FINA In Constitutional Crisis: Europe Rejects Executive’s ‘Desperate’ Adhoc Powers Plan

Paolo Barelli - by Giorgio Scala/Deepbluemedia

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FINA is in constitutional crisis after European federations refused to cooperate with a plan by the executive of the crisis-swamped international federation to impose emergency “Election Regulations” to be overseen by an adhoc ‘Electoral Commission’.

In the mix of a saga getting uglier by the day, a copy of the signature of Paolo Barelli, the Italian challenging for the FINA presidency on a ticket of fundamental reform, has been used by the FINA leadership on a document sent to the FINA Bureau without his permission.

Barelli, as Honorary Treasurer of FINA, is a member of the executive but sources claim that he has been “frozen out” in the past year.

The FINA emergency powers plan – in full at the foot of this article – is “unconstitutional and a desperate attempt to block a challenge to a failing status quo”, one source tells SwimVortex.

Another source from beyond Europe forecast that the crisis could lead to calls for “the resignation of the entire FINA Bureau from the floor of Congress” in July.

Barelli and the European Swimming League (LEN) he heads informed FINA’s leadership this week that they will not nominate a delegate for a new electoral commission whose “real objective”, according to LEN when citing the official FINA plan, is to:

  • grant an Electoral Commission the authority to force “the withdrawal of the Candidate from the electoral process and/or annulment of his or her results”
  • insist that “… Copies of any document used to support a candidature shall be provided by the Candidate to the FINA Electoral Commission for review”(article 5.1 of the “Regulations”);
  • insist that “No public meeting or gathering of any kind may be organised in order to promote a candidature” (article 7.1 of the “Regulations”);
  • insist that “Candidates may not take part in any public debate or engage in any public speeches promoting their candidature” (article 7.2 of the “Regulations”).

Europeans suspect that the measures are being taken so that Barelli could be removed from the races for the FINA presidency before a vote takes place at Congress in Budapest ion July 22.

They base their suspicion on an obvious reality: the ‘electoral commission’ would effectively be made up of the FINA executive’s choice of delegates, given that each continent can nominate who it wants to represent it on the proposed new and powerful body and those continental bodies are largely run by members of the FINA Bureau and close associates.

The result would be, said one source, “precisely what we have now: everyone against Europe”.

Divided club: l-r, Pipat Paniangvait (the treasurer from Thailand), Paolo Barelli, Julio Maglione and the executive director Cornel Marculescu in Budapest, where the 2017 world championships will be held this July

Barelli and the LEN leadership has now written to FINA director Cornel Marculescu to say that Europe “believes that the … proposed new “Regulations” don’t respect the Constitution”, that the “FINA Bureau does not  have the right to implement them” and that as a result the old world will “not nominate any member from Europe to be part of the Electoral Commission”.

FINA leaders came up with a desperate “save-the-status-quo” plan last week when faced with the prospect of Barelli winning the argument in his bid to reject what critics of FINA describe as “poor governance, a lack of transparency, spending the bulk of their money and energies on themselves not the athletes”.

Desperation may have stretched beyond the law, SwimVortex understands: Barelli’s signature appears on a document sent to the FINA Bureau for consideration and approval of emergency “Election Regulations” proposed by the executive but the Italian did not sign the document nor did he agree to his signature being placed on a document proposing measures that he is fundamentally opposed to.

Sources in Lausanne says that Barelli has written to FINA headquarters to note that the paperwork was signed in his name but that his signature was not given nor approved for use by him. The Italian was not available to comment.

Maglione, too, has been shy when it comes to answering questions from independent media since Barelli’s challenge, though the Uruguayan has let it be known through selected channels that he “welcomes” the race in the interests of “democracy”.

Since then, Maglione has been at the helm of proposals to change the conditions of elections at FINA even though deadlines for nominations have passed and the FINA Constitution clearly lays out a timetable and mechanism for the voting process in which FINA’s “highest authority” – not the executive nor the wider Bureau but the General Congress of more than 200 nations, each with two votes apiece – gets to decide who gets elected.

Husain Al Musallam

Desperation appears to have set in when FINA’s first vice-president, Husain Al Musallam was cited as “Co-Conspirator #3” in a separate US Justice Department case in which Guam football official Richard Lai pleaded guilty to receiving almost $1m in bribes from persons including the top two officials at the Asian Swimming Federation and Olympic Council for Asia.

Al Musallam denies wrongdoing, as does Olympic bigwig Sheikh Ahmad al-Fahad al-Sabah, who stepped down from all his FIFA roles when the scandal broke.

