Skip to content
Dec 4 19

European Short Course Swimming Championships: James Wilby wants Glasgow glory

by ZwemZa

James Wilby trains at the British Swimming National Performance Centre in Loughborough – in the same pool as Adam Peaty (BBC Sport)

He won more Commonwealth breaststroke medals than Adam Peaty last year and has the potential to better the Olympic champion’s haul at Tokyo 2020 – but few outside the swimming world have heard of Britain’s James Wilby.

So spectacular were Peaty’s 100m breaststroke record-breaking efforts at the 2018 Europeans and this year’s World Championships that Wilby’s second-place finishes were largely overlooked.

However, the Yorkshireman’s progress over the past 18 months has been incredible, with victory in the 200m breaststroke in the Gold Coast Commonwealth Games a significant highlight last year.

And Wilby believes he can challenge for medals in both the 100m and 200m breaststroke events at Tokyo 2020 – something Peaty has ruled out.

The 26-year-old says it is surreal to believe he is in this “dream” position given three years ago he suffered glandular fever, was in hospital with tonsillitis and missed out on the Rio 2016 Olympics.

This week, Wilby returns to Glasgow for the European Short Course Championships – the city and pool where he made his international debut at the 2014 Commonwealth Games.

“I have brilliant memories from racing in Glasgow and have never lost the drive or motivation I had despite what’s happened,” Wilby told BBC Sport.

Glandular fever, hospital and Olympic agony

After narrowly missing out on the 2015 World Championship team, he returned to training determined to improve before a bid for the 2016 Olympics, but in January of that year he was diagnosed with glandular fever.

“I could only stay awake for a few hours and barely manage a bowl of cereal,” said Wilby.

“My daily routine was: get up in the afternoon, eat maybe a bowl of cereal – which was as mushy as possible because of my throat – then try to do normal things like watch TV. But I’d be totally knackered by 8pm and go back to bed.”

Despite ongoing problems with his throat, by April Wilby was back in the pool. However, he finished third in the 100m at the Olympic trials behind Peaty and Ross Murdoch, who took the places for the Games.

In a further cruel blow, Wilby was then in hospital with severe tonsillitis in May.

“My throat was beginning to really swell down one side and doctors sent me straight to hospital because they were worried I may soon struggle to breathe,” said the swimmer, who admitted he felt “scared” and “pretty grim” at the time.

“I didn’t let what happened drag me down completely though, and although it was a rollercoaster I never thought ‘that’s it’,” he added.

The breakthrough and ‘that’ T-shirt

James Wilby's homemade T-shirt at the 2019 world championships

James Wilby’s homemade T-shirt at the 2019 world championships (British Swimming)

Wilby made his first World Championships team in 2017 and his partnership with new coach David Hemmings in Loughborough went from strength to strength as he secured four Commonwealth Games medals in early 2018.

“After everything that had gone wrong in the past I was genuinely thinking ‘I can’t have won’ and that I was going to be disqualified or something,” said Wilby of his Commonwealth gold in the 200m.

Six months later, Wilby claimed European silver medals in both the 100m and 200m events.

He then delivered the performance of his life to finish second behind Peaty in the 100m at the 2019 World Championships, although it was his reaction to the British men’s 4x100m medley relay win which arguably received more attention.

Despite a strong swim in the heats, Wilby was understandably replaced by Peaty for the final and he watched on as the GB team of Peaty, Luke Greenbank, James Guy and Duncan Scott stunned the USA.

Then, as they took to the podium, the cameras turned to the British squad celebrating in the crowd to reveal Wilby had written ‘Mum, I swam the heat’ in marker pen on his white top.

“It was Siobhan [Marie O’Connor] who said ‘we need to get you on camera’ and I knew my mum would be watching, so I thought about a message to her,” he recalls with a smile.

Could Wilby rival Peaty?

Wilby’s 100m silver-medal performance at the 2019 world championships was incredible, but his personal best time of 58.46 seconds was still 1.58s behind the world record Peaty set in the semi-finals.

He is coy when asked about whether he could chase down that time himself, but insists the pair benefit from one another’s presence in Loughborough.

“Sometimes we’ll have a bit of a race-off but it’s really good spirited because we’re both competitive and push each other along. We know there’s no point getting too heated,” says Wilby.

Peaty’s style is suited to the shorter events and with the 50m breaststroke not in the Olympic line-up next year he is limited to just the 100m, whereas Wilby has potentially two medal chances with the 100m and 200m distances.

