Sun Yang CAS Report In Full: Athlete Actions “Wholly Inappropriate”, IDTM Testing Team Exonerated
The IDTM testing team put through a mangle by Sun Yang, his entourage and FINA “complied with all applicable notification requirements”, three senior Court of Arbitration for Sport judges conclude in their damning 78-page report into a hearing that ended with the Chinese controversy being handed an eight-year ban that effectively ends his career.
- Sun Yang actions unjustified and “wholly inappropriate” as CAS rule that the anti-doping testing team complied with the World Anti-Doping Agency’s International Standards for Testing and Investigations – The case – CAS 2019/A/6148
No Remorse From Sun – But Testers Felt Fearful
The Judges at CAS, which today published its full report into the World Anti-Doing Agency’s (WADA) highlight Sun Yang’s lack of regret in this extract from their judgement:
“It was striking that, in the course of his testimony, at no point did the Athlete express any regret as to his actions, or indicate that, with the benefit of hindsight, it might have been preferable for him to have acted differently. Rather, as the proceedings unfolded, he dug his heels in and, eventually, sought to blame others for the manifest failings that occurred. At no point … did he confront the possibility that he might have overreacted in his actions.”
At the CAS hearing last November, WADA Counsel Richard Young spoke of concerns over “intimidation” of witnesses. In its full report it notes (the numbers the points as they fall in the report):
Separately, in response to WADA’s assertions (as set out in his Appeal Brief), the Athlete denied that he was responsible for any threats of intimidation against witnesses in this procedure. The Athlete, however, confirmed that his mother (Ms Ming Yang) had approached the BCA and the DCA in order to “gather information about the case and seek assistance from them”, but that she never sought to intimidate and/or threaten them.
On 24 June 2019, WADA requested an order from the Panel “prohibiting further contact, direct or indirect, by the Respondents and their counsel and family members and agents with the sample collection personnel who are material witnesses in this case”. WADA provided witness statements from the DCO and the BCA, indicating that they had been contacted by the Athlete’s entourage and were
“concerned for their physical and economic well-being, and for the well-being of their family members”.
They indicated to be
“fearful that, if they would agree to testify in this proceeding, they would suffer significant retaliation in some form from the [Athlete] and/or his entourage and supporters”.
WADA further indicated that without such order there would be little or no chance that IDTM’s Sample Collection Personnel would be willing to testify.
Almost Nothing Under The Sun Banner Was Accepted By CAS
The CAS challenge to a FINA Doping Panel decision to let Sun off with a caution but impose no penalty after his latest brush with the WADA Code, delivered a body blow to both Sun Yang and FINA after pondering all the evidence put before it at a hearing in Montreux on November 15 last year.
The Panel of Judges deliberated on events surrounding an acrimonious testing mission to the swimmer’s house in Zhejiang Province in September 2018 that ended with no urine sample being supplied and a blood sample that was submitted and signed off for testing taken back from the chain of custody and smashed with a hammer before a four-hour argument through the night came to an end.
President of the CAS Panel, the Hon. Franco Frattini (Judge, Rome, Italy) and arbitrators Romano F. Subiotto Q.C. (Avocat, Brussels, Belgium, and Solicitor-Advocate, London, Great Britain) and Prof. Philippe Sands Q.C. (Barrister, London, Great Britain) concluded:
“The actions of the Athlete were wholly inappropriate. There was no justification, whether compelling or otherwise, for him to act as he did.”
The FINA Doping Panel also came in for criticism, the CAS judges noting:
“The FINA Doping Panel never examined the tampering issue because it found that the BCA failed to provide proper documentation proving her authority from IDTM, and thus the blood collection session was “invalid and void”. The FINA Doping Panel erred in two respects.
First, the ISTI does not require the DCA or BCA to provide separate documentation of their authority where, as here, the DCO (not the DCA) made the initial contact with the Athlete, carried out the notification process and provided the documentation required by Articles 5.4.2 and 5.3.3. […]
Second, even if the FINA Doping Panel’s analysis were correct in the abstract, it does not support the conclusion that the Athlete did not violate FINA DC 2.5 here. In this case, the Athlete provided blood samples without objection and signed the Doping Control Form as having been notified. As soon as the samples were collected, they were owned by FINA, as the Testing Authority, under Article 10.1 of the ISTI (“Samples collectedfrom an Athlete are owned by the Testing Authority for the Sample Collection Session in question.”).”
