Tara Kirk Denied Appeal to Swim in Olympics, Other Lawsuits Still on Table -- August 6, 2008

PHOENIX, Arizona, August 6. SWIMMING World has obtained a letter sent from USA Swimming Executive Director Chuck Wielgus to staff members of USA Swimming explaining Tara Kirk's emergency appeal hearing that took place yesterday.

In summary, Kirk has been denied the chance to swim at the 2008 Beijing Games as the arbitrator ruled in USA Swimming's favor on this issue. However, Kirk still has the potential to seek various other claims at a later date. The emergency hearing was scheduled just to hear Kirk's claim for a spot on the Olympic roster.

Here is the complete letter sent out by Wielgus

As you know, since Jessica Hardy's positive drug test became public, Tara Kirk has been demanding that she be placed on the Olympic Team and be given the opportunity to swim the 100m breaststroke in Beijing.. This came to a head when she filed a Demand for Arbitration with the American Arbitration Association on Monday morning August 4, claiming that USA Swimming's refusal to put her on the team was a violation of the Ted Stevens Olympic and Amateur Sports Act. She also filed claims seeking monetary damages, costs and attorneys fees from USA Swimming, as well as an order that USA Swimming's Selection Procedures be changed in the future.

Her arbitration demand requested an expedited hearing on her request to be named to the Olympic Team (while her other claims may be addressed at a later date). Under the USOC Bylaws, she was entitled to a hearing and decision within 48 hours. By Monday afternoon, an arbitrator (Al Ferris of San Diego) had been appointed by the AAA, and a hearing was scheduled for Tuesday, August 5 beginning at noon Pacific Time in San Francisco. The hearing lasted approximately 10 ½ hours. Mark Schubert, USADA's General Counsel Bill Bock and I all testified on USA Swimming's behalf. The USOC submitted an affidavit from Rachel Isaacs,

Associate Director in the Sport Partnerships Department, expressing her opinion that the Selection Procedures were clear, fair, and equitable. Tara Kirk was present at the hearing but did not testify. We were represented at the hearing by Rich Young and Steve Smith of HRO. USOC Athlete Ombudsman John Ruger monitored the entire hearing by phone.

Under our Selection Procedures, Rebecca Soni had been named to replace Jessica Hardy in the 100m breaststroke in Beijing. Because Ms. Kirk was requesting that USA Swimming be ordered to put her in that event in Rebecca's place, Ms. Soni was represented at the hearing as an interested party by her own counsel.

As the hearing was held so close to the start of the Olympics, the arbitrator announced his decision verbally at the conclusion of the hearing, with a written order to be issued by September 5. In that verbal order, the arbitrator denied Ms. Kirk's claims, and found that USA Swimming had reasonably followed its Selection Procedures and had reasonably denied Ms. Kirk's demand that she be added to the Olympic Team.

USA Swimming's position all along in this matter has been that we are required to follow our published rules, and that is what we did. Hopefully this decision, after a long and detailed hearing on the facts, will satisfy those who publicly and privately have expressed concern.

Chuck Wielgus
Executive Director
August 6, 2008

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Reaction Time Comments

August 6, 2008 Nope. Not satisfied.
Submitted by: Retired
August 6, 2008 I hope she sues you personally Chuck Wielgus
Submitted by: groovydoo
August 6, 2008 USA Swimming's Trials and Selection Procedures need to be adjusted so that the athletes who are the life's blood of USA Swimming are most fairly represented by them. Currently that is obviously not happening. I hope Tara Kirk wins enough of a monetary judgment to encourage USA Swimming to start doing to right thing, albeit far too late to help Tara, Lara and Amanda.
Submitted by: Michelle
August 6, 2008 I'm sorry if I sound unnecessarily harsh, but this has to be quote possibly one of the stupidest responses I have ever heard in my life. How is this decision so complicated? Top two in each event should swim in the Olympics. The top two in the 100 breast are Megan Jendrick and Tara Kirk. Period.

