A potential landmark court case in which disgraced Kazakh cyclist Andrey Kashechkin has questioned the legality of dope testing by sports bodies got underway on Tuesday.
Kashechkin, a former member of the Astana team which also featured
compatriot Alexandre Vinokourov, tested positive for homologous blood doping in August and now risks a four-year ban.
Kashechkin denies he used his own blood to enhance his performance, and claims that legal procedures during his control were not followed correctly by International Cycling Union (UCI) officials.
And his lawyer Luc Misson, who co-defended Jean-Marc Bosman when the former Belgian footballer successfully sued his club at the European Court of Justice in 1995 over “restraint of trade”, is confident of gaining a decision which could change the face of sport.
Misson expects to win a case on the belief that “privately-run” sports bodies such as the UCI and the World Anti Doping Agency (WADA) have no legitimate right to test athletes.
The Belgian lawyer says such procedures contravene Europe’s declaration of Human Rights, and that only public bodies, such as governments, have the right to carry out such procedures.
“We denounce the fact that these procedures (dope testing) and sanctions can be carried out by privately-run bodies,” said Misson, who is using articles 6, 8 and 11 of the European Convention of Human Rights as a main tenet of his argument.
“To proceed to harm the fundamental rights of any individual is a right held exclusively by public bodies, and within the strict framework of the law.”
Kashechkin was on holiday in Turkey with his family on August 1 when Belgian officials submitted him to a blood test.
It turned out to be positive for homologous blood doping, meaning he injected his own blood to boost his performance, and he now risks a four-year ban from the sport.
With his career hanging in the balance the Kazakh rider’s case is being watched closely by those in cycling, and arguably by the rest of sport.
If Misson manages to have Kashechkin cleared, and the decision is maintained, it would strike a blow to all those involved in the global fight against doping.
According to the Kashechkin camp the Belgian officials who collected blood samples from Kashechkin did so outside the permitted time limit of 0600 – 2200. The officials reportedly took the samples at 2245 local time.
Misson also says that analysis of the rider’s B sample, carried out 22 days later and which would validate any sanction, was not carried out within the UCI’s own regulatory time limits.
After the morning session, the UCI was being given a chance to conduct its own defence in the afternoon.
Cycling’s world ruling body, which is a legal entity in Switzerland where it is based, contests the competence of the court, and the fact that “a Belgian court is being asked to rule on the case of a Kazakh who lives in Monaco”.
The UCI is being given full support from the respective bodies that represent the riders and the teams in cycling.
Both the AIGCP (riders’ association) and the IPCT (teams association) are active in the fight against doping and have appealed to the Belgian court to be heard as witnesses.
Misson, however, seems confident of a favourable result and is prepared to take the case to the highest court in the land if need be.
Professional cycling meanwhile is already fearing the ramifications of such a decision, and the IPCT’s Belgian lawyer Jean-Louis Dupont fears the worst.
“If Kashechkin wins on the principle that only States (as opposed to private bodies) are legally allowed to carry out doping controls and hand down sanctions, then we might as well all walk away from professional sport,” he said.
A decision from the Belgian court is expected within two weeks.
© BikeRadar & AFP 2007