Nearly a full year after news of the incident in question broke, the time has finally come for the World Anti-Doping Agency, FINA, and Sun Yang to testify before the Court of Arbitration for Sport in Switzerland regarding the swimmer’s fate in swimming.
While no decision is expected today, or maybe even for weeks, the arbitrators will eventually decide if Sun is deserving of a ban between two and eight years — as WADA argues — or if he’ll escape punishment over his involvement in smashing two vials of his blood in a drug test gone awry last September.
The hearing, which is scheduled to start at 9 a.m. local time and last 11 hours (including breaks) will be live-streamed on CAS’ website. It’s the first public hearing in 20 years, so the last time obviously predated live-stream technology — we don’t know ahead of time exactly what we’ll be able to glean from the stream in regards to language (though it’s expected to be in English), clarity, etc., in order to recap what’s being said.
Sun is scheduled to first appear at 9:15 a.m. local time, with FINA and WADA witnesses to follow.
Some key terms:
- DCO: Doping control officer. They run the whole testing mission.
- DCA: The DCO’s assistant. In this case, a male, intended to witness Sun giving his urine sample.
- BCA: Blood collections assistant. In this case, the nurse who collected Sun’s blood.
8:35 a.m. local time: Sun has arrived.
Sun Yang arrives for hearing in Montreux. pic.twitter.com/LOxeCNKmVU
— Samantha Hawley (@samanthahawley) November 15, 2019
9:00 a.m.: An introductory video — with a dramatic underscore — is playing describing what CAS is, and CAS General Secretary Matthieu Reeb is introducing the case’s background. More than 200 viewers were watching the live stream when it began.
9:06 a.m.: Reeb confirms that anyone speaking Chinese during the hearing will have an English interpreter.
9:10 a.m.: Sun is invited to take the floor. Sun does not have a human interpreter sitting with him — he instead is apparently receiving translation through headphones, which are malfunctioning. His lawyer is reiterating that Sun cannot understand English as he’s being given directives, in English.
9:15 a.m.: The issue has been resolved; Sun can apparently understand now. Sun has filed eight witness statements in the case.
- Sun is explaining why he has requested a public hearing. He says it’s because of the confidential nature of the case — he wants to openly set the record straight.
- Sun was asked to describe his previous three-month doping ban. He says he was training hard for the 200, 400 and 800 free. Because of an issue with his heart, he would faint after some training sessions. He says his doctor prescribed him a banned substance to treat the issue, and it was entirely a mistake that he took it.
- Sun is asked to describe what happened in September 2018 when doping control arrived to test him. Sun reiterates that he recognized the doping control officer from their previous encounter in 2017. Sun’s translator omits that he made a previous complaint about the DCO and his lawyer corrects the record.
- Sun repeats much of what was reported about the night: that the DCA and BCA did not have credentials up to what his camp considered appropriate, but that they realized it after he had already given a blood sample.
- Sun says the DCO told him he could keep the blood samples, but that he had to get it out of the secure blood sample container because she needed to take the equipment with her.
- Sun’s lawyer comments on how poor the translation is.
- Sun describes how he obtained the vials of his blood, saying the DCO was observing the whole time.
This is how the translator interpreted Sun’s description of when he obtained the vials of his blood, which were eventually smashed 🤔 pic.twitter.com/Ny4ulN4KcX
— Torrey Hart (@torreyhart) November 15, 2019
- WADA’s counsel begins to question Sun. They asked him if, after being tested about 200 times, he is really not aware of the legal consequences of failing to provide a sample. “No, I do not. I have never heard of this,” the translator says.
- The translator translated “200 times” as “200 milliliters of blood.”
- “The DCO did not mention any possibility of a consequence,” Sun says, through the translator (who keeps calling the DCO the DOC).
- “If a policeman came to your house in the middle of the night and says, ‘I’m a policeman, but I don’t have any identification,’ how would you behave?” Sun asks.
- “If the DCO had warned you of the possible consequences, would you have let her take your blood?” WADA’s counsel asks. CAS asks that he not ask speculative questions.
- Sun says he never heard back after filing a complaint about the DCO in 2017. Read more about their history here.
- WADA’s counsel is asking why he gave blood before realizing the DCO’s authorization was unsatisfactory. “Because I was following what they expected me to do,” Sun says.