However, internal sports inquiries are underway and police investigations continue – and not only in the United States. Case 1:17-cr-00224-PKC and the FIFA scandal has the potential to shape the future of FINA.

In separate action, Al Musallam is the subject of a complaint from Barelli in a case against FINA before the Court of Arbitration for Sport brought because the executive refused to allow the Italian to have his complaints heard by the FINA Ethics Panel. In the debate that followed, it emerged that both the Ethics Panel and a team from Carrard, an outfit that has long served as legal representatives of FINA, conducting a governance review, warned the FINA leadership as long ago as 2015 that its rules on who could refer complaints to the Ethics Panel were in conflict.

Barelli’s challenge to the status quo has won the backing of world coaches and the vast bulk of European swimming national that account for almost a quarter of all votes at Congress.

There is evidence to suggest other parts of the world are persuaded to jump what some perceive as Maglione’s sinking ship and opt for long overdue reforms that could save FINA from total collapse in the face of a challenge from some of swimming’s biggest stakeholders who are privately backing plans for the newly former World Swimming Association to take over global swimming.

All of that is a threat to a FINA succession plan that would place the leadership of world swimming in the hands of Kuwait, a nation whose interim swimming federation was ignored by FINA when it asked for Al Musallam not to be considered for any official positions; a nation that not only has no world-class swimming program but is currently suspended from the IOC, FINA and a swathe of other sports federations.

The succession plan has witnessed the following sequence of events:

  • Maglione, having opposed Mustafa Larfaoui in a campaign that highlighted the unhealthy side off having the same man in the top seat for 20 years, came to the presidency in 2009 on a ticket of “one-term only”, a promise of age limits for officials and a pledge to change the constitution to that end and impose a “maximum two-terms only” on all future presidents.
  • Maglione stood again in 2013, breaking one of his promises but presiding over constitutional changes that imposed age limits and set a “two-terms” only for future presidents.
  • In 2015, Maglione proposes and gets backing for a reversal of the constitutional pledges of his first term in office: no age limits (‘he feels fit and healthy so why go’); no term limits (‘it’s going so well’); and a move to get rid of the position of ‘honorary secretary’ (Barelli’s role at FINA) but create a “first vice-president’, who will be Husain Al-Musallam.
  • What is then widely believed to be the plan of the FINA executive would see Maglione step down in 2019, making way for Al Musallam to become president by default for at least two years, plenty of time in which to garner support for any support and policies he may place on his list of pledges

Barelli and events in the U.S. have called a sharp halt to all of that and made Congress a dangerous place for those who thought that all was going according to plan as they left Rio and the Olympics last August.

Battle of the FINA Bureau (clockwise from top left): Dale Neuburger, Husain Al Musallam, Paolo Barelli and Erik Van Heijningen

It was then that Barelli escalated his complaints against Al Musallam, Dale Neuburger and challenged FINA in a case now before CAS.

Maglione is now at the helm of plans (in full at the foot of this article) that could eliminate his opponent before the vote: he wants an electoral commission to be established, one that would be heavily weighted against Europe and would represent the views of the executive, to decide whether candidates are fit to stand for office.

One of the things that could bar a candidate from standing for office is any legal challenge to FINA that could be deemed either “unethical” or against the interests of FINA.

One critic told SwimVortex: “This comes down to the incumbent president and those who back him doing anything possible to make sure he gets to the vote in July unopposed, even if that means coming up with bonus reasons not to allow an opponent to stand.

“Such provisions are not in the FINA constitution and rule book, they were not there when the process of nominations proceeded and they were not there when the deadline for nominations passed. The FINA executive now wants to impose emergency rules and conditions that Congress has not voted on and do not follow the proper timetable for such thing. They are desperate – and has to wonder why.”

Barelli and the LEN Bureau have rejected the plan as ‘unconstitutional’  and want it stopped. In a letter distributed widely to European delegates and in the hands of many from outside the continent, Barelli states:

“To further confirm the “real” objective behind this move, please note that the Electoral Commission would have authority up to “the withdrawal of the Candidate from the electoral process and/or annulment of his or her results (article 14.3 of the “Regulations”).

“LEN believes that both the proposed FINA Regulations and the role of the Electoral Commission do not respect the Constitution.

“Furthermore, regarding the request of FINA to provide the name of the LEN European member to be part of the new FINA Electoral Commission, the LEN Bureau informed FINA of its belief that the new proposed  “Regulations” do not respect the Constitution and that FINA Bureau does not have the right to implement them.

“For this reason, the LEN Bureau voted and decided not to nominate any member from Europe to be part of the Electoral Commission.”

