It has been confirmed that part of Michelle de Bruin's appeal brief to the Court of Arbitration for Sport (CAS) in Lausanne will question the right of FINA, swimming's governing body, to conduct out of competition doping controls on the swimmer. It has emerged also that the argument was part of the defence case brought by de Bruin to the FINA hearing this summer at which she received a four-year competitive ban.
De Bruin was charged in relation to a contaminated urine sample given at her home in Kilkenny on January 10th of this year. Despite the imposition of the ban, which may end her career, she has consistently proclaimed her innocence.
Yesterday, CAS turned down an application from Peter Lennon, the solicitor acting for the swimmer, for a "preliminary award/interim relief from CAS prior to the full appeal hearing".
"They have considered it," said Lennon, "and indicated to me today that CAS rules don't provide for any interim application to have a case set aside and it was something which would have to be dealt with by the full panel."
"Normally an application for interim relief would be made in competition or in the course of a meeting. This was completely different. It was effectively an application to have the entire appeal heard by the President of the Appeals Division, as distinct from CAS Court of Arbitration, based upon the legal documentation so that we wouldn't even have to go to an appeal. Needless to say, I didn't win on that."
The attempt to question the legality of swimming doping control rules represents a massive deviation from de Bruin's frequent declarations of support for FINA's drug testing programme, but brings to fruition a prophesy made by her husband and coach, Erik de Bruin, in the Dutch media several years ago when he suggested that if random testing were to begin he would be looking at its legality. The de Bruin appeal brief asserts that the doping panel "erred in law in holding that IDTM (International Doping Test and Management) had power to carry out unannounced dope testing", that the "FINA doping panel erred in law in holding that FINA were entitled to conduct out of competition doping tests on the appellant or indeed any other swimmer/athlete", and that the FINA doping panel erred in law in holding that they had the right "to conduct out of competition doping control tests in members of the respondents (FINA's) federations' jurisdiction".
Lennon is keen to point out that the argument is but one part of a complex legal submission and states that the drafting of the FINA rules may have been careless.
"If you examine the FINA rules and look at the terminology which they have actually framed their rules with, they make a differentiation between athlete and competitor and one connotes the person in competition and the other connotes the person out of competition and they have mixed up the terminology. They haven't effectively followed the IOC regulations which specifically deal with the question of competitors in competition and competitors out of competition.
"FINA believe that I am trying to change their words and make a mockery of their rules - maybe I am or maybe I am not, I don't know, but from a strict, legalistic point of view, the regulations and the rules aren't properly drafted as between athlete and competitor. That is one of the issues which we raised before the doping panel and which they considered didn't carry any weight."
The appeal brief, which was lodged in Lausanne last month, also reiterates de Bruin's claim that the chairperson of the FINA Doping Panel, Harm Beyer, was biased against her, that the burden of proof in the case rested with FINA, and re-states her belief that FINA have not satisfied that burden of proof.
FINA have responded with a defence of Beyer and by stating that they did, indeed, accept the burden of proof rested with them. They feel that it was met by their
systematic elimination of all other possibilities concerning the contamination of de Bruin's urine sample by an amount of whiskey which it has been suggested would have killed a person had it passed through the body.
The appeal process is taking longer than was initially expected. CAS rules provide for the case being dealt with within four months of appeal - early January in this case. Lennon hasn't ruled out that an extension of time may be necessary in this case.
"We haven't yet had a meeting on the issues of procedure and where we are going," he says.
Speaking from Sweden, FINA honorary secretary Gunnar Werner elaborated on the current state of play between the two parties.
"We have no date yet for the final hearing. Some time in the beginning of December perhaps. We have already lodged our own appeal brief. We have seen their appeal brief and we have responded to it. We have instructed a lawyer in Geneva for our case in the Court of Arbitration."
Werner confirmed that part of the case against FINA was an attempt to have the FINA drug-testing apparatus declared illegal. The de Bruin appeal questions the use of the Swedish agency IDTM and also raises questions as to the right of FINA to test swimmers in Ireland.
"This is something which was already raised in the hearing in Lausanne and the FINA doping panel did not pay any attention to it," said Werner. "That is how lawyers play with different tricks. The rule is very clear on that one. This is a way to try to read the rules to confuse the court. It wasn't very successful."
Mathieu Reebe of the Court of Arbitration for Sport in Lausanne confirmed, however, that he felt the case would reach the final hearing stage within the next six weeks or so.
"The proceedings are still going on and I am not allowed say more than that really. There will be a final hearing and a judgment in late November, or maybe in early December. I am quite sure that it will be no later than that. I cannot guarantee a date yet."