- Sun is asked to clarify whether he or his doctor made the decisions that night. He clarifies that it was his doctor. All involved are somewhat laughing because of how poor the translation is. The CAS arbitrator is pointing out that Sun’s written testimony says he was the one making decisions, but now Sun is saying it was Doctor Ba.
- Sun says the BCA herself tried to open a random secure blood sample before saying that Sun’s camp could try.
- There is an issue with the translation, and Sun is not understanding that he’s being asked about discrepancies between his written and spoken statements.
- Sun says there is video evidence of everything that he wants everyone to see.
10:11 a.m.: FINA’s counsel is told they can ask Sun questions for 10 minutes. They decline the opportunity.
- Sun is presented with the letter the DCO showed him to try to prove her authorization and confirms it does not include his name, or hers.
- A member of the CAS panel asks, again, why Sun initially gave he blood. Sun again says that he initially just wanted to follow directions. Sun says that as his blood was being taken, the DCA started filming and asked for a photo — because they were a fan — leading Sun to question the testers’ credentials.
- Sun has been tested 180 times. The CAS arbitrator makes a joke about how that is a special number for anyone who plays darts. Sun says 180 is such a high number it even surprises him.
- The document in front of Sun says he has been tested by the IDTM 60 times. Sun says he is not familiar with IDTM, because as long as the tester has proper authority, he just does what he’s told to do. The arbitrator asks why this is the only time he objected. Sun says this is the only time he’s objected to the tester’s qualifications, out of 60 encounters.
- The arbitrator asks how many times Dr. Ba has been present for his out-of-competition tests. Sun says “sometimes,” and when pushed for further details, says he cannot recall exactly how often.
10:34 a.m.: Break.
- WADA lawyer Richard Young questions a WADA witness about the uniformity of anti-doping codes, and why practices may differ around the world. The witness says that there does not need to be accreditation for individual testers, and that a general authorization form is sufficient He says the letter Sun Yang saw would be sufficient, and that the letter does not need to name the athlete or DCO.
- Sun’s counsel is questioning the WADA witness, Stuart Kemp.
- Kemp says the athlete’s name is often not included in testing documentation because testing is done is groups. He reiterates that only the DCO needs to be identified.
- FINA’s counsel is now questioning Kemp.
James Sutherland Reporting
- Kemp is questioned over whether a letter of authorization was appropriate.
- Kemp says the letter was appropriate in this situation. He also says photography in a doping situation is not appropriate.
- Tudor Popa, the DCO’s superior at the IDTM, is brought up for questioning.
- Popa says he oversaw the test and helped the officer when they needed assistance. He claims the DCO had administered sample collections in the past.
- Sun’s lawyer asks Popa if the letter of authorization was shown to Sun prior to the test. He confirms it was not. Only a letter of authority was shown.
- Popa claims they’ve conducted “hundreds of tests” without a letter of authorization and just the letter of authority.
- Sun’s lawyer accuses Popa of blindly going off of what the DCO told him, rather than looking at the video evidence. The DCO claimed people were rushing around and bumping into one another around the time test when in reality the video shows it was calm.
- Popa confirms the DCO signed a document indicating the test had been aborted due to improper accreditation.
- FINA begins questioning Popa.
- Popa tells FINA a doping control officer and doping control assistant have different levels of education and authority when administering tests.
- WADA’s Brent Rychener begins questioning Popa.
- Popa confirms he sent an email to the officer when the test had been aborted telling them to notify the athlete that this could be seen as a failure to comply.
- IDTM’s Neal Soderstrom comes in for questioning.
- Soderstrom says FINA never took issue with IDTM’s notification protocol, and that they used the same protocol for approximately 30 other organizations.
- Sun’s lawyer accuses Soderstrom of not having provided a written witness statement prior to coming in for questioning. Soderstrom confirms there’s nothing in the provided documents to suggest what he’s testifying is correct.
- Sun’s lawyer argues Sun should have been shown a particular IDTM document on the night of the test. Soderstrom claims this document is not one that had ever been required with FINA.
Lunch break for approximately 45 minutes.
Braden Keith Reporting
- Sun Yang‘s mother, Ming Yang, who was present on the night in question and is believed to have intervened in the testing, is the next witness. The questioning is about when she warned her son not to go to the bathroom without permission and proposed calling the police.
- Ming Yang seems to be dodging the question of whether she proposed to call police. The arbitrators are repeatedly asking her to confirm parts of her submitted statement, asking Ming Yang to confirm if she called the police, and if Dr. Ba Zen “strongly recommended” that they not allow the DCO to take the sample.
