SEARCH 2000 Games

Sunday, May 7, 2000
Professor calming Olympic waves

By JIM KERNAGHAN -- London Free Press

 Richard McLaren can't help but smile at the incongruity of a decision made in London touching off a firestorm of controversy half a world away.

 It comes with the territory. The territory is global.

 So when you're watching the Olympic Games in September and wonder about the curious attire in the swimming competition, it's the result of a decision made this week in McLaren's corner office looking out on the Western Road gates at University of Western Ontario.

 The law professor is part of a special ad hoc committee of 12 who rule on disputes involving the Olympic Games and his opinion over swimsuits will have an impact at the Sydney Olympics in September and beyond.

 You could say he jumped into the pool with sharks. While lawyer and shark in the same sentence presents rich potential for a shot or two, it has more to do with the opinion he was asked to draft on material known as "shark's skin."

 It's not as though he got into a pool full of hot water. Deep maybe, and turbulent as well, but for a guy who has weighed the facts and come up with multi-million dollar figures in National Hockey League salary arbitration cases, it's just part of dispute resolution.

 That is something he knows more than a little about. The shark-lawyer wisecrack would be more than outweighed by the textbooks McLaren has published on dispute resolution lining his office shelves.

 McLaren is the only Canadian on the committee, selected from 150 people around the world who comprise the Court of Arbitration for Sport who will be at the Olympics. He is the leading Canadian in the field and was at the Nagano Winter Olympics, as well, besides being called upon to rend opinions to various national and world associations.

 Who said the law was dull? Some of his cases sound like whodunits. There was The Case of The Uncastrated Boars, for example. How about The Puerto Rican Ski Schism? The man who handled the NHL's largest arbitration award ($4.7 million, Pierre Turgeon) can also offer The Clap Clatter.

 More on them in a minute. McLaren's most interesting case was the most recent one, Tuesday's advisory opinion on the shark's skin body suit. A decision was required in a hurry so he alone was given it rather than send it to tribunal. The Australian Olympic Committee was not happy with the result.

 "Ian Thorpe is Australia's hope for a gold medal in the 400-metre freestyle, an absolute superstar, and he got into a conflict with the AOC over his suit," McLaren said.

 The AOC is sponsored by an official supplier but Thorpe and others are wearing the shark's skin. At issue is whether it's a suit that conforms to FINA (international swimming federation) regulations or whether it's a "device."

 "I concluded the court had three options," McLaren said. "The court could review anything a federation did, review nothing -- and I rejected those two options -- or have a limited review in certain areas. When it comes to rules of the competition, they're the experts. FINA set the rules on what a swimsuit is, what a device is and they have two rules. You have to wear 'a costume that is not transparent and is decent.' That's the essence."

 The AOC sought an opinion that indicated FINA had not approved the suit.

 "What I said in the opinion was FINA followed its own procedures and did so in accordance with natural justice and law, in good faith," McLaren said. "We wouldn't go any further than that. We wouldn't say, 'Here's our interpretation of your competition rules.' "

 It was big news in Europe and Australia. McLaren's own views are that the controversial suit increases performance but it's FINA's role to change the rules, if it deems fit.

 The suit is made by doing a laser scan of the body, creating a body map and making what is like an extremely close-fitting set of long johns. It has been described as being like an external tendon that can increase performance by three per cent.

 "Thorpe said he felt a lactic acid rush once he took the suit off and almost keeled over," McLaren said.

 He hopes his decision helps sports governing bodies review their rules.

 "It's fascinating, just me sitting in my office in little old London, Ontario, trying to sort out some of the problems of swimming around the world," he said with a chuckle.

 His other involvement in the equipment area was the controversial clap skate in the Nagano speedskating. That involved a skate that hinges at the toe. It wasn't that feature, it was the German team's covering the manufacturer's logo with a sort of spat with another logo.

 McLaren, who also is counsel for the London law firm of MacKewn Winder Kirwin, did salary arbitration involving NHL players until last year. It's a bit more cut-and-dried, a matter of reading briefs, listening to testimony from the player and/or players' association and the team and then making statistical and salary comparisons with players of like calibre. It isn't often you get to spend that much of other people's money, he observed wryly.

 McLaren's years spent resolving salary disputes relating to free agents was timely. It led to his current CAS involvement at a time when sport and the law have become more intertwined than ever.

 "It just exploded the last two years, most of it doping-related," he said. "I did (tennis star) Petr Korda, who tested positive for (steroid) Nandralone at Wimbledon in 1998. Unfortunately, we found him to have committed an offence and he was suspended."

 Another one involving a cyclist with naturally elevated testosterone came out better for the rider. And then there's one that just came back to him involving the No. 1 and No. 2 distance swimmers in the world.

 "They tested positive at a meet in Brazil," McLaren said. "The case involved their eating of kidneys and livers from uncastrated boars. The boars' meat apparently produces a similar effect and may be a full explanation for the positive test."

 The case of the Puerto Rican skier at Nagano had some value from the long view if not the short. His complaint was the ski federation had not run its elimination trials properly. But it wasn't that the skier in no way could have qualified, it was a related problem over which of two Puerto Rican ski bodies had jurisdiction over the two skiers in the country. While it seems silly, McLaren said it was important in terms of national jurisdictional rights generally.

 The rising importance of the CAS began before the Atlanta Olympics in 1996, when there were fears athletes' injunctions on frivolous and untenable matters could stall the Games. Athletes have been required to agree to deal with the independent arbitration group.

 McLaren said what happened to Canadian synchronized swimmer Sylvie Frechette in Barcelona in 1992 could not happen again. Frechette, who'd turned in a gold-medal performance, fell to silver when a judge hit the wrong scoring button and was not permitted to correct her mistake.

 "Today, she'd bring her complaint to the ad hoc committee, we'd agree to hear it within 24 hours and have a decision in another 24 hours," he said. "We would have found in her favour and would have been able to change medals right then."

 Frechette eventually became co-winner years later when IOC vice-president Richard Pound of Montreal sought redress on her behalf.

 McLaren has met some name athletes along the way, including one who would certainly become a name. He was Ross Rebagliati, the snowboarder whose gold medal was taken back when traces of marijuana were found in his system.

 "My youngest boy, Zach, wanted autographs of the snowboarders and Rebagliati was very helpful, even going on the bus to get several," McLaren recalled. "I remember his parents saying this was absolutely the last time, that they'd been all over the world spending money following him and nothing had come of it."

 Rebagliati was an international name the next day. McLaren said it was a perfect example of an athlete having a medal taken, taking his complaint to the committee and getting it back in 48 hours.

 And it was an easy call. There were no ski federation rules in place regarding marijuana, however it came into his system.

 McLaren will have one of the best accreditations at Sydney in September, one that will take him anywhere, to any sport. That's if he has the time. Drug issues have not gone away and he expects the volume of his committee's work will rise.

 He'll simply have to get a look at those shark's skin suits, though.
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