However, there will be no renewal of the Peaty-Wilby rivalry in Glasgow this week, with the Olympic champion opting to skip the event. For Wilby, the focus is about more than medals.

To date, all of Wilby’s success has come in long-course 50m pools, which require different skills to racing in short-course 25m pool events.

“It’s about putting myself in an uncomfortable position, which will give me more chances to practise these skills and then hopefully help me next year going through to the Olympics,” he says.

Nick Hope | BBC Olympic sports reporter

Dec 3 19

Swimming teacher, 21, vows to fight all 26 child rape and molestation charges as he formally pleads not guilty to abusing nine girls during lessons

by ZwemZa

The elite swim school coach accused of sexually abusing girls during lessons has formally pleaded not guilty to each of the 26 charges against him.

Kyle James Henk Daniels, 21, appeared in front of Sydney District Court judge Kara Sheed on Monday morning, where he vowed to fight the allegations.

The former Knox Grammar prefect is charged with nine counts of sexual intercourse with a child under 10 and a string of indecent assault and sexual touching charges.

Kyle Daniels, 21, will stand trial on 26 charges of sexual intercourse with a child under 10, sexual touching and indecent assault

Kyle Daniels, 21, will stand trial on 26 charges of sexual intercourse with a child under 10, sexual touching and indecent assault 

The offences are all alleged to have occurred during his nine month employment at a swim school at Mosman, on Sydney’s lower north shore.

On Monday, Daniels was arraigned – the name of the formal process where an accused enters a plea.

The University of Sydney student told the judge that he was pleading not guilty on every count against him.

As usual, he was supported in court by his parents.

The court has previously heard nine girls, aged between six and 11-years-old, will give evidence at special pre-recorded hearings before his jury trial starts.

All the charges relate to Daniels' nine months spent working at a Mosman swim school

All the charges relate to Daniels’ nine months spent working at a Mosman swim school 

Meanwhile, Daniels, a Sydney University student, had 33 further charges against him withdrawn earlier this year.

Prosecutors said they saw no chance of a conviction for charges relating to one of the ten girls allegedly involved in the case.

A spokeswoman for the NSW Director of Public Prosecutions said: ‘A determination was made that there were no reasonable prospects of conviction in relation to one of the ten complainants.

‘As such the charges in relation to that complainant were discontinued.

‘The charges in relation to the remaining complainants were streamlined, with the criminality of the alleged offending covered by the remaining charges.

‘The defendant is currently charged with 26 offences (with three of those charges being alternative offences), and these charges relate to nine complainants.’

Daniels, represented by Sydney criminal defence barrister John Stratton SC, will stand trial in the first half of next year. His bail continues.

Daniel Piotrowski for Daily Mail Australia

Dec 2 19

Bishops sex scandal teacher still under medical care – lawyer

by ZwemZa

Fiona Viotti (supplied – Facebook)

The former Bishops teacher accused of sexual misconduct is still under medical care, her lawyer said after the school released a statement on the findings of its investigation on Monday.

“She is not at a clinic, but she is receiving outpatient treatment,” attorney William Booth said of the former teacher and sports coach.

He said the school had also not sent him the statement it had released on Monday morning, with sight of it only coming after journalists sent it to him. “I still have not received the statement, despite two requests prior to today,” said Booth.

Earlier on Monday, school principal Guy Pearson said in a statement that the investigation by private lawyers had found that teacher Fiona Viotti was found to have engaged in sexual misconduct with at least five pupils.

However, she would not be disciplined because she had resigned.

Pearson said the allegations were made to him on October 10.

Viotti resigned and left the school the following day.

Pearson said Viotti’s lawyer had indicated full cooperation in a letter, but had later refused a request for her to attend an interview with the investigators.

She was also not prepared to make any written comments on the merits of the matter.

Booth told News24 this was because Viotti was under medical care and “very emotional” at the time, but also because the school could not guarantee that anything Viotti told them would be kept private, and not released to the public.

“She wasn’t in a state to be interviewed,” said Booth.

‘She also has rights’

He added that the Bishops internal investigation was “not an inquiry” and that Viotti had the right to remain silent.

“She also has rights which have to be protected.

Viotti also faces an investigation by the SA Council of Educators, which registers teachers and deals with misconduct complaints.

This process could determine whether or not she can carry on working as a school teacher.

