Sun Yang's training on his own in an open-to-public facility likely legit, says lawyer

A sports lawyer's analysis on The Times of London exclusive

The last newsletter presenting a half-year PKU research on China’s Big Tech is very long but today we have something brief and different.

The Times of London reported exclusively on Saturday, Dec. 18

Doping authorities have begun a new investigation into the Chinese swimmer Sun Yang over claims uncovered by The Times that he has been training in government-funded facilities despite being banned from the sport for four years.

The World Anti-Doping Agency (Wada), alerted to the case by The Times, said that it took the allegations “very seriously” and would investigate alongside Fina, swimming’s world governing body.

If Sun is found to have broken the terms of his suspension, his four-year penalty could be restarted, which would exclude him from his target of returning for the Paris Games.

In the pictures provided by a whistleblower, Sun is seen training in what sources believe is the pool and gym at the Anji Children’s Sports School in Zhejiang Province, a short commute away from the swimmer’s home…

In an interview with a fan, Sun confirms that he is training for his comeback as he stands in front of a giant sign declaring “Try to Make Your Life Wonderful”, the slogan of the Anji Sports School.

The school is “fully funded by the state”, according to Chinese sources and media reports published when new facilities were opened at the 30-year-old venue in 2019.

The news was also reported by AFP and some others.

Hunter Shen, a lawyer through the State Bar of Texas, who also goes by the Chinese pen name 赵括 ZHAO Kuo, wrote an English-language analysis on his personal WeChat blog in response to the report. Upon contact, Shen, who said he is not Sun’s lawyer, agreed to have it published on Pekingnology, where minor changes in wording have been made.

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The Times reported that the World Anti-Doping Agency (“WADA”), tipped with pictures showing Sun Yang swimming in a government-funded pool, began an investigation into a potential violation of suspension terms.[1]

What a Déjà vu.  In June 2015, FINA (Fédération Internationale de Natation, the International Swimming Federation) kicked off a similar investigation into Korean swimmer Park Tae Hwan, after reports and pictures emerged of his training at the Olympic Swimming Pool in Seoul during his 18-month ban.[2]

Apparently, Park fared well with the investigation, otherwise, he would have missed the 2016 Rio Olympics had his ineligibility clock been reset.

A fair mind would figure that Sun would be just as fine as Park, since the current case is almost identical to Park’s eight years ago – both swimmers trained on themselves, during their ineligibility period, in government-funded facilities opening to the general public.  Nevertheless, to play safe, let’s take a look at the relevant rules.

Organized Training v. Individual Training

The Times alleged that Sun’s problem is “training in government-funded facilities.”  So we start with what kind of training is prohibited during the ineligibility period.

The ban on Sun was sanctioned and administrated by FINA and the alleged training violation took place in December this year.  Consequently, the 2021 FINA Doping Control Rules (“FINA DC”) govern, and the prohibition against participation rule provides as follows.[3]

Obviously, this rule does not concern the facilities but rather the activities.  More specifically, as stated in the comment to the rule, participation in “training camp, exhibition or practice organized by [the athlete’s] Member Federation or a [subsidiary or government-funded] club” is prohibited.[4]

Therefore, what is prohibited is organized team training, but individual training has no problem.  In fact, the World Anti-Doping Code (“WADA Code”) implicitly validates ineligible athletes to train on their own. 

Article 10.14.2 of WADA Code provides that “an Athlete may return to train with a team” toward the end of his or her ineligibility period.[5] 

Comment to this rule explains the rationale behind it: “In many Team Sports and some individual sports (e.g., ski jumping and gymnastics), Athletes cannot effectively train on their own so as to be ready to compete at the end of the Athlete’s period of Ineligibility.”  This exception to help ineligible athletes keep up with their edge clearly indicates that individual training during the ineligibility period is perfectly okay.