- A Swiss francs 15,000 contribution to WADA’s costs is required by FINA and Sun Yang, beyond which all parties, including the CAS, will cover their own costs of the case.
Arguments put by Sun Yang – who, says the Panel “merely argued that any period of ineligibility would infringe his personality rights under Swiss law” – and his entourage that the testing officers working for the IDTM testing agency as part of FINA’s out-of-competition anti-doping testing program did not have adequate proof of identity and authentication papers with them on the night of September 4, 2018 were accepted by a FINA Doping Panel – but not the CAS judges, who concluded:
“The Panel finds that IDTM’s Sample Collection Personnel complied with all applicable notification requirements as set out in the ISTI.
Moreover, the Panel notes that, following the initial notification, i.e. before the controversy as to the taking of pictures by the DCA (Doping Control Assistant, the man present to observe Sun produce a urine sample, in this case) arose, the Athlete signed the Doping Control Form. This is significant, given Article 5.4.3 ISTI, which provides:
“The Chaperone/DCO shall have the Athlete sign an appropriate form to acknowledge and accept the notification. If the Athlete refuses to sign that he/she has been notified, or evades the notification, the Chaperone/DCO shall, if possible, inform the Athlete of the Consequences of refusing or failing to comply, and the Chaperone (if not the DCO) shall immediately report all relevant facts to the DCO. When possible the DCO shall continue to collect a Sample. The DCO shall document the facts in a detailed report and report the circumstances to the Testing Authority. The Testing Authority shall follow the steps prescribed in Annex A – Investigating a Possible Failure to Comply.”
By signing the Doping Control Form the Athlete in effect acknowledged and accepted that he had been duly and properly notified. It was only later that he revisited his initial acceptance and tore up the signed Doping Control Form. The Panel concludes that this confirms its view that up to that point the notification process, and the documentation shown to the Athlete, was treated as correct.
Key extracts from The CAS Report
How Sun Yang Eight-Year Ban Is Calculated
After concluding that a four-year penalty was the correct one in a case of tampering, the CAS Panel of judges explains how the eight-year ban imposed on Sun Yang was arrived at, namely through “Article 10.7.1 FINA DC”, the rule proving for a double whammy for the athlete who has previously tested positive for doping, which Sun had done, back in 2014:
“For an Athlete or other Person’s second anti-doping rule violation, the period of Ineligibility shall be the greater of:
- (a) six months;
- (b) one-half of the period of Ineligibility imposed for the first anti-dopingrule violation without taking into account any reduction under DC 10.6;
- (c) two times the period of Ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were a first violation, withouttaking into account any reduction under DC 10.6.”
No Exceptions Allowed
The Panel notes that “That provision [above] allows for no flexibility or exceptions.” It then explains:
- The Panel notes that an eight-year period of ineligibility does seem harsh. That said, the violation committed by the Athlete is, in the view of the Panel, all the more serious because following his first anti-doping rule violation, the Athlete should have been even more careful in seeking to avoid a second anti-doping rule violation.
- The Panel is bound to apply the rules as they have been written. These appear to be intended to give rise to an overriding public interest in maintaining a level playing field among competitors. The sports movement appears to have decided that it must be strict with athletes in respect of anti-doping rule violations, in particular with those who intentionally commit anti-doping rule violations or are repeat offenders. Regrettably, the Athlete falls into both categories. The Panel finds that the infringement of the Athlete’s personality rights, in particular the imposition of an eight-year period of ineligibility, is justified in the matter at hand.
- Consequently, the Panel concludes that it has no discretion in the matter, such that an eight-year period of ineligibility is to be imposed on the Athlete.