The Bishops Diocesan College in Rondebosch investigation was led by advocate Francois van Zyl SC of the Cape Bar and Graeme Dorrington of Dorrington Jessop Attorneys.

The finding was that, between 2013 and 2019, and while employed as a teacher at the school, Viotti engaged in sexual misconduct with at least five pupils.

No evidence could be found that the principal knew of this.

The investigators were also not able to ascertain with certainty to whom Viotti had sent videos or photographic images, after some – purporting to be of her – did the rounds on social media.

Viotti is the daughter of Dave Mallet, also a teacher and sports coach at the school.

Her grandfather Anthony Mallett is a former headmaster.

Jenni Evans | News 24

Dec 2 19

Investigation finds Fiona Viotti engaged in ‘sexual misconduct’ with 5 Bishops boys

by ZwemZa

Fiona Viotti is under investigation for alleged sexual misconduct with pupils at Bishops in Cape Town. Image: Facebook/Fiona Viotti

A female teacher at Bishops Diocesan School in Cape Town was found to have engaged in sexual misconduct with at least five pupils, but will not be disciplined because she resigned, the school said on Monday.

“As the teacher resigned from Bishops with immediate effect on the 11th October 2019, no disciplinary action can be taken against her by the school for these breaches,” said headmaster Guy Pearson in a statement.

The teacher, Fiona Viotti, resigned amid allegations of a relationship with an 18-year-old pupil on October 11 and the school later announced that several more pupils may have been involved.

It launched its own investigation via lawyers, while the initial male pupil and Viotti had their own legal representation.

In a statement on Monday the school said Viotti opted to not make written submissions to the investigators after her resignation.

The main findings of the investigation are:

– During the period 2013 to 2019, and whilst employed as a teacher at the school, she engaged in sexual misconduct with at least five pupils;

– The investigators were not able to ascertain with certainty to whom she had sent video or photographic images that circulated on social media;

– No information was received by the investigators that indicated that the school knew anything about the sexual misconduct with pupils;

– The investigators found that the teacher acted in breach of the Bishops Code of Professional Conduct for Teaching Staff and the Code of Professional Ethics issued by the SA Council of Educators (SACE).

Click image to hear News 24 soundclip

It was reported to the principal on October 10, and Viotti resigned and left the school the following day.

Pearson said her lawyer indicated full cooperation in a letter.

“However, a request by the investigators for her to attend an interview with them was later refused. Furthermore, the investigators were informed that she was not prepared to make any written comments regarding the merits of the matter.”

Viotti’s counsel William Booth told News24 when the issue became public knowledge she was admitted for medical care. He also had to deal with getting a video that made its way to Porn Hub taken down.

The school opted to hold off on releasing the findings of the investigation so that there would not be disruptions for pupils doing their end of year exams.

SACE held off for the same reason.

In Monday’s statement Pearson said the investigators told the school they need to report the matter to the “appropriate authorities” and is co-operating in this regard.

The parents of the affected pupils have also been informed on their rights and responsibilities regarding the matter.

The investigators also reviewed the current policies in place at Bishops concerning teacher/pupil interaction and is satisfied that the school has the necessary policies and procedures in place to address matters of sexual misconduct, and that the school has taken all reasonable steps in this regard.

“The school will consider all findings and recommendations made by the investigators to ensure that we continue to make Bishops a safe environment for all our pupils and teachers,” said Pearson.

In the meantime, any further information may still be sent to the principal, or to the attorney, Graeme Dorrington at graeme@djilaw.co.za.

“As a school we are deeply saddened by these events and remain committed to ensuring the mental health and well being of those affected.”

No further details of the findings would be made available.

Booth was not immediately available to comment on behalf of Viotti, but comment will be added when it is received.

Jenni Evans | News24

Dec 2 19

Kenya win CANA Zone III tourney

by ZwemZa

Kenya’s Eric Shivo reacts during the 50 meters Freestyle event at the 2019 Confederation of Africa Swimming (Cana) Zone III Championships at the Kasarani Aquatic Stadium on November 30, 2019. PHOTO | CHRIS OMOLLO | NATION MEDIA GROUP

Team Kenya are the Confederation of Africa Swimming (Cana) Zone III Championships winners.

Kenya collected 2, 447 points to win the championships that ended on Saturday evening and attracted nine countries at the Kasarani Aquatic Stadium.

