The Court of Arbitration for Sport (CAS) is set to adjudicate in a row at the heart of the FINA leadership that started with what members of the European swimming league (LEN) say was an attack on the right of their continent to chose its own leadership without interference from the United States, Kuwait and elsewhere.
The matter cuts to the heart of the debate over the much-criticised state of governance at the international federation.
In Paolo Barelli Vs FINA, the leadership of the global body sought to suggest that CAS had no jurisdiction in the matter at hand. CAS ruled otherwise and took the case on. Barelli, President of LEN supported and interpreted the will of the LEN Bureau.
It is being asked to decide if FINA stuck to its rules when it refused to refer a dispute to the Ethics Panel of the international federation. The FINA rule book is conflicted and a Swiss law firm conducting a closed governance review of FINA – an exercise that has not sought the views of major stakeholders representing athletes and coaches – has told swimming’s global ‘volunteer executives’ that the ethics panel ought to be able to decode for itself what it will and will not hear.
At the heart of a matter that could reshape international swimming governance are: conflicts of interests; the FINA leadership’s refusal to allow the federation’s Ethics Panel to consider the dispute; and alleged American and Kuwaiti interference in European elections against the constitution and rules of the international swimming federation.
In the first part of a series of articles on the way to the April 22 deadline by which time all who wish to stand for positions in the FINA machine must submit their nominations, we considered one of Barelli’s two complaints that centre on his allegation that two vice-presidents of FINA and his fellow members of the executive from other continents actively opposed him in favour of a Dutch candidate in the elections to decide who should be president of the European Swimming League.
Barelli won the vote, while Dutchman Erik Van Heijningen was roundly defeated. After considering the Italian’s case against Dale Neuburger, we turn to the second complaint, that against Al Musallam, the FINA first Vice-president who hails from Kuwait.
Up front it is important to note the following points:
- Kuwait is suspended from the International Olympic Committee (IOC) and FINA (as well as more than a dozen other global sports federations) for political interference in the process of selecting officers.
- Kuwait is a suspended nation and yet the FINA executive nominated Al Musallam for the new position of first vice-president remains in place and will stand for that role once more at Congree in July even though his nation is suspended and his home interim swimming federation has instructed FINA’s leadership that it does not support any nomination for Al Musallam for positions in FINA (a requirement under FINA rules). FINA and the Asian Swimming Federation (AASF) have accepted his “future” candidacy for FINA vice-president but the basis on which this has been done is in dispute and is questionable under FINA rules.
- Rules designed to ensure that athletes have access to competition and can race under the flags of the IOC, FINA and other general symbols of international representation at times of national and political turmoil have been used by the FINA executive to allow Kuwait sports politicians to continue to serve in their roles and seek new positions at FINA throughout the time that Kuwait is under official suspension
- Al Musallam does not have the support of the interim swimming federation of Kuwait, which wants him removed.
The above points remind us that the battle is not simply within FINA’s leadership but cuts to the very heart of an internal struggle to secure a succession plan in favour of a big player in Kuwait ‘s Olympic realm a year after USA Swimming threw its backing behind Neuburger in the face of deep criticism from coaches and others calling for independent review of FINA, which they called “a broken organisation” desperately in need of reform or replacement.
As considered in the first past of this mini series, Neuburger, FINA vice-president, is a director of TSE Consulting. He also has an agency agreement through which he operates for TSE in North America. He has also acted for TSE beyond that limited realm, including involvement in a development program for swimming that includes Turkey, and a deal struck between an American coach and the Turkish swimming federation, a member of the European Swimming League (LEN).
TSE has also worked with other members of LEN, including the Danish swimming federation; and TSE has bid for and won commercial, business contracts with FINA.
TSE does not list a director for the Middle East on its website but has worked on bids and events in that region, including helping to secure 2020 World short-course swim championships for the Abu Dhabi, as well as work with the Dubai Sports Council, the Qatar Olympic Committee, the Saudi Arabian Swimming Federation and the UAE Swimming Federation, Dubai (also 2021 Qatar FINA Worlds). None of those Middle East nations have anything that could remotely be called world-class in terms of elite swimming programs for home athletes – and none have swimmer remotely close to the helm of battle in world waters.