Sun Yang – Key Arguments All Rejected
- … the Athlete invokes the following circumstances: (i) the DCA surreptitiously took pictures and videos of him; (ii) he was advised by his support staff that IDTM’s Sample Collection Personnel did not have proper accreditation documents showing that they had the authority to conduct a test on him; (iii) he requested the test to be continued with properly accredited doping officers, but such request was denied without valid reason; (iv) the DCO induced him to take the blood out of the container; (v) the DCO never warned him about the possible adverse legal consequences; and (vi) the DCO decided to discontinue the test in view of the lack of accreditation (and authorisation) of the doping officers.
- For the reasons set out above, which the Panel will not here repeat, it concludes that none of these circumstances have been established as justifying the cations taken. The Panel finds no merit in this argument, which is not supported by the evidence before it or the legal principles that are applicable.
What the CAS Panel Concluded About The Testing Team members:
The testing team of three people is not named in the report, confidentiality afforded to testing officers. All three people were interviewed by investigators and judges in China and did not appear at the public hearing in Montreux.
Doping Control Officer (DCO, the key officer in charge of the mission):
“… the Panel finds that the DCO complied with the ISTI identification requirements, that she was properly accredited and authorised to act.”
On whether the DCO gave Sun Yang adequate warning that his actions might result in a WADA-Code violation:
- The Panel accepts the reasoning in the Troicki case, and it notes the testimonies of the Athlete, his mother and Dr Ba Zhen, to the effect that the DCO did not warn the Athlete of possible legal consequences. However, on the basis of the evidence before it the Panel concludes that the DCO repeatedly warned, or at least attempted to warn, the Athlete about the consequences of a failure to comply with the blood sample collection process. This factual conclusion was also reached by the FINA Doping Panel:“It is abundantly clear that the DCO tried constantly to explain why the complaints and deficiencies raised by the Athlete were not valid, in her view.” …
- The Panel agrees with the FINA Doping Panel that such warning may well have been lost in the noise of the events. However, and contrary to the conclusions of the FINA Doping Panel, the Panel concludes that if this happened it was due to the actions of the Athlete, and was his responsibility.
Doping Control Assistant (DCA, the urine observer): the CAS Panel notes the conflict between the signing by the DCA of notifications agreeing that he had received proper training for his role and was authorised to serve in the capacity of a DCA and a statement made seven months after the events of September 2018, beyond the exclusive report of this author that broke the story in The Sunday Times and revealed the details of a case heard in secret by a FINA Doping Panel.
By the time the DCA gave a statement suggesting he had had no training, was just a builder and had agreed to drive the DCO, a friend, to the Sun Yang testing mission, the world was aware of what had come to pass and aware that WADA was challenging the FINA decision at the Court of Arbitration for Sport. WADA counsel referred to concerns over the intimidation of the witnesses/testers. Taking into account all arguments, say the CAS judges:
The Panel notes the conflict between the two statements. The Panel considers the earlier document, the “Statement of Confidentiality”, to be the more reliable, since it was prepared seven months before the events of 4 September. It confirms that the DCA received proper training from the DCO. The mere fact that the DCA may be a construction worker in his daily life does not make this any different. The Panel does not find it inconceivable that Chaperones ordinarily have day-to-day jobs unrelated to anti- doping and only perform the role of Chaperone on a part-time basis. It is perfectly feasible that, for example, a construction worker performs the occasional role of Chaperone.
After further deliberation, the judges noted:
“The Panel concludes that the DCA complied with the identification requirements under the ISTI. He was duly accredited and authorised to be involved in collecting samples from the Athlete.”
The Blood Collection Assistant (BCA, a trained nurse):
The key argument of Sun and entourage was that the BCA (actually BCO in the WADA Code, O standing for Officer) was that the blood nurse did not have the required authorisation to take blood in Zhejiang Province, her licence applying to Shanghai. This domestic nuance was not proven as valid at the CAS hearing, the judges concluded, noting:
Insofar as the Athlete argued during the hearing that the BCA’s PNC was only valid in Shanghai, China, but not in Hangzhou, China (where the events of 4 September 2018 took place), the Panel finds that this was not sufficiently corroborated by material evidence. In any event, there is no evidence on file suggesting that such alleged procedural flaw was ever raised or addressed on the night of 4-5 September 2018, or that this was, at the time, considered to be a reason for the Athlete to stop the sample collection session. Rather, the Panel considers this to be an ex post facto argument that has a formal quality, but which cannot be said at the time, or subsequently, to impact the drawing of blood.
