CJC-F Announcements, CJC-F Insights, CLD Forensics

Olympian. World record holder. First male swimmer to earn Olympic and World Championship gold medals for every freestyle distance from 200 to 1500 metres and dubbed the “greatest freestyle swimmer of all time” by NBC Sports. These facts clearly point to an athlete of exemplary talent and tenacity; a true “shark” in the pool.

But who is he? He is none other than Sun Yang, the same Chinese athlete who was issued a reprimand in 2020 and sanctioned by the world swimming body, FINA, for (a) refusing to sign paperwork required in the doping control process and (b) refusing to submit samples of his blood as required by an Anti-Doping Organisation (ADO). But which anti-doping rules did Sun Yang violate? Isn’t doping about the consumption of prohibited substances to boost an athlete’s performance?

This article seeks to clarify:

1. What anti-doping rules are;
2. Who sets them;
3. What constitutes doping in sports; and
4. How urine and/or blood samples are collected by an ADO.

What are anti-doping rules and who set them?
The World Anti-Doping Agency (WADA) is a foundation initiated by the International Olympic Committee (IOC) in 1999 to promote, coordinate and monitor the fight against the use of drugs in sports. In line with the purpose of an anti-doping programme – which is “to protect the athlete’s fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide” – the WADA created the World Anti-Doping Code (WADC), which is akin to a global rule-book for administering the anti-doping movement.

The WADC prescribes a set of punishments which applies to every athlete who flouts any of the 11 anti-doping rules or Anti-Doping Rule Violations (ADRVs), as they are known in the doping circles. Since WADA’s primary role is to develop, harmonise and coordinate anti-doping rules and policies across all sports and countries, this means that the same set of punishments apply to all atheletes worldwide. All recognised National Olympic Committees and International Federations under the IOC’s ambit are signatories to the WADC.
 
What constitutes doping?
ADRVs occur when an athlete or athlete support personnel (e.g. coach/trainer/team doctor) commits a doping offence when his/her urine or blood sample returns from the laboratory with an Adverse Analytical Finding. Should he/she be found guilty, there will be consequences or sanctions to that person.
 
There are 11 ADRVs in total.


It is important to note that the principle of strict liability applies to all anti-doping violations. This means that it is not necessary for the athlete to have intended to use the substance for him/her to be found guilty. Regardless of whether there was truly an intention to cheat or not, the athlete will be held responsible for any prohibited substance which is found in their body.

However, the degree of fault will be taken into account when determining the punishment the athlete will receive. An athlete may typically receive a period of ineligibility from competing as the punishment and the period of ineligibility could vary depending on the degree of fault. For instance, if the athlete is found to bear no fault or negligence, there could very well be no period of ineligibility for the athlete. If found to bear no significant fault or negligence, they could be rendered ineligible to compete for up to 2 years.
 
How are urine and/or blood samples collected by an ADO?
Every in-competition or out-of-competition testing begins with the provision of a urine and/or blood sample by the athlete. This is done under the strict supervision of a Doping Control Officer (DCO), who is of the same gender as the athlete.

During the process of testing, the athlete will urinate into the sample collection vessel right in front of the DCO so that the DCO has a clear view that the urine comes from the body of the athlete and not from any other source. The athlete will take the necessary steps to remove any clothing which may impede the line of sight of the DCO.

Similarly, for blood samples, the athlete typically rolls up his/her sleeves so that the instruments used will not be impeded. For this reason, DCOs work in pairs so that the other DCO (known as the Lead DCO or supervising officer) can act as witness to the entire process and record any anomalies in the process.

