Fairness at core of Sun Yang CAS case despite headline hysteria


Thus what should be stated is what the case is about, and what it is not about; and why the case is important for athletes in all sports.

It is, for example, complete nonsense to say the decision of the FINA doping panel – which is being appealed by WADA in the CAS – is somehow compromised because it is a decision of a FINA tribunal. The FINA doping panel is utterly separate from, and not at all under the influence of, FINA. WADA is simply exercising its unqualified right, as it has in all cases of this type, to appeal a decision of a first-instance tribunal.

The Sun case is not about frenzied vigilantism. It is not about whether he is a “drug cheat”, regardless as to whether fellow swimmers such as Australia’s Mack Horton might instinctively revert to such invective. WADA’s appeal is not about finding a foundation for why Sun is vociferously hectored, a la the aquatic Ivan Drago.

This is not a case where Sun ought to be on trial because he has been rude, abrasive or unco-operative on occasions before the night in question, when doping control officers knock on his door, unannounced, in the dead of the night (or at any other time of day).

The case, concerning an attempted out-of-competition doping control test conducted as part of a doping control mission embarked upon on September 4, 2018, is not a referendum on whether spectators have a right (or indeed are right) to jeer Sun from the nosebleeds in the grandstand. Regardless as to whether Sun is a grating, divisive figure in world sport, he has the same exact rights – and the same obligations – as athletes in any other sport.

Indeed, the CAS appeal does not constitute a test of whether Sun is a villain of Looney Tunes proportions, however much the swimmer has been classified by sections of the Western media as such. We are lucky that we live in an enlightened environment where spectators can boo and heckle athletes who they have paid serious cash to watch. That is a freedom which must be celebrated. But it does not necessarily follow that Sun is El Diablo in budgie smugglers.

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Moreover, the case has precious little to do with hammers, vials of blood smashed to smithereens, or even what might happen if the CAS decision is tantamount to stamping on the tail of the Red Dragon. The central issue is not whether the translators used in the proceedings for the CAS to take Sun’s testimony in English (the CAS languages are English and French) were timely and accurate, or even whether Sun’s testimony was garbled to the threshold of incomprehension.

Nor is the case about addressing concerns – religiously held by some – regarding the secretive manner in which Sun was previously banned by the Chinese swimming federation in 2014, after he tested positive to the prohibited stimulant trimetazidine. Neither is this case about “balancing the books”, given the sanction in 2014 amounted to a three-month ban.

WADA could have appealed that decision by the Chinese federation; it chose not to. Whatever opaqueness enveloped the 2014 proceedings, and regardless as to whether the sanction was “light”, neither of those conditions can be sheeted home to Sun himself.

Instead, the current case is about this: that the rules for the collection of blood and urine samples be crystal clear; and whether it can be shown those rules have been clearly followed. It is, frankly, as simple as that.

The fight against doping is arduous and requires strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion.

Sun Yang after the men’s 800m freestyle final on day four of the South Korea’s FINA World Championships in July, 2019.Credit:Getty

Athletes and officials should not be confronted with a thicket of mutually qualifying, or even contradictory, rules that can be understood only on the basis of the de facto practice over the course of many years of a small group of insiders.

Put another way, governing bodies and testing organisations must be as strict with themselves as they are with athletes who come under the jurisdiction of their rules. This is not just my own musing: the two preceding paragraphs are not my words, but rather extracted verbatim (allowing for syntax) from the seminal 1995 CAS decision in the matter of USA Shooting and Quigley v Union Internationale de Tir.

These legal principles have been cited, time and again, in numerous CAS judgments in the past 25 years. The strictness applied to athletes is equally imposed on sports organisations.

The entire doping rules regime is constructed on the bedrock of the “strict liability” premise, where in many instances there is no requirement to prove the truth of what an athlete did, or did not, intend to do. Equally, it must be proved that an athlete’s accuser has strictly complied with all regulations concerning the same scenario.

WADA’s World Anti-Doping Code, and its applicable international standards on matters including testing and investigations, runs for more than 500 pages. It is a monumentally complex contract document. In this instance, it binds the athlete and his participation in sport.

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But regardless as to how dense the terms of that contract are, what is required is very simple: that the terms of the contract be fairly, dispassionately and universally applied, regardless as to the headline-grabbing salaciousness of hammers raining blows on bottles containing samples of bodily fluids, like some sort of sideshow alley carny spectacular.

A fair and balanced decision about what the rules require, and whether they were met, is what this is all about. That is what Sun deserves; that is what his sport deserves; that is what all athletes deserve.

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