For the first time in my life, I am truly ashamed of USA Swimming.
Submitted by: Sphere
August 6, 2008 Now that USA Swimming has given the impression of being suspect as corrupt and manipulative, we need to examine our own actions or lack thereof. Does Tara Kirk stand alone out there? I hope every American spectator at the Olympic venue has the guts to hold up a sign or have Tshirt printed that says "Where's Tara?"
Furthermore, I hope that every swimmer, parent, and coach here at home floods USA Swimming & the Olympic Committee with emails asking "Where's Tara?" and demanding the resignations of those responsible for mocking the integrity and efforts of every swimmer, coach and parent in USA Swimming. If we can each maintain our own integrity in the matter by speaking up for what is right, then maybe we can look Tara Kirk in the eye someday.
Submitted by: barra
August 6, 2008 What a bunch of jokers at USA swimming...Continually screwing over its own athletes!
2000 olympian

Submitted by: chadcarvin
August 6, 2008 This situation really is sickening. What makes matters even worse is the arrogant tone with which Chuck Wielgus' letter appears to come off with. Basically, there is not even a slight admission by him, or any of the USA Swimming "executives", that there was any wrongdoing on their part.

Instead, he highlights Tara's "demands", trying to make her seem like the bad sport here, when she truly is the victim of incompetence (for not making contingency plans for an event that HAPPENED in previous Olympic Trials), and a lack of leadership to act quickly and decisively in favor of athletes.

I suggest that all those who are angry about this do two things:

1) Step back and let your anger subside somewhat.
2) Think through your logical reasons and arguments about why what happened was so absurd and wrong for Tara, et al
3) Then call Chuck Wielgus: 719.866.4544 - Executive Director and Mark Schubert: 719.866.3542 - National Team Head Coach and General Manager and leave your message for them (both of those numbers are on USA Swimming website).

If enough people reach out to them, to express their anger, disappointment and shame, perhaps something can be done.

At the very least USA Swimming should make some kind of an apology to Tara and Lara
Submitted by: formerswimmer
August 6, 2008 There appears to be no explanation to the concerned USA Swim community about why they think they should have ignored Kirk, et al. I know they were "allowed to" under the rules, but where were they representing Kirk's ( ie honest swimmers) in this process. It is clear to me that they were just running from the highest price law suit! Jessica's "losses" from her pro contracts are more costly to USA swimming than Kirk's. They took the cheap way out....not the RIGHT way out.
Submitted by: waterwatch
August 6, 2008 Thanks formerswimmer, I will make those calls. US Swimming may be able to get away with this in terms of the letter of the law,(which Kirk has rightly demanded be changed) but I think they have lost credibility from swimmers and fans alike. This has pitted swimmers against each other in a way that could have been avoided.The current procedures and timing of the Trials has led to all the swimmers, including Hardy, not having sufficient time to have this issue resolved fairly.
Submitted by: liquidassets
August 6, 2008 I don't think there is anyone that doesn't feel for the situation that Lara and Tara are in. They should be on the Olympic team.

The rules failed them. The process failed them.

The problem lies at the beginning of the process in failing to accept the possibility that a US swimmer would test positive at the Trials. The Trials competition was set too close to the deadline to allow for the proper reaction to a positive drug test. The testing took too long. I don't know if USA Swimming had control over the timing of testing results – I don't' think they did. The US rules stated a roster change had to be done by the 21st, while the IOC would allow changes through the 23rd. All of these flaws contributed to the unfortunate result – two swimmers who have committed themselves for years to athletic excellence are denied the ultimate reward for their labors – rewards that they earned.

Sometimes there is a difference between what is fair and right and the rules. I think that may have been the case here. USA Swimming had to follow a set of rules that was flawed. A qualified mediator determined they had followed the rules. If they had done otherwise -- ignore the rules to do what they thought was right -- the potential liability would be devastating and no court would rule in their favor.

Unfortunately, the US Olympic swimming roster is now set in stone. We are helpless to change it. What we can do is advocate for rule changes and reform that prevent this situation from happening again. I realize this will provide little comfort to Lara and Tara and those of us who believe the should be swimming in Beijing, but it is reality.

As a side note: thank you Swimming World and Jason Marsteller for reporting this whole unfortunate process with such integrity. Hopefully there are more facts you can find that will help all of us to understand how this situation can be avoided in the future.

Submitted by: streamline
August 7, 2008 I have several comments to make:

How could anyone not be shocked by this decision. What about fair play? Its great we are rightly so concerned about finding drug users. But what about what american swimming is all about? I thought we above all else support honor, fair play and sportsmanship. Drug cheats are removed because they are taking what they don't deserve. But what about giving swimmers like Tara what they have earned?

Secondly - good for Chad Carvin for signing his name. I wish many many more former Olympians, coaches and national champions would publicly speak out. Shame those who deserve to be shamed and are not responding to any code of honor.

