In doing so, TYR has called into question the fairness and logic of FINA's ban of TYR’s ‘Aqua Bands’. The innovative bands eliminated the shoulder and elbow restriction problems that swimmers encountered with full sleeve technology in response to athletes’ complaints that full sleeve suits restricted 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," says Chris Wilmoth, marketing director at TYR Sport.
Adding insult to injury, FINA approved Speedo’s Fastskin II – a full body suit with a “gripper-type” technology on the inner forarm, according to Wilmoth. “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. Adds Wilmoth, “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.”
As part of TYR's new Aqua Shift swimsuit technology, the Aqua Band was worn at February’s U.S. National Championships 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).
FINA Bureau Member and Vice President (U.S.), 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." Neuburger presided as USA Swimming's President in 2000 when TYR successfully challenged and reversed their decision banning the full body suit for use at the 2000 U.S. Olympic Trials.
Mr. Neuburger admittedly had never seen the Aqua Band, tested them, taken a committee vote on, discussed with the Head of the Technical Swimming Committee, or even invited TYR to make a presentation prior to issuing his statements.
Further, the head of FINA ' s Technical Swimming Committee, Carol Zaleski (U.S.), "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 reaction. "
On March 4, 2004, TYR received correspondence from Cornel Marculescu, Executive Director at FINA, that stated, "...the TYR Aqua Band is an arm device and cannot be considered as swimwear and consequently their use is not approved." Again, FINA added insult to injury when, at their congress meeting in Dubai, they 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 consul, 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 their 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 over 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.
A statement from TYR states that, “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. Reasons are given, then withdrawn when shown to be indefensible. Entire new Game 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.”
Having exhausted all other remedies, TYR 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.