Sun Yang and Fina criticised in full CAS doping violation verdict
- Panel calls China swimming star’s decision during disputed doping test ‘the wrong gamble to take’
- No word on costs in 88-page report into 51-month ban that rules triple Olympic champion out of Tokyo 2020
More than a week after banning Sun Yang for 51 months, the Court of Arbitration for Sport revealed the full report on their verdict on Friday, with China’s star swimmer and swimming federation Fina both criticised.
An original eight-year ban was handed down by CAS last February after a 2019 hearing but the ruling was overturned at the Swiss Supreme Court last December. The triple Olympic champion complained that the second hearing did not allow for any new evidence or his arguments from the Swiss Supreme Court proceedings.
Both Sun and Fina come in for criticism in the 88-page report, which leaves out who will bear the costs of the hearing, stemming from his behaviour on the night of September 4, 2018, at an out of competition test at his home and the subsequent hearing.
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In summary the panel found that Sun “acted recklessly and in manifest disregard of the risk of the potential consequences of his actions” and was unable to mitigate his violation of the Fina doping code.
The panel noted that there was no allegation that Sun was doped on the night in question: “Indeed, given that Mr. Sun tested negative eight times in the prior two weeks, the likelihood that he would have tested positive, had the samples of 4–5 September 2018 been analysed in Beijing, appears remote,” they wrote.
Sun had been warned by the Doping Control Officer (DCO) on the night as he and his entourage contested the legitimacy of the testing team. The night ended with one of the swimmer’s blood samples being destroyed.
“The uncontroverted facts are these. 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. That he pressed forward undeterred was, as the FINA Doping Panel held, ‘foolish in the extreme/.”
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Fina had initially absolved Sun of any guilt but at the same time they were critical of his actions, calling them “foolish in the extreme” and a “gamble” in their own ruling. The CAS panel also noted that it was unusual for Fina to offer comment in such a report only to later change their stance.
“The present Panel observes that FINA’s current expression of mild reproach of behaviour which ‘may have been more measured’ certainly diverges from the critique (’foolish in the extreme’) made by the Doping Panel members whose decision FINA is now defending here.”
Fina was further criticised for its position that Sun and his entourage could have been “more measured” in their actions: “This is an astonishing understatement when compared with what the Doping Panel actually wrote with respect to the Athlete’s conduct”.
The panel, which explained that they dismissed Sun’s challenge of a conflict of interest with Wada lawyer Richard Young based on his past work with Fina and also dismissed Sun and Fina’s challenge that Wada missed a deadline to appeal the Fina doping hearing verdict, did acknowledge that the test could have been performed better.
“The Sample Collection of 4–5 September 2018 was not pristine. Neither, however, was it of a kind whose illegitimacy was so manifest that the Athlete’s dramatic conduct could find compelling justification in the World Anti-Doping Code. The FINA Doping Panel correctly diagnosed the Athlete’s conduct as a “gamble.” It was the wrong gamble to take.”
The panel also noted that as an athlete Sun – who had been tested at least 180 times – would be “well aware of the consequences of refusing to submit to a sample or of interfering in the process, and of the weighty sanctions that may befall should they be found guilty of an anti-doping rule violation”.
They noted that Sun had previously lodged a complaint using the doping control form, rather than destroying a sample, at an October 2017 test with the September 2018 Doping Control Officer then acting as chaperon.
The panel dismissed Fina’s “artificially high threshold” for a DCO to inform the athlete of the consequences of failing to comply. In fact, the DCO was praised in the report.
“The events of 4–5 September 2018 would stretch any DCO to the limits, and it is a credit to this DCO that she apparently remained calm under pressure.”
Sun alleged “that the DCO was unusually calm under the circumstances, in the sense that she did not act as one would expect an incensed, outraged, or shocked DCO to behave”.
The panel dismissed that. “Much was made during the hearing of the DCO’s pace of walking or running to and from the doping control station, particularly during the destruction of the first blood vial,” they note in the same point. “Ultimately, it will not be necessary for the Panel to psychoanalyze the DCO’s gait,” they conclude.
“The panel is convinced that the DCO’s mannerisms do not serve the athlete’s cause. That she did not exert herself with ever-greater pathos as the night wore on might disappoint some, but this may not be a reasonable standard to expect of an individual who has spent hours debating an athlete and his entourage on an increasing number of technical challenges as to the validity of the sampling mission.”
Sun was found not to have committed an anti-doping violation on his urine sample as the DCA – who admitted to having had little training and took photos of Sun – was dismissed and there was no other male to witness the swimmer give a sample.
The DCA taking photos was “unquestionably unprofessional and inappropriate”, said the panel, adding that Sun’s request to have him removed was “reasonable” in the circumstances.
“WADA’s claim at the hearing that a DCA’s training could be encapsulated in ‘fifteen seconds’ rather overstates the case, but it is nonetheless true that monitoring the passage of urine is not a high art, and does not require an advanced degree.”
Wada’s request that Sun’s swimming record from September 4, 2018 onwards be scrubbed was declined, the panel noted.
The panel also noted that they could not truly know what happened that September night.
“Undoubtedly the record falls short of providing a comprehensive view of what exactly transpired on 4–5 September 2018. The footage is piecemeal. The accounts of what was said and how it was said diverge widely.
“Certain events, such as the Athlete’s tearing up of the paper Doping Control Form at the end of the night – whether it was seized from the DCO or merely found abandoned on a table and appropriately disposed of, etc – are impossible for the Panel definitively to reconcile. On issues like this, the Panel draws no conclusions.”