[WORLD ANTI-DOPING AGENCY V/ MR SUN YANG AND FEDERATION INTERNATIONALE DE NATATION (WORLD AQUATICS)]

[DOPING - SWIMMING - EVIDENCE - DESTRUCTION - COURT OF ARBITRATION FOR SPORT - SWISS FEDERAL TRIBUNAL]

Mr SUN Yang is an international-level Chinese swimmer.

During the night of 4 September 2018, Mr SUN Yang was subject to an out-of-competition doping control ordered by the testing authority Fédération Internationale de Natation (‘FINA’). The sample collection authority International Doping Tests and Management (‘IDTM’), delegated by the World Anti-Doping Agency (‘WADA’), collected the urine and blood samples. Specifically, between 22:00 and 23:00 on the evening of 4 September 2018, three sample collection personnel:

- a Doping Control Officer (DCO) ;

- a Blood Collection Officer (BCA); and

- a male Chaperone (DCA)

went to Mr Sun's home in China, accompanied by a fourth person (the wife of the DCA) who did not take part in the doping control.

At Mr Sun's request, these personnel provided their credentials:

- The DCO presented a copy of her ID card issued by IDTM and a FINA document for IDTM entitled ‘Letter of Authority’ signed by the FINA Executive Director.

- The BCA presented a copy of her Junior Nurse Certificate, entitled ‘Specialized Technical Qualification Certificate for Junior Nurses’ (“STQCJN”).

- The DCA presented his national identity card.

The blood samples were collected and placed in glass containers, sealed and kept in a refrigerated storage box.

Shortly afterwards, the athlete questioned the accreditation of the DCA appointed by the DCO.

- The DCA and the BCA had signed documents drawn up by IDTM on training and confidentiality.

- The DCO was not in possession of these documents, as they were kept in IDTM's files.

In response to Mr Sun's questions, the head of the Chinese national swimming team indicated that the accreditations of the personnel taking the samples did not meet the necessary requirements.

The conduct of the DCA (in particular the taking of contentious photographs by telephone, which have now been deleted) was also called into question. The DCA was excluded from the control mission and no urine sample could be collected, as the DCA was the only male member of the sampling team.

At around one o'clock in the morning, Mr Sun's personal doctor joined him on site and found that the BCA did not have the necessary accreditations either. Together with his colleague, who was consulted by telephone, they decided that the blood samples taken could not be taken by the DCO.

The DCO suggested that the blood samples taken should be sent to the WADA-accredited laboratory in Beijing until the problem relating to the accreditation of the personnel taking the samples had been resolved.

Mr SUN and his personal doctor stated that they intended to break the blood container in order to recover the blood samples.

The DCO then testified that a security guard broke one of the sealed blood collection vessels using a hammer, with Mr Sun assisting him in this task by projecting light using his mobile phone. Mr SUN also tore up the doping control form that he had previously signed.

Mr SUN's personal doctor transcribed Mr SUN's comments on the doping control in a handwritten note, which was signed by the DCO, the BCA, the DCA, Mr SUN and his personal doctor.

The testing process was completed shortly after 3:00 am. The abandoned samples were collected by Mr SUN's mother. The IDTM team left with their equipment. Mr Sun's personal doctor kept the second vial of the blood sample.

No sample could be analysed at the end of the test.

On 3 January 2019, the FINA Anti-Doping Commission issued a decision acquitting Mr SUN. The doping control was declared invalid, in particular for reasons of procedural issues (in particular insufficient evidence on the qualification of the control officers, the inappropriate behaviour of the DCA in taking photographs of the athlete and the irregular athlete notification process).

On 7 January 2019, FINA's decision of 3 January 2019 was notified to the Chinese Anti-Doping Agency (CHINADA).

On 14 February 2019, WADA lodged an appeal with the Court of Arbitration for Sport (‘CAS’) against Mr SUN.

On 18 February 2019, the appeal application was amended to join FINA to the proceedings.

On 15 November 2019, the hearing took place at a public hearing in Montreux, Switzerland.

On 28 February 2020, CAS annulled FINA's decision of 3 January 2019. Mr SUN was sanctioned with a period of suspension of 8 years (aggravating factor in the event of a repeat offence: existence of a previous doping offence in 2014) (CAS 2019/A/6148) as well as a cancellation of the results obtained in competition between 4 September 2018 and 28 February 2020.

