What’s Really at Stake: Sun Yang vs. WADA

New revelations have come to light in the Sun Yang case from Chinese state run media Xinhuanet in the past few days upending global public opinion that only one member of the three person testing team was trained to perform the tests on the swimmer, also calling into question the ages of the other two anti-doping DCOs and their medical training according to Sun’s attorney Zhang Qihuai, Chinese Media: Tester in Sun Yang Case was Untrained Classmate of Main Officer, Jared Anderson, SwimSwam, August 28, 2019.

In a second report this time from Channel News Asia August 27 states that there is possible security video footage of the anti-doping mission that night. Sun states (Weibo) “There is something I can’t say, I can’t make the truth public… But fortunately the surveillance cameras have recorded everything, otherwise I won’t be able to defend myself against irresponsible accusations.”

And it was announced earlier from the Court of Arbitration and Sport, Lausanne, SUI on August 20, 2019 that the Sun Yang, CHN and FINA vs WADA CAS case will be held after October 2019 in public with full media in attendance.

That changes the dynamics.

This a major victory for transparency, athletes rights and will force issues out into the open that WADA, the IOC and others have been reluctant to address.

Is this a case about an athlete attempting to cover up his own doping by smashing his own sample as so many instantly believed?

Editors’ note: evidence indicates that Sun did not smash the vial of blood, but rather that a member of his security detail did.

Or is this a case that will possibly cause the exposure of the unmentionable? That not one, but two Olympic Games were compromised and cheated like the Russian Sochi Winter Olympics in 2014?

This time it’s the summer Olympics Beijing 2008.

The spark and fuel for the fire

After more than four hours of intense frustration, arguing among officials, frantic international calls for

assistance and clarification, alleged questions regarding Doping Control Officer’s IDs and their ages, doubts about staff, possible videotaping and photography, other questions about correct documentation …the anti-doping samples were smashed into pieces.

You can imagine after hours of all that, an athlete like world record holder and Olympic champion swimmer Sun Yang staring at the ground in disbelief…

All you have to do to ignite condemnation and wide spread anger by athletes against athletes is to say: Athlete. Out of Competition Test. Smashed sample. And it will trigger swift public reaction by athletes and media alike instantly jumping to conclusions with venomous condemnation like piranhas on a kill.

The public fallout against an athlete is all designed to plan.

In anti-doping education the athlete is always at fault- due to strict liability principles enshrined in the World Anti-Doping Code. Originally, the Code strict liability was designed for what goes into your body beginning with steroids, however over time it has been unofficially applied in an ever growing encroachment, spreading to a variety of anti-doping system failures, abuses and cover-ups sliding the template over to blame the athletes for any number of issues.

Now in the Sun Yang case, there is a possible move again to extend and stretch that liability to cover the entire anti-doping mission event in the out-of-competition test that night itself no matter that the athlete has already been cleared by FINA’s Anti-Doping Panel that Sun did not commit an anti-doping violation, or what the athlete was facing that night, what he did or didn’t do, or what others were trying to protect him from.

What rights does an athlete have during an out-of-competition test? Can anyone name any of them as they take your blood and urine? No. They can’t.

It is begrudgingly conceded in Lausanne that dogs, ponies and animals in Hollywood films have more rights than Olympic athletes.

Now WADA legal sharks smell blood and are circling, wanting a possible chance to administer Sun Yang the anti-doping death penalty- a lifetime ban.

The case has all the necessary ingredients for an explosive “Who done it?” Is it really about an athlete trying to cover up his own doping by destroying his own sample? Or something else?

Background knowledge and perspective are important in this case against what may play out.

It’s time to look inside what is at stake between China, WADA, the International Olympic Committee and Sun Yang.

Russia’s Sochi 2014 doping scandal a Chinese copy from Beijing 2008?

After winning the Academy Award for Best Documentary for the film ICARUS in 2018, director Bryan Fogel gave an interview on “The Forward, Part Two” (YouTube). Listen carefully.

