Governance Review Lawyers Tell FINA That Ethics Panel Must Have Stand-Alone Powers

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

SwimVortex Investigation

A Swiss law firm conducting a governance review of FINA has told the international swimming federation that its Ethics Panel should have the power to start proceedings on its own initiative. The advice is highly pertinent to a case against FINA before the Court of Arbitration for Sport (CAS).

FINA’s leadership is now believed to have added that power to the list of proposals for constitutional changes that will be voted on in Budapest this July at General Congress, the “highest authority” of FINA that actually has no say in between congresses  when the ruling few make the kind of mistake it made when refusing to transfer complaints made by one executive against two others to the Ethics Panel for adjudication last year.

In the matter of Paolo Barelli, FINA Hon. Secretary and member of the executive of the international federation Vs FINA now being considered by the Court of Arbitration for Sport in Lausanne, one of the critical questions is whether FINA failed to follow its own rules and constitution.

The answer is complicated because, as the governance review firm Carrard Consulting SA and the FINA Ethics Panel have both pointed out to the FINA leadership asleep at the wheel, the FINA Constituton and the Code of Ethics are in conflict when it comes to who and when and why the merit of any complaint can be judged on ethical grounds by the lawyers charged with carrying out the task.

It is not the first time the FINA executive has been warned about the conflict (the words and instructions that clash set out at the foot of this article)  in the rules governing how complaints came to the panel for consideration.

In July 2015, the Ethics Panel noted that it had highlighted to the FINA leadership “the relationship between clause 24.5 of the Constitution, and Article VI(1) of the Code of Ethics, where those provisions are argulably in conflict with and contradictory of, each other.”

All of which now comes back to haunt the FINA executive.

Last year, the FINA executive refused to allow Barelli’s complaints to be considered by the Ethics Panel, even though – as we will see in part two of a series begun yesterday when we considered the Italian’s case and allegations against FINA vice-president Dale Neuburger of the USA – the Panel did, in fact, sit and make judgement on one of the issues raised by Barelli because Husain Al Musallam, the delegate from Kuwait faces allegations in the year in which he was made “first vice-president” of FINA as part of a leadership succession plan, insisted on it.

Barelli’s complaint against Al Musallam hinges on the Kuwaiti’s alleged interference – in the face of rules that suggest no such thing should happen – in the elections for the presidency of the European Swimming League (LEN) last year.

Husain Al Musallam

When the Ethics Panel heard the Barelli case against Al Musallam, the three-man panel included Abdullah Al-Hayyan, who did not see the need to set aside his own potential conflict of interest – as a fellow national – when he could have given way to one of three others who could have been available for the hearing. More soon on that hearing and related events in part 2 of our series.

Complicating the picture still further is the fact that Al Musallam was made first vice-president of FINA at a time when Kuwait is suspended not only from FINA membership but from the International Olympic Committee.

The FINA Executive has used rules intended to defend the right to compete of athletes caught in the middle of politics to argue that even though Kuwait is suspended over political interference in the process of international governance, Kuwaiti delegates on FINA’s Bureau, commitees and commissions can continue to act.

The suspension is therefore an ass, say critics: the athletes get to compete under the FINA or IOC flag – and the delegates continue as if nothing hads happened.

Also considered an ass right now is the conflict highlighted by Carrard and the FINA Ethics Panel to a FINA executive that had been made acutely aware of that conflict in the rules when it decided in January this year to disregard the December 2016 minutes of the Ethics Panel on the basis that they did “not reflect the written direction which was gven to the Panel”.

That sentence allow brings FINA’s executive into conflict with the view of Carrard that it should not be for the FINA leadership to tell the Ethics Panel what it can do, say, think and how it can proceed. Not, at least, say critics, without it being obvious that the process lacks the independence required for such things as having integrity beyond the political interference of those who, under the ruole,s may also be judged to have done something wrong.

As things stand, the FINA constitution states:

C 24.5 The matters are transferred to the Ethics Panel by the FINA Executive.

It is on that basis that the FINA executive felt empowered to tell Barelli: no, we will not let your complaints go to the Ethics Panel for adjudication.

However, the Ethics Code of FINA also states:

VI. Implementation and duty of reporting and co-operation

1. Persons bound by this Code shall immediately report any potential violation of this Code to the Ethics Panel.

Barelli did just that. Clearly the intention of that line in the Ethics Panel is to recognise the independence and integrity of the panel to judge whether matters that come before it are worthy of adjudication and accompanying process.

And yet, the FINA executive used the constitution to override Barelli’s right under the Ethics Code to put his complaints directly to the Ethics Panel.

The second case at the heart of the matter will be the subject of part 2 in our series FINA Hon Sec Vs FINA.

Part 1 and the background behind it.

SwimVortex Investigation A Swiss law firm conducting a governance review of FINA has told the international swimming federation that its Ethics Panel should have the power to start proceedings on its own initiative. The advice is highly pertinent to a case against FINA before the Court of Arbitration for Sport (CAS). FINA’s leadership is now believed […]

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