Swimming: Fina's ban for Bray labelled outrageous

By TERRY MADDAFORD

Trent Bray's ban by Fina, the world swimming body, is outrageous and a mockery of New Zealand law, says the swimmer's lawyer.

Peter Thorp, who has represented Bray from the time of his positive test for the banned steroid nandrolone, said yesterday's ban had come out of the blue.

It apparently followed a hastily arranged telephone conference call between Fina president Mustapha Larfaoui, of Algeria, and executive members from Sweden and Uruguay.

They issued a statement which said Bray was suspended without a hearing from May 19 until a determination by a "competent authority" of the Fina doping panel.

That "competent authority" does not appear to include the New Zealand justice system.

Thorp said a District Court in New Zealand had ruled that there had been no doping infraction and allowed Bray to resume his swimming career.

That ruling was challenged by the New Zealand Sports Drug Agency, which has appealed to the High Court on the grounds that Judge Joyce's ruling on the containers used for the November 22 test and the subsequent time taken for the samples to be tested in Australia was invalid.

Thorp sought an assurance from Fina that it would withdraw the suspension if the drug agency appeal was unsuccessful.

"They would not confirm that," Thorp said. "They obviously feel they are free to ignore the statutory laws of New Zealand. The implications are outrageous and make a mockery of our legislation.

"Fina might have provision in their rules that would allow them to over-ride rules of swimming bodies worldwide, but surely they can't ignore an act of Parliament in New Zealand."

The High Court hearing is set down for two days in the week beginning June 12 and will be heard by two judges.

If the drug agency appeals fails, Bray should be allowed to continue his competitive career and should be free to swim at next month's Oceania championships in a last-ditch Olympic bid.

Those plans are now very much up in the air. While it is unlikely Bray would have reached the qualifying times for the 100m or 200m freestyle, he could have still been a contender for the relay team.

Thorp said that the matter might not necessarily end there.

While the court found in Bray's favour in only two of 20 submissions in overturning the ban, Bray has cross-appealed on a number of the judge's other findings.

Drug agency chief Graeme Steel said: "Swimming New Zealand and Fina have their rules and it is their duty to ensure their athletes are treated even-handedly.

"What we now have to do is to put in a detailed submission to show why the decision should be overturned. We have to show as a point of law that the judge got it wrong."

Steel would not say that he had been encouraged by the Fina move, but said it did not surprise him.

On the ruling against the containers used in collecting the out-of-competition sample, Steel said they were regarded as state-of-the-art through the 1990s.

"We have asked for changes to the regulations which would allow us to switch from the Versapac containers - as used for the Bray test - to the Berig Kits, which will be used at this year's Olympics. These are contentious only in Judge Joyce's eyes.

"In the meantime, we have reverted to the Envopak containers that were used in the early 90s and at the 1990 Commonwealth Games."

In 1994, American athlete Butch Reynolds was awarded $US27 million ($58.5 million at today's rates) when he successfully appealed against an International Amateur Athletics Federation (IAAF) ruling. The federation had banned him from competition for two years after he returned a positive test for a banned anabolic steroid. He called the test faulty and later tested negative.

But when the US Circuit Court of Appeals ruled that the judge in Ohio had erred in ruling that he had jurisdiction over the international body, the damages payout was quashed.

Reynolds then took the case to the US Supreme Court. He lost that appeal when the nine-member high court sided with the IAAF by rejecting the appeal without comment or dissent.