The Extra-Cover Blog
CAS 2019/A/6148 WADA v. SUN YANG & FÉDÉRATION INTERNATIONALEDE NATATION-(CASE SUMMARY:PART 2)
This two-part blog piece has been authored by Mr Chirayato Banerjee.
Chirayato is a Civil Judge working in the Indian judiciary after securing an overall 2nd rank in 2016. He has previously worked as an Associate at Amarchand Mangaldas in the Project Finance team. In excess to this, he has also previously worked in the Marketing and Legal team at Rainmaker. He is an avid follower of Sports Law, with a keen interest in and around the footballing world.
SUBMISSIONS AND FINAL DECISION
With respect to the jurisdiction, the Panel referred to the articles of the CAS Code and the FINA DC. Further down the line, it dismissed the plea of the respondents. It was concluded that even if the objections regarding the limitation period and the conflict of interest were admitted, it would not affect the jurisdiction of the CAS.
Admissibility of the Appeal
The Athlete argued that since WADA had filed the appeal beyond the stipulated period, the same shall be barred by limitation. It was observed by the Panel inter alia that the respondents delayed in providing the complete brief to the appellant to enable WADA to file its complete written grounds of appeal. However, the Panel found substantial merit in WADA’s contentions, including its assertion of being chief harmonizer with regard to worldwide doping regulations.
The Panel observed:
“....that the wording of Article 13.7.1 §2(a) FINA DC does not leave any doubt in this respect. In accordance with the wording of the WADA Code, this provision provides WADA with a deadline to file an appeal of 21 days after “the last day on which any other party in the case could have appealed” (emphasis added). The Panel finds that the reference to “any other party” is applicable also to FINA and that WADA was, therefore, afforded an additional period of 21 days to appeal after the deadline to appeal for FINA expired. The Panel, in particular, finds the reasoning of WADA compelling, namely that, as the main harmonizer of the WADA Code, it needs to decide which decisions to appeal and that a relevant consideration in this respect could be whether any other party with a right to do so has already filed an appeal. The Panel finds that such function and the rationale of Article 13.2.3 WADA Code and Article 13.7.1 §2(a) FINA DC would be obstructed if FINA were to be granted an identical time limit to appeal as WADA, for in such case WADA would have been required to decide whether to challenge the Appealed Decision without knowing if FINA would do so.”
Therefore, all the anti-doping authorities and federations, including FINA, should accept the special status granted to WADA by the WADA Code. That being said, the additional period of 21 days which are granted to WADA (from the date any party would have been entitled to file an appeal), is not unreasonable and/or unconscionable as to warrant a claim of discrimination and unfairness, echoed by the respondents. At the end of the day, both WADA Code, be it the special limitation period under Article 13.2.3 of the Code in general and the FINA DC have a common aim- to protect the integrity of the sports and to ensure athletes are clean while participating in any tournament.
Conflict of Interest
Further concerning the objection against the counsel representing WADA, the CAS panel found that the burden of proof to establish conflict of interest was too high and only to be applied in a restrictive manner. Neither of the respondents managed to discharge the said burden. They could not exhibit how the past working experience (in the legal committee of FINA) of one of the counsels of WADA could grant any additional benefit or information which could be used in this case against FINA.
Regarding the Grounds of the Case
Finally, after deciding on all the aforesaid technical grounds as raised by the Athlete, the Panel moved on to discuss the merits of the case. In doing so, the Panel held, that primarily two issues are to be decided in this regard:
a. Whether the Athlete committed an anti-doping rule violation? b. If so, then what would be the sentence in that case?
The Athlete’s primary objection was that the entire sample collection process was fraught with irregularities. Consequently, he prayed for the process to be voided. In doing so, he submitted that he was not properly notified by the IDTM team, as they could not produce appropriate authorization for the sample collection process.
However, it was noted;
“....there is a line of consistent CAS jurisprudence to the effect that “the logic of anti-doping tests and the DC Rules demands and expects that, whenever physically, hygienically and morally possible, the sample be provided despite objections by the athlete” (CAS 2005/A/925, para. 75, i.e. the Azevedo case; the same logic being applied in CAS 2012/A/2791, CAS 2013/A/3077, CAS 2013/A/3342, and CAS 2016/A/4631).”
The Panel proceeded to deal with each of these issues distinctly. With regard to the authorization letters, the Panel found, that for each of the DCO, DCA, and the BCA, they were carrying their respective official identity cards. There was indeed no separate specific individual authorization letter from the Testing Authority, but the Panel recounted that as per the extant International Standards and Best Practice Guidelines, the IDTM team, did not require any specific authorization letter from both the Testing Authority (FINA) and the Sample Collection Authority (IDTM). Further, the DCO had already collected samples of the Athlete on previous occasions, and she had not been carrying any such specific authorization letter earlier. Therefore, with this observation, the Panel concluded that there was no deficiency in the notification of the said sample collection process by the IDTM personnel to the Athlete.
Apart from this, the Panel proceeded to analyze if there were any other reasons for the Athlete to object to the impugned Sample Collection Process. Concerning the consequences of the failure to provide samples, the Athlete stated it was never communicated to him by the DCO. Although, after scouring through evidence and depositions, it was found that the DCO had substantively communicated the same to the Athlete and his entourage.
From the judgment, it could be elicited that;
"...The Panel concludes, as a matter of law that it was not for the DCO to decide whether or not there was a failure to comply. Rather, her duty was, pursuant to Article 5.4.3 ISTI and Article A.3.2.a of Annex A to the ISTI, (i) to inform the Athlete of the consequences of a possible failure to comply, (ii) to document the facts in a detailed report, and (iii) to report the circumstances to IDTM. According to Article A.4.2 of Annex 1 to the ISTI, it was ultimately for the Testing Authority (i.e. FINA) to determine whether or not there was a failure to comply...."