"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."

(§17, CAS 2019/A/6148 ; Articles 5.3.3, 5.4.1 (b) et 5.4.2 (b) du Standard internationale pour les essais et les enquêtes (« ISTI »))

On 28 April 2020, Mr SUN lodged an appeal in civil matters with the Federal Tribunal seeking to have the arbitration award of 28 February 2020 set aside (4A_192/2020).

On 15 June 2020, Mr SUN also filed an application for review of the award of 28 February 2020, challenging the partiality of the presiding arbitrator (4A_318/2020).

On 22 December 2020, the Federal Tribunal accepted the challenge and set aside the award.

On 28 December 2020, the CAS ordered that the proceedings be reopened.

On 30 December 2020, Mr SUN submitted to the International Council for the Arbitration of Sport (ICAS) challenge requests against the two arbitrators who had sat alongside the President of the Panel whose challenge had been ordered by the Federal Court.

The two arbitrators in question resigned on 20 and 21 January 2021.

By order dated 22 February 2021, Case 4A_192/2020 was removed from the docket as the appeal had become moot.

A hearing was held by videoconference from 25 to 27 May 2021.

In its award of 22 June 2021, the Court of Arbitration for Sport :

- Annulled the decision of 3 January 2019 by the International Swimming Federation;

- Sanctioned Mr SUN with a period of suspension of 4 years (infringement) and 3 months (repeat offence), with effect from 28 February 2020;

- Decided that the cancellation of the results obtained by the athlete between 4 September 2018 and the start of the period of ineligibility was not justified.

(CAS 2019/A/6148)

In particular, it was ruled that :

- The ISTI rules only require the identification of the person in charge of notifying the test and not that of the other members of the sample-taking staff. Thus, only the DCO had to provide additional identification, since it was the DCO who notified the doping control. The DCO is the guarantor of both the identity and the qualifications of the other sample collection personnel.

- The presentation of a letter of authorisation issued by the control authority (such as the IDTM) is sufficient to confer competence on the sample collection personnel to carry out the doping control.

- It has not been established that Chinese law would prohibit the use of a nurse, outside certain defined geographical areas, to take a blood sample for anti-doping purposes. The nurse in this case had been instructed and trained by the DCO to be able to act as an ACO, and had all the medical qualifications required to perform her duties. In particular, she had a STQCJN and a PNC.

- The DCA appears to have been recruited at the last minute with minimal instruction and training. She was quickly excluded from sample collection. Nevertheless, the DCA's role during a doping control remains basic, since it consists solely of supervising the athlete during the collection of urine samples, in order to ensure that there is no manipulation. The training required must be assessed in the light of the task entrusted to the DCA. Watching a person urinate does not require extensive training. Even relatively brief training by a DCO may be sufficient to enable the DCA to carry out his mission.

- The fact of taking photographs of an athlete, without his consent, is inappropriate and unprofessional behaviour, justifying the exclusion of the DCA from the procedure and the abandonment of the taking of urine samples. Mr SUN cannot be accused of having failed in his obligation to provide urine samples and of having infringed the anti-doping rules in this respect. This being the case, the DCA cannot be held responsible for the failure to collect blood samples.

- A professional athlete is presumed to be familiar with the doping control process, the consequences of obstructing testing and the severity of the sanction for an anti-doping rule violation. An experienced athlete should exercise extreme caution when challenging the validity of a sample collection. An athlete may make written comments or criticisms about the conduct of a doping control and subsequently contact the testing authority. The doping control in question was certainly not free of all irregularities; however, it was not so obviously flawed that the athlete's dramatic behaviour could be validly justified.

- Mr SUN violated Articles 2.3 and 2.5 of the FINA Anti-Doping Rules when he refused to allow the DCO to take the blood samples.

On 23 August 2021, Mr SUN lodged an appeal in civil matters with the Swiss Federal Tribunal, seeking to have the CAS award of 22 June 2021 set aside. His application is based in particular on the failure to comply with the time limit for appealing to the CAS, the violation of his right to be heard, and the infringement of substantive public policy and the right to an effective remedy.

On 14 February 2022, the Federal Court dismissed the appeal.

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