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Blueseventy May Take Suit Blues To Court

Jun 3, 2009  - Craig Lord

Blueseventy, maker of the nero comp suit in which several world records were set over the short-course northern winter season, is threatening FINA with legal action after all 11 of its models submitted for approval were rejected by the international swimming federation last month. 

The Blueseventy website posted this statement today: "blueseventy has had no satisfactory response from FINA to its questions about the recent application of the swimwear approval rules to its swimsuits.  Blueseventy regards the existing decision-making as lacking a satisfactory basis in fact or law.  Accordingly, and in the interests of the swimming fraternity and blueseventy’s loyal supporters and athletes it has now instructed lawyers in Europe to take the matter up with FINA directly and immediately."

Any legal case would hang on whether FINA has acted unfairly to a company that remains its official open-water/marathon partner. On May 19, when FINA issued a list of 202 approved suits, Blueseventy was not among them. The cause of its failure was said to be that its neoprene-based, wetsuit lookalike apparel, "may cause significant air trapping". The same reason for rejection was given to others among the 136 suits rejected, including the Jaked01, the arena X-Glide and the arena/descente Aquaforce, in which nine world records have been set so far this year.

All of those suits were said to have passed what have been widely regarded as lenient buoyancy tests and the fabric thickness standards laid down by FINA it is Dubai Charter of March 14. More stringent measures and controls will be applied from January 1, 2010

Buoyancy tests in the first round of FINA's phased solution to the crisis of suits that enhance performance beyond the natural capacity of the swimmer do not, by FINA's own admission, go far enough. Every fast-suit model currently used by swimmers fails - some by a vast margin - the "1 Newton" (a force that lifts the swimmer no more than 1mm in the water) test in the first critical stages of a race, from starting block, through glide phase and so into the stroke. 

For sprint events that makes a truly undeniable difference to speed, according to data supplied by Prof Jan-Anders Manson, head of the independent testing team at the Swiss Federal Institute of Technology in Lausanne. In the past year, the most significant gains on the clock, not just at world-record level but through the world rankings 300 deep, have been seen in sprint events of 50m and 100m, in all strokes, with backstroke and freestyle standing out in 2008 and butterfly and breaststroke joining the fast-forward race in 2009 as 100% non-permeable suits became the latest rage.

But what will apply from January next year does not apply for this summer and blueseventy's question is this: have we done anything more than many other suits that have made it on to the 2009 approved list? Suit makers have until June 19 to resubmit modified versions of their apparel. Blueseventy says that it has had no steer from FINA as to how it should modify its suits. It also claims that its suit is no different to others that were approved. FINA is likely to dispute that vigorously, having shown media invited to Lausanne last week what the problem was and how every brand of fast suit on the market gave rise to different data and provided different  benefits to swimmers at different stages of racing. There is no case for any suit makers to say that its suit is like another: all are different. It is almost inconceivable that at least some of that information, certainly the part pertaining to Blueseventy, has not been shared with the suit maker. Yet that is what is being suggested.

In Lausanne, Prof Manson showed the media many things. Among them was a simplistic way of showing three ways to trap air: in the material but with potential for air to escape to the outside of the suit; in the material but with potential for air to escape to the inside of the suit, next to the body; and totally trapped inside the material. All three things have different implications. 

If legal action does indeed go ahead as reports suggest, it will reinforce FINA's view that it should cut all performance-enhancing, non-textile, non-permeable fabrics out of the sport altogether by January 1, 2010. Only then can legal challenge from a world of devices that will never cease to mutate be avoided, say sources close to the matter.

The first legal action against FINA on suits will be the most important in some ways: the international federation is protected by Swiss laws that are quite specific in nature and unlike the laws of some of the key member federations of FINA in certain respects. Any case against FINA is likely to need to possess the best of the worst property of the fastest of suits: it must be watertight.

One argument is that FINA did not give the company enough time to make modifications. That may be hard for Blueseventy to reason, should it wish to do so. It was November 2008 when FINA finally got round to saying it would launch an inquiry. It was February when it let suit makers know that change was on its way and that anything that was an aid to buoyancy would not be acceptable. It was March when the Dubai Charter came out. It was May 19 when the approved list came out. June 19 is the date by which suit makers can make changes, and then only to have their suits approved for use for the summer season ahead. 

It took far less time for the world of swimming to be turned on its head, to be transformed from a 100-year-old technique-based sport to an equipment-based sport. There are no arguments for suggesting that that was not and is not the case. The statistics and timing of events that have unfolded since February 2008 are undeniable.

Ultimately, however, the only place that will decide the legality of a situation is in court. And quite rightly so, unless everyone is happy to have the mayhem and anarchy of the race pool spill over into the wider world.