However, if at all, some part might not have been relayed, that was due to the hue and cry raised by the Athlete’s team themselves.
Further, the Athlete complained that the DCA clicked unauthorized photographs without his consent. To this, the Panel stated, that this act, did not in any way jeopardize the integrity of the sample collection process. The correct course of action for the Athlete should have been to provide the samples and then later raise objections to the procedural inadequacies if any. Further, the Panel also noted that the Athlete had a forceful personality (which is noted throughout the hearing as well) and therefore it was not on the suggestion of the DCO that he went ahead and broke the external containers. But it was mostly, on the active encouragement of his support staff, (doctors and his mother) that he destroyed the blood samples. Hence, there were no compelling reasons which led him to object to the sample collection process.
Now, the Panel proceeded to attribute intent to constitute the offense of ‘tampering’ as per Art 2.5 of FINA DC. In doing so, the Panel relied upon the actions of the Athlete, (breaking the glass container and tearing up the Doping Control form) with the intention of not allowing the DCO to leave the premises with the blood samples. The Athlete was of international level and had been subjected to such sample collection processes previously. Therefore, the entire saga of the night could lead to one possible inference. That night there had been lengthy arguments and debates, and after that, the Athlete destroyed the containers. This is the explicit manifestation of the intent behind the Athlete tampering or destroying the sample collection containers. Thus, the offense of tampering was established by the Panel.
Having done so, the Panel proceeded to determine the sentence period. At the outset, there was no question of any negligence or no-fault situation as intent had been proved. Therefore, there was no mitigating factor to reduce the sentence. The Panel found it was a repeat offense as per the evidence and thus handed out the maximum period of ineligibility of 8 years.
IMPLICATIONS OF THE JUDGMENT
It must have been a tough sentence to reconcile with for the 28-year old Athlete. A ban of 8 years in effect, meant it was a life ban for the Chinese swimmer. However, as much as we may feel pity for the individual, a recap of the entire episode would insinuate that he was to be blamed majorly, if not entirely, for this fiasco.
The most significant aspect of this hearing was that it was the second public CAS hearing after B v. FINA and first after the CAS amendments following the Pechstein case. It was at the parties’ request that such a hearing was arranged. The testimony of the Athlete was almost lost in translation and was marred by interjections owing to discrepancies in the entire translation process. As it is elucidated here, the Judges of the Panel were visibly agitated by the lack of respect for the procedure on behalf of the Athlete. Further, the translation process was bizarre with the Athlete randomly choosing an individual from the audience to translate for him in order “to make sure his words had been captured accurately.” This apparent lack of regard for the CAS procedures on behalf of the Athlete did not bode well for him.
The theme which continues to run throughout the actions of the Athlete and his team was impunity. The palpable disregard for the process exhibited by Respondent 1 in his pleadings, submissions, and other objections was highly untoward. The Panel noted the personality trait of the swimmer during the proceedings as well and that was eventually noted in the judgment. Repeated applications were made by WADA to prohibit the Athlete from intimidating or contacting the witnesses in any manner. As was apparent, such contact happened on many occasions, leading to a massive loss of time as the Panel grappled with the issue of witnesses refusing to depose before the same. These aspects could have led to the presumption of lack of innocence which ultimately proved fatal vis-a-vis the sentence of the Athlete.
The establishment of the intent was the only factor left after the Panel successfully went on to discredit and dismiss the other defenses of the Athlete. The process of subverting the doping control was established owing to the actions of the Athlete remaining largely unchallenged and therefore substantially proved. The Athlete intended to attribute the motive behind those acts as being guided by the instructions received from his medical team and also the suggestions from the DCO. However, the Panel took into account the antecedents, to attribute the correct motive for the actions of the Athlete. The Athlete was an established international athlete and he had already been subjected to a few tests before. Therefore, it was ludicrous to assume that the Athlete was unaware of the consequence or the implications of his actions. Further, it was also proved that the DCO had in the best possible manner tried to communicate the consequences of his actions to the Athlete. But the unwavering opposition to the same, and the presumption of righteousness led to such outrageous disregard by the Athlete. The public image of the athlete has already undergone a sea change after his fans disbanded his support group.
The dilatory antics coupled with the otherwise blatant contemptuous conduct put the Athlete in dire straits. As has been previously mentioned, the conduct of the swimmer reeked of an unconscionable attempt to delay the hearing. The Athlete was aware of the impending Tokyo Olympics, and thus was trying to postpone the final decision until the conclusion of the said event. In the end, the Athlete fought tooth and nail to save his skin, but his conduct, starting from the night of the event, led to this bitter fate. The recourse is always there, but on the points of the law, coupled with the CAS decision, it is going to be an extremely difficult task to reduce the sentence in any manner. Regarding the appeal from this decision, there are only limited grounds for doing so. But with the Tokyo Olympics shelved for this year, it probably gives the Athlete a little shot in the arm to prepare more mindfully, for the future course of any further appeal from this decision.
[For reading the Part 1 of this blog-piece, Click Here!]
The author can be reached for comments on his email at firstname.lastname@example.org
Cite as: Chirayato B., CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation (Part 2), Extra-Cover, The Sports Law Blog of India (6th Apr 2020), Accessed at https://www.extra-cover.org/post/cas-2019-a-6148-wada-v-sun-yang-f%C3%A9d%C3%A9ration-internationalede-natation-case-summary-part-2 [Date of Access].
End-Notes  Arbitration CAS 98/211 B. / Fédération Internationale de Natation (FINA), award of 7 June 1999.