Lastly the hypocrisy committee should give Mark Schubert his own gold medal. It is a great honor to be named US olympic team head coach. This honor is earned from past achievements. But it is an honorary position. Each olympic swimmer obviously has there own coach who brought them there. I wonder what Mark Schubert's position would be if he were really coaching and a swimmer of his was in Tara's position now. I have lost some respect for him and cannot excuse his actions. Chuck Wielgus is like the heads of many organizations, a paper shuffler who cannot really understand what is at the core of the organization he represents - the swimmer and the sport we love. He should be replaced. Stat.
Submitted by: swimmcatt1
August 7, 2008 Thanks, Streamline. It's definitely been an intense process.

My primary concern has been reporting the truth with as level head as possible. I've always seen the goal of a true journalist is that of a light-shiner, confusion fixer. It's part of the reason why I track down the various rumors that happen throughout the swimming community.

If it is true, it needs to be reported in as unbiased a way as possible. If it isn't true, then the rumor needs to be squashed. There are too many people out there that really enjoy just being part of the rumor-mongering crowd.
Submitted by: Jason Marsteller
August 7, 2008 As a USA Swimming official for over 10 years, I've proudly represented the process. A wise referee once explained, we aren't there to punish the swimmer doing it wrong, we're there to protect the swimmer who does it right. What makes me so disgusted with this situation, and ashamed of USA Swimming and the USOC, who was protecting Tara. Why weren't USA Swimming and USOC standing up fo Tara in Beijong, rather than against her in California? Especially after Jessica Hardy had withdrawn. Maybe the IOC or FINA would have had something to say about and the results would ahve been the same, but, we at least would be on the right side of the table and America would be proud of the positions. How can any of us be proud of an organization that takes such a hard line and derisive attitude towards the swimmer who was swimming legally and not an admitted doper.
My real sorrow is that, no matter what the outcome of the tabled lawsuits, nothing wil take the place of Tara's lost Olympic swim. My jouy at watching swimmers I know compete in their Olympic quest, will be tempered by mt anger and disgust over this sorry episode.

Submitted by: topgrain
August 7, 2008 A couple comments

"Lastly the hypocrisy committee should give Mark Schubert his own gold medal. It is a great honor to be named US olympic team head coach. This honor is earned from past achievements. But it is an honorary position. Each olympic swimmer obviously has their own coach who brought them there." -- Unfortunately this is not true --> The head coach has final decision on who swims on the relays(even being a top 2 finisher at trials doesn't mean you swim at night, you might only get morning spot.)

The sickening part of this discussion is that USA swimming could have completely avoided this issue by adding Kirk to the roster using available spots when they recieved the positive results, and given themselves the flexibility after the fact to enter her in the event. USA swimming leadership acted like an ostrich and put its head in the sand when a challenging situation presented itself, doing nothing to make the best of the situation.

Not only does the system/process need to change, but obviously the leadership needs to change also.
Submitted by: OUSWIMMER
August 7, 2008 OK everybody - time for a deep breath. A number of good points have been raised in this discussion and the undercurrent of frustration with USA Swimming is quite apparent. Given the timing, the only thing that could have been done differently would have been to "conditionally" place Tara and Laura on the team pending the final outcome of the Jessica Hardy hearing. Both young ladies, accepting the conditional appointment, would have waived appeal rights should Jessica have won her hearing. The downside to this would be the distraction of bringing these two ladies to camp late and the strong possibility the USOC could have denied the petition of USA Swimming to place them on the team. This thing has been too much of a circus already; would it really help the rest of the team to make it worse? Prior to the Angel Myers episode in 1988 there were rumors everywhere of a potential problem. Were there any such issues regarding Hardy or did this really come out of the blue? All parties involved were squeezed by the timing, but I can't help wondering if a couple of phone calls couldn't have given everyone an extra couple of days to get a better handle on the situation. While the "off with their heads" attitude is not constructive, the lessons learned cannot be forgotten for another 20 years.
Submitted by: pastprime
I am both sorry and angry about the Arbitrators decision. I think it was a lot like trying to get one Doctor to testify against another, it just does not happen.
USA, including Chuck and his crew, did everything they could to make it sound like TARA was asking for the unreasonable. Now, let's ask the question, had this been Mark Shubert or Bob Bowmans swimmer, then what? I know they personally don't share any animosity toward Tara, but it is pretty clear, that each coach does watch out for their own, as they should…….however it should NOT be at the expense of another swimmer. Looks like there was a way to add Jack's swimmer to the roster, when it was clear that Dara was NOT giving up her relay spot only her individual swim. Now we have SEVEN potential 400Fr relay swimmers. So, Tara, the swim world supports you, hopefully everyone swims well and that your day in court with USA swimming will provide justice! USA swimming should be sooooooooo ashamed ! YES, CALL THE NUMBER ABOVE AND ASK WHAT THE STEPS ARE TO BEGIN IMPEACHMENT PROCEDURES FOR CHUCK AND HIS ENTOURAGE!
Submitted by: disgusted
August 7, 2008 Ah - satisfy athletes, coaches across this country, parents, spectators as to any true "fairness" doctrine, not just cold harded, punitive, skewed "PUBLISHED RULES"? Not even. Where the heck is any true fairness to Tara Kirk AND Lara Jackson here? When lower qualifying swimmers, swimmers associated in club coaching and NCAA swimming (Joyce with Bauerle at her club and Soni swimming for Schubert at USC)are advanced onto the Olympic team - and NOT truly deserving Kirk and Jackson? Come on.

