By Craig Lord
When Yves Fortier, presiding judge at the international sports court, suggested with a smile that Michelle Smith de Bruin might wish to sue her own lawyer, he summed up the two most critical errors in the defence of Ireland’s greatest Olympian.
Rare is the occasion where the accused brings both motive and weapon to open court and then attempts to argue that neither are valid reasons to convict. Yet Peter Lennon appeared to do just that in defending the swimmer against a four-year suspension for placing alcohol in a urine sample she provided to drug testers.
The questions remained simple enough: who put the “whiskey” in the jar and why? In the game of cluedo that unfolded before the Court of Arbitration for Sport in the Crystal room of the Hotel Royale in Lausanne this past week, the answers seemed clear: Smith de Bruin, in her home, because she had taken a banned substance. “Objection,” said Lennon, the Dublin lawyer. His opposite number, Jean-Pierre Morand, representing FINA, guardians of the sport, was about to drop a bombshell by asking Dr Jordi Segura, witness from the Barcelona laboratory that had analysed the swimmer’s sample, to supply the motive for what he alleged to be Smith’s motive.
“Let him finish,” said Fortier, a former Canadian ambassador to the United Nations. “I know what he’s going to say,” cringed Lennon. Of course he did. He had written the script himself – and his client had read it out a little over a year ago, on the day news broke that she was in trouble yet again with FINA. The laboratory report of the analysis of her sample suggested “the administration of some metabolic precursor of testosterone”, Smith de Bruin had noted on April 29.
Lennon gambled that he might be able to cancel out this early error of judgment by asking for proceedings in Lausanne to be held in public and, on those very grounds, having any mention of a banned substance ruled out of order because it might be prejudicial to his client. “But you knew when you begged us to have these proceedings in public what was coming,” said Morand.
What was coming was the last piece of the jigsaw; the precise motive for manipulation of the urine sample when testers Al and Kay Guy arrived at Kellsgrange House in Kilkenny, at around 8am on January 10 last year. “Androstenedione”. The word, listed among other banned substances in the column headed anabolic androgenic steroids, slipped simultaneously and missile-like from the mouths of Morand and Michael Beloff QC, one of Fortier’s two lieutenents.
The irony screamed louder than Lennon’s protestations; Smith de Bruin, hate figure of the US team, among others, in Atlanta, had on that fateful morning, according to Dr Segura, taken the same substance as one of the all-time heroes of American sport. Mark McGwire could legitimately, if somewhat distatefully, say that his home-run baseball record was within the laws of his sport. Smith de Bruin could not. The substance was invented by East German scientist Michael Oertel and eventually used in nasal spray form to bulk up East Berlin’s medals factory in the 1980s. It had, said Morand, “long been on the banned list”.
Countless had been the denials from Smith de Bruin in the face of accusations of drug use throughout the controversial tail-end of her long and, for the most part, mediocre career. Now, the swimmer sat in silence as Dr Segura detailed the deception that explained the manipulation.
The substance was not only there in the January 10 test. It had been there in tests take in November 1997 and March 1998, though in smaller quantities than on the occasion which led to Smith de Bruin’s suspension. The January 10 test suggested that the androstenedione had been taken “in the previous 10 to 12 hours,” said Dr Segura, head of the Barcelona laboratory accredited by the International Olympic Committee.
On the morning of January 10, it was a while before the Guys were able to get inside Kellsgrange House. The atmosphere was “tense” they said. This had led to their failure to fill in the finish time of the test on the athlete’s part of the doping form, an error that Lennon made much of but FINA referred to as a minor clerical error.
The Guys had smelled a “sweet, sickly odour” and registered the fact on their mission statement to IDTM. They had then kept the sample in their fridge at the weekend to avoid possible difficulties with transportation through courier company DHL.
It was “a possibility”, said Lennon, that the Guys had plotted the whole episode of January 10. It was possible for FINA to have plotted the whole thing in their “quest to get” his client. “Did someone else have a kit with the same numbers and infiltrate a DHL station or the home of Mr and Mrs Guy?” he asked, his thoughts running rampant with wild possibilities. He suggested that the sample might not even have been Smith’s or that there was in existence a set of testing canisters with identical number codes to those in which Smith’s sample was placed. Dr Segura’s role was doubtful too. Asked if he truly believed that Dr Segura had manipulated the sample himself, Lennon said that all possibilities had to be considered. Something flew past the window. There was a distinct possibility that it could have been a pig.
Fortier intervened: “You have throughout this hearing,” he told Lennon, “floated a number of theories…where are you asking the panel to go, in which direction?…we must know where the road is leading.” “Where the road is leading is to the clear conclusion that procedures were totally flawed”. Yet he provided no obvious evidence that that was true. His arguments about specific gravity of the sample and whether the Versapak testing canisters could have been tampered with by a third party without detection were knocked down.
Independent research agreed by both parties had been conducted by the University of Lausanne on the cannisters and proved only that tampering was detectable. Questioning the quantity of urine provided by Smith de Bruin and used for testing, Lennon suggested to Stafan Stahlstrom, director of IDTM, that “70ml is not approximately 75ml, is it?” The Swede did not get to answer as Fortier intervened: “You have many arguments, Mr Lennon. That was not one of your good ones.” Lennon blustered, rumaged through his files and returned to his possibilities. The panel should feel “uncomfortable” with reinforcing Smith’s suspension, he asserted. There was sufficient room for doubt. Procedures were flawed and FINA had gone on a “quest to catch” his client.
Beloff gave an analogy suggesting that he was a fast driver that the police had long been out to get. Eventually, on the one occasion he exceeded the speed limit, he was caught. Beloff said he may feel “uncomfortable”, but asked Lennon: “It would not mean I hadn’t broken the law, would it?” Lennon replied “no” but said the burden of proof rested not with Smith de Bruin but with FINA. Montard disagreed. The swimmer’s case amounted to a shoplifter claiming “I’m sorry, I don’t know who put it in my pocket.” Only one person had the motive to tamper with the test sample, Montard said: “If you manipulate, you have something to hide.” That something, we now know, was androstenedione, a substance that had not been detectable until the advent of isotope ratio mass spectrometry technology used at the winter Olympic Games in Nagano. The procedure had not then been “accepted ” by the IOC at the time the swimmer was punished but could be used as supporting evidence on the manipulation charge. As such, FINA could not “pursue a positive test case against” Smith. The arbitration panel – Fortier, Beloff and Denis Oswald of Switzerland – agreed that the evidence could be considered but gave Smith an assurance that it would not lead to her being charged with a positive drugs test. Lennon would not let it rest there, despite his reluctance to have the matter aired. He would be seeking damages for his client, who had been ridiculed by the revelations in the media and whose ability to earn a living had been compromised by the case against her.
Montard said that CAS had no jurisdiction to award damages. Fortier merely smiled, turned to Lennon and said: “As you asked for it to be public, perhaps she could sue you (Lennon and FINA) jointly or separately.” It was hard to see how it could have come to that; the evidence was weighted so heavily against Smith de Bruin, for whom reality has now truly dawned, legal defence or no legal defence.
Craig Lord is the chief European correspondent for Swimming World.