22 Jun 2021
CAS 2019/A/6148 World Anti-Doping Agency v. Mr Sun Yang & Fédération Internationale de Natation (FINA)
- CAS 2019_A_6148 WADA vs Sun Yang & FINA - Annulled Award
February 28, 2020
- FINA 2019 FINA vs Sun Yang
January 3, 2019
- Swiss Federal Court 4A_287_2019 Sun Yang vs WADA & FINA
January 6, 2020
- Swiss Federal Court 4A_413_2019 Sun Yang vs WADA & FINA
October 28, 2019
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.
Consequently on 28 February 2020 the Court of Arbitration for Sport (CAS) decided to impose an 8 year period of ineligibility on the Athlete Sun Yang for committing a second anti-doping rule violation.
The CAS Panel concluded 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.
Hereafter the Athlete appealed the CAS Award with the Swiss Federal Court. One of the Athlete's grievances was based on evidence of bias on the part of the presiding arbitrator by reasons of prior comments the presiding arbitrator had made on social media. The arbitrator in question spontaneously resigned shortly. The two remaining arbitrators on the CAS Panel also withdrew and on 22 December 2020 the CAS Award was annulled. A new second CAS Panel was arranged with an all new membership, charged with rehearing this case.
At first the Panel establishes that it has jurisdiction in this Appeal, that it was filed by an authorized representative and that it is admissible.
The Athlete and FINA asserted that the attempted sample collection on 4–5 September 2018 violated numerous provisions of the ISTI, violated the Athlete’s fundamental human rights, and were therefore null and void. These defects fully justified the Athlete to refuse to submit to a defective and unjust process.
WADA contended that the attempted sample collection on 4–5 September 2018 complied with all relevant provisions of the ISTI. Upon meeting the Athlete, the DCO notified the Athlete by showing a Letter of Authority from FINA, as well as a copy of her IDTM Doping Control Officer card. Although they were not required to do so under the ISTI, the DCA and BCA also showed valid identification documents. The DCO’s documents sufficed, in WADA’s view, to establish that the Sample Collection Personnel, under her leadership, was duly authorized and credentialed. The Athlete’s refusal to be tested despite having been properly notified by the DCO placed him in violation of Articles 2.3 and 2.5 of the FINA DC.
Considering the facts of what happened on 4-5 September 2018 at the Athlete’s residence compound the Panel assesses that the Athlete was told numerous times the samples had to leave with the DCO. He refused this. A last-ditch bid at persuading the Athlete’s entourage, perhaps ill-advised, ended in a sample’s destruction. The DCO multiple times tried to notify the Athlete of the potential consequences that this could entail. At the very least, these facts should have created questions in the Athlete’s mind whether his chosen course of action was correct.
As a result the Panel is comfortably satisfied that the Athlete tampered with any Part of Doping Control, at latest beginning with his refusal to allow the blood samples to leave with the Sample Collection Personnel. The Panel is also comfortably satisfied that the Athlete refused and failed to submit to sample collection.
The Panel regards that this is the Athlete's second offense and that under the 2021 FINA Rules and 2021 WADC a greater degree of mitigation is possible in determining the period of ineligibility for the Athlete's anti-doping rule violations.
The Panel deems that the circumstances surrounding the Sample Collection of 4-5 September 2018 merit a period of ineligiblility at the lower end of the range starting on the date of the Annulled Decision, i.e. on 28 February 2020.
Therefore the Court of Arbitration for Sport decides on 6 July 2021 that:
1. The Court of Arbitration for Sport has jurisdiction to hear the present dispute.
2. 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 admissible and is partially upheld.
3. The decision issued on 3 January 2019 by the Doping Panel of the Fédération Internationale de Natation is set aside.
4. Mr. Sun Yang is sanctioned with a period of ineligibility of 4 (four) years and 3 (three) months, beginning on 28 February 2020.
7. All other and further motions or prayers for relief are dismissed.