Saturday, May 12, 2012

Welcome to the USA Swimming suasage factory: Tara Kirk versus USA Swimming, Rebecca Soni versus Tara Kirk!

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made." -- John Godfrey Saxe, American poet, 1816-1887

When one looks at the finer details as to how a USA Swimming Olympic team is put together, one sees a "sausage factory" and the swimmers are its "pork bellies."

When Jessica Hardy tested positive for Clenbuterol at the 2008 Olympic Trials, she was ultimately denied a berth on the 2008 US Olympic team for a doping violation. Next in line to replace her in the 100m breaststroke would have been Tara Kirk. However, Tara Kirk was immediately denied that spot due to sloppy scheduling and poor administrative practices by USA Swimming in regards to the handling of drug tests and even the timing of the Olympic trials themselves. But could the protestations of Rebecca Soni to allow Kirk onto the US Olympic team have had an effect as well?

The time-line went like this:

On July 4th, 2008, Jessica Hardy was scheduled to swim in 'Event 108' the 100m breaststroke. Hardy would swim against the following athletes: Amanda Beard, Rebecca Soni, Meghan Jendrick, Annie Chandler, Lindsay Payne, Elizabeth Tinnon and finally Tara Kirk.

The top four results:
1. Jessica Hardy
2. Meghan Jendrick
3. Tara Kirk
4. Rebecca Soni
On that day Jessica Hardy submitted two "A" and "B" urine samples for drug testing at the USADA labs; (US Anti-Doping Agency labs), Sample "A" was tested first and came up positive. This test result was sent directly to and received by USA Swimming on Friday, July 18th, 2008. This is an important date to remember since USA Swimming had to identity their Olympic team members on or before July 21, 2008, or replace disqualified team members with existing Team members.

On the following Monday morning, July 21st, USA Swimming fully knew that Jessica Hardy had flunked both her doping tests but this was the day they had to declare a team!

Though it was late July, there was still time for Tara Kirk to be placed on the Olympic team. John Ruger, the US Olympic Committee's athlete ombudsman; (An official appointed to investigate individual athlete complaints against maladministration), stated to Mark Schubert that he would have the USOC petition both FINA and the Beijing Olympic Committee to allow Kirk to swim. Olympic Team Coach Mark Schubert decided to go with the "drop-dead-deadline" rule instead and not make that request presumably because he knew Hardy had due process avenues.

Though Tara Kirk broke no rules, made no mistakes and did what she was told, it was the poor execution and timing of the USA Swimming Olympic trials that severely punished Tara Kirk and denied her a spot on the US Olympic team. This was not fair - thus USA Swimming and Tara Kirk went to arbitration.

Kirk quickly hired lawyers, Richard R. Young and Steven B. Smith of Holme Roberts & Owen, LLP to represent her grievance to the execs at USA Swimming but then something odd happened...

Enter Rebecca Soni: Though Soni technically was not a party to such a hearing, Soni enters her objections in having Tara Kirk added to the team by way of a lawyer named Blake Lawit, of Howard, Rice, Nemerovski, Canady, Falk & Rabkin.

To be clear, saying that Soni was technically not a party to such a hearing are not my words but rather those of the arbitrator, Alfred G. Harris who subsequently states the following:
"...Though not technically a party, Rebecca Soni ("Soni") is an interested person and was granted the right to interpose her objections to the injunctive relief sought by Kirk at this expedited hearing. For purposes of this Decision and Interim Award, any general references to "Parties" will include Soni, unless the context indicates otherwise."
With Soni "armed" with lawyers and named as an "interested person" and then compile that with USA Swimming lawyers who were arguing against Tara Kirk as well, one has to ask whether Tara Kirk's request for relief was essentially "double teamed" by lawyers?

I wonder what Soni's objections were and why were they not mentioned in the "memorializing of the oral Decision" provided to all the lawyers on August 7, 2008? This is not a rhetorical question.

On August 12, 2008, the womens 100m breaststroke Olympic final took place. The results below:
1. Liesel Jones (AUS)
2. Rebecca Soni (USA)
3. Mirna Jukić (Austria)

The reference for this blogpost is the "memorializing of the oral Decision" provided to counsel on August 7, 2008" located here at the TEAM USA website.

Welcome to USA Swimming's sausage factory. Natalie Coughlin is right: USA Swimming's holds their Olympic trials too close to the Olympic games with no regard to potential athlete issues, preparation, or justice requests. The 2008 Olympic trials are an example.

