David Owen

For the likes of me, reasoned decisions published by the Court of Arbitration for Sport (CAS) are one of the best ways of gaining insight into the minutiae of the war against doping.

It is seldom a pretty sight.

In recent days I have been poring over the 78-page Arbitral Award produced in the latest high-profile case – the World Anti-Doping Agency (WADA) versus star Chinese swimmer Sun Yang and the International Swimming Federation (FINA).

There are three points I would like to make; I should emphasise that my aim is to pinpoint issues relevant to the functioning of the general system rather than to comment on the outcome of this case in particular.

Point one: according to Paragraph 226 of the document “it appears…that between 2012 and 2019 the athlete provided 180 samples”.

One hundred and eighty! That equates to about two samples per month.

To which my question is simply this: do you really need to test anyone that often?

Yes, I am aware that this particular athlete, to quote Paragraph 128 of the award, “in June 2014…received a three-month period of Ineligibility for the presence of Trimetazidine in one of his samples”.

But that leaves 179 samples which, it would appear, have yielded no further anti-doping rule violations.

Even allowing for the demands of the Athlete Biological Passport and retrospective testing, that seems excessive and, frankly, a waste of money.

We hear a great deal – I think justifiably – about how under-resourced anti-doping bodies are.

Am I missing something, or could the money spent on collecting a bunch of these samples really not have been more effectively deployed in other ways?

Point two: according to Paragraph 302, “the panel finds that [one member of the sample collection team who visited the athlete on 4 September 2018] took at least three photographs of the athlete during the sample collection process”.

I find this mind-boggling.

For one thing, athletes are entitled to expect professionalism and best practice during what is potentially a tense and delicate procedure.

Sun Yang is one of the highest profile stars to have attended a Court of Arbitration for Sport doping hearing ©Getty Images
Sun Yang is one of the highest profile stars to have attended a Court of Arbitration for Sport doping hearing ©Getty Images

But not only that, should it not also set alarm bells ringing among anti-doping authorities if any of those dispatched to perform these dreary yet important tasks exhibit fan-like behaviour?

And, just to be clear, Paragraph 301 of the Award cites a written statement by the Doping Control Assistant in question, saying: “I was very excited to see [the athlete] at close range, so I quietly set my mobile phone to photo mode and took two or three pictures”.

I would add that, while all athletes are entitled to expect the same high standards from those who call on them to collect samples, this particular athlete is one of the best-known celebrities in the most populous nation on the planet.

As I understand it, almost anything he says or does has the potential to be news.

Would it not be common sense to assign one of your most trusted and experienced sample collection teams to execute the task of collecting samples from such an individual?

Also worth underlining is that because this Doping Control Assistant was the only male on the sample collection team, it would inevitably have been him who, had the sample collection process passed off without incident, would have had to witness the athlete passing urine into the collection vessel.

Point three, and here I am afraid we descend into the nitty-gritty of anti-doping regulation: the Award flags up a need to tidy up the terminology used in the various texts pertaining to sample collection, and to make it consistent with the terms used by actors in the field.

Based on the episode outlined in detail by the CAS document, there currently seems much scope for confusion.

The Award distinguishes, for example, between WADA guidelines on blood and urine sample collection on the one hand and the International Standard for Testing and Investigations (ISTI) on the other.

The WADA guidelines, it states in Paragraph 227, are “merely intended to promote best practices, whereas binding provisions are only set out in the ISTI”.

Having read through the guidelines, however, I would characterise them above all as going into more detail than the ISTI about this element of the testing process and indicating when some degree of flexibility is permissible.

The very first line of the blood sample collection guidelines, indeed, states that they “expand” upon the ISTI.

Conversely, Annex E of the ISTI states at one point that the “types of equipment to be used and the volume of blood to be collected for particular analyses shall be as set out in WADA’s Blood Collection Guidelines”.

Once again, the impression to me is that one document is very much an extension of the other.

If details such as those desired blood volumes are not binding because they are stipulated only in the guidelines, then it seems to me that could helpfully be made a great deal clearer.

The Court of Arbitration for Sport published a 78 page document following the Sun Yang doping case ©Getty Images
The Court of Arbitration for Sport published a 78 page document following the Sun Yang doping case ©Getty Images

One part of the ISTI highlighted by the case where it seems to me that there is scope for misunderstanding is Paragraph 5.3.3., which covers the documentation that the sample collection team is required to carry.

It states: “Sample Collection Personnel shall have official documentation, provided by the sample collection authority, evidencing their authority to collect a sample from the athlete, such as an authorisation letter from the Testing Authority.”

The question this gives rise to in my mind is this: does each individual in a sample collection team need such official documentation, or is it enough for the team leader alone to carry it?

One should bear in mind the comment of a WADA official in Paragraph 251 of the Award that it is “almost impossible to know in advance of whom the team would be comprised, or to name the athlete that is to be tested”.

It seems to me, however, that an athlete has every right to be sure, in what might be fraught circumstances, that all of those who come knocking on their door are bona fide.

Could sample collection authorities not, at a minimum, issue all personnel with a card on an annual basis that both identifies them as a representative of the authority and sets out what role their training has equipped them to fulfil?

If the Doping Control Officer then brought a letter or email issued just ahead of the visit by the authority stating what they had been instructed to do and who the team would consist of, that strikes me as both providing athletes with an acceptable level of assurance and avoiding imposing unrealistic demands on sample collectors.

There is another source of potential confusion in that it is apparently OK for job titles to be assigned to sample collection personnel that do not correspond to the terms used in the relevant regulatory texts.

This becomes clear in Paragraph 266 of the Award, which reads: “The Panel deems it helpful to clarify terminology.

“The term “DCA” or “Doping Control Assistant” does not appear in the WADA Code, the FINA [Doping Control Rules], the ISTI or any of WADA’s guidelines.

“It is a term used internally by [the sample collection authority].”

Same thing at Paragraph 284: “The term “BCA”, or “Blood Collection Assistant”, does not appear in the WADA Code, the FINA [Doping Control Rules], the ISTI or any of WADA’s Guidelines…”

You get the idea.

In this latter case, the operative term, at least in the ISTI, is “Blood Collection Officer”.

Is there any good reason why the various cogs and wheels in the anti-doping machinery ought not to be obliged to use like-for-like terminology?

I would have said it is a common sense way of making a complex area just a touch more straightforward.