In a recent decision from the Court of Arbitration for Sport (CAS), an eight year ineligibility sanction was handed down to one of the most beloved sports stars in China, freestyle swimmer Sun Yang. This is the maximum sanction available under the Word Anti-doping Code (the “Code”) and FINA Doping Code and serves as an example of the severe consequences of failing to submit to a doping test. In the case of Sun Yang, this sanction will effectively end his professional career.
Sun Yang was subjected to a doping test at his residence by the International Swimming Federation (FINA) doping control officers on September 4, 2018. A conflict ensued in the process of the testing in which the Athlete alleged that the testing officers were not following protocol and lacked sufficient authorizations and credentials. He refused to provide a urine sample and proceeded to have his security guard smash his already-collected vials of blood. The matter was initially referred to the FINA Doping Panel which found that the International Standard for Testing and Investigations (ISTI), the protocol adopted by the World Anti-Doping Agency (WADA) for the conduct of doping controls, had not been properly followed. The FINA Doping Panel declared that the sample collection was invalid and that the Athlete did not commit an anti-doping rule violation.
WADA filed an appeal to CAS asserting that Sun Yang had voluntarily refused to submit to sample collection. In particular, the CAS Panel found that the personnel in charge of the doping control complied with all applicable requirements as set out in the ISTI. They found that the Athlete failed to establish that he had a compelling justification to destroy his sample collection containers and forego the doping control when, in his opinion, the collection protocol was not in compliance with the ISTI. Essentially, the Panel found that it was not for the Athlete alone to decide whether the test was invalid. They stated that the correct course of action would have been for Sun Yang to record his objection to the entire process and allow the doping control officers to leave with the blood samples already collected.
In support on their decision, the Panel cited a line of jurisprudence which states that the logic of doping tests and collection rules demands that whenever physically, hygienically and morally possible, the sample be provided despite objection by the Athlete.
Interestingly, since the sanction was declared effective as of the date of the judgment, Sun Yang’s 2019 world titles over 200 m and 400 m freestyle were not forfeited. This is despite the fact that FINA Doping Rules DC 10.8 requires the federation to cancel all results from the date of the offence. However, the CAS ruling specifically noted that given a lack of evidence of actual doping in September of 2018, the rule for cancellation of results should kick in from the date of the ruling (February 28, 2020).
Sun Yang is a three time Olympic Champion and 11 time World Champion freestyle swimmer. He has a history of doping violations and was given a three month ban in 2014 after testing positive for a banned stimulant. This previous violation is the reason why the Panel was required to hand down an eight year sanction as opposed to a four year sanction (pursuant to Article 10.7.1 FINA DC). He has stated that he will appeal the CAS’ decision and has until the end of March to lodge an appeal at the Swiss Federal Tribunal.