A large variety of sausage casings are produced world-wide using the intestines of pigs, sheep, goats, cattle and sometimes horses. Although the intestines were previously flushed, scraped and cleaned by hand, more recently, machinery has been used for large scale production. Sausages in the 1800s had no rules but today a sausage can contain no more than 50% of it's weight in fat. (Reference: Wikipedia)

UPDATE:  I did some extra research and apparently Tara Kirk came to some sort of settlement with USA Swimming that they are both happy with. I am not happy with them but she is and that is the most important aspect of this post.
"... Terms of the settlement were not announced, by mutual agreement. The parties issued a joint statement saying the matter had been "resolved to the satisfaction of all parties. ..." 
Let's hope this does not happen again this year.


Anonymous said...

What the hell! Doesn't the law firm of Holme Roberts & Owen work for USA Swimming now? I wonder how Tara Kirk came to hire them.

What the hell is the matter with people today? Youth are being taught that it is OK to screw others to get what they want. Was it that important for Soni to swim an extra event that she would help keep Tara off of the team. Screw Tara's dreams and hard work, I want to swim another event.

Selfish, selfish, selfish

use to like sausage said...

Wow - Olympic team members have to sign a Code of Honor.

#7 - Team members will display proper respect and sportsmanship towards coaches, officials, administrators, fellow competitors and the public.

As far as I am concerned, Soni did not display good sportsmanship. I suppose the Code of Honor works like the Code of Conduct - USA Swimming decides if and when they want to enforce it.

Maybe the Code of Honor becomes effective at the games - you can act however you want at home, but at the games you have to put on a good show. (maybe sportsmanship should be replaced with showmanship - it's nothing but a big show).

It's even interesting that "chemistry" is listed as one of the criteria for being on a relay. There's all kinds of built in BS to exclude eligible athletes.

I believe USA Swimming fielded a team of 43 swimmers even though 52 swimmers were allowed. There was no reason to leave Tara Kirk off of the team.

Let me rephrase that: There was no GOOD reason to leave Tara off of the team (somebody didn't want her there).

Tony Austin said...

the way I arranged the article it looks like I am insinuating that she became an interested party so she could swim the 100m breast. That may be the case, I don't know. I am astonished that the arbitrator found absolutely no fault with USA Swimming whatsoever or even outlined what faults their were.

The organization that bundled these trials was gifted the right to take no responsibility for the error whatsoever. Wheres the victim, and the fourth place finisher at trials were essentially rewarded.

use to like sausage said...

What I get from this is that Rebecca Soni became an interested party because USA Swimming had already given her the i00 breast spot.

If the arbitrator sided with Tara Kirk, Soni would have lost the spot that had already been given to her.

I feel good sportmanship would include relinquishing the spot to the athlete who earned it and doing what you can to help get the athlete on the Olympic Team.

Tony Austin said...

When anonymous said Holme Roberts & Owen work for USA Swimming, that concerned me. (I am presuming it is true.) They are not a cheap law firm and makes me suspicious that the fix was in before the arbitration even took place.

Anonymous said...

Paragraph 16 of the Decision reads:

"There were also hints of some kind of conspiracy or favoritism among the administrators of USA leading to offering the 100m breaststroke to an existing member of the Team. However, evidence was entirely lacking to establish any such thing."

The victims are always accused of some kind of conspiracy theory. USA swimming would never do "any such thing".

Either the arbitrator knew nothing about the inner workings of USA Swimming or knew exactly what USA Swimming is capable of.

How could anyone be OK with robbing this young lady of such an incredible opportunity. Why wasn't USA Swimming doing everything in their power to get Tara on the team? Why would they want to fight her, make her get a lawyer, etc.?

Holme, Roberts & Owen are currently outside legal council for USA Swimming (according to USA swimming documents) (Don't know how long).

The huge problem with hearings, arbitrations etc., is the swimming community is very small and, I feel, it's impossible to get a fair and impartial hearing.

Tony Austin said...

I did some research and apparently Tara Kirk came to some sort of settlement with USA Swimming that they are both happy with. This was in 2009.

"... Terms of the settlement were not announced, by mutual agreement. The parties issued a joint statement saying the matter had been "resolved to the satisfaction of all parties. ..."

I am going to add this to the article with a link.

Anonymous said...

I just did some research and found an article on LAW.COM dated
July 25,2008 - Attorney Hopes to be a winner in Sports Law.