Uganda Swim Team settled second with 2,392 points with Tanzanites from Tanzania coming in third with 2,044 points followed by guest participants South Africa and Zambia with 1,540 and 1,386 points respectively.

Burundi amassed 866 for sixth place with Sudan coming in seventh on 812 followed by Djibouti and Malawi on 105 and 88 points respectively.

Team Kenya won the women’s competition with 1,180 points, beating Tanzanites and Uganda to second and third places with 1,083 and 851 points in that order.

However, it’s Uganda who reigned supreme in men’s contest, winning with 1.421 points, beating Team Kenya to second place with 1,143 as Tanzanites settled third with 865 points.

AYUMBA AYODI | Daily Nation

Dec 2 19

Swimming the latest sport to throw a small but tasty morsel to the masses

by ZwemZa

Cate Campbell (left) and Emma McKeon formed part of the London Roar squad in the International Swimming League. Photograph: Tom Jenkins/The Guardian

In the thoroughly bingeable Succession there is a memorable moment when Roman Roy – lazy scion of a Murdoch-esque family empire – tries to win over the chief executive of a new media company. The CEO asks him what his vision for the future of the industry is. “It’s all about the morsels, man,” says Roman, possibly the show’s ultimate bullshit artist. “That’s where we’re headed. Tasty morsels from groovy hubs …”

It was a phrase that came back to me last week as the UK welcomed the International Swimming League, the latest sporting grab for the shrinking attention of Generation Z. It has been dubbed, naturally, the T20 of swimming, because for all we like to talk cricket down, it is still the current holder of the title for Most Surprisingly Successful Reimagining of a Thought-to-be Moribund Product. The ISL’s pre-game hype promised that it would “change the world of swimming” and it has already found an enthusiastic audience, playing to full houses over two days at the London Aquatics Centre.

Swimming is one of the most closely followed events at the Olympics and it is to no one’s shame but mine that I have struggled with it as a spectator sport. That all you can see of the competitors in action is a trail of surf – and often you can’t tell who’s won until their name flashes up on the board – makes it difficult for this would-be couch expert to get involved.

So the prospect of swimming receiving the T20 treatment intrigued me. How do you make the sport sexier, snappier, more accessible? Would the athletes do widths instead of lengths? Perhaps they would be forced to share lanes, requiring the kind of daring overtaking witnessed in the absurdly narrow fast lanes at my local pool on Saturday mornings. My most vivid hope was a powerplay a third of the way through each race introducing sudden hazards – kids messing about with noodles, teenagers dive-bombing at the deep end – and extra points for avoiding them.

The ISL chose a more well-worn route. As RugbyX, GolfSixes, Fast5 Netball and even lawn bowls’s brand-new Ultimate Bowls Championship have demonstrated in the past few years, there are certain rules to T20-fiying your sport. Those begin with the invention of team franchises whose wordjumble names were redolent of rejected Gladiators contestants. In this case we had Iron, Aqua Centurions, London Roar, Energy Standard; if the latter sounds like a utility company, that’s because it is, one that made billions for the ISL’s Ukrainian founder, Konstantin Grigorishin.

Another axiom of T20-fication is that any intended simplification of the sport, in a bid to engage new audiences, will turn out to be curiously complicated. This is why the Hundred retains all the most incomprehensible elements of cricket – such as the lbw law – and adds a bunch more, including five-ball overs and bowling from the same end.

In the ISL’s case the confusion came in the guise of its notional Europe v USA structure – despite its eventual MVP being a South African, Chad le Clos – as well as the fact that its geographically vague entities were competing in what the American commentator termed a derby (or rather, durrby) match. Istanbul, Energy Standard’s home base, is apparently a lot closer to Stratford than you previously imagined.

Only fools attempt to reinvent their sport for millennials without wedding it to sick beats, so naturally there was a poolside DJ, not to mention the promise of a winner-takes-all showdown in Las Vegas (because, y’know, sexy). Team placings were decided by an F1-style points system for each race and I was right about the width thing.

The central tenet of T20-fication is to make your sport shorter and in the ISL’s case it has taken this with pure literality. Instead of a standard Olympic-size pool, races took place over a half-length 25m course. Is it too soon to raise concerns over the future creation of short-form specialists? Adam Peaty might want to watch the travails of Joe Root’s team in the current New Zealand Test series before he jeopardises the technique that has won him so many gold medals. And yet – it’s hard to dislike the ISL. The unremitting action – there are no heats to slow things down – made for a compelling poolside atmosphere. With its alluring alternative format – there is genuine fascination in the strategy of squad swimming – Grigorishin’s creation has filled in the lulls between the sport’s traditional peaks. It cannot help but raise the profile of its stars and provide them with another source of income, too: not so much a T20 revolution, perhaps, as a Kerry Packer one.

