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Peng Xianwei
Beijing DeHeng Law Offices, Beijing
pengxw@dehenglaw.com

Wu Yanan
Beijing DeHeng Law Offices, Beijing
wuyn@dehenglaw.com

 

On 28 February 2020, the Court of Arbitration for Sport (CAS) issued arbitration award in the Sun Yang doping (performance-enhancing drugs) case, which rapidly triggered a series of extensive discussions by Chinese experts and scholars from a variety of perspectives. There seems, however, to be little in-depth analysis from the perspective of administrative law, especially from the perspective of the due process in administrative law and administrative counterparty’s right to resist administrative acts.

In general, administrative counterparties such as athletes are, in principle, subject to the administrative actions of their governing bodies and shall obey them. However, it is theoretically possible for an administrative counterparty to refuse to comply with an administrative act (eg, a doping control act) where the act lacks legitimacy due to certain fundamental defects or flaws. This right is known as the administrative counterparty’s right of refusal, or the right of resistance. From this point of view, the case of Sun Yang boils down to whether Sun Yang's refusal to comply with the doping control, which he considered to be the doping testers' lack of qualified authority, was lawful and reasonable from perspective of administrative law.

Comparison of FINA and CAS decisions: the key difference

First, from contents of paragraph 6.55 of the decision of FINA (Fédération Internationale de Natation),[1] it indicates that, ultimately, the hinged on reason for Sun Yang's victory in the FINA hearing hinged on the failure to provide appropriate ‘official documentation’ by the person conducting the test that night. However, paragraph 6.56 of FINA’s decision also reminds Sun Yang that it is more prudent to cooperate with the inspection and to protest later. It would be very risky and foolish to bet an entire career on an athlete’s understanding of such complex and controversial issues.

From the CAS (Court of Arbitration for Sport) decision, paragraph 213 of the Arbitration Award shows that Sun Yang's core defence remains that the testers on that night, including the DCO (Doping Control Officer), BCA (Blood Testing Assistant) and DCA (Doping Control Assistant, Chaperone) only provided FINA’s general authorisation to the testing company IDTM (International Doping Tests and Management), but not the specific and individual authorisation that IDTM provided to the testers. Therefore, these people do not have a qualified authority and Sun Yang could refuse.

Ultimately, CAS relied on the testimony of Stuart Kemp, Deputy Director of the World Anti-Doping Agency (WADA’s) Standards Harmonisation Division, and found that the authorising documents provided by the personnel who conducted the testing that night were competent, overturning this core finding of FINA.

It is noteworthy that, although the tribunal adopted the opinion of WADA’s expert, the tribunal stated in paragraph 207 of the award that it did not agree with WADA’s argument that an athlete’s refusal constituted a violation, regardless of whether the IDTM Doping Control Personnel was properly authorised and qualified and had properly identified themselves. In paragraph 208, the arbitral tribunal stated that, in extreme cases, an athlete may refuse to submit to an (unlawful) test if there are serious defects in the doping control procedure that may render the entire test procedure invalid.

Obviously, the arbitral tribunal did not rule sweepingly against Sun Yang, but euphemistically hinted that there might be some possibility for a reversal in his case. If Sun Yang can convince the Tribunal that there are serious flaws in the doping control procedures in this case, Sun Yang, as the administrative counterparty, may exercise his right of refusal.

However, the arbitral tribunal did not proceed to explain the legal basis for such a right of refusal and how it should be applied in this particular case. The arbitral tribunal's reasoning introduces a very controversial topic in administrative law, namely, the defects and invalidity of administrative acts and the right of the administrative counterparty to refuse (to obey), which will involve with the further issues:

1. Can doping control be considered as an administrative act or a quasi-administrative act?
2. Can the existence of a fundamental and material defect in an administrative act render it null and void, and does the opposing party have a right to reject it at this time?
3. If the person can refuse (a materially flawed administrative act), is Sun Yang’s refusal to submit to doping control justified in this case?

