TYR Appeals FINA Decision Banning Its Arm Band, Takes Its Case to Sports Arbitration Court -- June 8, 2004
HUNTINGTON BEACH, Calif., June 7. IN response to the decision by the Federation Internationale de Natation Amateur (FINA, the worldwide governing body for aquatics), to ban arm band technology for use in swimming competitions - including the U.S. Olympic Swimming Trials beginning July 7th in Long Beach, California, competitive swimwear leader TYR Sport has initiated the appellate process with the Court of Arbitration for Sport (CAS) based on fairness and political bias. Additionally, TYR is asking FINA to reconsider its finding and immediately reverse the ban.
Central to TYR's contention is the inherent unfairness and logic of FINA's ruling. In seeking to innovate on current full body suit technology, TYR developed a separate arm sleeve (Aqua Band) that eliminated the shoulder and elbow restriction problems that swimmers encountered with full sleeve technology.
"Our elite athletes rejected full sleeve suits due to the their restriction of shoulder movement. To overcome that concern, we developed the Aqua Band, which is essentially an elastic sleeve that compresses the muscles and affords greater water feel through a mesh forearm," said Chris Wilmoth, marketing director at TYR Sport.
"We simply cannot understand how FINA could approve Speedo's Fastskin II, which is a full body suit with a gripper-type technology on the inner forearm, and disallow our forearm sleeve. Essentially the only difference is that their sleeve is attached and ours is not.
"Per FINA's own handbook, the Aqua Band does not violate any existing rules. Given Speedo's approval by FINA, either the Aqua Band should have been approved, or Speedo's technology rejected. TYR can only conclude that FINA adopted a new rule (ex post facto) to ban the Aqua Band submission without any scientific inquiry, reasonable rationale or any opportunity to be heard. Evidently certain members of the FINA Bureau are either opposed to innovation or are biased against us."
As part of TYR's new Aqua Shift swimsuit technology (the Aqua Shift swimsuits were introduced in January at the FINA World Cup event in New York and unanimously approved by FINA), the Aqua Band was worn in competition at the U.S. National Championships, in February, after the Head Referee reviewed them and agreed they complied with all standards pursuant to FINA Constitution and Rules Handbook 2002-2005 version, specifically GR 6 (Costumes).
Prior to the event, TYR had submitted the Aqua Bands to FINA for approval using FINA's own rulings from its 2000 decision that provided for the acceptance of the innovative full body suit because "it did not violate any existing rules and therefore the Bureau left the choice of swimsuits up to the swimmer."
FINA Vice President and Bureau Member, Dale Neuburger, advised several influential individuals in the swimming community, immediately after the U.S. Nationals, that "the FINA office received materials from TYR last week for its evaluation... the immediate problem (the TYR device) will be solved correctly. The device will not receive FINA approval."
It should be noted that Mr. Neuburger presided as USA Swimming's President in 2000 when TYR successfully challenged and reversed USA Swimming's decision banning the full body suit for use at the 2000 U.S. Olympic Trials.
Prior to making his statements, Mr. Neuburger admittedly had never seen the Aqua Band, tested it, taken a committee vote on it, discussed it with the head of the Technical Swimming Committee, or even invited TYR to make a presentation.
Further, the head of FINA's Technical Swimming Committee, Carol Zaleski (USA), "agreed" with the president of the American Swimming Coaches' Association that "this device" needs to be banned from competition by FINA." As with Mr. Neuburger, Ms. Zaleski had never seen the product prior to her statements.
Ms. Zaleski continued her reply, stating "I have not heard anything from FINA. Normally they would send something like this to me for the Technical Swim Committee's reaction."
On March 4, 2004, TYR received correspondence from Cornel Marculescu, Executive Director of FINA, that stated, " ...the TYR Aqua Band is an arm device and cannot be considered as swimwear and consequently their use is not approved." One week later, at the FINA Congress meeting in Dubai, FINA adopted an entirely new rule aimed at specifically banning TYR's product not only after the fact of TYR's submission, but after the fact of FINA's denial. The new "interpretation" read:" an arm band cannot be considered as part of a swimsuit."
TYR requested assistance and clarification from both United States FINA representatives Mr. Neuburger and Ms. Zaleski on March 22. Mr. Neuburger has never responded. Ms. Zaleski responded with one sentence that read,
"I had no involvement in the FINA decision."
TYR counsel, Cliff Roberts of Roberts and Associates, wrote to the FINA Office in Lausanne, Switzerland on March 26, 2004. After much communication TYR received documents from FINA's Legal Advisor stating,
"the March 4 (letter) did unfortunately contain the words 'arm device'. The TYR Aqua Band was never considered to be a device in accordance with FINA Rule SW 10.7," and "the use of the word "device" in Mr. Marculescu's letter of March 4, 2004 was a mistake."
FINA then referred to Game Rule 7 as its rationale for disallowing the Arm Band. However, Rule GR 7 does not, under any interpretation, prohibit swimsuits consisting of three (or any number of) pieces. It is an advertising rule for the purpose of determining how many logos one may have on such swimwear.
Last month, at the Santa Clara International Swim Meet, Speedo tested a new, rigid, swim "helmet" which was worn on top of a swim cap essentially forming a costume that consisted of three pieces. The FINA Legal Advisor informed TYR that this "swim helmet" has "not been submitted to FINA for approval." No consequences have followed.
In conclusion, TYR had decided to improve its full body suit by removing the upper sleeve to allow greater freedom of movement, leaving what is, in effect, the forearm sleeve intact by virtue of its "arm bands."
"Denial from FINA is all but automatic," said a TYR spokesman. "Reasons are given, then withdrawn when shown to be indefensible. Entire new rules are created under the guise of 'interpretation,' directed specifically at outlawing TYR's product when no existing rule or regulation requires such a conclusion."
When Speedo decided to improve its full body suit by adding new material, design and construction to the forearm sleeve, the submission was hailed by FINA's Executive Director as welcome, even exciting, and was approved.
Having exhausted all other remedies, TYR says it has now initiated the appellate process. "TYR will take whatever steps are open to us if we believe that is necessary to protect our right to open and fair competition, reasonable and unbiased rulings, and the best interests not only of our swimmers, but swimming everywhere," Mr. Wilmoth concluded.