Bryan Fogel (Beginning at 1:59/41:38 minutes): “Gregory (Dr. Rodchenkov, the former RUSADA Director, now living in the USA under the FBI Witness Protection Program) told me a story that he got the idea for swapping the urine essentially from the Chinese in Beijing (Olympics 2008). He was at Beijing and according to him what the Chinese did in Beijing, if you look in Beijing the Chinese won 100 medals. Right? They swept the Beijing Olympics…

Bryan Fogel (2:47-3:36): According to Gregory what the Chinese did was not as sophisticated as the Russians. What the Chinese did is that the Chinese athletes would report to the Doping Control Officers when they came into test. That there were certain agents that were basically Chinese government agents, right? And the athlete would know which of those agents to report too. And they would report to those agents and the Doping Control Officer that were watching them pee would have a little bag of urine. Give it to the athlete (motioning it was under his arm for a switch) to put under their arm pit so the athlete could test clean. (He/she) would pee clean (performing a switch) which is why there were no positives for Chinese athletes out of Beijing (2008 Olympics). And if they go back to test those samples out of Beijing, they’ll find a ton of positives from other athletes but they’re not going to find positives from the Chinese.”

At the Beijing Olympics it was the IOC that was in charge of anti-doping testing with the host nation’s national anti-doping organization CHINADA.

Chinese and Russian Medal tallies

The Chinese dominated the Beijing 2008 Olympics like never before in the history of the Olympic Games with 51 gold, 21 silver, 28 bronze and 100 medals in total. Instantly, nearly a 60% increase over their Athens 2004 medal count of 32 gold, 17 silver, 14 bronze with 63 medals total four years earlier.

The Russians noticed that. They most likely concluded, if they knew, everyone else did too.

They also noticed a lack of will on behalf of the IOC and WADA to investigate 2008.

Two years later in the Vancouver 2010 Winter Olympics Russia placed down in the 11th spot in the medal table totals with 3 gold, 5 silver and 7 bronze. Only 15 medals in total and the upcoming 2014 Sochi Winter Olympics were on the way.

Then like China, in Sochi 2014 Russia leaped to the top of the medal table in one jump from a low 11th place in 2010 to 1st in 2014 with 13 gold, 11 silver, 9 bronze and a record total of 33 total medals for first place dominating a winter Olympics like never before. A 120% medal total increase in four years from 2010 and more than a third of all medals in total.

“Russia’s leader had reason to be pleased as the Olympics dubbed the “Putin Games” ended. His nation’s athletes topped the Sochi medals table, both in golds and total — 33. That represented a stunning turnaround from the 2010 Vancouver Games. Russia’s bag of Sochi gold was the biggest-ever haul by a non-Soviet team.” Costly, Political, Successful. Sochi Olympics End, AP News, February 23, 2014.

It was China’s biggest-ever haul too.

If national anti-doping authorities can make all samples clean in an Olympic Games propelling a country from the pack to the top of the medal tables…  If you cross them, they can also make one sample dirty.

Dr. Gregory Rodchenkov knows that.

Sun Yang knows that.

So should Mack Horton and Duncan Scott.

And certainly the IOC and WADA have more suspicions and knowledge of what was taking place in Beijing 2008 than Bryan Fogel.

A frustrated Michael Phelps

In a recent interview Olympic legend Michael Phelps, USA, expressed his frustration that he didn’t know what it’s going to take to change Olympic sports in order to catch doping cheats and to clean up the problems in anti-doping.

That was the same frustration expressed by Bryan Fogel earlier compelling him to ask why the anti-doping system was failing to catch doped athletes in sports and was the driving motivational force behind the film ICARUS.

“I love how people are standing up and voicing their opinion,” Phelps said. “But at the end of the day… there’s only one group of people who can really change this. That’s FINA. When FINA wants to do something, wants to change how this sport is seen after all these positive drug tests that are occurring, after all this controversy, maybe they’ll do something about it. It’s in their hands, in their control,” reported AP News.

Phelps and Fogel are not alone in their frustrations.

Strict liability to… investigate?

If there is strict liability for the athlete to be held responsible for any Prohibited Substance in his/her specimen, shouldn’t there be strict liability for WADA to investigate for anything in their (anti-doping) system? No matter who? How large? When? Where?

If measuring and finding 50 parts per billion in an athlete’s sample, or indirect evidence such as statistics for an athlete once 1.05% over an arbitrary line can trigger an investigation and a CAS case to ban an athlete for years costing them millions in Euros, shouldn’t much more broader evidence like a 60% or 120% increase in total medals and other related information trigger an investigation into possible state-sponsored doping?

“The bigger the problem the easier it is to get away with,” a former NADO (National Anti-Doping Organization) CEO stated, asking to remain anonymous.

We know the thresholds for substances in an athletes system. What is the threshold for mandating an investigation by WADA, the IOC or FINA into state-sponsored doping? What is the threshold for forcing WADA and/or the IOC to put a country into the penalty box and to keep them there?