Where is it ever stated and or discussed by this "mediator" of fairness that USA Swimming could not have chosen (if they desired) to go outside of its skewed "rules" and designated instead the alternate position to the truly deserving alternatives, not the lower qualifying ones chosen instead. Could not USA Swimming just not have chosen to do that instead - fairly and justly? How truly could Soni and Joyce argue they deserve to be on the team in place of higher qualifying, truly deserving swimmers?

I believe they could have - USA SWIMMING - if that approach to constructed a truly FAIR and DESERVING U.S.A Swim Team had been fully supported by Coaches Schubert's and Bauerle's desire.

Submitted by: lorraine
August 7, 2008 Hey all,

I just wanted to correct some of the direction this conversation is headed. Soni and Joyce made the team in ways that were not at all impacted by the Hardy situation.

Soni made the team in standard fashion, while Joyce made the team when Dara Torres elected to drop out of the 100 free. That created the Tetris effect of moving everyone up a notch in the 100 free.

While Soni and Joyce both are benefiting by the timing of the Hardy decision since they are both adding individual events because of the rules, I don't think they should be the people that feel the heat for everything Hardy right now.
Submitted by: Jason Marsteller
August 7, 2008 But the facts stand that they were and are coached by conflict of interest bearing Bauerle and Schubert. And if Schubert and Bauerle had fought for and advocated for the highest place finishing swimmers in both of those events - the truly most deserving swimmers in both of those events Soni (Schubert's USC protege) and Joyce (Bauerle's club swimmer) would not be going to Beijing - and living with the fact their going DENIES the true deserving American athlete's (Kirk and Jackson) their places on THEIR Olympic team.

True fairness and highest place finishes CLEANLY swum in Omaha stand for a whole lot more than this "excuse" of a suspect decision.

A entire USA swimming community deserves and truly DEMANDS a better outcome as to alternate positioning than this. It just cannot be - conflict of interest and fairnes-wise. And I would argue IF USA Swimming had ethically and fairly desired it to be - it did not have to be....
Submitted by: lorraine
August 7, 2008 Jason - I want to acknowledge that Joyce and Soni indeed did make the selection due to Torres ironic decision to not swim the 100 free (and yet now that Hardy has been banned Torres most likely will be pressured to swim the 100 free in relays). However it remains up to the subjective minds and imaginations of swim supporters in the United States as to whether or not Soni and Joyce deserve to be able to swim in events they did not earn and/or rightfully qualify for in Omaha - as a result. And as to why it could not be - and it has not been fully explained as to why - it is that U.S.A. Swimming could not have awarded alternate positions in those races to the highest place finishing swimmers in those two races.
Submitted by: lorraine
August 7, 2008 Suspension of belief: Let's consider a scenario - implausible as it may be.

Let's say Michael Phelps finished third by 100th/sec and later the second place finisher tested positive. Do you think for a moment that USA Swimming would have refused to add him to the roster?

Submitted by: barra
August 7, 2008 It continues to appear that there was an attempt to sweep this whole incident "under the rug" until long after the games and hope that Hardy could make the testing agency appear to be at fault. (Thankfully she has now had to acknowledge that the tests were accurate. ) Had someone not disclosed the results we and Tara would never know about this. I am disgusted at how the organizational "powers" did not look after the honest swimmers here.
Submitted by: waterwatch
August 7, 2008 What exactly do the FINA rules say about an athlete testing positive (A&B) Do they not say that the athlete is immediately disqualified/barred from competition?

