In Wen Tong v. International Judo Federation the Court of Arbitration for Sport upheld an appeal by Wen Tong, a Chinese judoka and winner of the 78kg gold medal in judo at the Beijing Olympics, relating to a postive test for clenbuterol in July 2009, on the grounds that the process was flawed. The test occurred on 8 September 2009, following a gold medal win in the IJF World Championship in Rotterdam in August 2009. The International Judo Federation (IJF) was informed of the result on 14 September 2009, who informed the Chinese Judo Association (CJA), but it did not inform Ms Tong until 18 October 2009. On that day, the CJA advised Ms Tong of the positive test, but gave her no information as to the amount of clenbuterol, nor any documentation.
Further, Ms Tong was told that requesting her B sample to be tested could result in antagonising the IJF, a delayed start to any suspension, and an increase on any ban, and suggested that co-operation might help her towards a possible return in time for the London 20101 Olympics (not possible, in fact, if she received a sanction greater than 6 months). Ms Tong insisted on the B sample being tested. (In fact, this request was never sent by the CJA to the IJF, and ultimately, on 14 November 2009, Ms Tong was convinced by the CJA to withdraw the request. In fact, the CJA had already written, a day earlier, to the IJF, withdrawing the request for testing of the B sample.) On 25 November 2009, the IJF nevertheless tested the B sample, which tested positive.
In October 2009, Ms Tong had written a draft letter to the IJF, which she sent to the CJA, advising that the only way clenbuterol might have entered her system was through eating contaminated meat at an informal BBQ with friends at a restaurant. The CJA did not send this letter to the IJF.
On 4 April 2010, without advising Ms Tong, the IJF imposed a 2 year ban. (Without Ms Tong’s knowledge, the CJA had agreed with the proposed ban at the time.)
Ms Tong eventually heard of her ban, on the internet, on 9 May 2010. On 19 June 2010, the CJA provided some (incomplete) documentation in relation to documents surrounding her positive clenbuterol test, and the IJF letter notifying the CJA of the 2 year ban.
At the Court of Arbitration for Sport hearing, the IJF did not participate. Ms Tong argued:
- She did not knowingly ingest clenbuterol.
- The lab testing her A sample used a machine that had not been calibrated for over 18 months, in violation of ISL standards.
- She was not given any chance to be present/represented at the opening and testing of her B sample.
- (Ms Tong initially argued that the concentration of clenbuterol fell below the lab’s testing protocol. This argument was later withdrawn.)
- The IJF was guilty of repeated and serious failures to inform Ms Tong of her “essential procedural rights”. These failures were cumulatively so extreme as to invalidate the entire process (as per Varis v IBU and Tchachina v International Gymnastics Federation).
- Alternatively, Ms Tong acted with “No Fault or Negligence”, or alternatively with “No Significant Fault or Negligence”.
The Tribunal agreed with Ms Tong that the IJF decision dated 4 April 2010 should be annulled on the grounds that was not given any chance to be present/represented at the opening and testing of her B sample.