--

--Review of the Arbitral Case Between WADA v. Sun Yang & FINA

The Arbitral Case Between WADA v. Sun Yang & FINA is the second case in CAS history, and the first one in the history of China sports, that was openly tried. It not only provided a rare sample for the research of China sports and international arbitration, but also offered a perspective to reflect on bigger themes like the application of international rules in Chinese background, and the relations between China and the outside world.

After the Arbitral Award of World Anti-Doping Agency v. Sun Yang & FINA was made public, the majority of Chinese media and legal professionals agreed with its conclusion. To be fair, with Sun Yangs involvement in quite a few controversies, and with his disastrous performance in court, it is understandable that the arbitrators consideredto some extent, the Athletes behavior to be obnoxious. But, reading through the lines of the Award, we can find thatwith the same facts presented in the Award, there might be a different interpretation. There is the possibility that the sanction on Sun Yang has more to do with the personality he displayed and the miscommunication between two languages, rather than the indisputable violation of rules by the Athlete. Sun Yangs sanction is questionable.

The Document Signed by Sample Collection Personnel: Statement or Agreement

,

Sun Yang provided a document ,drafted by Dr. Ba Zhen, signed by Dr. Ba Zhen, the Athlete, the DCO, DCA and BCAas evidence:

The following is the official translation:

On the night of September 4, 2018, 4 persons of FINA conducted urine test and blood test to Mr. SUN Yang. One of the four persons was the drive who was unrelated. The rest of three persons entered into the room. Among the three persons, [the DCO] (Card No. []) possessed and provided and showed the certification of Doping Control Officer. [The Athlete] actively cooperated with the testing. However, in the following process of blood and urine sample collection, [the Athlete] found that [the BCA], Blood Collection Officer, only provided her Nurse Qualification Certificate (Number []) but did not provide any other proof of certification for Blood Collection Officer. [The DCA] (classmate of [the DCO]), the Doping Control Officer for urine test, only provided his resident ID card ([]) and did not provide any other certification

of Doping Control Officer for urine. They were unrelated personnel. Under our repeated inquiries, among them, only [the DCO] (Card No. []) provided the certification of Doping Control Officer, and the rest two could not provide Doping Control Officer certification and any other relevant authority. Therefore, the urine test and blood test cannot be completed. (The blood sample that has been collected could not be taken away.)

4.4.6

The Panel believed that the document, signed by the DCO, DCA and BCA, is a statement from the doctor, and the signatures affixed to such document by the DCO, BCA and DCA do not mean that they necessarily agreed with the comments set out therein. They merely signed the document as witnesses, which was their duty under Article 4.4.6 ISTI: At the conclusion of the Sample Collection Session the Athlete and DCO shall sign appropriate documentation to indicate their satisfaction that the documentation accurately reflects the details of the Athletes Sample Collection Session, including any concerns expressed by the Athlete. ---Other persons present who had a formal role during the Athletes Sample Collection Session may sign the documentation as a witness of the proceedings.

Far-fetched legal reasoning

4.4.6

Reading through the lines of Article 4.4.6, it can be easily spotted that the DCO and other persons present are treated differently by the rules. If the other persons present sign it, they are viewed as witness of the proceedings, while if the DCO signs that documentation, it indicates her satisfaction with the documentation accurately reflecting the details of the Sample Collection Session. So, according to the rules, the DCOs signature cannot be interpreted as witnessing.

More importantly, if both the DCO and the Athlete sign the documentation, that means they are both satisfied with the contents, which conforms to the very definition of Agreement.

Understanding of the signature of the BCA and DCA

(IDTM)IDTM

Even for the DCA and BCA who signed that document, it is worth exploring what they meant by signing their names. Witness means someone sees an event and reports what happened. The document is about what happened that night. The document includes descriptions like conducted urine test and blood test (instead of collection of urine and blood samples), Blood Testing Officer(instead of BCA), Urine Testing Officer(instead of DCA), they were unrelated personnel, the rest two could not provide Doping Control Officer certification and any other relevant authority., therefore, the urine test and blood test cannot be completed. By signing their names, they admit they presented to the Athlete as someone they are not. They concurred that they do not have any other relevant authority. They agreed that the test cannot be completed because of their lack of authority.

If the DCO signed the paper because of the imposition by Sun and his team

There is another consideration needs to be taken. If, as the Panel implied in the Award, the Sample Collection Personnel was intimidated and even coerced to some extent, signing the document is still not enough to justify Sun Yangs actions. The following is the Panels opinion: being in the athletes house, in the presence of his body guards and collaborators,[the DCO] may have felt that she had no option but to accept the Athletes impositions.

