Lennon queries date of hearing
The court of Arbitration for Sport (CAS) has fixed a date of February 5th for the appeal hearing of triple Olympic gold medallist Michelle de Bruin. De Bruin was banned from swimming for four years by the world governing body FINA, having been found guilty by them of tampering with a urine sample last year.
However, De Bruin's legal representative, Dublin-based solicitor Peter Lennon, said yesterday that he is unhappy with the date set by the Lausanne-based international court, as he feels there are a number of important issues that have yet to be discussed. Lennon is adamant that the case should not proceed until he is satisfied that issues of discovery and procedure are first settled between his client and CAS.
"Whilst they have set a date, I am in the difficult position of not being clear as to whether it is a full hearing or a preliminary hearing. If it's a full hearing there is a problem with the date," he said yesterday.
Lennon argues that FINA have documents to which he has not yet had access. These documents concern the testing laboratory in Barcelona of the International Olympic Committee (IOC), and the Swedish testing agency International Drug Test Management, who carried out the sampling on behalf of FINA at de Bruin's home in Kilkenny in January 1998. They also relate to the Irish testers Al Guy and Kay Guy, who Lennon argues are, because of their job, agents of FINA.
Lennon is also not satisfied with information regarding how the proceedings are to be run, stating that he does not know whether there will be an oral hearing based on points of law, a preliminary hearing, a full hearing or where the burden of proof will lie.
"In a normal arbitration hearing you have a preliminary meeting involving the principal people. This has not happened here," he said.
"I'm hopeful that the matter will be resolved before February 5th. If it is not resolved we would take the stance that it should not go ahead on this date. In reality, we want this up and running, but discovery and procedure are two very important issues to us."
Lennon says of his reservations: "I don't think this is deliberate on the part of CAS to stifle Michelle's appeal, but these are major objections.
"The documents are relevant to the case. That places us in a different position as to whether we turn up armed for a full appeal or a preliminary hearing."
Lennon also claims that de Bruin's case is the first of its kind in that she has been banned for tampering. In this regard, FINA claim that she added alcohol to her urine in an attempt to adulterate the sample. Because of this FINA will argue that this is a drug-related issue, with Lennon contesting that it is not and as such the burden of proof should rest with FINA.
"We would contest that it is the first time a sports body has had to prove the case. It is our opinion that they did not prove the case," he said.
The hearing is scheduled to take place the day after the end of the IOC-organised World Symposium on Drugs, also in Switzerland, but Lennon dismisses any suggestion that this may affect the de Bruin case. "I wouldn't read anything sinister into the fact that the hearing is scheduled for the day after the IOC meeting," he said.
"I would see no connection at all between the two dates. I would hope that the court would be big enough not to be influenced in any way. I suppose that logistically for CAS it means everybody is there. I have no concern." The appeal will be overseen by three lawyers - Yves Fortier, Denis Oswald and Michael Belloff. The outcome of the appeal is final and binding on both parties.
The three judges were selected by the parties involved in the appeal. CAS selected Fortier with FINA nominating Oswald. De Bruin's selected panellist, Belloff, is an academic lawyer from Trinity College, Cambridge. In an effort to be seen to be fair to all, it is normal procedure in CAS hearings for the judges to be selected by the parties involved. CAS has a list of over 150 names from which these experts can be chosen. All of the judges have a legal background and all have a particular interest in sport.
It is believed that the de Bruin legal team objected to Oswald being part of the panel, but this was rejected by the CAS.