“The Panel finds that IDTM’s Sample Collection Personnel complied with all applicable notification requirements as set out in the ISTI.”
On The Blood Sample Smashed With A Hammer:
The Panel notes:
On the basis of the evidence before it, the Panel finds that the most likely scenario is that the Athlete and his entourage broke the container with the purpose of removing the blood vessel so that the DCO could leave with the broken container, allowing the Athlete and his entourage to keep the blood sample. The Panel finds it difficult to understand why the broken container would have to be given back to the DCO, but not the blood vessel. It would have been more logical if the blood would have been taken from the blood vessel and that all broken equipment would be handed back to the DCO. This, however, did not happen. Be that as it may, the Panel finds that by causing the container to be broken, the Athlete prevented the DCO from taking away collected and sealed blood samples, for the purposes of testing. By breaking the glass container, the integrity of the samples was violated.
332. The Panel considers that it is not relevant that the samples remain in the custody of Dr Ba Zhen: the chain of custody having been broken, the samples can no longer be validly tested.
333. For all these reasons, the Panel concludes that the Athlete failed to establish that the DCO aborted the sample collection session, or that it was her suggestion to take and destroy the blood samples.
334. The Panel further concludes that the Athlete’s subsidiary reasoning, that the blood collected from the Athlete was mere medical waste, because of the DCO’s alleged failure to warn the Athlete about the consequences in accordance with the IST, and the DCO’s alleged decision to discontinue the test, is also to be dismissed.
335. With reference to the tests mentioned in the Azevedo and Troicki cases, the Panel finds that, on any reasonable and objective basis, the situation faced by the Athlete did not amount to a compelling justification to allow him to take the steps he did to prevent the DCO from leaving his home with the blood samples had provided.
336. For the reasons set out, the Panel has concluded that the Athlete failed to establish that he had a compelling justification to act as he did and forego the Doping Control. It follows that necessary elements of a tampering violation under Athlete 2.5 FINA DC are established.
The Panel then goes on to explain the “one final aspect to be addressed, namely the question of whether the requisite element of intent is present.” Explanations and precedent aplenty are followed by this conclusion:
“… the Panel has no hesitation in concluding, to its comfortable satisfaction, that the Athlete violated Article 2.5 FINA DC [tampering].”
Where FINA & Doping Panel Argument On Sun Yang Went Down In Flames
The CAS Panel of judges rejected the key arguments and conclusions of the FINA Doping Panel after what the CAS Panel described as “an extraordinary twelve-hour hearing which took place on 19 November 2018”. It also rejected FINA’s backing of the Doping Panel’s arguments and conclusions. Here is what CAS rejected:
- In the case at hand, the FINA Doping Panel has conducted a remarkable and comprehensive analysis of factual and legal issues at stake and issued a decision which, in FINA’s opinion, cannot be seriously criticized. Indeed, although the behavior of the Athlete and his entourage in the course of the doping control which took place on 4 September 2019 may have been more measured in some respects, the serious violations by the doping control team of the applicable formal requirements in the context of an out-of- competition doping control shall necessarily lead to the invalidity of the latter.
- Having conducted an in-depth analysis of the applicable regulations, in particular [the ISTI], and the facts of the case, the FINA Doping Panel held that two out of the three of the members of the testing team who present themselves to test the Athlete on the evening of 4 September 2018 did not have proper accreditation from the sample collection authority and that, therefore, the Athlete had not been notified in accordance with the applicable rules and that the sample collection session was null and void. In these circumstances, the FINA Doping Panel concluded that the Athlete did not commit any anti-doping rule violation, in particular of Articles 2.3 and 2.5 of the [FINA DC].
- FINA entirely supports the FINA Doping Panel’s analysis and conclusions. FINA will not restate each and every argument made by the FINA Doping Panel and respectfully refers the Panel to the latter. FINA will focus its attention on the main elements of the Appealed Decision and complete the latter, where necessary, in the light of the – contested – arguments developed by WADA in its Appeal Brief.”
