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Kashechkin doping challenge under way in Belgium

By Staff and wire reports
Published: Nov. 6, 2007

The case involving Andrey Kashechkin’s challenge to the fundamental structure of doping controls by sports bodies got under way on Tuesday in Belgium.

Kashechkin, a former member of the Astana team, tested positive for homologous blood doping - the injection of donated blood to boost endurance - while on holiday in Turkey this past August. His teammate Alexander Vinokourov also tested positive for the same method during the Tour de France in July. The two are the first athletes to test positive for homologous blood doping since American Tyler Hamilton and Spaniard Santiago Perez were charged with the same offense, based on tests conducted during the 2004 Vuelta a España.

Kashechkin denies he used a donor's - or his own - blood to enhance his performance, and has raised two claims: One, that doping controls cannot be administered by private entities – like the UCI or WADA - and two, that procedures during his test were not followed correctly by UCI officials.

Kashechkin’s attorney, Luc Misson, who represented Belgian footballer Jean-Marc Bosman in a successful suit against his team at the European Court of Justice in 1995 over "restraint of trade," is confident of gaining a decision that 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."

If Misson succeeds in his strategy and a ruling is upheld on appeal, it would strike a blow to all those involved in the global fight against doping. But he faces a major hurdle if the court considers an October 2004 case in which the European Court of First Instance ruled against two swimmers who challenged anti-doping rules as an unfair restraint of trade, infringing upon their right to work.

In the case of Spain's David Meca-Medina and Slovenia's Igor Majcen, two professional long-distance swimmers, the court not only dismissed their claim, but also ordered them to pay court costs for both sides, ruling that the challenge was "frivolous" in nature.

Both the AIGCP (riders' association) and the IPCT (teams association) are active in the fight against doping and have asked the Belgian court to be heard as witnesses.

Attorney Jean-Louis Dupont, representing the IPCT, said the case has the potential to ruin anti-doping efforts throughout sport.

"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.

Kashechkin is also arguing that the Belgian officials who collected his blood samples did so outside the permitted time limit of 6 a.m. to 10 p.m. The officials reportedly took the samples at 10:45 p.m. local time.

Kashechkin was on holiday in Turkey with his family on August 1 when Belgian officials took the samples. They proved positive for homologous blood doping and he now risks a two-year suspension from the sport and another two-year ban from ProTour events.

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 defense in the afternoon.

A decision from the Belgian court is expected within two weeks.
VeloNews Editor Charles Pelkey contributed to this report