Rule-makers must be strict with themselves, legal expert says of Sun Yang case

SYDNEY - The rule-makers and rule-appliers must be just as strict with themselves as they are with the athletes who come under the jurisdiction of their rules, a FINA legal expert was quoted in a commentary over the case involving Chinese champion swimmer Sun Yang.

In a sports column titled "Fairness at core of Sun Yang case despite headline hysteria" on the Sydney Morning Herald published on Friday, Darren Kane, a legal committee member of the swimming world governing body FINA, said that the rules must apply equally to everyone.

"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 authorized bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion," Kane said in the column.

Three-time Olympic champion Sun vowed to defend his rights and innocence at a Court of Arbitration for Sport (CAS) public hearing held in Montreux, Switzerland on Nov. 15 after the World Anti-Doping Agency (WADA) appealed against him and FINA over FINA's previous decision in favor of Sun on his alleged anti-doping rule violations.

Sun refused to complete a doping test conducted by three testers from the international testing company IDTM on September 4, 2018, saying the Doping Control Officer (DCO) and her assistants lacked sufficient authorization and credentials.

"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," Kane said.

"Governing bodies and testing organizations must be as strict with themselves as they are with athletes who come under the jurisdiction of their rules.

"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 organizations," Kane added.

Sun has accused a nurse involved in his anti-doping test of not having the correct credentials and therefore collecting his blood illegally, while the another one admitted earlier that he was not a trained professional doping control assistant, but a construction worker, who did a temporary help requested by his middle school classmate.

This individual was deemed unprofessional by Sun, taking photos and videos of the star swimmer with his phone.

Kane said that "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.

"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, " Kane noted.

CAS did not give a precise date of the decision after the 11-hour marathon public hearing.

"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," Kane said at the end of the column.