Hon. Secretary Of FINA Vs FINA. Part 1: Barelli’s Complaint Against Neuburger

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

SwimVortex Investigation

Trials season is well underway in the world of swimming this month but there is another unfolding on dryland, one that could shape the sport for many years to come: FINA Hon. Secretary Vs FINA (and two Vice-Presidents), a battle of one executive against two others at the helm of leadership at the international federation.

A ten-day countdown begins today.

April 22 is the deadline for all nominations to positions within FINA for the next four years to arrive on the top desk at the international federations offices in Lausanne if they are to go forward to General Congress for voting at the “highest authority”, as the constitution calls it, of elite, global swimming (and the other aquatic disciplines, open water the only one truly related).

A case being considered by the Court of Arbitration for Sport is pivotal, as our new series of articles will note.

FINA is an organisation that is small at the core, its Lausanne office unreflective of the $300 million or so it has swilling about in the bank. Not bad for a non-profit-style organisation that lends its brand to showcase events paid largely by hosts, states, sponsors and broadcasters, takes little responsibility, if any, when things go wrong, and is about to lose its status as the anti-doping authority of the sports it governs as perceptions of conflicts of interest spill to demands for change in the approach to clean sport and how to deliver it.

Omerta has long been at play, say FINA critics. Coaches, athetes, media, polticians beyond the sporting realm, doctors and others have been among those peering in on the governance of swimming and asking questions openly. Hard to find too many cases of that spilling to the swimming politicians themselves. By and large, they have their arguments in-house and they keep their politics and plans relatively close to their chest.

Accounts are distributed to members but they don’t reveal the detail of who is getting what share of the $500 a day for Bureau members nor who has opted not to eat in the five-star restaurant while taking an extra $150.00 a dau to eat out and so on and so forth. Such things are often seen as trivial. They are not.

It is in that realm that we find that most strange creature, the “volunteer executive”, not paid but taking home a six-figure sum each year and registered as ‘expenses’ when in reality it is a wage, regardless of the nuance of definition that those receiving large amounts of money for attending meetings, sticking their hand up to vote on matters hardly about to rattle the fabric of the Earth and generally living the life of Riley.

Jacco Verhaeren – by Craig Lord

In the midst of it all are genuine experts in their fields who do fine work. Of late some of those people have opted to leap off the gravy train in the belief that the FINA leadership is on the wrong path and refuses to listen to the expertise that it holds up as evidence of good governance. Last year saw three leading ant-doping experts quit the FINA commission that deals with such matters, in protest at the federations handling of the Russian doping crisis, while this year saw the resignation of Jacco Verhaeren, the Dutchman at the helm of the Australia program as head coach, form the coaches commission.

The latter prompted a call from John Leonard, the Director of the American Swimming Coaches Association, for all FINA coach commission members to consider their positions and ask themselves “why am I still here?”

The incentive to speak up, to highlight poor practice, to challenge the status quo is all but non-existent in the FINA structure of governance and accompanying culture and management style.

It is against that background that the case before the Court of Arbitration for Sport – Paolo Barelli Vs FINA – may be seen as the most important moment for aquatic sports governance and the change demanded by those planning the downfall of FINA in the belief that the status quo is unsustainable and bad for swimming, swimmers and the development of one of the top three draws at the Olympic Games, a reality that has contributed greatly to those $300m sitting in the bank.

Barelli is FINA Hon. Secretary, a member of the executive and a former Italian senator at home in the world of wider politics. He is also head of LEN, the European Swimming League and the Italian federation, FIN, the domestic body that never had the “A” for Amateur as part of its name.

The argument is clear: Barelli says that he has evidence that two fellow FINA executives, namely Dale Neuburger, of the United States, and Husain Al Musallam, of Kuwait, interfered with the process of electing the president of the European federation when elections were last held a year ago. The reasons why Barelli targets Neuburger and Al Musallam are not the same and have their own nuances.

In general, however, inter-continental inteference in electoral processes would test, if not break, the rules of FINA; such interference would test, if not crack, the FINA constitution, including principles of how fellow members relate and deal with each other.