Government-Funded v. Open-to-Public

Training checked; next, government-funded facility.  The Times story may take the view that using government-funded facilities equals enjoying sport-related benefits provided by the government, which is discouraged by WADA Code.[6]  

There are two issues though.  Firstly, the rule on withholding of financial support under WADA Code is a requirement on international federations, its member federations, and governments, incompliance with which is not punishable against athletes.  The operational penalty against athletes mostly aims at the violation of the prohibition against participation.[7]

Secondly, as mentioned before, the governing rule over Sun’s sanction is FINA DC, whose rule on withholding of financial support covers only FINA and its Member Federations, without governments.[8]  

In other words, contrary to common knowledge, FINA DC does not prohibit using of government-funded facilities by ineligible athletes.

There may be an argument that FINA DC shall defer to WADA Code if there are conflicts.  However, such deference most likely is estopped in this case, as FINA DC has copied this subject article almost verbatim from WADA’s 2021 Model Rules for International Federations.[9]

Even if WADA DC applies, the use of the swimming pool at Anji Child Sports School (the “Anji Pool”) won’t bring any trouble to Sun Yang.  Although the construction of the Anji Pool involved government funds, the facility has long been open to the general public.  

Above on the left is a screenshot of a webpage advertising the Anji Pool as a public sports facility; on the right is a screenshot of a township notice informing the public that the Anji Pool would temporarily suspend general access due to COVID 19. (retrieved on Dec. 13, after Sun’s reported training.) [10]

In sum, there is no WADA rule prohibiting athletes to train on their own during periods of ineligibility, nor does FINA forbid using of government-funded facilities with public accessibility.  The investigation into Sun Yang’s training at the Anji Pool, if there is one, probably will not splash much water.

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[1] C. Lord, “Sun Yang: WADA launch investigation after pictures emerge of Chinese swimmer training despite ban,” The Times, 18 December 2021. https://www.thetimes.co.uk/article/sun-yang-wada-launch-investigation-after-pictures-emerge-of-chinese-swimmer-training-despite-ban-bgmh2vpwz, retrieved as of 19 December 2021.

[2] A. Brown, “FINA investigating claims Park Tae Hwan trained while banned,” Sports IntegrityInitiative, 5 June 2015. https://www.sportsintegrityinitiative.com/fina-investigating-claims-park-tae-hwan-trained-while-banned/, retrieved as of 19 December 2021.

[3] FINA Doping Control Rules (2021), DC 10.14.1.

[4] Id., Comment to DC 10.14.1, “[A]n Ineligible Athlete cannot participate in a training camp, exhibition or practice organized by his or her Member Federation or a club which is a member of that Member Federation or which is funded by a governmental agency.”

[5] World Anti-Doping Code (2021), art. 10.14.2, Return to Training, “As an exception to Article 10.14.1, an Athlete may return to train with a team or to use the facilities of a club or other member organization of a Signatory’s member organization during the shorter of: (1) the last two months of the Athlete’s period of Ineligibility, or (2) the last one-quarter of the period of Ineligibility imposed.”

[6] Id., art. 10.14.4, Withholding of Financial Support during Ineligibility, “In addition, for any anti-doping rule violation not involving a reduced sanction as described in Article 10.5 or 10.6, some or all sport-related financial support or other sport-related benefits received by such Person will be withheld by Signatories, Signatories’ member organizations and governments.”

[7] Id., art. 10.14.3, “Where an Athlete or other Person who has been declared Ineligible violates the prohibition against participation during Ineligibility described in Article 10.14.1, the results of such participation shall be Disqualified and a new period of Ineligibility equal in length to the original period of Ineligibility shall be added to the end of the original period of Ineligibility.”

[8] FINA Doping Control Rules (2021), DC 10.14.4, Withholding of Financial Support during Ineligibility, “In addition, for any anti-doping rule violation not involving a reduced sanction as described in DC10.5 or DC 10.6, FINA and its Member Federations shall withhold all sport-related financial support or other sport-related benefits received by such Person during Ineligibility.”

[9] 2021 WADA IF Model Rules, art. 10.14.4. https://www.wada-ama.org/en/resources/world-anti-doping-program/2021-model-rules-for-international-federations, retrieved as of 19 December 2021.

[10] https://m.dianping.com/shop/H7oRCMP6GamAn1Nn?ivk_sa=1024320u retrieved as of 19 December 2021.  See also, http://husports.huzhou.gov.cn/art/2021/12/13/art_1229206966_58927860.html retrieved as of 19 December 2021.