With WADA possibly going for the death penalty on Sun Yang, shouldn’t others be going for the same on WADA? Or China and CHINADA? Is WADA protecting clean athletes or CHINADA? Or are they self-insulating protecting their funding, institutional relationships and their global anti-doping system?

Even with high profile athletes, anti-doping leadership and organizations opposing the action, WADA ended the three year suspension against Russia for the state-sponsored doping program in Sochi 2014 even before all of the Moscow laboratory data was turned over, or the lives of whistleblowers Julia and Vitaly Stepanova and Dr. Gregory Rodchenkov were safeguarded.

“The lawyer for Russian whistleblower and former Moscow laboratory head Gregory Rodchenkov- whose evidence was key to Russia’s suspension- called it ‘the greatest treachery against clean athletes in Olympic history…The United States is wasting its money by continuing to fund WADA, which is obviously impotent to address Russia’s state-sponsored doping,’ said Jim Walden.” Russia reinstated by Wada after doping scandal suspension, BBC Sports September 21, 2018

Your entire sport career subjected to the ego of a doctor

When an athlete has a cold or flu, or needs a prescription medication to treat a medical issue there is nothing causing more apprehension, more anxiety to athletes than the deep embedded fear of knowing they have to consult with the recommended national team doctor or appointed specialist doctor in most countries around the world.

Not all doctors, not all national anti-doping organizations are the same or held to the same standards of performance or knowledge of the Prohibited List and/or have direct experience with its actual application.

Athletes have no way of knowing that their appointed national team doctors and specialists are up to date at any given time on the Prohibited List. It boils down to each doctor’s personal individual effort, time and organization.

Examine Sun Yang’s first “offense” and most likely you’ll find sub-standard anti-doping communications embedded at the heart of the problem again like with meldonium in 2016. Sun Yang’s medication Trimetazidine was known and recommended by team doctors and specialists as it was with many other athletes around the world.

But, when it was added to the Prohibited List four months prior to Sun’s Adverse Analytical Finding, allegedly the Chinese team doctor did not know of the change or informed Sun Yang. BOOM! An Adverse Analytical Finding. Now he’s a doping cheat. A three month ban. His medication was permitted outside of competition, but, a low residual amount remaining was found in his system at the swimming event.

The athlete is held responsible for even the communications from Montréal to China. Examine the entire system process of how communications function from Montréal to athletes (and doctors) around the world and you will find a sub-standard mishmash of messages, emails, platforms, standards, labeling and languages.

Anti-doping communications are nowhere near the world-class performances of the athletes.

With no independent oversight or standards of operation in communications, the less you do to improve it, the more athletes you will catch as “doping cheats.”

These scenarios have been predicted for years.

It’s simple. There should be a 24/7 WADA/CAS legal and authoritative hotline for athletes, DCOs and anyone in the testing system to receive urgent clear, undeniable, legal procedural guidance and information in a timely manner 24/7 to prevent any athlete career destruction.

All NADOs are not created equal

As an athlete, do you believe in the anti-doping system? ASADA? CHINADA? WADA? Are all NADOs equal?

WADA just re-accredited North Korea’s Rocket Man, Kim Jong-un’s anti-doping organization the DPRK Anti-Doping Committee. “The decision means the North Korean body is able to resume testing without supervision.” North Korea regains compliance with WADA after help from China, Inside the Games, July 27, 2019.

If anti-doping is fair globally, why don’t Australian athletes have the Chinese, Russian or North Koreans swapped out to run their anti-doping programs? Like with football referees in big matches from “neutral” countries? Wouldn’t it help stop corruption? Fly them in. Everybody is equal right? Aren’t all NADOs? All education systems? The quality of all doctors?

It’s not even close. The disparities are huge and dangerous to athletes.

Would you want North Korean doctors doing out-of-competition testing or determining what medications to take on the Prohibited List if you were training in… Brisbane? Colorado Springs? Or at the High Performance Centers like in Sydney?

Many, many times for world-class athletes in countries like China, Eastern Europe, South America and others, no matter how many times you express your apprehensions, no matter how many times you beg or you request them to call and consult with WADA and the Prohibited List, your entire career rests on the ego and opinion of a single doctor.

TV and photography

What is also alarming in WADA attempting to retry Sun Yang is the alleged videotaping and/or photography that took place.