It is now for the CAS panel of lawyers to decide on the narrow case before it and a decision in favour of Barelli could lead to penalties for his fellow executives of FINA.

Spotlight on swimming – by Patrick B. Kraemer

The information that flows from the challenge, however, raises bigger, deeper questions when it comes FINA governance: is it broken?

There are now many stakeholders who believe the answer is a very definitive “yes”.

The reason why rests In the detail of the case before CAS: Barelli tried to deal with the matter internally but was refused access to the Ethics Panel by the FINA Executive. faced with no other option, he turned to the Court in Lausanne.

Barelli had taken his complaints to the FINA Executive but was told that the executive had decided “not to give any further consideration to it [Barelli’s letter outlining his complaints] and not to forward it to the FINA Ethics Panel”.

In other words: shut up, Barelli, the family has decided what the outcome will be and doesn’t need to have it judged by judges we hired to do just that – but only when we find it convenient for them to do so.

That the FINA Executive should get to decide what goes before the Ethics Panel is a matter of contention in the upper echelons of swimming governance: the Ethics Panel itself has called on the FINA leadership to review a conflict in the rules of the federation that both allow direct transfer of matters to the Ethics Panel while insisting that the FINA Executive is the body that must refer matter to the Ethics Panel if they are to be considered.

That the executive get to decide whether dealings between themselves are ethical or not before an Ethics panel gets to take a look cuts to the heart of poor culture within FINA, whose alleged executive conflicts of interest are now on the table in the case before CAS.

Dale Neuburger, FINA vice-president

Husain Al Musallam

Our 10-day countdown to April 22 starts by considering the case against Neuburger and Al-Musallam, starting today with the American.

CAS will decide the case on what they have before them and the merits of an argument that FINA (the case is against FINA not the vice-presidents at the centre of the argument) has not followed its own rules. If that is judged to have been the case, it would not be for the first time.

As you read the following, keep in mind that these issues offer a glimpse of the very core issues at the heart of a polite call from Bill Sweetenham in 2015 for FINA to submit to independent review of strucures, process and finances with a view to helping the international federation get for for the next 100 years in a changed world after a century of existence.

Documents seen by SwimVortex reveal that Barelli sought to get the FINA Executive to handle the conflict of vice-presidents internally to avoid “FINA making the headlines for the wrong reasons”.

He urges Maglione to take action in a matter that “clearly indicate a failure of good governnce within FNA”.

The response of his fellow executives, a body that did not even acknowledge, let alone reply to, the appeal for review made to them by Sweetenham and the World Swimming Coaches Association of 17,500 stakeholders in swimming, was to refuse to allow the arguments in full to be considered by the FINA Ethics Panel.

And when that Panel did indeed look at one of the cases (because of the insistence of one of the vice-presidents being challenged, more to come on that), the FINA executive effectively rewrote the minutes of the ethics commitee’s meeting at which the matter was considered. Barelli objected to the executive’s “interpretation of the truth” but he was out-voted in a show of hands from which Neuburger and Al Musallam removed themselves.

First up, we look at Barelli’s case against Neuburger, while noting the list of arguments that the American highlighted to SwimVortex as part of his wider arguments against the charges levelled at him by the Italian member of the same FINA executive.

The following is based on evidence seen by SwimVortex that is believed to be before the CAS panel, according to sources in the United States and Lausanne.

Barelli Vs FINA: The Case Against Dale Neuburger

The Battle of the FINA Bureau

Dale Neuburger is a vice-president of FINA approved by United States Swimming in a structure of governance that requires the primary member of FINA (domestic federation) to nominate and approve candidates for positions at the international federation. Neuburger is also president of UANA, the continental associatuon representing the Americas in aquatic sports. Under FINA rules, continental organisations get a say in which officials will be put forward for places on the ruling Bureau of FINA.

Neuburger is not a paid official at USA Swimming nor FINA, nor UANA. Anyone holding a paid position in swimming governance at a national federation is ineligible for election to the FINA Bureau, the loyalty to the employer deemed to present a potential conflict of interest too great to overcome.