Procedural elements of doping control and the athlete’s right to refuse

First, although WADA is not a national administrative authority, it is exercising what is essentially a regulatory authority over athletes. This administrative power, and its corresponding disciplinary sanctions, has the characteristics of administrative action. Specifically, WADA’s doping controls can be considered administrative controls, that is controls conducted by administrative authorities to monitor compliance with laws and administrative decisions by the administrative counterparty to achieve administrative purposes. Accordingly, doping controls may apply the provisions of the relevant administrative law governing administrative controls.

Second, in modern legal systems there is an increasing focus on procedures in two respects. If a procedure exists, but the decision-maker does not follow it, there is a prima facie case for arguing that the decision-making process followed by that authority is against the law.[2] The principle of due process is one of the fundamental principles to which administrative acts are subject. A certain way, step, sequence and continuity of time is necessary to perform any administrative act, which is the basic requirement of due process in administrative law. When the law requires that a certain act must conform to a certain procedure, the procedure is a constraint on the activity of the administrative authority. 

However, there is a great deal of controversy in academic circles as to what are the consequences of an administrative act that is flawed by a violation of legal procedures and whether the person concerned can resist such an administrative act. In this regard, there are two strands of opinion: the one that opposes the granting of the right of refusal  to citizens on the basis of the power of the administrative act of justice and with the aim of maintaining administrative order; the other that advocates the recognition of the right of refusal on the basis of the theory of the invalidity of the administrative act and with the aim of improving the law enforcement.

In China, some laws explicitly give persons the possibility to refuse to obey under certain conditions. For example, Article 19 of the Measures for the Administration of Permits to Operate High-Risk Sports Projects (2013), formulated by the General Administration of Sports of China, stipulates that the number of sports law enforcement officers shall not be less than two when the competent sports department conducts inspections of high-risk sports projects. The high-risk sports projects operator has the right to refuse an inspection when no valid administrative enforcement document is presented by the attending inspectors.

Similarly, Article 19 of the Measures for the Supervision and Inspection of Statistical Law Enforcement (Decree No 21 of the National Bureau of Statistics) stipulates that when a statistical law enforcement supervision and inspection agency conducts a law enforcement supervision and inspection, there shall be no fewer than two law enforcement inspectors and they shall present the statistical law enforcement certificate issued by the National Bureau of Statistics, informing the subject of the inspection and the relevant units of the relevant rights, obligations and corresponding legal responsibilities. In the absence of a statistical enforcement card, the relevant units and individuals have the right to refuse to be inspected.

In the case of WADA, the Quiz on Doping published on its official website, also states that an athlete may refuse to be tested if the testers lack qualifications:[3]

Question: If the Doping Control Officer (DCO) does not have any identification, I can refuse to be tested.

Answer: True Explanation: The DCO must be able to demonstrate that they have the authority to conduct a test, and that they belong to an authorised sample collection authority. If they do not, explain this on the relevant form, sign it, keep your copy and contact your Federation immediately.

In addition, paragraphs 6.43 to 6.47 of the FINA decision states that the nurse who took the blood sample that night may only have held a Nurse Qualification Certificate, not a Practice Certificate, and that a nurse without a Practice Certificate could not take blood. FINA considered that the question of the nurse’s qualifications could not be ascertained from the evidence presented by the person concerned, but it could be concluded that the nurse had not provided evidence to show that she was qualified to draw blood, due to lack of licence to practice. Ultimately, FINA believes that blood collection by an individual not possessing proper qualifications and not in a position to show these qualifications to the athlete is proper grounds to abandon the blood collection session. Regrettably, this critical issue was not addressed by the parties in a focused manner during the hearing before CAS, nor was there any analysis or discussion by the arbitral tribunal.