In 2007 German television crews accompanied doping control officers (DCOs) to an out-of-competition test at night at the home of one of the athletes and aired the program. Later comments among officials and the general public about who the athlete was possibly sleeping with, or where he was sleeping were widespread after airing the video on the television program.

Your entire private life is exposed and at risk when DCOs come to your home, especially with someone possibly videoing the event. What could possibly be uploaded on social media? On an Internet site? Is the athlete exposing himself to possible blackmail and millions of dollars in costs? And attorney’s fees?

There are basic human rights questions here to be considered.

Do athletes have any protection from bogus DCOs? Their inexperience or lack of medical certificates to draw blood? If two out of three DCOs don’t have credentials or are underage is that a legitimate anti-doping test? Or do you assume one ID is stolen and it is a bogus test? Or a television “gotcha” program impersonating an out-of-competition test with video and photography? That’s what Sun Yang’s out-of-competition test possibly looks like. Others have tried it on athletes around the globe.

Vote with your feet

Many times athletes who know something is wrong in their country, or in the anti-doping system will vote with their feet and choose to train in a foreign country with a NADO uncompromised with corruption like ASADA in Australia or USADA in the USA.

Leaving a one party state like China or Russia, choosing to train with a foreign coach is an act of integrity in many cases. The athlete is saying without speaking, “I stand for clean sports. I want to train and compete fairly.” But many athletes and so-called Australian “legends” don’t get it. They’re too busy protecting their pristine status and gilded reputations.

The reason many athletes retire is because they fear an inadvertent positive in one of their samples would ruin their careers, so it’s safer to quite early. An inadvertent positive is simply a matter of statistical chance, not whether or not you read the Prohibited List every morning during breakfast. The longer you are in sports, the more likely your chance of it happening to you somehow, some way.

In talking with many foreign athletes who have left their own country to train outside in the USA, Germany, Australia or other places, a foreign coach is also a form of protection around you from unwanted acquaintances on the deck appointed by the government.

The Chinese swimming federation and coaches have exchanges like with Bob Bowman (coach of Michael Phelps) at Arizona State University. The exchange program there is an excellent example of cooperation and “cross pollination.” The Chinese coaches and team managers learn from the best in USA Swimming at ASU. It’s about sharing knowledge, “forging partnerships with China to speed global innovation.” The ASU sport culture impressed the Chinese coaches as they learned how elite student-athletes combine training, competition and classwork.

However, there’s still a long way to go to change the Chinese government’s involvement in national sport. Often embedded “minders” Chinese government officials accompany foreign visits with the sport groups.

And… “The Chinese team went into military training camp for the first time since 2006 following a worse than expected FINA World Championships in Gwangju in July,” reported by Andrew McMurtry, News.com.au on August 30.

Chinese military training camps are notorious for their nearly endless drills, marching, memorization, military lectures, mandatory phrase repetition and for intense analysis by Communist Party military leadership who point out athletes failures.

“Backstroker Fu Yuanhui said the training would steel the team and help the swimmers develop resilience…She was accused of watching too much TV.”

“I am enduring some difficult times in my career, but I have learned at training camp that I must keep trying, trying to make a breakthrough and never give up when encountering problems,” she wrote on Weibo,” reported by News.com.au.

WADA goals and an out-of-control testing mission

In many CAS cases after discussing issues and what’s at stake, WADA attorneys fly in and have meetings with national anti-doping authorities expressing their concerns and goals and listening to their counterparts along with meeting and discussing talking points and questions with those related to the case- except the athlete.

They may also meet or hold conference calls with other government officials, NADO executives, doctors, specialists or others.

One of the main questions so far is: Why aren’t they looking to prosecute the Doping Control Officers? Why isn’t this about suspending the DCOs for four years? Or CHINADA? Or banning them for letting the out-of-competition testing fly out of control for four hours?

Or why didn’t they just come back the next day to test? That was an easy solution.

No.

Athlete. Late night. Out-of-competition test. Turmoil. Smashed sample.

Blame the DCOs? Or hold CHINADA responsible for the fiasco?

Remember in anti-doping… Always. Always. Always. Blame. The. Athlete.

Warming up before the match

As reported by Inside the Games, “The International Olympic Committee (IOC) have backed former Moscow Laboratory director Gregory Rodchenkov as a “truthful witness” in their first reasoned decision published following the Sochi 2014 doping scandal.