Neuburger is also a director of TSE Consulting, a company that has bid for and won contracts with FINA and is at the centre of Barelli’s complaint.

To understand the difference between the official versions of professionals and ‘volunteers’, FINA Bureau members include:

  • officials who receive per diems of between $450 and $500 a day when on FINA business (meetings, VIP lounges, watching races and the like), even though they have no expenses, flights, hotels, food, chaffeurs and cars and other forms of transport all covered by FINA before the per diem kicks in
  • officials who are eligible for a $150 meal payment about their per diem if they feel there is a need to eat out at a place beyond the five-star (the majority experience of FINA Bureau members) hotels they are housed at far more often than not
  • officials who are not forbidden to take work that may be – and is being – perceived as a direct conflict of interest to their “voluntary” and “voluntary executive” roles that they perform.

Examples of the latter include Tamas Gyarfas, the Hungarian vice-president of FINA and Media Commission Bureau liaison officer through whose private business the luctrative contract for the official FINA magazine, Aquatics, flows.

The roles of Husain Al Musallam are also being called into question, as we will note in part 2 of this series.

In the Barelli case before CAS, Dale Neuburger is called into question on two key issues:

  1. his role as a director of TSE Consulting, a group that bids for and has won contracts with FINA
  2. his alleged support for a Dutch candidate who opposed Barelli for the presidency of the European Swimming League and whose campaign was run by … TSE.

TSE Consulting a consulting firm that works on such things as bids to host major international championships and related conventions in sport. It was the key organiser, for example, of the FINA world water-polo convention in recent times.

The company’s headquarters are in Lausanne, down the road in the same city as the IOC and FINA HQ.

It’s Olympic links are highlighted on the website of the company, a part of the Burson-Marsteller. Its sales pitch is cited as “direct access to a worldwide network of 2,500 consultants operating from 150 offices in 110 countries across six continents”.

Neuburger is one of them. He makes no secret of his positions. He is the Director for North America and his company profile states that his “clients include the United States Olympic Committee and 22 of its National Governing Bodies”. It also notes his position at FINA as vice-president.

SwimVortex understands that at a time when Barelli was raising the matter of Neuburger’s potential conflict of interest last year, TSE Consulting’s Managing Director Lars Haue-Pedersen signed a letter of support for Neuburger in the row over his and TSE’s role in Dutchman Erik Van Heijningen‘s campaign to topple the Italian for the presideny of the European swim league, LEN.

The letter, Lausanne sources tell SwimVortex, notes that Neuburger is President of Sports Strategy Inc., an American-based company formed in 2006 and located in Indianapolis. It is that company that has “an agency agreement” with TSE.

Pedersen states that Neuburger is, therefore, “not an employee” of TSE and that he “acts independently and not under my direct authority”. There is no denying that Neuburger is a director of a company that benefits from work with FINA. The position is clearly stated and advertised on the company website, the nuance of any financial arrangements are not, of course. Any potential clients are left in no doubt, however, that Neuburger is a director.

Dale Neuburger, FINA vice-president

Pedersen notes the nuance. He points out that Neuburger operates in North America and Mexico and that on only one occasion has he acted in a matter related to European swimming: Neuburger assisted in the TSE-organised contract between the Turkish Swimming Federation and USA Olympic team coach Bob Bowman, mentor to Michael Phelps and hired in Turkey for his coaching skills in an attempt to raise the swimming game in the country. The contract was signed in 2015.

TSE, as a group, has represented European and Asian cities in bid process for FINA events, including representing the wishes of Doha, Dubai, Gwanju and Istanbul.

If TSE points out that Neuburger played no role in any of the above bids, Neuburger has also noted that whenever TSE business crops up at FINA executive and Bureau meetings, he recognises the potential conflict of interest, steps out and plays no part, neither in discussion nor in decision and vote.

Whether it is relevant that Neuburger is an “employee” is open to interpretation in FINA’s Code of Ethics, which states under matters of “Integrity” that:

“No Official may be involved with any company, association, firm or person whose activity is inconsistent with the objectives or interests of FINA. If it is unclear, whether this kind of a connection exists in any given situation, the matter shall be submitted to the Ethics Panel for a decision.”