That refusal places FINA in constitutional crisis in that the international federation would be forced to proceed with a plan without Europe, with the likelihood that Barelli would be forced out of the race for the FINA presidency by default against the wishes of what is effectively  a quarter of FINA in terms of nations and a far greater part of FINA in terms of the medal-winning power across all aquatic disciplines.

Europe is not the only opponent of the FINA executive plans. Senior sources in two other continents rejected the proposed measures as “unworkable”, one insisting that the proposals would “have to be put to the Congress for a vote for the future not for the current elections, fro which everything is set in stone and deadlines have passed”.

The other source told SwimVortex:

“The Bureau members who represent us at FINA had better wake up to the idea that they risk their positions if they plough ahead with this without consultation with us. There’s a serious test ahead and this is a situation that could easily tip into a revolution inside federations and a demand for the resignation of the entire FINA Bureau from the floor of Congress in Budapest.”

Below is the FINA Executive plan in full, now in the hands of delegates from around the world and essential for understanding among delegates heading to FINA Congress who will need more time than they have at the gathering of nations in Budapest to fathom the deeper meaning of what is being suggested.

The plan proposes a large number of conditions that were not in place at the time candidates were nominated, not in place at a time when the deadline for nominations passed and not in place for any of Maglione’s previous two election campaigns.

At a time when FINA has failed to respond to a crisis in open water swimming that involves the safety of athletes, the executive has had time to consider its own fate and out the following effort into controlling a situation that appears to be spiralling out of control:

Thomas Bach, IOC president, with Sheik and FINA’s Julio Maglione – courtesy of Jens Weinreich

The FINA Executive Emergency Plan In Full

Regulations regarding the election of the FINA Bureau Members and election to designated positions

1. In July 2017, the FINA General Congress in Budapest will elect the FINA Bureau members for the 4-years period 2017-2021.

2. Once the FINA Bureau Members will have been elected, the General Congress will also elect from amongst them, the FINA President and the other persons to be appointed to the specific elected functions to be served by FINA Bureau Members.

The rules applicable to the composition of the FINA Bureau and the corresponding elections (including election to the mentioned elected functions) are set forth in Art. 17 of the FINA Constitution*.

  • – * NB: Prior to the election, the General Congress will vote on proposed amendments of the FINA Constitution, including proposed amendments to Art. 17 FINA Constitution. Such amendments notably include changes in the number of FINA Bureau Members and in the specific functions to be filled in by election. Subject to the outcome of the vote, the election will take place either on the basis of Art. 17 as presently in effect, or, as amended by the General Congress.

3. Pursuant to Art. C 17.14.10, the FINA Bureau is further competent to establish rules of order for the meetings of the General Congress.

4. The FINA Bureau has already issued the Rules of order for Congresses set forth in the FINA BY LAWS (BL 3).

5. In order to ensure a fair and transparent electoral process, the FINA Bureau has decided to issue in complement to the already existing rules these specific Election Regulations (“Regulations”):

Article 1 – Nature and scope of the Regulations

1.1. These Regulations complete the provisions of BL 3. In case of conflict between these Regulations and the existing provisions of BL3, the former shall prevail. The provisions of the FINA Constitution prevail in any event over any other provision.

1.2. These Regulations shall apply specifically in connection with the electoral process conducted on the occasion of the Congress meeting in July 2017.

Article 2 – FINA Electoral Commission

2.1 A FINA Electoral Commission of 5 members is constituted.

Date 19 May 2017 1

2.2 Each continental organization appoints one member.

2.3 The appointed members designate a chairman amongst themselves.

2.4 The FINA Electoral Commission exercises the functions set forth in these Regulations.

Article 3 – Candidates

3.1. In these Regulations a “Candidate” refers to any person seeking election as FINA Bureau Member and, as such, for any of the specific elected functions of FINA Bureau Members provided for in the FINA Constitution.

3.2. Each Candidate submits an application in which he or she fully discloses any element, which may be relevant from the point of view of potential conflict of interests.

3.3. The applications shall be subject to review by the Ethics Panel acting as an ad-hoc review committee.

3.4 The Ethics Panel issues a determination in regard of whether or not there exists an issue in regard of conflict of interest. Such determination may include recommendations in regard of the management of potential conflicts of interest, should such arise. Subject to art. 3.5 and 3.6 below, such determination is final and not subject to appeal.

3.5 If the potential conflict of interest is of such nature that it affects the possibility of the concerned Candidate to properly fulfil its role as FINA Bureau Member and /or the specific function for which the concerned Candidate is seeking election, the Ethics Panel may declare him or her ineligible as FINA Bureau Member, respectively for the specific function at stake. Such decision is subject to appeal by the concerned Candidate in accordance with art. C 12.11.2. For the avoidance of doubt, it is not subject to appeal by any other party.

