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December 22, 2020 - Swiss Federal Court 4A_406-2021 Sun Yang vs WADA & FINA
February 14, 2021
On the evening of 4 September 2018, an attempt was made to collect blood and urine samples from the Athlete Sun Yang at the Athlete’s residence compound. This was an out-of-competition (OOC) sample collection mission. The mission was authorized by FINA as the Testing Authority. FINA has Results Management Authority. However, International Doping Tests and Management (IDTM) was the Sample Collection Authority. IDTM attempted to collect blood and urine from the Athlete during the Athlete’s previously selected ‘60-minute’ time slot from 10 p.m. to 11 p.m. on September 4, 2018.
No blood or urine samples were ever analysed as a result of the OOC mission conducted by IDTM. Blood was collected but the blood container was destroyed and the collected blood was never sent to the relevant WADA accredited laboratory. The blood remains in the possession of the Athlete’s doctor. No urine sample was provided by the Athlete. It is safe to describe the entire OOC mission as problematic, highly unusual and, at times, confrontational. Both FINA and the Athlete offer vastly different explanations regarding what happened, why the evening unfolded as it did and, critically, what consequences must result.
At first the Athlete co-operated with the sample collection and provided a blood sample but the Athlete became suspicious when he noticed that one of the Doping Control Assistance (DCA) had taken photos of him on his phone inside the Doping Control Station. The Athlete already had questioned whether Doping Control Officers (DCOs) had the correct paperwork.
The Athlete and his doctor believed that both the DCA and the Blood Collection Assistance (BCA) were not properly authorized by IDTM and proposed that the secure blood container be broken with a hammer to access the blood vial and thus destroy the integrity of the blood samples that had been collected. The DCO consistently warned the Athlete and his doctor that their actions could constitute an anti-doping rule violation but she could not prevent that they destroyed the blood container to acces the vials. After this action the IDTM supervisor instructed the DCO to end the testing mission and document in detail, with notes and photographs, exactly what had happened at the Doping Control Station.
As a result in October 2018 FINA reported an anti-doping rule violation against the Athlete for tampering and Refusal of Failing to Submit. FINA contended that the Athlete, and others acting on his instructions, destroyed the collected blood sample container thereby tampering with and subverting proper doping control processes.
The Athlete argued that there were departures of the ISTI since the DCO and IDTM were at fault as they failed to send to the testing mission properly trained, properly qualified and properly authorized officials. They lacked official documentation from IDTM to provide evidence that they were, in fact, authorized by IDTM to take part in the sample collection session involving the Athlete.
The FINA Doping Panel establish that the DCO had proper documentation evidencing her authority from IDTM, however the Panel holds that the total absence of any official documentation from IDTM in the hands of the DCA and BCA is not acceptable.
The Doping Panel finds that the OOC sample collection session conducted by IDTM on behalf of FINA on 4 September 2018 was not properly commenced. The lack of “official documentation” from IDTM for the DCA and the BCA meant that the Athlete was not properly notified. The request to provide a urine sample was not properly accomplished. The blood that was initially collected (and subsequently destroyed) was not collected with proper authorization and thus was not properly a “Sample” as that term is used in the ISTI and defined in the FINA DC. As a result, the sample collection session initiated by IDTM on 4 September 2018 is invalid and void. No FINA DC rule violations can result therefrom.
The Panel concludes that the critical message to the Athlete regarding the consequences of his conduct, while attempted many times by the DCO, never got through. The Panel finds that the Athlete was clearly unaware, in the face of the identified conduct, that his conduct was being treated by the DCO as a Failure to Comply and that serious consequences would apply.
Furthermore the Doping Panel considered it highly improper and extremely unprofessional that the DCA took pictures and/or videos of the Athlete using his cell phone what never should happen. The Athlete witnessed their deletion when he complained about the DCA’s conduct.
Finally the Doping Panel feels compelled to point out its very significant concerns regarding the conduct of the Athlete and his entourage. In fact, the Doping Panel rejected many of the Athlete’s contentions and positions as being unfounded and invalid. The Athlete and his entourage were not correct regarding many aspects of the sample collection session.
Therefore the FINA Doping Panel decides on 3 January 2019 that the Athlete has not committed an anti-doping rule violation under FINA DC 2.3 (Refusing or Failing to Submit) or DC 2.5 (Tampering or Attempted Tampering).