It is not impossible but it is hard to see how the work of those for whom Neuburger acts might be “inconsistent”. However, there are other pertinent rules to consider and Barelli believes that those leave the situation unclear where Neuburger is concerned. He wanted the Ethics Panel to rule but that process was blocked by the FINA Executive in a 4-1 vote in which Neuburger and Al Musallam stepped aside from.

The Italian’s challenge rests on two pillars:

  • FINA rules
  • Neuburger’s perceived support for Van Heijningen at a time when TSE was running his election campaign

The rules are what CAS will base its judgments on

The Ethics Code, by which all FINA’s officials and members are bound, was moved from being a by-law to a full section of the FINA Constitution last year. It includes the following references relevant to the Italian’s case:

  • a. 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.
  • V. Ethical Principles in Aquatics – 16. If an Official neglects to declare a situation of a potential conflict of interest, the FINA President or one of the FINA Executive members may refer the matter to the Ethics Panel.

If the above may speak to any complaint Barelli has to make against Neuburger, then the following highlights what the Ethics Panel of FINA have told the Executive is a serious contradiction in the Code of Ethics (more on that soon):

  • Barelli has the right to take his complaint to the Ethics Panel
  • Barelli has no right to take his case to the Ethics Panel because matters can only go there if the FINA executive says they can.

The argument for the having the executive control such things is weak: it is intended to avoid personal politics and agendas making their way before lawyers who have better things to be getting on with.

There is little room for such interpretation in this case, it would seem: however we may interpret the row between Barelli and those at the heart of his case at CAS, the issues are real and at the the very heart of the governance style-and-substance issues that have brought FINA into disrepute in recent years, say critics of the international federation.

Which rules might Barelli turn to for support?

In his case against Neuburger, Barelli may well cite the following from the Ethics Code:

E. NEUTRALITY – 10. Officials shall remain politically neutral, in accordance with the principles and objectives of FINA, the confederations, associations, leagues and clubs, and generally act in a manner compatible with their function and integrity.

Neuburger has argued that he remained politically neutral where the European elections were concerned. Documents seen by SwimVortex suggest that Barelli is arguing that that is not the case and that CAS lawyers will be presented with a link to an article on a niche Olympic website posted by Neuburger on a social network site that reports TSE will “orchestrate” Van Heijningen’s campaign.

The article notes Neuburger’s role at FINA and his role at TSE but comes with a note from the author of the article that says it is understood that Neuburger would play “no role in the campaign”.

The American simply distributes news to connections reporting the launch of the Dutchman’s manifesto. Though the link proves no personal support for Van Heijningen from Neuburger, it could be scrutinised under paragrah 13 of the FINA Ethics Code that states:

“Officials shall avoid any situation that could lead to conflicts of interest”.

Given that those working at Continental organisations affiliated with FINA, such as UANA, are called on in FINA rules to foster cooperation

Barelli might also well argue that Neuburger’s connections with TSE are simply too strong to ignore a post where an off-continent vice-president of FINA who happens to be a director of TSE distributes news of a campaign run by TSE on behalf of another member of the FINA Bureau (Van Heijningen) aimed at defeating the Italian in European elections.

The question may be asked: did Neuburger also distrubute news of Barelli’s agenda and aims as president of LEN? And if he had or did, would that have been appropriate?

A source in Lausanne tells SwimVortex that Neuburger wrote to Barelli soon after the news of TSE’s role in the Dutchman’s campaign appeared to offer him an assurance that he had nothing to do with that work. Barelli is believed to have written back to say that the situation was “unacceptable and a clear unequivocal breach of the FINA Code of Ethics”.

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

It is at that point that Barelli takes his case to FINA president Julio Maglione only to find that the Uruguayan sides with those who refuse to allow the matter to go before the Ethics Panel. Maglione is, of course, a central figure in the latest political moves in FINA.

Perceptions count in law and the Italian may also have a case when it comes to how the average man and woman may see a situation in which a FINA vice-president is also a TSE consultant (regardless of the geography of any role may be in a business that advertises its global credentials) and who earns a livelihood through an agency agreement with TSE, a group that bids for and wins work with FINA – and a group of which he is a director, a fact clearly advertised on the TSE website.