Not to mention the body guard was actually community security guard. With some details written in the Award, different narrative can be presented. The DCO had years of experience. Dealing with similar situations was part of her job. She was trained and well-prepared for this. And the Sample Collection personnel looked pretty at-ease when they made the initial contact with Sun Yang. If they were under a lot of pressure from the start , it is hard to imagine the DCA could still have the mood to take pictures of Sun Yang and claimed he was a fan. Even after the situation became tense, the DCO could still be constantly on the phone with her superior. There is not a shred of evidence showing that the DCO had lost her free will at any moment that night.

The Panel also believed that the DCO insisted many times to conclude the test collection, that is why the signature on the document drafted by Dr Bas does not reflect her true intention. But, the combination of signing the paper and mentioning of concluding the test does not necessarily mean she was coerced or insistence. It looks more like the proof of her indecisiveness and constantly weighing her options, rather than a clear insistence of concluding the collection.

Both parties agreed that the turning point that night was Sun Yongs detection of the DCA taking picture or video of him. From then on, the Athlete started asking questions. Arguably, it can be said that reporting your whereabout and expecting a stranger watching you pass the urine was already uncomfortable enough, and later you found that the stranger were taking pictures right before the most embarrassing part of the sample collection session. That behavior of the DCA is not only inappropriate and unprofessional, but also can be identified as abuse of power and invasion of privacy. After Sun questioned the Sample Collection Personnels authority, the DCO found herself in a difficult situation. She agreed to terminate the urine collection and sign the document drafted by Dr. Ba Zhen in the end, not because Sun Yang was aggressive and intimidating, but because the DCA, her own classmate, the one she was supposed to train and supervise properly, did something totally unacceptable and got caught on the spot by the Athlete. There would be consequence for her and her classmate if the athlete report to authority. That is why she felt pressured, hesitated, and eventually lost her options. Is this the more possible scenario and more reasonable interpretation?

The sample collection personnel or IDTM should be to blame

IDTM

The tragic fact about this case is that Sun Yang and his followers kept blaming the Sample Collection Personnel for his ban and even disclosed their personal information online. While in the bigger picture, it looks like it is IDTM who should be accounted for his misfortune. They intentionally mislead everyone by changing officials into assistants. They irresponsibly delegate the hiring and authorization of BCO(BCA in IDTMs terms) and chaperon(DCA in IDTMs terms) to DCO. They dont even bother telling their staff the basic dos and donts. The role they played in this case was neglected. It is a shame that they were not criticized for these. And, we are sorry to predict that, because of Sun Yangs guilty verdict, IDTMs authority might get further strengthened in the future.

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|\nChallenging Sun Yangs Sanction

--

--Review of the Arbitral Case Between WADA v. Sun Yang & FINA

The Arbitral Case Between WADA v. Sun Yang & FINA is the second case in CAS history, and the first one in the history of China sports, that was openly tried. It not only provided a rare sample for the research of China sports and international arbitration, but also offered a perspective to reflect on bigger themes like the application of international rules in Chinese background, and the relations between China and the outside world.

After the Arbitral Award of World Anti-Doping Agency v. Sun Yang & FINA was made public, the majority of Chinese media and legal professionals agreed with its conclusion. To be fair, with Sun Yangs involvement in quite a few controversies, and with his disastrous performance in court, it is understandable that the arbitrators consideredto some extent, the Athletes behavior to be obnoxious. But, reading through the lines of the Award, we can find thatwith the same facts presented in the Award, there might be a different interpretation. There is the possibility that the sanction on Sun Yang has more to do with the personality he displayed and the miscommunication between two languages, rather than the indisputable violation of rules by the Athlete. Sun Yangs sanction is questionable.

The Document Signed by Sample Collection Personnel: Statement or Agreement

,

Sun Yang provided a document ,drafted by Dr. Ba Zhen, signed by Dr. Ba Zhen, the Athlete, the DCO, DCA and BCAas evidence:

The following is the official translation:

On the night of September 4, 2018, 4 persons of FINA conducted urine test and blood test to Mr. SUN Yang. One of the four persons was the drive who was unrelated. The rest of three persons entered into the room. Among the three persons, [the DCO] (Card No. []) possessed and provided and showed the certification of Doping Control Officer. [The Athlete] actively cooperated with the testing. However, in the following process of blood and urine sample collection, [the Athlete] found that [the BCA], Blood Collection Officer, only provided her Nurse Qualification Certificate (Number []) but did not provide any other proof of certification for Blood Collection Officer. [The DCA] (classmate of [the DCO]), the Doping Control Officer for urine test, only provided his resident ID card ([]) and did not provide any other certification

of Doping Control Officer for urine. They were unrelated personnel. Under our repeated inquiries, among them, only [the DCO] (Card No. []) provided the certification of Doping Control Officer, and the rest two could not provide Doping Control Officer certification and any other relevant authority. Therefore, the urine test and blood test cannot be completed. (The blood sample that has been collected could not be taken away.)