It is natural, then, that swimmers have embraced ISL from the outset – unlike some players at October’s RugbyX tournament. Several admitted they had been suspicious of the format before the games and, while they were all converts by the time they were interviewed pitchside, you could understand their reservations. The five-a-side, 10-minute games, on pitches without posts, were largely meaningless try‑fests, a sugary hit of sprints and tackles that seemed to lack the gristle and fibre of the sport’s pre-existing forms. Rugby union already has a short, sexy format in sevens; RugbyX felt like reductio ad absurdum.

Whether you are taking part or watching, sport is ultimately entertainment; it has to follow its audience. Not all of these bitesize varieties will succeed – spare a thought for tennis, which has tried Fast4 Tennis, Tie Break Tens and Thirty30 in the past few years – but some will succeed and more power to them.

For now at least, that’s where we’re headed. Tasty morsels from groovy hubs.

Emma John | The Guardian

Dec 1 19

Kayla van der Merwe surprised by success in 2019 ahead of senior debut

by ZwemZa

Kayla van der Merwe (Swim England)

Swimmer Kayla van der Merwe insists she was surprised by her rise in form in 2019, which saw her win multiple international medals and earn a maiden call-up to Great Britain’s senior team.

The Winchester City Penguins swimmer was rewarded for her achievements, being named Swim England’s Swimming Talent Athlete of the Year.

After setting personal bests in the 50m, 100m and 200m Breaststroke at the British Swimming Championships in April, Kayla was named in the British team for the European and World Junior Championships in the summer.

She claimed a career-best result at the European Championships in Kazan, smashing her PB to win gold in the 100m Breaststroke. 

Kayla said: “I did not expect anything that happened this year to happen, especially in the last few months, going to European Juniors and World Juniors.

“It’s all been really crazy and really busy and all such a surprise, but I’m really happy because I’ve worked hard to get here and I’m just happy that I’ve made it here.

“I did not expect it at all. I was concentrating more on World Juniors, so I didn’t expect anything to happen at Europeans.

“It was a big surprise to get the gold, but I was so happy.”

Going global

Kayla Van Der Merwe wins silver at World Junior Swimming Championships

That was a sign of things to come and Kayla reached new heights at the World Junior Championships in Budapest.

She set new lifetime bests in all three of her events, winning silver in the 50m Breaststroke and bronze in the 100m Breaststroke. 

Kayla will make her senior debut for Great Britain at the European Short Course Championships in Glasgow, which takes place from 5-8 December.

Swim England

Nov 30 19

Persistence Isn’t Enough

by ZwemZa

Not giving up in the face of failure and adversity is a big component of your success in the pool. But persistence alone isn’t enough.

Becoming the ultra-best version of yourself isn’t a G-14 Classified secret:

Work hard. Have a good attitude. Focus on improving your technique. Measure key markers of progress. And don’t give up.

The basics, right?

Not giving up in the face of adversity is one of the biggies.

Persistence in the face of stalled progress or even moments where we’ve backtracked is key.

But persistence isn’t enough.

As it turns out, the way you deal with your failures is what matters most.

Persistence isn’t enough.

As long as you keep coming back and not giving up, you will get better, right?

Well, that’s not exactly true.

Researchers at Northwestern University analyzed 776,721 grant applications over a 30-year stretch [1]. They also looked at nearly 50 years of capital venture start-ups.

The purpose of the study?

To see if persistence was the main driver of success.

What they found was pretty neat…

Every successful grant or start-up had some bumps and failures before becoming successful.

Probably not a big surprise there, right?

But failing also didn’t guarantee being successful.

In fact—and this is the thing that should blow your chlorinated hair back—those who failed and those who succeeded made the same number of attempts.

It wasn’t persistence alone that predicted being successful.

Yes, coming back and trying again was obviously important, but more critical was whether lessons were being learned, capitalizing on what was working, and focusing on how to improve future attempts.

“You have to figure out what worked and what didn’t, and then focus on what needs to be improved instead of thrashing around and changing everything,” said lead researcher Dashun Wang.