There is only 1 standard testing regime used to collect/analyse an athlete’s urine sample and the steps are as follows:

1. Athlete selection – An athlete may be selected for testing at any time and place (e.g. whilst at home/ at the office/at his training venue or at the competition venue)
2. Notification – A Doping Control Officer (DCO) will notify the athlete of his/her selection and reads them their rights and responsibilities. The DCO will then follow the athlete closely, to wherever he/she goes (warm down / medal ceremony / press conference / medical treatment etc).
3. Reporting to Doping Control Room (DCR) – The athlete should report to the DCR as soon as he discharges his other responsibilities, as above.
4. Sample collection equipment – The athlete will be given a minimum of 3 sealed sample collection vessels and kits to choose from. If he/she is unhappy with the chosen vessel or kit, he/she may request another to his/her satisfaction.
5. Provision of sample – The athlete will then provide a urine sample under direct observation of a DCO of the same gender.
6. Sample requirements – A minimum of 90ml of urine is required for urine samples. If the sample that is provided is not 90ml, the athlete may be asked to wait 1 hour before providing an additional sample. This additional sample will then be mixed with the earlier sample.
7. The athlete will split the urine sample into Bottle A (minimum 60ml) and Bottle B (minimum 30ml).
8. The athlete will then seal the bottles according to DCO’s instructions.
9. The DCO will then measure the specific gravity of the sample to ensure that it is not too diluted to be analysed by the WADA accredited laboratory. The minimum is 1.005.
10. The athlete will be asked to check and confirm that the information listed on the Doping Control Form is correct. This includes but not limited to his/her contact details, the medications / supplements / blood transfusion that he has had in the last 7 days.
11. The urine samples will then be sent to WADA accredited laboratories for analysis.

If the athlete is found to have a prohibited substance in his sample, he/she will be invited to the testing laboratory where his/her sample from Bottle B will be opened in his/her presence and analysed. If the analysis from his/her Bottle B sample confirms the initial Adverse Analytical Finding (usually it does since it is from the same sample provided by the athlete on that particular day/time), the case will then be referred to the next stage, which is referred to as Results Management.

The athlete in question will then likely appear before a Disciplinary Hearing convened by the ADO and his/her National Sports Association (NSA). With possible assistance from his/her counsel, the athlete will now need to prove on a balance of probabilities that it is possible and plausible (i.e not a mere speculation) that there could have been an act of sabotage, manipulation, contamination, pollution or accidental use and that he/she did not knowingly commit the ADRV. The athlete has the option of choosing whether he/she would like to be legally represented.

Where possible, the athlete could list the possible source of the prohibited substance (e.g. adulterated meat) or even highlight any departure from the international standards that could possibly have contributed to the AAF.

Following which, the athlete may reach an agreement to conclude the case IF he proves his case successfully. There are 2 types of agreements – the results management agreement and the case resolution agreement:


If the athlete in question wishes to contest the charges, the case will proceed to the Court of Arbitration for Sports (CAS), as wase the case for Sun Yang.

What is CAS?  
CAS is an institution independent of any sports organisation which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.

Created in 1984 and located in Lausanne, Switzerland, CAS has 300 arbitrators from 87 countries, chosen for their specialist knowledge in arbitration and sports law.

It should be noted that the award pronounced by CAS is final and binding on parties. It is enforced in accordance with the New York Convention which has more than 125 signatories.
 
What actually happened in Sun Yang’s case?
It started out like any other routine Out-Of-Competition Test (OOCT). Somewhere during the sample collection, Sun Yang noticed that one of the members of the Anti-Doping team was taking pictures of him. He immediately asked for the DCO’s Accreditation Card, to ascertain his identity but was rebuffed. This led Sun Yang to suspect that the testing personnel did not possess proper credentials and thus, his refusal to cooperate further. In anger, Sun Yang also smashed the vials containing samples of his blood which had been taken earlier.

As the test was authorised by the International Swimming body, FINA, a tribunal was convened to discuss the manner in which the sample collection had taken place. It concluded with the finding that “any blood sample collected without proper authorisation cannot be considered a sample and therefore, there was no anti-doping rule violated.”

However, WADA did not agree with FINA’s decision and appealed to CAS. A panel of three arbitrators then unanimously found Sun Yang guilty of refusing to cooperate with the DCO and of refusing to provide a sample. Following this, Sun Yang was issued an 8 year ban from swimming.

