The case involves French swimmers Amaury Leveaux and Aurore Mongel, who appealed to the Court of Arbitration for Sport (CAS) against the Fédération Internationale de Natation (FINA) for disapproving their Tracer B8 swimsuits for the 2009 World Championships in Rome. The swimmers, sponsored by TYR Sport, Inc., had been using the all-polyurethane Tracer B8, initially approved but later rejected under the Dubai Charter, a set of swimwear regulations adopted in March 2009 to prevent unfair performance enhancement through air-trapping effects. FINA's Executive Board disapproved the Tracer B8 on June 19, 2009, while approving similar suits from competitors like Arena’s X-Glide and Jaked’s 01. The swimmers argued the decision was arbitrary and discriminatory, unfairly targeting their sponsor’s product. They sought provisional measures from CAS to wear the Tracer B8 during the championships, citing irreparable harm, including financial losses from sponsorship contracts and performance-based bonuses, if forced to switch suits.
The swimmers filed their appeal with CAS on July 24, 2009, requesting an urgent stay of FINA’s decision. FINA did not respond by the deadline, leading CAS to proceed based solely on the swimmers' application. On July 25, 2009, CAS granted provisional measures, allowing the swimmers to wear the Tracer B8. FINA later submitted its position, but this did not change the outcome. The CAS order also addressed jurisdictional issues, noting that under the FINA Constitution, appeals against FINA’s decisions could be referred to CAS, with the final decision on jurisdiction to be made by the assigned panel. The swimmers’ appeal highlighted concerns about fairness and unequal treatment in FINA’s approval process, emphasizing the need for consistency and objectivity.
The document further outlines jurisdictional and procedural considerations under the CAS Code and FINA’s regulations. Article R47 of the CAS Code states that an appeal requires either the sports body’s statutes to allow it or a specific arbitration agreement, along with the exhaustion of all legal remedies. Article C12.9 of the FINA Constitution details the appeal process, including a 21-day window for submitting appeals to the FINA Office, with CAS handling appeals against FINA Bureau decisions. Article 6 of the FINA Requirements for Swimwear Approval mandates that disputes over approval procedures be exclusively submitted to CAS.
CAS jurisprudence clarifies that an appealable decision must be a formal ruling, not merely informational. The CAS concluded that an email dated July 23, 2009, from a FINA official did not constitute a new decision but confirmed a prior FINA Executive decision. As a result, CAS determined it lacked jurisdiction to rule on the appeal on a prima facie basis and refused the application for provisional measures. The document clarifies that this decision is a procedural order, not an award, and thus cannot be challenged in court under Swiss law. The final order refused the swimmers’ application for provisional measures submitted on July 24, 2009. The case underscores broader debates about technological advancements in sports equipment and the role of governing bodies in regulating them to maintain competitive integrity.