The UAE federation was the body on watch when American Open Water swimmer Fran Crippen died in a FINA world cup event in 2010. That tragic event was followed by the promotion in the FINA ranks of the UAE official in charge of the show on the day the swimmer lost his life, despite serious criticism of the organisation of the event in two reports into the death of an athete.
TSE also worked with the Mexican Swimming Federation to secure the 2017 World Swimming Championships for Guadalajara but the Mexican government, under budgetary pressure, pulled the plug and Budapest stepped into the breach for the global events this July. fair to note that Mexico is an official area of responsibility of Dale Neuburger’s in his role at TSE.
Meanwhile, USA Swimming’s siding with the status quo, persuaded those now planning another future for international governance of swimming that replacement was the only option. Those who represent USA Swimming at international level – in common with those who represent Australia and other leading swimming nations – did not opposed Al Musallam’s promotion nor the continued role that Kuwait officials play at FINA despite the suspension in place.
Barelli Vs FINA – the Italian’s case against Al Musallam
It is hard to see how FINA bosses could justify voting Al Musallam to any position in FINA, let alone that of the newly created First Vice-President, a post that in part reflects the creaking nature of a choice to ignore the nature of age and think it wise to have an octogenarian from a country with no world-class swimming program, sit in the top seat of the organisation that governs elite, competitive swimming and the end of the sport that brings in the money as one of the biggest Olympic showcases.
The latter is the reason Al Musallam and the like are there in the first place: the Olympic realm is a big draw and anyone who ends up as FINA president gains automatic entry to the IOC members club, regardless of how many others from their country are already in the lounge.
Not, of course, Al Musallam’s fault that he’s there. That comes down to a system that tolerates the existing structures and systems of international sports governance.
The question, then, is: what has Al Musallam done to draw Barelli’s complaint?
It all hangs on these points, each followed by explanatory notes:
- 1. the Kuwaiti delegate’s nation is suspended and yet Al Musallam continues to sit in the second most powerful position in FINA and wishes to remain there for the next four years, during which he could be elevated to FINA President at a time when the nation he represents is suspended. Regardless of the rights and wrongs of that in itself, the potential for a conflict of interest in deciding the moment Kuwait’s suspension is lifted is glaringly obvious.
In August 2016, a Swiss court dismissed a US$1 billion suit filed by Kuwait against the International Olympic Committee over the country’s suspension from competition. Kuwait was ordered to pay the legal costs of the suit. The IOC and FIFA suspended Kuwait in October 2015 over laws that do not allow government interference in sports governance.
FINA and 15 other international sports federations followed the IOC ban with their own. In January 2016, the Kuwaiti government filed suit in a domestic court seeking damages of US$1.3 billion from 15 Kuwaiti sports officials it alleged had actively sought the suspensions. It marked the third time since 2007 that FIFA and the IOC had suspended Kuwait for alleged government interference.
Despite all of that, the FINA leadership intends to have Al Musallam elected First Vice-President in Budapest come July. He would be the first to hold the role after a Congress vote despite rules that call into question his right to be in any FIONAS position at a time when his nation is suspended from the IOC and FINA. In the midst of that doubt are the following conflicting clauses in the rule book:
- GR 4.1 No affiliated Member shall have any kind of relationship with a non affiliated or suspended body.
- GR 4.2 The exchange of competitors, administrators, directors, judges, officials, trainers, coaches, etc., with non affiliated or suspended bodies is not permissible.
- GR 4.3 The holding of demonstrations and/or exhibitions, clinics, training, competitions, etc., with non affilited or suspended bodies is not permissible.
- GR 4.4 The Bureau may authorise relations with non affiliated or suspended bodies as in Rules GR4.1 through GR 4.3.
Quite how the term “etc.,” would stand up in a court of law considering what the term may or may not mean is yet to be tested. What some say is that the FINA leadership wants its cake and to eat it.
