Michelle de Bruin has not yet appealed to the Court of Arbitration for Sport (CAS) regarding the four-year ban handed down to her by FINA, the governing body of swimming, on August 6th. According to officials in Lausanne, the swimmer has until the end of this week to make her application to the Appeals Arbitration Division of CAS, which is responsible for resolving disputes concerning the decisions of disciplinary tribunals of sports federations and associations.
There is a time limit of one month from the date a ban is issued in which athletes are expected to make their appeal. An extension to this one-month limit, however, can be negotiated if all parties agree.
"CAS is in the business of arbitration," said an official. "If FINA agrees on an extension with Ms de Bruin, there would probably be no problem."
In any CAS appeal the decision is usually speedy and must be given within six months of the hearing. The procedure is free except for an initial fee of $500, payable by the party lodging the appeal.
It appears that it would be extremely difficult for de Bruin to take her case to the European Court of Human Rights if her appeal is not upheld by CAS.
In a press briefing in the offices of her solicitor, Mr Peter Lennon, on August 7th, Mr Lennon indicated that if her appeal to CAS was unsuccessful, he and his client might take the case to the European Court of Human Rights. He drew parallels between de Bruin's case and other cases in which Irish people were wrongly accused of offences in other jurisdictions. He also directly mentioned the European Court of Human Rights as a possible course of action.
"One of the suspicions that I made to the Doping Control Panel and one of the suspicions that they didn't deal with - and it is quite apparent now why they didn't - was in relation to the European Court of Human Rights. It sounds terribly legalistic in a case involving a swimmer, but in this particular case Michelle did not get the opportunity to cross examine Mr and Mrs Guy . . . especially as there were very serious questions to be asked about the procedures followed in this case."
According to a legal expert in this area it is not possible for de Bruin or her solicitor to take this course of action. Only signatories to the Council of Europe can be sued through the European Court and the only signatories are member-states of the Council of Europe.
There are basically two ways of proceeding to the European Court of Human Rights. A member-state of the Council of Europe can take issue with another member-state and use the Court of Human Rights to resolve the dispute.
An example of this is the case which involved the Republic of Ireland taking Britain to the court for alleged human rights violations which took place in the Castlereagh RUC interrogation centre outside Belfast during the 1970s.
The second method is where a citizen of a member-state makes a complaint against that state through the offices of the Human Rights Court. These cases would usually be test cases with the results very often shaping the laws governing the country against which the case was taken. An example of this was the case involving Senator David Norris, who took the Republic of Ireland to the European Court because of state laws which, he argued, denied basic human rights to homosexuals. His case was upheld and the laws on homosexuality in Ireland were repealed.
In both instances the defendant was a state, not an individual or an organisation such as FINA or CAS. In every case since 1980 the defendant has been a state. The European Court of Human Rights cannot apply its judgments to organisations which are not members of the Council of Europe - and these are, exclusively, states. FINA is not a party to the European Convention, nor is CAS. FINA is a private body and a voluntary organisation. It would have the same status in law as organisations such as St Vincent de Paul. In order to take a case, Mr Lennon and his client would have to sue the Republic of Ireland or convince the Irish State to sue another member-state because of perceived human rights violations against his client.
The most famous European sports case has been the Bosman Ruling in soccer, which remapped the rules that govern the transfer of players throughout Europe. This was not a European Court of Human Rights issue but a legal dispute which was eventually resolved using European Union law. Jean-Marc Bosman's case was referred to the European Court of Justice by the Court of Appeal. Bosman was a professional footballer who played for a Belgian club. At the end of his contract in 1990, he was offered a new, greatly inferior, contract, and was effectively prevented from transferring to another club. Bosman sued his club for damages, basing his claim on breach of contract and the illegality of the transfer system. The Belgian Football Association and UEFA were joined to the action on account of their alleged responsibility for drafting the rules. He also won a declaration that UEFA's rules limiting the number of non-nationals in club competitions were illegal when applied to EU nationals.