- Ming Yang claims that the DCO asked her to find a solution to take the blood sample out of the containers so that the DCO could take the bottles away. She then says that she went out with a bodyguard to make sure that the samples weren’t damaged. That is the opposite of what wound up happening. She reconfirms their belief that the staff was not qualified and did not have legitimate qualification.
- She says that the DCO was the one who removed the bottles from their box, and that she said it looked like the bottles could be open from the bottom. Ming Yang says that they took this as a hint that the bottles could be opened from the bottom. Ming Yang says that the intention was not to damage the bottles.
- Ming Yang says that her son also tore up the doping control form, which he had signed earlier, which is new information to the public. Ming disputes the DCO’s claim that Sun took the form from some binder and tore it up, instead saying that it was in front of him, and he simply picked it up after the DCO took away the containers.
- A new questioner, and the first shot is why she suggested calling the police. She says that she said she instead said that she was going to call police, not that she did, and that she wishes she had called the police, and that she thinks they wouldn’t be in this scenario if she had.
- In a ‘hot mic’ statement, one of the witnesses says ‘very strong witness,’ with a chuckle, referencing perhaps the force of Ming Yang‘s statements and tone.
- Dr. Han Zhaoqi is called as the next witness. He is the head of the Zheijang Anti-Doping Center, and at the FINA panel said that they would “never know” what happened, and that the paperwork was not appropriate. He is speaking through a translator.
- Everyone has a good laugh – when the panel asks if there are any corrections he wishes to make to his submitted statement, he says that they list his age wrong. The panel says they don’t think that will make-or-break the case, and they move on to testimony.
- Han says that he was called by Dr. Ba Chen around 1AM on September 5th to tell him that there were 3 doping control officers there, and that only the DCO had accreditation documents of the 3.
- Han says that he did not give any immediate advice because doping is a “very serious matter,” and he asked for the phone to be given to the DCO so that he could verify some facts with her. “When I talked to the DCO, I learned from her that she was not in the position to provide the accreditation documentation for the DCA and BCA for the testing that night.”
- He then says he asked if, even without paper accreditation, if the DCO had any electronic accreditation documents for the DCA and BCA on her phone or tablet. “After confirming the absence of valid accreditation of DCA and BCA as well as the absence of a letter of authorization I told Dr. Ba…we can’t refuse a doping control test. However, we could ask the doping control team to show us the required accreditation and authorization documentation, then we would be happy to cooperate.” That last part of his statement seems to contradict the earlier part of his statement.
- Han confirms that he told the DCO that she could not take away the blood samples, and that he was aware that the blood sample had already been provided, and that he didn’t know if the doping control form had been signed that he understood and knew that any refusal to test could be an anti-doping rule violation. The panel confirms that it was, in fact, signed when Han was on the phone.
- Han says that because the DCA did not have accreditation, that in his opinion, it was not a valid doping control sample. He doesn’t say it, but seems to imply that he believes that this mean that even if the form was signed, it wasn’t a valid doping sample. He goes back and forth with the panel over whether the sample must be legally taken before it belongs to the doping authority by people with valid accreditation and authorization.
- WADA’s counsel seems to be building a case to push the blame for the decision on Dr. Han and away from Dr. Ba. The panel then brings up Dr. Ba’s previous anti-doping rules violation in prescribing a prohibited substance for Sun Yang. It’s not clear what the panel’s purpose is with this line of questioning, as it seems that placing the blame on Dr. Ba, who prescribed the medicine in the previous violation, would make the case against Sun stronger. That line of questioning is objected to, because the questions would be better for Dr. Ba, who will testify later.
- WADA’s counsel asks questions to make the point that while every DCO is issued a card to verify their credentials, that it is not required by the ISTI for chaperones. Dr. Han responds that he believes that being qualified is an important part of the process and protects athletes and that without a card, he could not verify the testers credentials, and that he believes that WADA’s standards might address this.
- The panel asks what CHINADA tells athletes to do when they have a problem with the doping collection process. Han says that during training that the athletes are told to receive the doping control person’s accreditation and authorization that informs the athlete as to which organization and what type of sample was to be collected.
- The leader of the Chinese swimming team Hao Cheng is the next witness. He is speaking through a translator as well, but is occasionally answering in English.
