The following is the full text of the statement issued by Mr Peter Lennon, solicitor for Michelle de Bruin, yesterday:
1. Background Doping Panel Hearing
It is important that you are aware of the circumstances leading up to the Doping Panel Hearing and the obstacles that were placed in our path as we attempted to obtain a fair hearing for Michelle before the Doping Panel itself.
The Doping Panel refused at all times to accept that the burden of proof in this particular case rested with FINA and insisted that it rested with the competitor, Michelle.
On that basis we asked FINA how they proposed handling the hearing and what evidence would they be relying upon for the purposes of arriving at their decision and they indicated to us that they proposed relying upon the reports from the laboratory in Barcelona on the A and B Samples, the statements of Mr and Mrs Al Guy and Straffan Sahlstrom from IDTM, documentation that has passed between our respective offices and which was contained in an agreed booklet and the evidence of Dr Segura who they indicated would be in attendance at the Doping Panel hearing.
It was also indicated clearly that such evidence as Michelle gave at the Doping Panel hearing would also be taken into consideration by them in arriving at a decision.
It was clear at the outset that the three most important witnesses whose evidence would require to be tested and challenged were the Doping Control Officers, Mr and Mrs Al Guy and Straffan Sahlstrom, the Managing Director of the IDTM the Doping Control testing agency.
We applied to FINA in accordance with FINA rules for their assistance in having these witnesses present but our request was denied.
It was indicated to us that if during the course of the hearing the panel came to the conclusion that it was necessary and proper for those witnesses to be present, further consideration would be given to our request at that time.
The Doping Panel hearing was then scheduled for the 24th of July and proceeded before the three-man Doping Panel on that day.
2. Doping Panel Hearing Submissions
At the commencement of the hearing, the chairman, Harm Beyer, indicated that the panel proposed to deal with the hearing by taking the analysis and reports from the laboratory in Barcelona, hearing Dr Segura and having dealt with that evidence then hearing whatever Michelle had to say with regard to the case against her.
This was most unsatisfactory and I indicated to Dr Beyer that I had very significant legal submissions to make to him and a number of submissions were made under the following headings: (a) Bias of the Chairman of the Doping Panel, Dr Harm Beyer. (b) Legal submission, are FINA entitled to carry out, out-of-competition doping tests on Michelle Smith de Bruin or indeed any other swimmer/athlete. (c) Does FINA rules give them the power to conduct out-of-competition doping control tests in a members Federation jurisdiction. (d) European Court of Human Rights Convention for the Protection of Human Rights and Fundamental Freedoms. (e) Burden of Proof. (f) Is there an offence of physical manipulation of FINA Doping Control Regulations guidelines or in the IOC regulations.
I was interested to hear Tom Humphries last night indicate that the document which had been prepared by FINA and issued by them yesterday at 2 p.m. Irish time was very carefully worded and attempted to cut off many avenues of defence that would be available to us on our appeal and of course written from a position of ignorance in that you are not aware that the press release that you received of course is not the verdict of the FINA Doping Panel, it is not difficult to understand why such a comment was made.
After two-and-a-half hours of legal submission to the Doping Panel in Lausanne on the 24th of July, the panel requested an adjournment of the hearing to allow them to consider their position.
Having considered their position, the chairman of the Doping Panel with the two other members, Messrs Farid and Favoaro indicated that they believed that the legal submissions that had been made were very significant and would require time to be mulled over and given the attention that they deserved.
The panel however were unable to continue the Doping Panel hearing the following day as they already had a Doping Panel matter listed for hearing on the Saturday morning.
The panel however were anxious that as much of the panel's work in relation to this case should be completed while the various parties were in Lausanne and it was agreed, without prejudice to the legal submissions that had been made that we would take the evidence of Dr Segura from the laboratory in Barcelona and that I would make such further submissions on his evidence and indeed on the case generally as were possible within the time constraints available to us.
The cross-examination of Dr Segura took at least 45 to 60 minutes and at the end of that cross-examination a submission was made to the Doping Panel members concerning the role of the FINA laboratory and there suggested mal-fedes with regard to my client's samples and their actions generally with regard to FINA and the role that they played in this particular case.
A general submission was made and Michelle was asked by the panel to give them her version of events with regard to what had occurred at her house on the morning of the 10th of January 1998.
This was particularly significant in the light of the finding of the Doping Panel which I shall refer to later. During the course of our investigations on behalf of Michelle in this case we became aware of very significant questions that were in the public domain concerning the Versa Pak system and the equipment used by IDTM for doping controls.
Our enquiries lead (sic) us to a now-abandoned web site which provided details as to how the Versa Pak system could be tampered with and how it was possible to open Versa Pak containers without the knowledge of the Doping Control Agency's Laboratory or the like.
In the course of the cross-examination of Dr Segura he accepted that Versa Pak had had a problem with some old Versa Pak stock and that he accepted that the way in which the sampling bottles were opened was by placing them in boiling water, bringing the water to a boil which would cause the lids to pop open without detection.
Clearly this evidence came as some surprise to the Doping Control Panel who requested that Dr Segura establish from their records whether or not the Versa Pak kits in this case were old Versa Pak stock or new stock. Our enquiries previous to the panel hearing had already confirmed that the Versa Pak equipment in this case was old stock and it is interesting to note that no reply was received from Dr Segura to the best of our knowledge to the request from the chairman on that point.