However, following accusations that Sun Yang’s testimony was lost in translation during the 2019 trial, CAS convened a new panel of arbitrators who then handed a 4 year 3 month ban to Sun Yang thereby ruling him out of the Tokyo 2020 Olympics and possibly ending his swimming career.

But… what happened to Joseph Schooling in August 2022?
On 30th August 2022, news broke that 2016 Olympic Gold medallist and national swimmer, Joseph Isaac Schooling confessed to smoking cannabis during an overseas training stint in preparation for the 31st South-East Asian Games.

Whilst there was a huge public uproar about Schooling’s smoking of cannabis in anti-drug Singapore, the question remains: did Joseph commit an ADRV?

The simple answer is no as there was no mention of any AAF from the SEA Games swimming competition. This means that Joseph was either not tested during the Games (the Games organisers have neither confirmed nor denied this) or he was tested and his test(s) came back negative.

Either way, this means that he was never caught with a prohibited substance (cannabis) in his urine during any in-competition testing conducted recently and thus, does not face any ban or sanction from competition. In fact, the news of his smoking of cannabis only broke because he made a confession to the Central Narcotics Bureau just before submitting to a random urine test under CNB’s watchful eyes. The test came back “negative” for all known prohibited drugs, including cannabis.                

Whilst this confession may be evidence of a breach of Article 2.2 of the WADA Code i.e. the “use” of a prohibited substance, it is only applicable if and only if there was evidence that the “use” occurred in-competition during the SEA Games.

One must bear in mind that cannabis is indeed a prohibited substance as per WADA’s prohibited list but only in-competition. This means that if Schooling had smoked cannabis a couple of days prior to any anti-doping test during the Games, his sample would have definitely been flagged as AAF as the single usage of cannabis can be detected up to 3 days after one’s last use. Therefore, it is this author’s firm belief that Schooling only smoked cannabis during the R & R period before his return to Singapore, after competing in the SEA Games.

His NSA, the Singapore Swimming Association and the Singapore National Olympic Council are expected to reprimand him for conduct unbecoming of an elite athlete and sports icon. But, to reiterate, it is highly unlikely that he will be facing a ban from competition since none of his urine samples from in-competition testing contained prohibited substances.

However, as Schooling is currently a conscript with the Singapore Armed Forces (“SAF”), he will be dealt with in accordance with Military Law. From recent news reports, we learn that Schooling will be subjected to 6 months of supervised urine tests and will no longer be allowed to take leave from his military duties to compete in overseas competitions.

Hence, whilst Schooling faces no immediate anti-doping bans from swimming competitions, it seems unlikely that Schooling will feature in 2023’s Asian Games in Hangzhou, China and the 32nd SEA Games in Phnom Penh, Cambodia since the SAF ban will prevent him from taking leave from military duties to compete in future overseas competitions thereby pushing the pause button on his swimming career.

Conclusion
The anti-doping movement exists to keep sports on a level playing field for all athletes. Hence, the strict enforcement and the constant and regular testing of athletes in and out of competition keeps elite sports competitive but fair. Nevertheless, athletes should always be aware of their rights and responsibilities as elite athletes and be guided by the strict liability rule that governs the anti-doping movement for a small mis-step can spell the end of their sporting careers.



*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.


Authors’ Biographies
Zaher Bin Wahab (“Zee”) is a Sophomore at the SUSS School of Law and also serves as a Doping Control Officer with Anti-Doping Singapore. He looks forward to practising Community Law (Criminal, Family and Sports Law) when called to the Bar. Concurrently, serves as President of the Asian Law Students Association S’pore (ALSA SG) and strives for greater interaction and collaboration between students from the 3 Law Schools in Singapore. This is his first published article.
 



Alyssa Phua is a fourth year NUS undergraduate pursuing her double degree in Law and Business. As a strong believer in the need to promote greater appreciation of forensic evidence, she founded CJC Forensics (CJC-F) in 2020. As the director of CJC-F, she directs, coordinates and oversees all activities, events and projects.