The CAS Panel also disagreed with the FINA Doping Panel on the FINA panel’s judgment that the DCO had not provided Sun Yang with sufficient warning that he could be at risk of a WADA Code violation:
- The testimonies of the DCO and the BCA are further corroborated by the testimony of Mr Popa. He explained that he was frequently on the telephone with the DCO on the evening of 4 September 2018, and testified that he actually heard the DCO warn the Athlete as to consequences while he was on the phone with her.
- In this regard, and on the basis of the evidence before it, including the witness testimony, the Panel is unable to share the view expressed by the FINA Doping Panel at para. 6.52 of the Appealed Decision:“[…] The ISTI is clear in Annex A 3.3.a) that the DCO must tell the Athlete, in a language that he can understand, the consequences of a possible Failure to Comply. Explaining the risks that certain conduct might lead to a violation is not sufficient. The DCO must go further and clearly articulate that she is treating the Athlete’s conduct as a Failure to Comply and that the following consequences will apply.This critical message to the Athlete regarding the consequences of his conduct, while attempted many times by the DCO, never got through. […]There was no clarifying and crystalizing moment (a metaphorical “bang”) ensuring that the Athlete clearly knew, in the face of the identified conduct, that his conduct was being treated by the DCO as a Failure to Comply and that serious consequences would apply.”
- 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. Pursuant 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.
- Consequently, the Panel finds that the DCO duly informed the Athlete about the consequences of a failure to comply.
On ‘Lost In Translation’ Claims Of Sun Yang
The CAS Panel notes in its report how Sun’s testimony to the FINA Doping Panel was substantially identical and that therefore any ‘lost in translation’ claims after translation problems at the CAS hearing in Montreux were far less significant than they might have been:
“Following the conclusion of the hearing, and with the agreement of the Parties, the examination of the Athlete (which had been recorded) was submitted to an independent translation service, which transcribed and translated his testimony during the hearing. In this respect, the Panel is comforted by the fact that the Athlete’s testimony before the Panel was virtually the same as before the FINA Doping Panel. In other words, and most importantly, despite the poor translation in the course of the hearing, the Athlete’s testimony has been correctly translated and fully considered and understood in this procedure.”
How The WADA Case Was Won
Here is the part of the CAS report that sets out where WADA won its arguments and why:
The Athlete’s personal doctor (Dr. Ba Zhen, who had previously committed an anti-doping rule violation by giving a prohibited substance to the Athlete, and then had breached his period of ineligibility by continuing to serve as an Athlete Support Person for the Athlete) arrived on the scene and, in his own words,
“I told [the DCO] that she could not take the blood samples away”
“I reiterated our position that the blood samples could not be taken away.”
The Athlete’s mother recalls that Dr. Ba “strongly opposed” the IDTM team’s “taking away the blood samples” and that yet another member of the Athlete’s entourage, Dr. Han Zhaoqi,
“made it clear that [the BCA] could not take blood samples away.”
➢ Thus, even before taking a hammer to the blood container, the Athlete and his support team had interfered with and obstructed the DCO’s performance of her doping control duties.
➢ The Athlete’s egregious behavior during the sample collection process – including his failing and refusing to provide a urine sample, his preventing the DCO from taking away his blood sample, his breaking the blood sample container and his ripping up the Doping Control Form that he had signed – violates the Code as incorporated in FINA’s Doping Control Rules. The Athlete’s contention that the DCA and BCA failed to provide adequate documentation does not constitute a valid defense under the Code, nor can the Athlete justify his conduct by saying he relied on advice from his entourage.”
➢ On this basis it is submitted that the Athlete committed a violation of Article 2.5 FINA DC (Tampering or Attempted Tampering with Any Part of Doping Control) by: i) refusing to allow the DCO to remove the blood samples after collection; ii) breaking or assisting in breaking one of the blood sample containers; iii) refusing, when requested by the DCO, to return the damaged container and the undamaged container with the blood samples; iv) urinating without a chaperone or authorisation from the DCO; v) destroying the Doping Control Form containing the Athlete’s signature acknowledging notification for collection of the blood samples; vi) withdrawing his consent to the collection of his blood samples after his personal doctor arrived at the sample collection.