When we don’t learn from our failures, we are bound to repeat them.

Persistence isn't enough - listen to what your failures are trying to tell you

The power of failures

When we use failure as high-grade motivational fuel, some pretty awesome things start happening. The least of which is that failure becomes less scary.

Elite-minded swimmers pull their failures over their head like a latex swim cap and springboard into doubling-down their commitment and resolve.

American butterflier Mel Stewart, when he placed out of the medals at the Seoul Olympics in 1988, used that defeat as high-octane fuel for the next four years of training.

“It was humiliating. I’ve been on a comeback ever since,” he said at the FINA World Championships in Perth in 1991.

He would break the world record in the 200m butterfly at worlds, and a year later, at the Barcelona Olympics, Stewart would win gold in the 200m butterfly and pick up a couple relay medals.

This kind of mindset is very typical of super-champions, who face missteps and setbacks with a fierce resolve to overcome them.

Additionally, and this more to the point of this particular post, is that failure helps you diagnose what needs to change.

Setbacks and failures are a sign that something can be improved.

And it’s on you to step up and grab this opportunity for improvement instead of wallowing in not having been successful.

Summer Sanders would narrowly miss making the US Olympic Team in 1988. After leading the 200m individual medley for 150m, she faltered coming down the home-stretch, getting out-touched at the wall.

Some swimmers, this close to going to the Olympics, would have been devastated, but Sanders had gone a best time, and now understood what it would take to compete at the highest level.

“Defeat meant I hadn’t had enough experience going into the race,” she would reflect later. “It never meant I was destined to fail again, that I had fallen into some impossible rut. Quite the contrary: I was in control.”

Four years later, Sanders would go the Barcelona Olympics and win four medals, including a gold medal in the 200-meter butterfly.

Summer Sanders Swimmer Motivational Quote

Use your failures for good

I get the tendency to get down on yourself when things don’t pan out the way you hope or expect in the water.

You get injured.

Choke on race day.

Get beat at the wall.

But failing is a part of the process.

Don’t fear it.

Listen to what they are trying to tell you and go forth with renewed effort and focus on becoming a better swimmer.

About Olivier Poirier-Leroy

Olivier Poirier-Leroy is a former national level swimmer and the author of the books YourSwimBook and Conquer the Pool. He writes all things high-performance swimming, and his articles were read over 3 million times last year. His work has appeared on USA Swimming, SwimSwam, STACK, NBC Universal, and more. He’s also kinda tall and can be found on Twitter.

Nov 29 19

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

by ZwemZa

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.

Nov 29 19

I’m the underdog against Ledecky: Titmus

by ZwemZa

Australia’s Ariarne Titmus has struck up a healthy rivalry with US swim star Katie Ledecky. Credit: EPA

Australian swimmer Ariarne Titmus says she is still the underdog in her rivalry with Katie Ledecky ahead of the 2020 Olympics.

Titmus won gold ahead of Ledecky in the 400m freestyle at the World Swimming Championships in July to become the first Australian woman to claim the title since Tracey Wickham in 1978.

The Dolphins star clocked a Commonwealth record of 3:58.76 on her way to gold in Gwangju, sparking an ongoing rivalry with American legend Ledecky in the process.

Titmus won a further three medals in South Korea, including a gold and world record in the 4x200m freestyle relay, silver in the 200m freestyle, and bronze in the 800m freestyle.

The teenager then capped off a remarkable 2019 by winning a trio of awards at the 2019 Swimming Australia Awards last week.

However, Titmus says her achievements haven’t sunk in yet as she’s fully focused on her preparations for next summer’s Olympic Games in Tokyo.

“I’ve definitely poked the bear (by beating Ledecky),” Titmus told RSN.

“Going into the Olympics I feel that, although I did beat Katie this year, I feel she’s definitely still the favourite. I’m still hunting.

“If anything, me beating her will work in her favour. If she’s anything like me, it will just drive her to train harder. It’s obvious to me that I’ll have to raise my standards as well.

“It’s going to be a great battle. It will be close, but I definitely consider myself as the underdog.”

Titmus says Australia will arrive in Tokyo as favourites for the 4x200m freestyle relay in both the men’s and women’s competitions, and has hailed the depth and competition in the women’s squad.

“To be honest, I think we’re probably going in (as) favourites for both.”

AAP

%d bloggers like this: