Deviance, Lawmaking, and the Global Rules of Marathon Swimming

On September 2, 2013, thousands of people stormed the beach in Key West, Florida, to welcome 64-year-old Diana Nyad to shore. News outlets all reported that Nyad's fifth attempt to swim from Cuba to Florida  was successful; she swam 110 miles in 53 hours, arriving in Florida with a flotilla including her handlers and medical crew.

But as the public celebrated Nyad's messages on teamwork and perseverance, doubt and cynicism took hold of the people who were in a position to best understand Nyad's feat: The marathon swimming federation. Some of the resentment was ad-hominem and due to bad blood: Nyad has had quite a history with other marathon swimming, including her disparagement of Walter Poenisch, a man who successfully swam the distance (albeit with fins,) and her inaccuracies about swimming around Manhattan many years ago also rubbed people the wrong way. But some of it pertained directly to the swim and the conditions and terms under which it was conducted, and it sparked a lively discussion about the regulation of the sport and its culture, eventually leading to the creation of the Global Rules of Marathon Swimming.

I think an analysis of the marathon swimming community's response to Nyad's swim has a lot to teach us beyond sports law, about the way laws are made in response to perceived deviance.

In The Rules of Sociological Method, Emile Durkheim offers a functionalist perspective on law and deviance. Like any other social fact, he argues, deviance and crime are perceived as offering something valuable to the society in which they occur. First, deviance strengthens social solidarity by allowing members to unite against the transgressor. Second, Second, it is an opportunity to reaffirm and clarify existing rules. Third, it is an opportunity to reconsider the importance or hierarchy of rules. And fourth, it is a vehicle for preventing social stagnation, as a challenge to the rules might mean that the rules should change.

A few words about the law and culture of marathon swimming before Nyad's swim: Marathon swimming (roughly defined as swims of at least 10km in open water) differs from other sports, such as pro cycling, in two important ways: the lack of a well-oiled funding machine and the lack of official governing bodies with quasi-judicial capacity. Until 2014, there was no set of global rules governing swims. Recognized bodies of water, such as the English Channel, the Catalina Channel, the Santa Barbara Channel, and well-established races, such as the Tampa Bay Marathon Swim and the Manhattan Island Marathon, have their own rules, which differ slightly from setting to setting. But all swim rules conform to the same ethic, which is one of spartanism, purity, and minimalism. Marathon swimmers, generally, do not swim with wetsuits or any gear beyond a regular swimsuit, cap, and goggles. They do not come in deliberate physical contact with people or with the craft that accompanies them, and are fed via strings and poles during the swim. And they tend to frown upon technological innovations to assist the swim, believing that sighting in open water and handling rough conditions are as much a part of the sport as is swim technique.

(If you are unfamiliar with marathon swimming and are scoffing at this point, think of how you'd feel about pro cyclists having an engine attached to their bicycles, or about marathon runners using roller skates. That's how marathon swimmers feel about neoprene, fins, directional streamers, too many buoys, music players, ear metronomes, etc.)

In the absence of economic and legal incentives for compliance with the rules of the sport, other factors become important, namely the importance of verifiable evidence and the importance of personal reputation. Usually, impressive solo swims include an independent observer on the boat, who can vouch for compliance with the rules--not always easy to procure, as there are no big financial incentives for being an observer. Also, in the relatively small community of athletes, honest, rule-abiding people gradually attain a "clean" reputation, which provides them with enough status to wield respect and legitimacy when they comment about other people's swims or discuss their own feats.

This background should explain why cynical remarks about Nyad’s innovations–directional streamer, sting suit and mask, and a heated water neck device–abounded even before the swim and during Nyad's unsuccessful attempts. In public debates before the swim, as Karen Throsby observed, marathoners presented themselves as preserving the purity of the sport, while Nyad presented herself as a technical innovator. But after the swim, most attention was drawn to a mysterious acceleration in Nyad’s swimming pace during the last night of the swim. Nyad swims at about my speed; she is not fast, and averages less than two miles per hour. But during the night, her speed exceeded four miles per hour. This would be explainable if Nyad got lucky and caught a favorable current, but the crew was not forthcoming with information and that irritated the forum managers and several of the posters. Moreover, Nyad’s crew reported that she did not eat for seven hours during the swim, which most of us consider a fairly dubious practice. I feed every 40 minutes, which is on the lazy side; others in the sport feed every 20 or 30 minutes. I can’t even think of swimming that distance without consuming food or drink for seven hours. Finally, there was some frustration about the fact that the swim rules were not declared in advance. These suspicions furnished a long thread of debates on the marathon swimmers' forum, including statistical charts.

The doubts expressed by community members increased in light of Nyad's refusal to share any data from the boat with the community at large. Eventually, the debate spilled beyond the confines of the athletic community and made it to the mainstream media and to a confrontation between Nyad and her critics, which didn't yield a lot of useful information to illuminate the swim.

In the aftermath of the discussion, several well-respected members of the community, in consultation with various constituents, came up with a list of rules general enough to apply to all bodies of water. currently unregulated by official channels.  There are still debates about the minutiae of the rules (are we allowed to wear wristwatches?), but the rules in general represent what many deem to be the "spirit of the sport." 

I come to the conclusion that the controversy has done an important service for the sport, in the spirit of Durkheim’s latent functions of deviance. First, it brought marathon swimmers together, on the wings of factual doubts and old grudges, and allowed them to foster a spiit of community by reaffirming their identity and values in opposition to those of Nyad's. Second, it was an opportunity to reaffirm and clarify the rules, especially the interesting, not-quite-mandatory-but-legitimizing status the English Channel rules occupy in the sport; some of these clarifications, such as the importance of clearing the water unassisted, were clearly not followed by illustrious marathon swimmers in the 1950s and 1960s (I have photos showing them assisted out of the water.) Third, it was an opportunity to examine what was more and less important, focusing more on the authenticity of the swim and the importance of accurate reporting and less on the assistance devices themselves, such as suits, masks, and streamers. And fourth, it provided an opportunity tochange rules going forward and consider technological innovations that were not on the table during the heyday of the sport in the 20th century. 

The marathon swimming community is insular and small enough that it enabled me to study its inner workings as a whole in light of Durkheim's functionalism, but some of the lessons can apply to other areas of law. First, I find some parallels between enforcement in this community and enforcement in international law, which also relies mostly on reputational devices in the absence of effective coercion mechanisms. And second, it is an interesting parallel to criminal legislation following redball crimes, whose benefits are exposing lacunae and problems in the system, but whose disadvantages lie in promoting excessive punitivism and fear.

Looking forward to your legal, sociological, and athletic thoughts.