➢ “The FINA Doping Panel never examined the tampering issue because it found that the BCA failed to provide proper documentation proving her authority from IDTM, and thus the blood collection session was “invalid and void”. The FINA Doping Panel erred in two respects.
➢ First, the ISTI does not require the DCA or BCA to provide separate documentation of their authority where, as here, the DCO (not the DCA) made the initial contact with the Athlete, carried out the notification process and provided the documentation required by Articles 5.4.2 and 5.3.3. […]
➢ Second, even if the FINA Doping Panel’s analysis were correct in the abstract, it does not support the conclusion that the Athlete did not violate FINA DC 2.5 here. In this case, the Athlete provided blood samples without objection and signed the Doping Control Form as having been notified. As soon as the samples were collected, they were owned by FINA, as the Testing Authority, under Article 10.1 of the ISTI (“Samples collected from an Athlete are owned by the Testing Authority for the Sample Collection Session in question.”).”
➢ The Athlete also committed a violation of Article 2.3 FINA DC (Evading, Refusing or Failing to Submit to Sample Collection) for the same reasons as set out above.
➢ Article 10.3.1 FINA DC provides that a violation of Article 2.5 FINA DC shall be sanctioned with a four year period of Ineligibility. There is no provision under the FINA DC that provides any basis for the Athlete in this case to argue for any reduction in the four-year period of Ineligibility for Tampering.
➢ Article 10.3.1 FINA DC provides that a violation of Article 2.3 FINA DC shall be four years unless, in the case of failing to submit to Sample Collection, the Athlete can establish that the commission of the anti- doping rule violation was not intentional (as defined in Article 10.2.3) in which case the period of Ineligibility shall be two years. The Athlete’s actions in failing and refusing to provide a urine sample cannot be anything other than intentional conduct. The Athlete can also not establish that the sanction should be reduced based on “No Significant Fault or Negligence” as defined in Article 10.5.2.
➢ In June 2014, the Athlete received a three-month period of Ineligibility for the presence of Trimetazidine in one of his samples. As a result, a violation of Article 2.3 or 2.5 FINA DC in this case would constitute a second violation. In accordance with Article 10.7.1(c) FINA DC, the period of ineligibility to be imposed on the Athlete for the second anti-doping rule violation treated as if it were a first violation, should therefore be multiplied by two.
➢ “In the event this CAS Panel finds that the Athlete committed a violation of FINA DC 2.3 or 2.5, WADA submits that, under FINA DC 10.11, the period of Ineligibility shall start on the date of the CAS Panel’s final decision.”
129. On this basis, WADA submitted the following prayers for relief: “1. The appeal of WADA is admissible.
2. The Decision of the FINA Doping Panel rendered on 3 January 2019 is set aside.
3. Mr. Sun Yang is sanctioned with an appropriate period of Ineligibility based on the Panel’s findings with respect to the anti-doping rule violations charged, starting on the date of the final CAS decision in this matter, as follows:
a. If the Panel finds a Tampering violation under FINA DC 2.5, or a “refusal” or intentional “failing to submit” violation under FINA DC 2.3, an eight (8) year period of Ineligibility;
b. In the alternative, if the Panel finds a “failing to submit” violation under FINA DC 2.3, and finds that the violation was not “intentional” under FINA DC 10.3.1, a four (4) year period of Ineligibility;
c In the further alternative, if the Panel finds a “failing to submit” violation under FINA DC 2.3, and finds that the Athlete established No Significant Fault or Negligence under FINA DC 10.5.2, a period of Ineligibility in the range from a two (2) year period of Ineligibility, at a minimum, to a four (4) year period of Ineligibility, at a maximum.
4. All competitive results obtained by Mr. Sun Yang from 4 September 2018 through the commencement of the applicable period of Ineligibility shall be disqualified with all of the resulting consequences including forfeiture of any medals, points and prizes.
5. Awarding to WADA its arbitration costs and an appropriate contribution towards its legal fees and expenses incurred in connection with the proceedings.”
