Truth Under Water (21)
Nonfacts that influence WADA v. Sun Yang
Fabricated Report — Disclaimer by counsel and witness
When FINA’s counsels (who were also on the IDTM side during the FINA proceedings) received the supplementary report allegedly written by DCO Simoes (“Simoes Report”) from IDTM on the eve of the FINA hearing, they probably also suspected the authenticity of this unsigned, unarchived and late-in-filing report with incompatible metadata.
In order to better serve the client while avoid facilitating potential perjury, FINA’s counsels found a way to disclaim their involvement in the Simoes Report. Deviating from the routine practice of converting submissions into PDF format and wiping out the metadata, they submitted the report intact in its original WORD format — a clear indication of “no comment” on the authenticity of that document.
In addition to causious submission, FINA’s counsels were also quite wary about Simoes’ testimony at the FINA hearing. Simoes was evasive about his contact with FINA’s counsels and emphasized that the brief contact was only about his availability for the FINA hearing (see below).
Sun’s Counsel: But you obviously had contact with FINA’s lawyers in recent days, haven’t you?
Simoes: I had a contact two days ago, very short, to ask me maybe if I was available.
Sun’s Counsel: You were contacted by FINA’s lawyer to give evidence today, right?
Simoes: If I wsa contacted? No. I was contacted by my company. Because, I mean, this is a company internal matter. And I was asked by the FINA lawyer if by any chance it would be possible.
— Transcript of the FINA Hearing, 2018.11.19, 81:14 & 82:17.
FINA’s counsel Morand promptly clarified with the tribunal that two days ago he had a long conversation with Simoes, where he learned about the Simoes Report for the first time (see below).
Morand: Mr. Chairman, just for the record, I mean, just to inform you because I mentioned that I spoke with [Simoes] and asked him wether he would be available…we had a conversation in my apartment Saturday morning sitting, and that’s when I learned of the content of the, what had happened during that mission that you brought up with him.
— Transcript of the FINA Hearing, 2018.11.19, 89:10.
Compared with the alert counsels, Simoes appeared quite nervous at the FINA hearing. The witness kept adding disclaimers to simple anwers.
For instances, when asked if he had contact with FINA lawyers, Simoes claimed he never talked with other DCOs (see below).
Sun’s Counsel: But you had contact (with FINA’s lawyer) before that, didn’t you?
Simoes: No. Zero. I didn’t even know about nothing. This was totally surprise for me. I was very surprised…I have no contact. I have no idea that this happen. Even with [Yang], I think manybe the last time we talked it was probably still in 2017. I don’t maintain contact with other DCOs unless I have to work again or unless — because I’m experienced, sometimes even in the middle of teh night someone just ask me something. They start asking me something to help to do something. Nothing else. Don’t maintain contact, sir.
— Transcript of the FINA Hearing, 2018.11.19, 81:8.
Also, when told that Sun Yang just received the Simoes Report yesterday, Simoes recited the itineraries of his recent trips (see below).
Sun’s Counsel: Just we’re a bit hampered because we only received your report yesterday.
Simoes: I told you, and I’m under oath, I’m not inventing nothing. I was contacted I believe it was Friday, Friday, because I was already in my house exactly. And, yeah, so I arrived Friday, and I can easily show that. I have my passport with the visa from the country which I left Thursday. Arrived Friday morning to my country. And it was then that I was asked. And it was then that I was informed about all this. I had no idea. Zero, zero.
— Transcript of the FINA Hearing, 2018.11.19, 83:4.
Again, when informed of Sun Yang was shocked by the Simoes Report, Simoes emphasized that he had no criminal record (see below).
Sun’s Counsel: Well, we’ve had very limited time to sit down with Mr. Sun Yang to go over your [report], but his reaction on a summary explanation of what you’ve written was one of shock.
Simoes: I know you’re a lawyer. And to be honest, I have no, no criminal record. I was never, never, never — I was never in court in my life. I never had any problem with law or so. Of course I understand also what he says. But there’s only one truth, and that one — I can assure everyone persent in that room — that is the one that we are saying. It’s the only thing that I can say.
— Transcript of the FINA Hearing, 2018.11.19, 87:7.
Lots of information in Simoes’ testimony, especially the deep concern over his own credibility. What on earth made the alleged author of the Simoes Report so anxious?