- WADA counsel starts with his conversation with the DCO about his instructions to the DCO about what standards should be met for a test. WADA counsel asks him to confirm that the DCO did meet the standard that Hao told the DCO. This is an ongoing theme where WADA counsel says that the DCO had their authorization, and the Chinese witnesses respond that the other 2 were not authorized.
- WADA counsel gets Hao to say that he gave the DCO “friendly advice” to not use the word “refusal,” and that Hao said in his statement that a CHINADA DCO had been fired for using the word “refusal,” but Hao said that’s not what he meant. While WADA counsel says that it’s in his statement, Hao denies that he said this.
Jared Anderson reporting
- Dr. Ba Zen is called as the next witness. He again is speaking through a translator.
- Dr. Ba is asked why he drafted the document detailing what happened on the night in question. Dr. Ba launches into a lengthy retelling of the events of that night – his being called by Sun, going to Sun’s house and asking for accreditation documents. The questioner stops him, noting that all of this information has already been given in written statements, and re-asks his original question: why the document was written. Dr. Ba says he documented things immediately the night of the dispute based on the advice of Dr. Han.
- WADA’s counsel gets Ba to confirm his longstanding relationship with Sun, including how many times Dr. Ba has accompanied Sun on anti-doping tests – Dr. Ba says he’s accompanied Sun many times, though he’s not sure how many of those were administered by IDTM.
- WADA brings up Dr. Ba’s past anti-doping violations and asks if he was the best person to accompany Sun on anti-doping tests.
- The translator is struggling to hear the questions from WADA, leading to several repeats.
- WADA asks if Dr. Ba had ever questioned testers credentials in any of the past doping control tests where he’d been present. Dr. Ba brings up what appears to be the 2017 incident in which Sun questioned the testers but still complied with the doping control test.
- WADA clarifies a few pieces of Dr. Ba’s written testimony – most notably that he told the IDTM agents that the blood sample could not be taken away. The WADA counsel is focusing in on one piece of Sun’s written testimony – that Sun himself picked out the bottle of blood to try to remove his sample. Dr. Ba says in his recollection, the BCA picked out the vial of blood. But a later statement by Sun says Dr. Ba picked out the sample and handed it to the guard. Dr. Ba says the blood vial was already out of the container when the guard arrived, and that Dr. Ba handed him the sample at that point.
- Dr. Ba also says he did prevent the IDTM agents from taking a photo of the broken vial after the incident.
- Asked about his own prior anti-doping violation by the WADA counsel, Dr. Ba asked to explain that case. WADA didn’t allow him to do so during their questioning time, but Dr. Ba was able to give his explanation later on. He called it negligence on his part, saying he didn’t know that trimetazidine had been added to the list of banned substances in 2014.
- Dr. Ba is asked if he considered what the consequences could be if he were wrong to insist that the blood sample not be taken. Dr. Ba says he relied on the advice of Dr. Han.
- Up next is Professor Pei Yang, an expert witness who appears to be here to shed light on some of the qualifications and accreditations for professional nurses.
- He’s asked to explain the difference between three types of nursing certification documents, and asked to reference a news story about nursing fraud. Things get a little contentious between questioners as WADA’s counsel challenges a question as not being included in Professor Pei’s report, but Sun’s counsel fires back that it is included, if the counsel had read it.
- Professor Pei says that if a nurse doesn’t show their PNC (Professional Nursing Certificate), they are not qualified under Chinese law to practice nursing. WADA’s counsel challenges this as an opinion, and Professor Pei agrees, but lays out his rationale for believing this to be the case under Chinese law.
- Professor Pei also says a photocopy of a PNC should not be sufficient – that the original copy is required.
- WADA pushes further, noting that Professor Pei’s report says that not providing the original copy of a PNC could actually be a criminal violation in China. Professor Pei backs off of that a little bit, saying it only could be a criminal violation.
- WADA is critical of Professor Pei for suggesting that the BCA in this case could be subject to criminal imprisonment, but Professor Pei maintains that’s he’s merely testifying about Chinese law, and is not familiar with the details of this specific case.
Break for approximately 30 minutes. The final session of the hearing will begin at 4:45 p.m.
Next up are closing arguments. WADA lawyer Richard Young begins:
- He references IDTM “best practices” but notes that these are not requirements.
- He also references a previous case: Acevedo vs FINA. In that case, he says CAS held that an athlete should still provide a sample, even if they have objections to the testing process, allowing the dispute to play out in the legal realm. The only justification in that case for an athlete not giving a sample is if it would be impossible “physically, hygienically, or morally.” That case is from 2005, and we were able to find the case document here.
