrated in a good way that its hearings are conducted in that prosaically fair way characteristic of quasi-judicial/domestic tribunal process – albeit in a sumptuous Swiss hotel.

Public hearings have their benefits[37] but there remains little doubt however that an even better way of enhancing transparency at CAS to be benefit of athletes, applicants and their representatives would be to publish more awards (in a recent book by Johan Lindholm on CAS[38], he suggests that as many as 60% of CAS awards remain unpublished) or a least that those that are published might with a little investment be in some way searchable given that the database of jurisprudence currently hosted on CAS’s website is a modern Labyrinth of Daedalus.

The issue that attracted most immediate media attention was the problems with translations especially in the morning session of the hearing. Criticism of CAS in this regard was in the author’s view misdirected.  Sun Yang’s legal team selected the translator as is the practice at CAS hearings. In a rare interview (with Australian radio broadcaster ABC) the CAS Secretary General argued, sensibly that if CAS provided translators (even at a fee) and the quality of such a service was dubious then it could be procedural grounds for subsequent appeal to the Swiss Federal Tribunal by the affected party.

Should CAS in any event provide access to a translation service (which of course may also have to be used by its own arbitrators)? Translation and interpretation have long been an important aspect of fair procedure in anti-doping policy and in the original 2003 WADC, access to interpreters was an expressly noted element of a fair hearing. Access to interpreters remains part of the guidelines on doping control, and language difficulties can be taken into some account in the subjective assessment of fault in anti-doping cases. It is of note that under World Athletics Anti-Doping Rules (2019) Article 8.8.6 notes that if requested by the athlete the sport’s integrity unit will provide a translator and bear the cost of the translation at the hearing and subsequent transcription. If CAS truly aspires to be sport’s global supreme court or its international court of justice, then like the ICJ (Article 70 ICJ Rules of Court) it should be on the CAS Secretariat to make arrangement for interpreters during oral proceedings.

Outcomes and conclusions

The Sun Yang decision will be published early in 2020. By that time, it may be that along with one of China’s leading gold medal hopes being ineligible for Tokyo, Russia may be facing a WADA-mandated restriction[39] on its participation at the 2020 Games (the Compliance Review Committee’s recommendations[40] have just been made to WADA). The political implication in sport and for the IOC at that time will be interesting. China is already sensitive to criticism of its anti-doping policy – noting for instance that in 2020 it will be one of the few states to criminalise doping[41] (a policy that ironically WADA does not agree with).  Dating back to incidents[42] that occurred at the 1998 World Championships in Perth, China is particularly sensitive to criticism from Australia. In this year’s World Championship, Sun Yang’s fierce rival, Mack Horton, refused to share a podium[43] with him, and other swimmers[44] – not just Australians – have spoken out against Sun Yang. If Sun Yang is banned it is likely that he will have to return the medal won at the World Championship to Horton’s benefit; if Sun Yang is exonerated, then it’s likely they will meet in the Olympic pool and podium.

Finally, this piece began with the last public hearing at CAS, involving Ireland’s Michelle de Bruin. De Bruin failed at CAS to overturn a four-year tampering ban which (aged 29) effectively ended her competitive swimming career. She later trained to be, and remains, a practicing barrister: sport and the law, ever intertwined.

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