The Commission, chaired by IOC Executive Board member and Swiss lawyer Denis Oswald, offered their full backing to Rodchenkov being a credible witness. They claimed evidence on file was found to have corroborated his statements… ’The compelling findings made by Prof. McLaren include the confirmation of the existence, during the Olympic Winter Games Sochi 2014, of a scheme in which the samples of protected Russian athletes, notably athletes on a preselected list, were swapped,” the Commission said.

Rodchenkov’s explanations over a clean urine bank were found to have been supported by additional evidence, while his statements given in connection with athletes whose samples were swapped but not included on the “Duchess List” – a list of protected Russian athletes – were also correct,’” IOC back Rodchenkov as a reliable witness as first details of why Russians disqualified from Sochi 2014 published, Inside the Games, Monday, 27 November 2017.

Maybe it’s time to revisit Dr. Rodchenkov and ask a few questions again?

It was also noted that on August 10th, in a game of strategic Chinese chess Sun Yang was appointed Deputy Director of Training at the Zhejiang College of Sports, his longtime training home guaranteeing him a future in Chinese sports. It is a great honor. Sun is the first athlete to hold such a position.

No moves pre-CAS in Chinese sports are insignificant.

What’s really at stake?

What is really at stake between Sun Yang, WADA, CHINADA, FINA and the IOC is no small smashed sample.

The anti-doping system is at stake and so are the relationships between CHINADA, WADA, the IOC and FINA.

Also what’s at stake in an open public hearing are the operations of CHINADA being laid bare that it isn’t in the same league as USADA or ASADA, leading to the questions and possible revelations that the Beijing 2008 Summer Olympics were compromised and cheated like the Sochi 2014 Winter Olympics and that CHINADA is not a trusted partner like RUSADA, meaning any sample is at risk.

WADA may seek to hold the athlete strictly liable at all costs any way they can, not CHINADA or the anti-doping testing authorities for the breakdown and complete disintegration of the anti-doping testing mission getting out of control that night, the turmoil, the confusion, the four hour stand-off and… the smashed sample.

What if the smashed sample is not about covering up any doping at all, but maybe following the suggestion of the anti-doping authorities and possible protection from spiking the sample?

China is not Australia.

And an open public CAS hearing is not like China.

And WADA is not used to them.

What Sun Yang’s defense team should know is if WADA or the IOC suspects or has any knowledge of any alleged Beijing 2008 state-sponsored doping program, swapping out doped samples for clean samples like Sochi 2014, then they know there is a possibility ANY sample given to Chinese anti-doping authorities could be spiked with a prohibited substance for any athlete they choose for any reason. That was a factor with Russia wasn’t it? The defense may demand that information from WADA’s investigative unit in Montréal.

Put everything on top of the table.

Will they be able to stretch athletes’ strict liability from what’s in your system to the procedures and failures of the anti-doping system initiated by the anti-doping testing authorities? So anti-doping authorities can never be at fault procedurally for anything?

Having been found no fault by FINA, will Sun Yang be thrown under a bus at CAS in some form of “negotiated settlement” for the sake of good relations with WADA and the IOC in full view of Beijing 2022 on the horizon? Especially if there was anti-doping corruption during Beijing 2008?

Who is more important? The anti-doping authorities? Or just one athlete?

Having a state-sponsored doping scandal with possible suspensions like with Russia expelled from the Rio 2016 Olympic Games and the PyeongChang 2018 Winter Olympics is unthinkable for IOC President Dr. Thomas Bach. Especially with China hosting the upcoming Beijing 2022 Winter Olympics with preparations already underway.

Who is the anti-doping poster boy?

Maybe Sun Yang is part of the alleged state-sponsored doping system. But… maybe not. Even if he was part of a state-sponsored doping program against his own will, he has displayed more courage to get out from under it than the IOC or WADA have displayed to investigate and prosecute it.

There is more to swimming and the Olympics than just winning gold medals. It’s a character issue. Some see themselves as honorable clean athletes fighting for clean sports and to train and compete cleanly any way they can, even if it means voting with their own feet to leave their country to train under a foreign coach no matter what the cost.

So? Who is the bigger man? The one who endures the bad-mouthing, the false allegations and ridicule meet after meet, year after year from fellow athletes and others, who left his country to train under a stringent NADO like ASADA? And standing against possibly the biggest mother-of-all state-sponsored doping programs in history, substandard testing and institutional corruption?

Or the one doing a one-off, not standing on a podium during a national anthem?