GR 4.1 to 4.4 add up to: suspended means suspended unless we at the top table say that suspension is in place but that that doesn’t actually mean as much, the officials from the suspended member federation not only allowed to continue to serve while their nation is suspended but also up for new appointments and promotions within FINA’s structure.
Such a position may be hard to justify but worse is the perception of the wider membership of swimming that is summed up by this senior source:
“This is a prime example of FINA’s leadership using and ignoring rules in any way that safeguards the status quo and their agendas. If that adds up to suspended but actually not, then that’s fine by them if it suits them. The rules are in conflict and unclear and that has been used and abused by the leadership of FINA.”
- 2. Al Musallam is not supported by his home swimming federation, a pre-requisite for serving in any position at FINA according to rules C17.1.9 (requiring any member of the Bureau to be an officer with a vote at the general assembly of his/her national federation) and C17.5.1 and C17.5.2 (requiring all Bureau members to have been approved by their member federations before they can be proposed by continental organisations – in the cases if 16 places on the Bureau – and, in the case of 7 places, directly by the member national federation.
Documents shown to SwimVortex by sources in Lausanne indicate that last October, the interim committee of the Kuwaiti Swimming Association informed FINA that it wished to withdraw the nomination for Al Musallam as a candidate for the position of FINA first vice-president “or any other membership or candidature for [him] in the Bureau, committee or body within FINA and the AASF.”
Al Musallam’s latest nomination for his place in FINA was received four months after Kuwait was suspended. The question is: who signed that nomination, given that the interim leaders of the KSA have made clear that they do not wish Al Musallam to represent them?
The FINA rulebook is clear: without approval of the member of FINA, the national federation, no name can go forward to a vote for positions within FINA or a vote at a continental organisation that makes nominations for positions within FINA.
In other words: if Al Musallam is not supported by the KSA, he has no leg to stand on – barring the support of the FINA leadership of which he is a member.
In February this year, FINA Director Cornel Marculescu penned a memo to all member federations to clarify the “Situation of the Kuwait Swimming Association”.
- He notes the suspension of the federation in October 2015 as part of the IOC-led, FINA backed suspension of Kuwait.
- He notes that the suspension does not affect Kuwaiti athletes, who are eligible to race under the flags of the IOC and FINA.
And then, he ropes in the two men who were the top officials in swimming in Kuwait at the time that the country was suspended: Al Musallam, the general secretary of the KSA, and Sheikh Al-Sabah, the president of the KSA. He does not mention several Kuwait delegates who continue to serve on commitees and commissions at FINA, including Abdulla Al Hayyan, a member of the Ethics Panel who sat to hear Al Musallam’s case even though he is a fellow Kuwaiti.
Whatever justification the FINA leadership leans on, whatever rules it cites, the outcome is clear: they have completely negated the suspension of Kuwait, which appears, then, to be an exercise on paper only.
What purpose does a suspension serve if the officials and delegates and representatives from a country suspended continue to serve and operate in precisely the way they had been doing before their country and related associations were handed a suspension?
And once again, theer is the conflict of being a first voce-president at a time when your nation is suspended. The rules state that suspension comes with a loss of rights to function in official capacity, to participate at events. The loophole that returns those rights to people exists only for athletes in that they are porotected by politics through a right to compete under flags of neutrality, IOC, FINA, etc.
To suggest that such rights also apply to the very politicians at the heart of scenarios that caused a suspension to be imposed is like saying to the swimmer who tests positive for doping ‘here is a two-year ban but don’t worry, you won’t have to serve it: see you next week at the World Championships’.
Beyond that, something else is at play: FINA’s leadership has taken sides. It has rejected the rejection of Al Musallam by the interim KSA and told the wider FINA membership that it backs the people who were in place when Kuwait was suspended. As such, FINA may be seen no longer to be taking the neutral stance that protects it from becoming embroiled in the national politics of nations of the kind that caused Kuwait to be suspended in the first place.
- 3. Al Musallam, a director of the Asian Swimming Federation (AASF) attempted to interfere in the voting for the president of the European Swimming Federation (LEN), says the incumbent at the helm of the largest continental member of FINAwho was returned to office with a resounding mandate last year.
This charge Al Musallam did not deny when he appeared before the FINA Ethics Panel. He refused to accept he was acting politically but rather had FINA’s interests at heart. The latter is clearly debatable without specific allegation or evidence being presented: it would suggest that Al Musallam, the first vice-president, was opposed to Barelli in the belief that he would not act in FINA’s interests. It is hard to see how the nuance of which of the candidates would act better in FINA’s interests could come down to anything other than political choice, especially given that the two European candidates had campaign agendas that were almost identical in thrust, including greater transparency and other issues over which FINA has come in for steep criticism.
Interference would also be a problem in the rule book in several places, including C 18.2.6 in the context of his shadow duties as first vice-president and the man who would step up to the president’s duties if circumstances demanded it. C18.2.6 required the FINA leader to “maintain relationships” between continental organsations, such as LEN and AASF, the latter headed by Kuwait’s Sheik Khalid B. Al Sabah, a figure at the heart of the Olympic politics in the suspended nation (see background below).
Sources have shown SwimVortex documents in which the heads of several national swimming federations in Europe claim to have been approached by Al Musallam or representatives of his in Kuwait asking for their support for Barelli’s rival candidate, Dutchman Erik Van Heijningen, in the European election. One of the documents suggests that the “support” (the nature of which is not expressed) granted by Kuwait to the European federation for its work could continue if support was returned in favour of a vote for the Dutchman.
It is important to note that the Ethics Panel did not look into Al Musallam because Barelli called for that to be the case. Instead, it was Al Musallam who called for his case to be heard – and it was heard in the presence of a Panel member from his own country.
In considering the case, the Ethics Panel did NOT grant Barelli the right of audience, sources have told SwimVortex. They opted instead to consider only the paperwork submitted by the Italian on the grounds that the FINA executive refused to refer his case to the Ethics Panel (the crux of the case before CAS in terms of whether FINA has broken its own rules or whether those rules are comnflicted and therefore cannot stand). The Panel, therefore, gave Barelli no right of reply to any assetions from Al Musallam – or indeed the Panel – that he may not have been aware of but might have had cause to disagree with.
The Ethics Panel set some of what they called Barelli’s “opinion” aside, while accepting Al Musallam’s assertion that some of those domestic federation people who said they had been approached by Kuwaits to seek support for Van Heijningen were unknown to him. The reports of approaches, the panel states in its judgment, “appeared to have been solicited by” Barelli.
Were that to have been the case, it would be be understandable: if Barelli sought to confirm his suspicions of interference by asking European federation heads if they had been approach by officials from outside the continent, the replies he received would indeed have been solicited, that being the nature of inquiry and response.
In his statement to the Ethics Panel, Al Musallam does not deny backing Van Heijningen openly. In its judgment, the Ethics Panel notes that Al Musallam says he expressed his opinions “for proper and genuine reasons, and that he was entitled to express them”.
The panel backs him and says Barelli’s complaint is misconceived. In journalistic terms, the outcome, given the documents SwimVortex has seen, would point to politics and interference. The Ethics Panel, including the member from Kuwait, was the judge in this case – and they decided no case to answer on grounds of neutrality and integrity.
Such a ruling is questionable because it was handed down in conditions that may well be deemed to be irregular, to say the least, namely, Barelli was refused right to have the case heard by the Panel and was not afforded the opportunity to respond to any of Al Musallam’s assertions.
According to sources in Lausanne and the United States, Barelli has refused to accept the Panel’s ruling. That issue is among those on the table before CAS.
Just what the Ethics Panel would consider to be ‘political’ and what is simply ‘expressing an opinion’ is not expressed in the Panel’s ruling but what is clear is that the Panel set aside Al Musallam’s own admission that he wanted the Dutchman to lead Europe and not the Italian.
That the Panel has sided with Al Musallam makes another thing most clear: intereference in elections of one continent and one country by another continent or country is officially permissable on the grounds that anyone doing so would simply be expressing an opinion.