4.4.6

The Panel believed that the document, signed by the DCO, DCA and BCA, is a statement from the doctor, and the signatures affixed to such document by the DCO, BCA and DCA do not mean that they necessarily agreed with the comments set out therein. They merely signed the document as witnesses, which was their duty under Article 4.4.6 ISTI: At the conclusion of the Sample Collection Session the Athlete and DCO shall sign appropriate documentation to indicate their satisfaction that the documentation accurately reflects the details of the Athletes Sample Collection Session, including any concerns expressed by the Athlete. ---Other persons present who had a formal role during the Athletes Sample Collection Session may sign the documentation as a witness of the proceedings.

Far-fetched legal reasoning

4.4.6

Reading through the lines of Article 4.4.6, it can be easily spotted that the DCO and other persons present are treated differently by the rules. If the other persons present sign it, they are viewed as witness of the proceedings, while if the DCO signs that documentation, it indicates her satisfaction with the documentation accurately reflecting the details of the Sample Collection Session. So, according to the rules, the DCOs signature cannot be interpreted as witnessing.

More importantly, if both the DCO and the Athlete sign the documentation, that means they are both satisfied with the contents, which conforms to the very definition of Agreement.

Understanding of the signature of the BCA and DCA

(IDTM)IDTM

Even for the DCA and BCA who signed that document, it is worth exploring what they meant by signing their names. Witness means someone sees an event and reports what happened. The document is about what happened that night. The document includes descriptions like conducted urine test and blood test (instead of collection of urine and blood samples), Blood Testing Officer(instead of BCA), Urine Testing Officer(instead of DCA), they were unrelated personnel, the rest two could not provide Doping Control Officer certification and any other relevant authority., therefore, the urine test and blood test cannot be completed. By signing their names, they admit they presented to the Athlete as someone they are not. They concurred that they do not have any other relevant authority. They agreed that the test cannot be completed because of their lack of authority.

If the DCO signed the paper because of the imposition by Sun and his team

There is another consideration needs to be taken. If, as the Panel implied in the Award, the Sample Collection Personnel was intimidated and even coerced to some extent, signing the document is still not enough to justify Sun Yangs actions. The following is the Panels opinion: being in the athletes house, in the presence of his body guards and collaborators,[the DCO] may have felt that she had no option but to accept the Athletes impositions.

Not to mention the body guard was actually community security guard. With some details written in the Award, different narrative can be presented. The DCO had years of experience. Dealing with similar situations was part of her job. She was trained and well-prepared for this. And the Sample Collection personnel looked pretty at-ease when they made the initial contact with Sun Yang. If they were under a lot of pressure from the start , it is hard to imagine the DCA could still have the mood to take pictures of Sun Yang and claimed he was a fan. Even after the situation became tense, the DCO could still be constantly on the phone with her superior. There is not a shred of evidence showing that the DCO had lost her free will at any moment that night.

The Panel also believed that the DCO insisted many times to conclude the test collection, that is why the signature on the document drafted by Dr Bas does not reflect her true intention. But, the combination of signing the paper and mentioning of concluding the test does not necessarily mean she was coerced or insistence. It looks more like the proof of her indecisiveness and constantly weighing her options, rather than a clear insistence of concluding the collection.

Both parties agreed that the turning point that night was Sun Yongs detection of the DCA taking picture or video of him. From then on, the Athlete started asking questions. Arguably, it can be said that reporting your whereabout and expecting a stranger watching you pass the urine was already uncomfortable enough, and later you found that the stranger were taking pictures right before the most embarrassing part of the sample collection session. That behavior of the DCA is not only inappropriate and unprofessional, but also can be identified as abuse of power and invasion of privacy. After Sun questioned the Sample Collection Personnels authority, the DCO found herself in a difficult situation. She agreed to terminate the urine collection and sign the document drafted by Dr. Ba Zhen in the end, not because Sun Yang was aggressive and intimidating, but because the DCA, her own classmate, the one she was supposed to train and supervise properly, did something totally unacceptable and got caught on the spot by the Athlete. There would be consequence for her and her classmate if the athlete report to authority. That is why she felt pressured, hesitated, and eventually lost her options. Is this the more possible scenario and more reasonable interpretation?

The sample collection personnel or IDTM should be to blame

IDTM

The tragic fact about this case is that Sun Yang and his followers kept blaming the Sample Collection Personnel for his ban and even disclosed their personal information online. While in the bigger picture, it looks like it is IDTM who should be accounted for his misfortune. They intentionally mislead everyone by changing officials into assistants. They irresponsibly delegate the hiring and authorization of BCO(BCA in IDTMs terms) and chaperon(DCA in IDTMs terms) to DCO. They dont even bother telling their staff the basic dos and donts. The role they played in this case was neglected. It is a shame that they were not criticized for these. And, we are sorry to predict that, because of Sun Yangs guilty verdict, IDTMs authority might get further strengthened in the future.

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