A section of the article states, "Adam Brezine, part of the Holme Roberts & Owen team representing USA Swimming and national team head coach Mark Schubert, tends to gravitate toward sporty assignments".

It seems that Holme Roberts & Owen was working for USA Swimming at the same time Tara Kirk hired them to fight USA Swimming.

Personally, I would think that this would be a huge conflict of interest, unless Tara was advised.

I'm glad Tara was pleased with her settlement - I hope it was huge!

Anonymous said...

Holmes, Roberts & Owen have been outside council for USA Swimming for sometime now.

USAS Board Minutes 9-17-2006, motion - To continue to employ Holme, Roberts & Owen as outside council.

It's all very perculiar - If this shit is happening at the highest levels, there's no hope for anybody else.

Tony Austin said...

I wonder if Tara Kirk knew that the firm she hired was actually a USA Swimming client?

I hope the settlement was at least in the middle six-figures.

Anonymous said...

I hope the settlement was in the seven figures.

The actions of all who fought against Kirk were malicious.

Tara Kirk vs. USA Swimming/Mark Schubert, TYR vs. USA Swimming/Mark Schubert - maybe these were some of the reasons Schubert got his ass fired.

Tony Austin said...

If you are a member of USA Swimming, ask them what they paid. In fact demand it.

Anonymous said...

In the Q&A section of the Recorders interview with Adam Brezine of Holme Roberts & Owen, there's an interesting question:

Q: In sports law, do you have to choose a side to represent and stick with it, like employment lawyers typically do?

A: Not as a formal rule, but really, as a general matter, we don't represent athletes anymore. But beyond that, we do represent clients sort of all over the place: leagues and teams and sponsors. There probably are practices that choose a side...but we don't really have that.

Article dated July 25, 2008 - Pam Smith - The Recorder.

Hmmm - guess they made an exception for Tara Kirk.

Tony Austin said...

Per this interview answer; (I presume it's accurate), perhaps they never had Tara Kirk's interest at heart and that would be quite serious.

I wonder if the statute of limitations has expired in regards to Tara Kirk questioning the ethical role her attorney played?

victim said...

How could a law firm represent USA Swimming/Mark Schubert in the TYR case while simultaneously representing Tara Kirk's best interest against USA Swimming/Mark Schubert.

In the long run this firm is going to make much more money representing USA Swimming so why would they burn their own bridge and fight USA Swimming.

This makes absolutely no sense, but then again, does anything within USA Swimming make sense?


Anonymous said...

Chuck Wielgus, in a letter to staff members dated August 6, 2008, states, "We were represented at the hearing by Rich Young and Steve Smith of HRO".

I would assume HRO is Holme Roberts & Owen.

What the hell went on before, after, and during that hearing?

Now there's confusion about who's representing who?

Shit! - Tara never had a chance!

Tony Austin said...

Tara got a settlement post that kangeroo arbitration. I presume she was playing polite thinking they would do the right thing and let her on since she was the third place finisher. Instead, the fourth place finisher got to go.

Anonymous said...

I never knew until now that Soni objected to Kirk being named to the team. Other than her own selfish interest, what conceivable business did Soni have for objecting that someone who beat her fair and square at Trials not be allowed onto the team?

I keep reading that Soni is such a nice person, and this may very well be true. But I've also read several times recently that Ayn Rand is her favorite author. Rand is the unapologetic queen of sefishness as a virtue. This may not be a coincidence.

Tony Austin said...

I did not know that either till an anonymous comment showed up declaring so and even providing a link as evidence.

I am no fan of Ayn Rand either but many reasonable people are. However, towards the end of her life she did receive public assistance under the name Ann O'Connor while slowly dying of lung cancer. She justified or rationalized this public gift stating in such words that she paid into the benefits she received therefore she it was ethically acceptable.

I think this is an important fact to know not so that we can call her names like "hypocrite" or whatever, but as a reminder that it is the moral duty of the strong to collectively help carry the weak or the elderly much like the army that leaves no man behind.

Anonymous said...

I just read an article about Jeri Marshburn, Chairman of the Board of Directors for Southern California Swimming, Olympic Team Assistant Manager.


It discusses how she supervised the drug testing at the 2000 Olympic Trials and Nationals. She was appointed by Everett Uchiyama.

Her current bio on the Irvine Novaquatics website states that she worked closely with USA Swimming at both the 2000, 2004, and 2008 Olympic Trials as a drug testing liaison.

Novaquatics is Dave Salo's team.