How to understand the specific requirements for authorisation documents for doping control personnel

First, with respect to one of the central issues at issue in this case, namely the application of the standard, the tribunal held that the International Standard for Sampling and Investigations (ISTI) was mandatory and that WADA’s Guidelines for Urine Testing and Blood Drawings (Guidelines) were merely recommended. While WADA’s Guidelines require specific authorisation from the examiner, ISTI does not mandate this, but only requires that IDTM, the testing organisation, has FINA authorisation. If that’s the way standards are interpreted, it’s almost natural for Sun Yang to lose the case.

In contrast, the Instructions for Athlete Doping Control issued by General Directorate of Sport of China (CHINADA)states:[4]

‘The rights of athletes

When an Athlete is selected to be confirmed for a Doping Control, the DCO may be required to produce a test document (Doping Control Work Card) and a One-time Doping Control Authorisation. If he/she fails to produce it, the athlete has the right to refuse to be examined.’

Semantically, the ‘One-time Doping Control Authorisation’ as regulated above may mean that the names of the inspecting personnel, not only the inspecting agency, should appear in the authorisation document. From a practical point of view, the anti-doping authorisation template published by the Chinese anti-doping authority (CHINADA) also requires specifying the names of the authorised testers, which provides that:

Doping Control Officers [name of the officers] are authorized to conduct the Doping Control Inspection. Doping Control Officers shall present the Authorization Form and Doping Control Work Card to the athlete...This authorization is valid from [date] to [date].

Therefore, the DCO shall provide a work permit and a One-time Doping Control Authorisation, otherwise the athlete may refuse to accept the test. For the purposes of this provision, it constitutes domestic jus cogens in China and cannot be violated either by China’s local doping control authorities or by foreign authorities such as IDTM, while a violation of this mandatory requirement may render the entire act of doping control null and void.

In contrast, article 4.1 of the Doping Control Officer’s Training Tool Kit developed by WADA also states, inter alia, that:[5]

‘The ADO will then arrange for the following to be distributed to the DCO:

• Letter of authority from the ADO permitting the DCO and their selected chaperones to attend the event or make an attempt to locate the athlete.’

Therefore, if Chinese standard is applicable, the DCO shall provide a work permit and a One-time Doping Control Authorisation, otherwise the athlete may refuse to accept the test. Maybe it is arguable that this rule constitutes domestic jus cogens in China and cannot be violated either by China’s local doping control authorities or by foreign authorities such as IDTM, while a violation of this mandatory requirement may render the entire act of doping control null and void.

Conclusion

In general, administrative inspections are subject to strict procedural requirements, which are based on the premise that law enforcement officials should, at least, produce documents proving that they have the power to inspect. Doping controls, whether by governmental authorities or international sports organisations, are administrative (or quasi-administrative) acts and are subject to this basic procedural requirement, otherwise the athlete may refuse to be tested.

Specifically in this case, the DCO’s authorisation and qualification documents for that night may have been materially flawed, and such material flaw could have rendered the testing non-confirming with law and thus invalid as an (administrative) act that the athlete could have refused to accept.

Of course, what is more troubling in practice is that the criteria for the invalidity of an administrative act are unclear and the parties may not always be right about the alleged invalidity. The comparative analysis reveals that, though some legal systems adopt a more rigid approach than others, there is no system that treats procedurally deficient action as automatically invalid. Nor is there much support for the opposite point of view: that formal or procedural defects have no effect on the validity of an administrative act.[6] For this reason, it is suggested that there are considerable risks in practice when parties ignore invalid administrative acts and it is only wise for citizens to obey first, and apply for the revocation of administrative acts within the statutory time limit.[7]

Therefore, it is not difficult to understand why in the FINA decision, although FINA ruled in favour of Sun Yang, it also reminded Sun Yang not to bet his entire career on his understanding of the rules (right to refuse). Perhaps the biggest lesson from this case for Sun Yang and all athletes is that the law mandates administrative counterparties the right to refuse and that this right can be exercised under certain conditions. However, it is better not to exercise this right lightly if the athlete is not completely certain that there is fundamental defect in the anti-doping process.