What the CAS Panel concluded about Sun’s Entourage
The senior figures involved in the argument with the IDTM testing team: Dr Ba Zhen, the Athlete’s medical doctor; Dr Han Zhaoqi, Chief Doctor of the School where Dr Ba Zhen works, and Chief Doctor in Affiliated Sports Hospital of Zhejiang College of Sport; Cheng Hao, Team Leader of the Chinese national swimming team.
In 2014, Dr Ba Zhen was handed a suspension for prescribing a banned substance to Sun Yang. In 2015 he was handed a concurrent second one-year ban for having worked with Sun Yang at the Asian Games at a time when he, the doctor, should have been serving a suspension. At the time, FINA, in reply to a question from this author, said that Dr Ba was not a member of the China team at the Asian Games in Incheon – and so it took no action. When the matter was reported to WADA, a second penalty was imposed under the WADA Code. In the main image in the picture to the right, which Chinese media ran without realising what it was that the image provide, Ba Zhen is wearing an official China Team t-shirt with a 361 official China team sponsor logo on it. It is highly unlikely that he could have travelled and then been accredited to work on deck at the Asian Games without the required official Chinese consents and authorisations.
Here are some key comments from the CAS judges on the three senior figures arguing that three anti-doping testing officers did not have required authorisations (CAS has now ruled that they did):
Dr Ba Zhen, who has previously been served two WADA suspensions, was “evasive” at the hearing in Montreux:
” … the Panel also notes that Dr Ba Zhen testified that he attended many anti-doping control tests of the Athlete, but was unable to recall whether any such tests were performed by IDTM. However, it remained uncontested that 60 out of the 180 anti-doping controls performed on the Athlete between 2012 and 2019 were performed by IDTM. The Panel found Dr Ba Zhen to be evasive in his testimony. That testimony fell well short of corroborating the Athlete’s statement that the documents shown by IDTM’s Sample Collection Personnel on 4 September 2018 were materially different from material presented to him during previous IDTM anti-doping controls.”
Dr Han Zhaoqi
Dr Han Zhaoqi indicated in his written statement that he attended annual training courses provided by CHINADA, which addressed the “legal requirements for doping control testing, including the matters related to accreditation”. Dr Han Zhaoqi may have based his advice as to the documentation required by IDTM’s Sample Collection Personnel on the training received from CHINADA, while this information differed from the mandatory (minimum) requirements set out in the ISTI.
Indeed, the documentation referred to by Dr Han Zhaoqi in his written statement that he considered necessary to be shown finds no basis in the ISTI:
“I would like to add that for DCO, it is required to have 1) accreditation and 2) authorization to conduct the test. And for BCO, in order to validly collect blood, you also need 1) accreditation; and 2) authorization for this specific test. For the urine Chaperone, we need 1) proper training and 2) authorization. Everybody must have a resident ID card.”
234. It is to be noted that during the proceedings before the FINA Doping Panel, Dr Han Zhaoqi indicated in his written statement that everybody must have “an ID card”. In the proceedings before the CAS, however, he changed his statement to a “resident ID card”, i.e. excluding the possibility that reference may have been made to IDTM-issued ID cards. The difference is not considered material by the Panel, as the ISTI does not require any form of ID card being presented by the DCA and BCA, as addressed in more detail below.”
“Cheng Hao referred to CHINADA’s practice in his written statement and that it was CHINADA’s practice “to show DCO certificate of all officers involved and authorization letter […]” and that “[i]t is important for the officers to prove their connection to IDTM and that they are employed by IDTM”. Again, such requirements do not find any basis in the ISTI, but appear to be a protocol implemented by CHINADA that is not binding upon IDTM.”
What the Sun Yang report does not do
Sun’s entourage is not the subject of the case and so it is Sun Yang who is almost entirely in focus and the only character on Team Sun Yang actually being judged for the purpose of penalty or no penalty.
WADA and FINA, however, in light of the damning evidence against Sun’s entourage, particularly Dr Ba Zhen, given his two previous WADA-Code violations, have the power to penalise others in relation to the events of September 2018.
It now remains to be seen if they will.
Among other questions left hanging so far: how could the FINA Doping Panel of three lawyers get it so wrong when it came to calling the case of Sun Yang in the context of the information before it and the career of a controversial athlete with a doping positive already against his name?