If so, then FINA dictates that Hardy was disqualified on the 21st. Plenty of time to add other swimmers to the roster. So why was she given an option to 'withdraw'? Was USA Swimming unaware of the FINA rules?
Rules are rules - right? And USA Swimming states they are only playing by the rules. But not FINA rules?

Both Soni & Joyce are coached by the Olympic team coaches
and those coaches should have recused themselves from this process.

Give me one reason parents would sacrifice and encourage their youth swimmer to train for this?
Submitted by: barra
August 7, 2008 That is exactly my thinking, barra. Well said. Seems to me so obvious an attempt to deny Tara Kirk (and Lara Jackson) that which they rightfully - and honorably deserve. And as such how indeed could USA Swimming not have attempted at every turn, with every ounce of any honor they hold (as an advocate for American swimming excellence) once these test results were made known to the public (and who knows really when they were KNOWN in the absolutely TRUE sense of the word) - which was the 21st of July - and named Tara Kirk and Lara Jackson alternates to the team on that date. Why indeed. Seems like the fact Tara Kirk and Lara Jackson had the gall to not be a member of either Schubert and/or Bauerle's teams only unethically tops this all off. After all - Coaches Schubert and Bauerle you two know full well there really is NO ETHICAL REASON at all that Tara Kirk and Lara Jackson are sitting out an OLYMPIC competition where they were and continue to be forever the true qualifying swimmers. None at all.
Submitted by: Lorraine
August 7, 2008 Just a thought-- maybe there's something more to this that none of us know about. With the wording of everything that has gone out "officially" about this entire situation, I don't think it's that crazy to think that gee, maybe we don't know everything that went into this decision. After all of my years of loving USA Swimming, I'd personally perfer to give them the benefit of the doubt here.

It's easy to attack. But I highly doubt anybody here really knows exactly what happened behind closed doors. I also HIGHLY doubt that the decisions made were easy for anybody involved.
Submitted by: Ako
August 7, 2008 Okay Ako, but we DO know one thing...Kirk was not informed, therefore not fairly represented, when these decisions to not name alternates were made.
Submitted by: waterwatch
August 7, 2008 As someone who swam in the 1980 Olympic Swimming Trials and who had friends and team mates who were unable to compete because of the boycott, I'd be curious to hear Mark Schubert's perspective on how devastated HIS Mission Viejo Olympic swimmers were after that terrible experience. Trust me, it never completely goes away. He should know better. Very disappointed in USA swimming.
Submitted by: lrr
August 7, 2008 Ako - Exactly. What went on behind closed doors? What sport is this? There is no reason for closed doors, if the process is on the up and up, transparent. That's exactly the point. I doubt Tara Kirk got invited to listen in on what went on 'behind closed doors'. This is not a matter of national security, why would there be anything more to the matter than a swimmer tested positive (A
Submitted by: barra
August 7, 2008 People keep saying Soni swam for Schubert... I don't think she ever did.
Submitted by: JeffyFit
August 7, 2008 It's been reported here backwards.

Rebecca Soni is quite proud of her time spent under Coach Schubert at USC - see her profile in USA Swimming. A portion of which quotes Ms. Soni: 4 What's it like swimming for USC and coach Mark Schubert?
Rebecca: It's absolutely amazing. I'm having the time of my life. I have one of the best coaches in the world. It's great to have such a fun team. I'm excited to represent USC.

Coach Bauerle is at Georgia and is credited with bringing up his "rising star" Kara Lynn Joyce.

Submitted by: Lorraine
August 7, 2008 Why does she want to swim in the Olympics again? so she can get her butt handed to her? Again?
Submitted by: swimmer bill
August 8, 2008 This is probably the worst decision that USA Swimming could make. Each event takes the top 2, if one of them fall out, such as failing a drug test, the next alternate is bumped up. Someone trained to get to that level, and is now denied that opportunity just because it is too close to the Olympics. As a former OT finalist, if I was alternate in this situation, I would be fighting it with all I had as well. Tara, if there can be any help, let us know!
Submitted by: Breastman
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Tara Kirk qualifies for 100 breaststroke semi-finals at 2008 olympic trials.
Photo By: Peter H. Bick

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