- Young also brings up the translation issues during Sun’s testimony, and it is announced that both sides will be having their own independent translators reviewing that testimony.
- The central argument here is that siding with Sun effectively allows an athlete to get away with not providing a sample, rather than providing the sample but then challenging its legality. The closing argument referenced “the Sun Yang playbook” as a strategy other athletes could use to refuse giving a sample.
Then it’s Sun’s camp’s turn for closing arguments. Counsel Fabrice Robert-Tissot makes the case:
- Sun’s camp continues to point to video evidence from the incident that they say proves that the DCA was taking pictures and that the testers lied about whether or not he was taking pictures.
- Sun’s counsel also maintains that Sun never refused to submit to a test. Robert-Tissot says Sun openly wanted the test to proceed, but with properly accredited testers in attendance.
- Robert-Tissot is questioned about his side’s argument if Sun was wrong and the testers were properly accredited. Robert-Tissot says that video evidence shows that there was no tampering with the sample, because the testers were watching everything happen and giving Sun permission to retrieve his blood from the vial.
- CAS Arbitrator Sands questions whether Sun’s case would imply that thousands of tests conducted with similar authorization were also illegitimate. Robert-Tissot says he doesn’t believe that to be the case, and believes Sun’s specific sample collection was unique in several respects.
FINA is up next, with their closing arguments. Serge Vittoz speaks:
- FINA says it is relying on the decision from its independent doping panel, which it finds to be comprehensive and correct.
- FINA also maintains that accreditation refers to people, not organizations. That would mean the accreditation documents should show that the individual sample collecters are properly trained, not that they belong to the official organization carrying out the test.
- CAS Arbitrator Sands once again questioned whether the CAS panel siding with Sun would have consequences for hundreds or thousands of other doping tests carried out with similar paperwork. Vittoz said he didn’t know if there were hundreds or thousands of other tests carried out that way, suggesting that better paperwork had been used in a different case in 2017.
- Vittoz also makes the case that the DCA’s national ID should not be sufficient to participate in the doping test. Vittoz pulls out his own Swiss ID to say that he could be enlisted to help perform a doping test, and that if the CAS panel rules against Sun, no athlete would be able to challenge that.
Now we’re on to final rebuttals. WADA starts:
- Richard Young begins, characterizing the incident not as a misunderstanding, but a confrontation. He disputes that the DCO abandoned the samples, referencing her desire to take pictures of the smashed vials as evidence that she had not abandoned the blood sample.
- Young also addressed the idea that Sun was willing to wait until morning for a properly accredited tester to come and collect the sample. Young says that Sun using the restroom unattended could have severely impacted the testers’ ability to collect a usable sample, and that getting the first sample of urine is vitally important to a legitimate test.
Robert-Tissot handles the rebuttal for Sun:
- He reminds CAS that it’s WADA’s side that has the burden to prove that a violation occurred.
- He also notes that Sun shouldn’t be expected to know all the intricacies of doping testing rules – that is the job of the sample collectors.
Vittoz speaks for FINA:
- Vittoz reiterates how important it is for the athlete to see proper authorization from the DCO.
Then, Sun gets one more chance to testify:
- Sun responds to two claims made by WADA counsel Young. He disputes the claim that he and his side have lied or changed their story, pointing to the fact that he requested a public hearing. He also wonders why the video of the incident hadn’t been played at the hearing, suggesting that perhaps someone didn’t have the “courage” to play it. He also says that he hopes the video will soon be available for everyone to see, and that it would back up his claims. The video has been a major piece of evidence for Sun’s lawyers, but has not yet been shown at the hearing.
- He says he and his team have nothing to hide in this incident. He says that if sports and anti-doping organizations won’t follow their own rules, then there is no point in talking about fair play.
- The translator continues to struggle with Sun’s speech. Sun brings up a different translator, who says he was requested by Sun. The panel doesn’t allow this new translator, though, as no one cleared him in advance, including Sun’s lawyers.
- Sun also expresses his concern that the confidential FINA doping panel decision was leaked to the media. He feels that has harmed his reputation.
The hearing begins to conclude, with thanks to all parties and all witnesses. The panel directly addresses Sun, assuring him that the video will be taken into account for their decision, and reiterating that he was given lots of extra time for his final statement. The panel asks all sides (Sun, WADA and FINA) if they agreed that their right to be heard had been properly given, and all three agree.