Dr Segura, the head of the laboratory also confirmed, after some attempts to deny it, that the introduction of alcohol as a masking agent in this particular case had not affected afflickacy (sic) of the testing procedure that he had carried out at the laboratory in Barcelona.
He also indicated that he did not believe that it was unacceptable for a laboratory to retain athletes' samples beyond the period of 90 days and indicated that his own laboratory practice was to keep them from between 3, 6 or 9 months.
Dr Segura also accepted that the reanalysis that he had carried out for FINA of our client's samples had been carried out using the new form of carbon isotopic mass spectrometry which after some difficulty he accepted was not an approved IOC method publicly but he indicated to the panel that he had been told privately and confidentially by the IOC that it was alright for him to use that method.
Perhaps most importantly however in the light of the charges laid against Michelle, Dr Segura admitted under cross-examination that the specific gravity in this case was of significance and that the lower specific gravity which they discovered at the laboratory was further evidence in their opinion of adulteration.
When asked whether or not the introduction of alcohol into the sample would have had any affect on the specific gravity measurement taken when the sample was given, Dr Segura indicated that it would and that it would not have been possible to have obtained the specific gravity reading of 1.015 which Mr and Mrs Al Guy found when they carried out their dip stick measurement on the 10th of January.
It should be noted that that dip stick measurement was taken after the sample had been divided and poured from the beaker into the two Versa Pak urine bottles. The significance of this will surely not be lost upon you and I will return to it later.
In the course of our investigations we also discovered that the Doping Control Forms in this case had been altered by the Doping Control Officers after the test had been carried out. We indicated to the chairman of the panel that we regarded this as an exceptionally serious matter and we allowed the chairman take the original Parts 4 and 5 of the Doping Control Form for examination.
It is now accepted in the decision of the Doping Panel that these forms had been altered after Parts 4 and 5 had been given to the swimmer but the Doping Panel did not consider this of any significance.
Further evidence was introduced before the panel concerning the role of Mr Guy as International Secretary of the Irish Athletics Board at the time of the 1983 World Championships and his public pronouncements in the case Quirke v BLE and the interview he gave to Ulster Television on the Chris Moore Insight programme concerning our client.
The panel also considered none of this to be of any great significance but decided in their wisdom that having regard to what they had heard and what they had seen from their documentation, they would not make use of any of the written reports or any of the documentation which Mr and Mrs Guy had submitted in relation to the circumstances when they collected the sample.
No doubt you ask yourselves where he is coming from and this is clearly a case of a lawyer with sour grapes attempting to close the door after the horse has bolted.
What of course none of you were aware of is that the FINA Doping Panel having adjourned at 6.30 p.m. on Friday the 24th of July indicated that they would make their decision on the preliminary legal issues and arising from that there would clearly be an issue as to whether or not the hearing needed to reconvene or whether or not matters were at an end.
I have outlined above the evidence that was available to the FINA Doping Panel and clearly as you can see there was no evidence adduced by any party to contradict the statements made by Michelle to the Doping Panel that she had not introduced alcohol into the sample and there were significant opportunities available to third parties to do so after the sample left her house in Kilkenny.
In the light of that the decision of the Doping Panel given yesterday that, and I quote "Burden of Proof":
The panel finds that under current FINA rules the burden of proof in a case where a banned technique is used lies with FINA and not with the swimmer.
Whenever a sanction against an individual is considered according to the general principles the burden of proof is not with the individual but with the body aiming the sanction. The burden of proof can be shifted to the individual either by laws/rules or by agreement. FINA Rule DC.9.3 shifts the burden of proof to the swimmer in regard to the finding in a competitor's body or fluids of anabolic steroids, growth hormones or related compounds or any other banned substance. However this case does not involve the finding of any banned substance but relates to the use of a banned technique. In this regard there is no rule shifting the burden of proof.
Having found in my favour on the legal submission the panel then find as a matter of fact that the manipulation of the urine had been done by Michelle herself and I quote: "Considering the testimony that she herself gave about the procedures followed when the urine was collected it cannot be excluded [Lennon's italics] that there was a possibility for her to add alcohol to the urine without Mr and/or Mrs Guy realising it."
The panel did not find out how the manipulation was made however to the conviction of the panel the swimmer herself has added alcohol to the urine before it was decanted into the sample jars which were then sealed. The swimmer has altered the integrity and validity of the urine delivered in Doping Control.
Even if the burden of proof had not shifted back to FINA, the evidence before the panel would not have allowed them make that decision and in particular the evidence of their only witness, Dr Segura on when the alcohol had to be introduced into the sample having regard to the specific gravity measurement taken by Mr and Mrs Guy.
However, this panel purporting to exercise judicial powers and affecting the life of a swimmer which have effectively been ruined as a result of their actions to date, make a decision based upon the burden of proof resting with her contrary to their own decision.
This is not sour grapes but an indication to you that this case will be appealed and will be appealed successfully. No doubt some of you are rejoicing in Michelle's difficulties and rejoicing in the fact that you believe you have been vindicated in relation to comments you have made about her to date.
Let there be no doubt but that the burden of proof in this case rests with FINA and they have not produced proof in accordance with any relevant rule of law in even the most archaic of jurisdictions.
The decision is farcical, bad on its face and one which will lead us to apply immediately to CAS for an early hearing seeking to have the matter overturned.
As provided for in CAS's regulations we will also be seeking damages from FINA for the irreparable harm which this deliberate act by the FINA Doping Panel has caused her.