Article 4 –General Rules of conduct

4.1. Candidates may promote their candidature, subject to observing all FINA regulations including the provisions of these Regulations.

4.2.  The promotion of a candidature shall be conducted with dignity and moderation.

4.3.  The candidates shall further comply with all the provisions of the FINA Code of Ethics.

Article 5 – Candidature Documentation

  1. 5.1.  Each candidate may outline and describe in a written document addressed to FINA Members his or her plans and view as future FINA Bureau Member and, if applicable, as future holder of the specific function(s) for which he or she has submitted a candidature. Copies of any document used to support a candidature shall be provided by the Candidate to the FINA Electoral Commission for review.
  2. 5.2.  Recommendations of the FINA Electoral Commission in respect of the content of the document shall be immediately observed and implemented by the Candidates.

Article 6 – No advertising

6.1. The promotion of a candidature shall exclude any form of advertising (irrespective of whether the advertising is paid by the candidate or by any third party, or free of charge), in any form including in new media or social networks.

Article 7 – Public Meetings – Debates and speeches – Technical meeting

7.1.  No public meeting or gathering of any kind may be organized in order to promote a candidature.

7.2.  Candidates may not take part in any public debate or engage in any public speeches promoting their candidature.

7.3 Candidates may only take part to technical meetings to which they regularly take part in view of positions they already hold. They shall refrain from any promotion of their candidature in this context.

Article 8 – No assistance

8.1. The candidates shall not benefit from any assistance of third parties, whether financial or of another nature.

Article 9 – No gifts nor benefits

10.1. Candidates must refrain from giving, proposing or promising any gift, present, donations or advantages of whatever nature, or value (even nominal value), to any person or organization.

Article 10 – Promises and undertakings

  1. 10.1.  Promises made during the campaign of actions that would benefit one or more of the FINA Members or Continental organization(s) must be made publicly and disclosed prior to the election.
  2. 10.2.  Candidates shall strictly refrain from giving any undertakings to third parties.

Article 11 – Media and Publications

11.1. Candidates may grant interviews to the media. The content of the interviews shall be consistent with these Regulations.

Article 12 – Respect due to Candidates

12.1. Candidates shall respect the other candidates and shall refrain from any communication aimed at harming their image.

Article 13 –Relations with the FINA Office

13.1. The FINA Office shall maintain a strict neutrality at all times.

13.2. Members of the FINA Office shall limit their relations with the candidates to matters in the normal course of FINA business.

13.3. Candidates shall not request nor receive any support, nor service by the FINA Office in relation to their candidature.

Article 14 – Review of potential violations by the FINA Electoral Commission

14.1. Circumstances, which potentially constitute violations of these Regulations shall be investigated by the Electoral Commission.

14.2.  The investigation shall be conducted in an expedited manner. The concerned Candidate shall fully cooperate to the investigation. His or her right to be heard shall be observed in any event.

14.3.  In the event the FINA Electoral Commission finds that a violation has been committed, it shall decide the appropriate measures to protect the electoral process, including:

1. ordering the Candidate to cease the behavior in violation of the Regulations;

2. ordering any adequate corrective action (if any), including publication of its decision

3. in severe cases in which the results of the elections may be or have been significantly affected, or in the event a Candidate fails to comply with an order of the Electoral Commission issued in application of art. 14.2.1 or 14.2.2.above, withdrawal of the Candidate from the electoral process and/or annulment of his or her results.

14.4  To the extent appropriate, the FINA Electoral Commission shall forward the matter to the FINA Executive for it to consider further potential consequences in application of art C 12 of the FINA Constitution.

14.5  Decisions of the FINA Electoral Commission in accordance with 14.2.1 and 14.2.2 are not subject to appeal. Decisions in accordance with art. 14.2.3 are subject to appeals to the CAS by the concerned Candidates. For the avoidance of doubt, decisions by the FINA Electoral Commission are not subject to appeal by any other party than the concerned Candidate.

 

FINA is in constitutional crisis after European federations refused to cooperate with a plan by the executive of the crisis-swamped international federation to impose emergency “Election Regulations” to be overseen by an adhoc ‘Electoral Commission’. The plan, described as “unconstitutional and a desperate attempt to block a challenge to a failing status quo”, could lead to calls for “the resignation of the entire FINA Bureau from the floor of Congress” in July, sources tell SwimVortex. Meanwhile, the signature of Paolo Barelli, the Italian challenging for the FINA presidency on a ticket of fundamental reform, has been used on a document sent to the FINA Bureau without his approval nor, indeed, his actual signature

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