Triathlon: Gemmell still like meat in the CAS sandwich

Kris Gemmell: under suspension.

Banned triathlete Kris Gemmell believes he never should have faced anti-doping proceedings and expects his punishment will be overturned within weeks.

Gemmell was this week suspended from participating in sport for 15 months after failing to comply with the athlete whereabouts programme, a key measure in the fight against doping.

Having retired from top-level triathlon in 2012, Gemmell harboured ambitions in longer-distance racing and never left the programme, registering three breaches across 18 months that left him open to the sanction eventually imposed by the Court of Arbitration for Sport.

But the case brought against the 37-year-old was initially dismissed by the New Zealand Sports Tribunal and, according to lawyer Ian Hunt, contained a couple of serious flaws.

Gemmell has found the imbroglio "emotionally devastating" and remained unwilling to speak but authorised Hunt, who acted as counsel for the athlete, to speak on his behalf. And Hunt confirmed both he and Gemmell were confident the ban would be quashed as soon as January 1.

The pair is not alone. Even Drug Free Sports NZ chief executive Graeme Steel, who pursued the appeal to CAS, acknowledged Gemmell would likely have his ban overturned in the New Year.

The reason for the reversal is a change in the athlete whereabouts programme regulations, which will in January see the three-strikes transgression period reduced to 12 months. The new rules - proposed in May 2012 and formally approved last November - would exonerate Gemmell, given his infractions occurred across 14 months.

So should his case have been pursued when it was set to almost immediately be overturned? It's a point on which Hunt and Steel, unsurprisingly, disagree.

"One of the over-riding concerns I had about this was that the case was even brought in the first place," Hunt said. "Why are you prosecuting this man - leaving aside whether you can prove the breaches - in circumstance where the whole anti-doping community agrees that what you're talking about soon won't be an offence?"

Steel, however, felt the ban was important to remind other athletes of the rules and regulations, even if the goalposts were about to be shifted, calling Gemmell the "meat in the sandwich". But Hunt was unhappy his client had been used to essentially send a message.

"Is it appropriate an athlete with a stellar record, who's acknowledged not to be a drug cheat, should be the meat in the sandwich?"

Setting aside the issue of the case's initial validity, Gemmell's guilt hinged on the first of three breaches, a contentious test in Colorado that saw the Sports Tribunal dismiss the case but saw CAS levy the sanction.

Gemmell, after competing at the London Olympics, had flown to the US and was present at an address near Boulder when the testing officer came calling at 10pm. However, suffering from jet lag, he never answered the repeated ringing of his door bell.

The Sports Tribunal believed the doping control officer should have called Gemmell but CAS disagreed. DFSNZ do not require testers to phone athletes where circumstances were not exceptional, and five of 10 other countries surveyed employed that safeguard against a missed test.

Of course, much of this mess could have been avoided had Gemmell simply left the whereabouts programme upon retiring.

"He hasn't competed so why did he put himself in a situation where he had to be subject to these tests?" Hunt said. "But here's a top-class athlete who's going through that difficult phase of ending his sporting career and doesn't quite want to give it away, also keeping in reserve the possibility he could move up to the longer distance."

Withdrawing from the programme would have left Gemmell subject to a six-month stand-down period if he wished to return to top-level sport.

"His life's been on hold so he wants to stop that as quickly as possible," Hunt said.

"He's going to apply for that reduction and I don't see it as being a complicated application."