CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation
Related cases:
- FINA 2019 FINA vs Sun Yang
January 3, 2019 - Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
October 28, 2019 - Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
January 6, 2020 - CAS 2019_A_6148 WADA vs Sun Yang & FINA - Final Award
June 22, 2021 - Swiss Federal Court 4A_318-2020 Sun Yang vs WADA & FINA
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 discovered that one Doping Control Assistance (DCA) had taken photos of him on his phone inside the Doping Control Station. The Athlete already had questioned whether the 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. However the FINA Doping Panel decided on 3 January 2019 that the Athlete had 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).
In the opinion of the FINA Doping Panel 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.
Hereafter in February 2019 the World Anti-Doping Agency (WADA) appealed the FINA decision with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the FINA decision of 3 January 2019 and to impose an appropriate period of ineligibility on the Athlete for Tampering and Evading, Refusing or Failing to Submit to Sample Collection.
WADA contended that the Athlete committed the anti-doping rule violations by:
1.) refusing to allow the DCO to remove the blood samples after collection;
2.) breaking or assisting in breaking one of the blood sample containers;
3.) refusing, when requested by the DCO, to return the damaged container and the undamaged container with the blood samples;
4.) urinating without a chaperone or authorisation from the DCO;
5.) destroying the Doping Control Form containing the Athlete’s signature acknowledging notification for collection of the blood samples;
6.) withdrawing his consent to the collection of his blood samples after his personal doctor arrived at the sample collection.
The Athlete argued that he was not properly notified and that none of IDTM’s Sample Collection Personnel complied with their identification requirement during the notification process on 4 September 2018.
He denied that there was intent or fraudulent conduct to tamper, as he had nothing to hide. Rather, the Athlete maintained that he relied on the instructions and advice of his entourage, who are said to have informed him that the DCO could not conduct the testing because of the lack of accreditation and authorisation.
Further the Athlete claimed that the DCO did not comply with her duties in informing the Athlete of the possible consequences of a failure to comply with the sample collection process.
The Panel disagrees the Athlete’s contention that IDTM was required to carry and show to him a (specific and individual) Authorisation Letter. The Panel establish that the DCO, the DCA and the BCA complied with the ISTI identification requirements and that they were properly accredited, authorized to be involved in collecting samples from the Athlete. As a result the Panel finds that IDTM’s Sample Collection Personnel complied with all applicable notification requirements as set out in the ISTI.
The Panel considers that it would be totally inappropriate and unprofessional for a Chaperone/DCA to take any photographs or videos of an athlete in the course of a sample collection process, unless there are compelling reasons to do so, such as the gathering of evidence or for reasons of record keeping.
However, the Panel finds that the mere fact that the DCA acted inappropriately in taking at least 3 photographs of the Athlete did not, as such, warrant the Athlete to abort the entire (blood and urine) testing mission. Nor could it, of itself, in any way justify the acts taken by the Athlete. The correct course of action, in the view of the Panel, would have been for the Athlete to record his objection as to the entire process, at the time (and, if necessary, subsequently), and to allow the DCO to leave with the blood samples already collected.
The Panel is satisfied in establishing that the DCO did repeatedly warn the Athlete and duly informed him about the consequences of his failure to comply. This is based on the testimony of the DCO the BCA and the IDTM supervisor.
The Panel holds that the Athlete failed to establish that the DCO aborted the sample collection session, or that it was her suggestion to take and destroy the blood samples.
The Panel further holds that the Athlete’s subsidiary reasoning, that the blood collected from the Athlete was mere medical waste, because of the DCO’s alleged failure to warn the Athlete about the consequences in accordance with the IST, and the DCO’s alleged decision to discontinue the test, is also to be dismissed.
As a result the Panel concludes that the Athlete failed to establish that he had a compelling justification to act as he did and forego the Doping Control and accordingly that the Athlete committed a tampering violation under Article 2.5 FINA DC. Since this is the Athlete’s second anti-doping rule violation the Panel deems that an 8 year period of ineligibility is to be imposed on the Athlete without disqualification of his results prior to the sanction.
Therefore the Court of Arbitration for Sport decides on 28 February 2020:
1.) The appeal filed on 14 February 2019 by the World Anti-Doping Agency against the decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is upheld.
2.) The decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is set aside.
3.) Mr Sun Yang is sanctioned with an 8 (eight) year period of ineligibility, commencing on the date of the present arbitral award.
4.) This arbitral award is pronounced without costs, except for the Court Office fee of CHF 1,000 (one thousand Swiss Francs) paid by the World Anti-Doping Agency, which is retained by CAS.
5.) Mr Sun Yang and the Fédération Internationale de Natation shall bear their own costs and are ordered to each pay to the World Anti-Doping Agency an amount of CHF 15,000 (fifteen thousand Swiss Francs) as a contribution towards the legal fees and other expenses incurred in connection with these arbitration proceedings.
6.) All other and further motions or prayers for relief are dismissed.