In open communication, Neuburger has stated a case he sticks to: that he has no conflict because he allows no conflict to occur (a full list of his arguments against Barelli’s case can be found at the foot of the article linked to): by stepping out when FINA and TSE come together in one room or sentence.

It remains to be seen whether CAS will extend its inquiries to asking Van Heijningen to explain how the deal to have TSE run his campaign against Barelli came about.

In his case before CAS, he holds FINA in default of its own rules by not allowing the Ethics Panel of the federation to consider his arguments against Neuburger.

Under part F of the Code of Ethics – Conflicts of Interest – we read:

14. Officials shall not perform their duties in matters with an existing or potential conflict of interest. Should a conflict of interest, or the appearance of a conflict of interest, arise, or if there is a danger of such conflict arising, the individual concerned must refrain from taking any further part in the handling of the matter. If it is unclear whether such a conflict of interest exists in any given situation, the matter may be submitted to the Ethics Panel.

That last sentence suggest that the FINA Executive has decided, for whatever reason, that the topic of whether its members are conflicted and whether that ought to be put to the test before the Ethics Panel is not open for discussion.

For a federation already under siege for its perceived lack of transparency, a refusal to have independent oversight of potential conflicts of interest is “truly damning”, one leading critic of the international federation told SwimVortex.

It is in the place where FINA often finds intself accused of a lack of transparency that we find the link between the cases levelled by one FINA executive against two others.

When contacted for comment Barelli remained tight-lipped and will say nothing until the CAS panel has given its verdict. The April 22 deadline for FINA nominations is critical – and if the court does not rule before then but does rule in Barelli’s favour, then the books of nominations and accompanying procedures on the way to July Congress may be called into question.

To some extent that has already happened.

The case against Al Musallam

Husain Al Musallam

Our next take on this saga will consider Husain Al-Musallam and the FINA executive’s decision to allow him to stand for election to the closest thing to highest office at a time when Kuwait is – and remains – a member nation suspended by the International Olympic Committee and FINA.

The rules of FINA are clear: no member shall have dealings with a member serving s suspension. And yet there he is, Al-Musallam, first vice-president of FINA, a man who does not have the support of the interim swimming federation of his cown country (and he must, under FINA rules, if he is to hold office) but would be the boss of all things aquatic sports in the world should Julio Maglione – the Uruguayan octogenarian breaking his election promise to stay for two terms only as he stands for reslection this July – feel he needs to step aside for any reason.

On December 5 last year, when the Ethics Panel noted at two meetings that it could not hear Barelli’s complaints unless they were referred to it by the Fina Executive, the Panel , in fact, did meet to hear and give a verdict on the Al Musallam complaint.

It is that case we will consider next, complete with some uncomfortable facts, such as:

  • the hearing the case on Al Musallam’s insistence included the Kuwaiti member of the Ethics Panel – when it ought never to be possible for the subject of a complain to be judged by a delegate from his own nation in international realms where it would have been possible to call on another member of the panel to step in.
  • that the Ethics Panel heard the case on Al Musallam’s insistence means that it accepted one case on the basis of one rule and refused to hear another case on the basis of a conflicting rule.

FINA in focus

The Ethics Panel highlighted this obvious contradiction and conflict of rules in minutes of a meeting it held on December 5 last year.

FINA’s response: “the minutes of this meeting does (six) not reflect trhe written direction whaich was given to the panel”.

Therein lies the crux of the crisis: an executive that feels it has the right, under conflicting rules it formed and ticked itself, to tell an ethics panel what it can and cannot consider.

Trials season is well underway in the world of swimming this month but there is another unfolding on dryland, one that could shape the sport for many years to come: FINA Vice-President Vs FINA (and two Vice-Presidents). A ten-day countdown begins today: April 22 is the deadline for all nominations to positions within FINA for the next four years to arrive on the top desk at the international federations offices in Lausanne. A case being considered by the Court of Arbitration for Sport is pivotal

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