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

As Authority,IDTMshould Play by the Rulesor Follow Customary Practice

The first argument Sun Yang made is that Sample Collection Personnel did not provide with him a (specific and individual) Authorization Letter besides the (generic) Letter of Authorization), therefore he was not duly notified. The Panelfindsthat(specific and individual) Authorization Letter is not a mandatory notification requirement according to the rules,andduring themanyprevious tests Sun had been subject to, no personal and individual authorization letters were presented and Sun did not protest.

Authority should adhere to regulations rather than routines

IDTM

If Sun is on an equal footing with IDTM, Suns argument would not hold any water because of the existence of customary practice. But,IDTM is defined as Sample Collection Authorityin relevant regulations. Clearly, the relations between IDTM and Sun are not an equal one. Sun was among the tens of thousands of athletes subject to IDTMs authority.

It is a well-established legal principle that authority needs to play by the rules.Authority and power shall be defined by regulations rather than previous practices.Without clear boundaries and restraints, the power authorities possess is easily to be abused. Although the Panel went to a great length arguing that thelogic of anti-doping tests and of the DC Rules demands and expects that, whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete ,it also admits that there exist circumstances when the Sample Collection Personnels behavior is soinappropriate and unprofessionalthat is enough to invalidate the sample collection session.That is to say the power, exercised by the Sample Collection Authority, should have limits.

No rules were made regulating the behavior of the DCA and BCA

What is intriguing is the fact that the Panel did not explain why taking a few pictures by theDCAin Sun Yangs case was deemed so inappropriate and unprofessional. Is it a conclusion fairly based on some legal principle? Or, aretherespecific rules being broken? Actually, inappropriate and unprofessional are not even legal words that are clearly defined. Looking through ISTI and WADA DC, there is no code of conduct for sample collection officials. There is no specific article that can be cited as the legal basis for the inappropriate and unprofessional comment in ISTI and WADA DC. As a stark contrast, the regulations are full of obligations and responsibilities of athletes. The rules are already written that way.

Since the authorization of sample collection personnel was viewed as a whole, why blood sample collection and urine sample collection are unrelated

The Panelbelieved thata generic letter of authorization instead of specific and individual authorization letters is enough for authorization. We can infer thatthe Sample Collection Personnelshould be viewedas a wholerepresenting the Sample Collection Authority. But, by the same logic, is it fair to conclude that the Sample Collection Personnel as a whole should take responsibilities for theDCAs totally inappropriate and unprofessional behavior and hence invalidate the whole sample collection process?When the DCA was taking pictures of Sun Yang, the DCO was present. She did not discover, not to mention stop, his inappropriate behavior, and after Sun Yangs protest, taking no such measures as expelling the DCA from the scene and making sure to Sun that the DCA would have no chance of interfering with the following process of blood testing. Under such circumstances, is blood collection still unrelated to urine collection?

Is there enough consideration given to human rights

ISTI provides:the International Standardfor Testingand Investigations has been drafted giving due consideration to the principles of respect for human rights, proportionality, and other applicable legal principles. It shall be interpreted and applied in that light.It is doubtful that the Panel has given enough consideration to the principles of respect for human rights, proportionality, and other applicable legal principles in the Award.After all, the DCA violated Sun Yangs privacy by taking pictures without his consent. And it is also reasonable to define his behavior as abuse of power authorized by Sample Collection Authority. The principle of human rights should precisely play an important role on this issue.

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|\nChallenging Sun Yangs Sanction

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

As Authority,IDTMshould Play by the Rulesor Follow Customary Practice

The first argument Sun Yang made is that Sample Collection Personnel did not provide with him a (specific and individual) Authorization Letter besides the (generic) Letter of Authorization), therefore he was not duly notified. The Panelfindsthat(specific and individual) Authorization Letter is not a mandatory notification requirement according to the rules,andduring themanyprevious tests Sun had been subject to, no personal and individual authorization letters were presented and Sun did not protest.

Authority should adhere to regulations rather than routines

IDTM

If Sun is on an equal footing with IDTM, Suns argument would not hold any water because of the existence of customary practice. But,IDTM is defined as Sample Collection Authorityin relevant regulations. Clearly, the relations between IDTM and Sun are not an equal one. Sun was among the tens of thousands of athletes subject to IDTMs authority.

It is a well-established legal principle that authority needs to play by the rules.Authority and power shall be defined by regulations rather than previous practices.Without clear boundaries and restraints, the power authorities possess is easily to be abused. Although the Panel went to a great length arguing that thelogic of anti-doping tests and of the DC Rules demands and expects that, whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete ,it also admits that there exist circumstances when the Sample Collection Personnels behavior is soinappropriate and unprofessionalthat is enough to invalidate the sample collection session.That is to say the power, exercised by the Sample Collection Authority, should have limits.

No rules were made regulating the behavior of the DCA and BCA

What is intriguing is the fact that the Panel did not explain why taking a few pictures by theDCAin Sun Yangs case was deemed so inappropriate and unprofessional. Is it a conclusion fairly based on some legal principle? Or, aretherespecific rules being broken? Actually, inappropriate and unprofessional are not even legal words that are clearly defined. Looking through ISTI and WADA DC, there is no code of conduct for sample collection officials. There is no specific article that can be cited as the legal basis for the inappropriate and unprofessional comment in ISTI and WADA DC. As a stark contrast, the regulations are full of obligations and responsibilities of athletes. The rules are already written that way.

Since the authorization of sample collection personnel was viewed as a whole, why blood sample collection and urine sample collection are unrelated

The Panelbelieved thata generic letter of authorization instead of specific and individual authorization letters is enough for authorization. We can infer thatthe Sample Collection Personnelshould be viewedas a wholerepresenting the Sample Collection Authority. But, by the same logic, is it fair to conclude that the Sample Collection Personnel as a whole should take responsibilities for theDCAs totally inappropriate and unprofessional behavior and hence invalidate the whole sample collection process?When the DCA was taking pictures of Sun Yang, the DCO was present. She did not discover, not to mention stop, his inappropriate behavior, and after Sun Yangs protest, taking no such measures as expelling the DCA from the scene and making sure to Sun that the DCA would have no chance of interfering with the following process of blood testing. Under such circumstances, is blood collection still unrelated to urine collection?

Is there enough consideration given to human rights

ISTI provides:the International Standardfor Testingand Investigations has been drafted giving due consideration to the principles of respect for human rights, proportionality, and other applicable legal principles. It shall be interpreted and applied in that light.It is doubtful that the Panel has given enough consideration to the principles of respect for human rights, proportionality, and other applicable legal principles in the Award.After all, the DCA violated Sun Yangs privacy by taking pictures without his consent. And it is also reasonable to define his behavior as abuse of power authorized by Sample Collection Authority. The principle of human rights should precisely play an important role on this issue.

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