Europe has more votes at FINA Congress than any other single continent and Barelli now has the support of just about all of those nations with two votes apiece: a voting block that could be a significant weapon in a war within FINA in the summer ahead as the ultimate authority of FINA (the congress of more than 200 member nations) meets for its once-a-quad session.
- 4. Al Musallam is in conflict with FINA’s interests, according to Barelli, and all the more so in his position as a FINA First-President who is also been the Director General of the Olympic Council of Asia since September 2005. Barelli argues that Al-Musallam’s interests rests in representing Asian interests in Olympic sports when it comes to supporting bids and in other matters, while FINA rules call for the top positions in FINA to represent FINA “in all dealings with the International Olympic Commitee and the Association of Summer Olympic International Federations (ASOIF) and any other relevant intenational organisations”.
The suggestion is clear: there are occasions where Al Musallam would have to deal with himself – and the interests he would represent would be those of any Asian organisations he sits at the helm of above those of other organisations that may be bidding for FINA contracts and partnerships.
Once more, the Ethics Panel, even though it did not hear from Barelli in person and did not give him the right to answer to any assertions made by Al Musallam, does not accept the Italian’s arguments that conflicts of interest could play a part, on the grounds that FINA and the OCA are not linked in “any administrative or financial sense”.
The panel does not say that a conflict would be impossible. Rather, it states that it is “difficult to envisage” one unfolding. In fact, it is not that hard to come up with a long list of potential conflicst of interest for several of those serving at the top table of FINA – and serving an Olympic council from one part of the world could indeed clash with the need to serve a FINA president elect, in effect, who stands in line to represent swimming at the IOC.
The succession plan backed by big Middle Eastern money was out in place in July 2015 when the FINA leadership took a retrograde step by voting against the tide of Olympic trends on age limits for high office, for a reversal of a promise by Julio Maglione to stay as president stay for two terms only so that he could stand for a third term this July and then, should he wish to or circumstance call for him to step aside – say mid-term around 2019 – a new position of First Vice-President would be in place to fill the void.
Maglione is in his 82nd year. One senior source told SwimVortex that some executives are “extremely worried and concerned” as to whether he would be fit to perform his duties for the coming four years.
That first of first vice-presidents is Al Musallam. His elevation to the presidency would ensure that, should he serve for two full terms from 2021, FINA would have been led by a delegate from a nation with no world-class swimming program and hardly any swimmers to speak of for almost half a century. Since 1988, the federation was presided over for 20 years by Algerian Mustapha Larfaoui and since 2009 by Uruguayan Julio Maglione.
Now, a Kuwaiti succession is in the pipeline.
Backed by delegates of USAS, the umbrella body for USA Swimming, delegates from 139 out of more than 200 member states voted by majority (the actual numbers were not stated in FINA’s announcement to the media) at Congress in Kazan on the eve of the opening ceremony for the world championships in Tartarstan to make the following moves, among many:
- creation of the position of First Vice President. After the approval of the Congress, Husain Al Mussallam (KUW) was elected as FINA First Vice President, with the main duty of representing FINA and conducting FINA meetings in the absence of the President
- any vacancy in the office of President shall be filled by the FINA First Vice President, until the Bureau decides, within 3 months, on the place and date of the Congress electing the new President ;
- the President, First Vice President and Honorary Treasurer may be elected for a maximum of three full terms in the same post;
- suppression of the maximum age limit of the elected Bureau members; NB: The IOC imposes age limits on high office, while IOC member FINA President Julio Maglione stated in 2009 when he stood on a ticket of wanting to stay for one term only and campaigned for the top job on that basis: “Two terms should be the limit for any president. I don’t want to be there when I’m 80”. He turns 82 this year but wishes to stay until his 86th year.
- the new composition of the FINA Executive, now comprised of eight members (until 2017): FINA President, First Vice President, FINA Honorary Secretary, FINA Honorary Treasurer, and four Vice Presidents. As of 2017 onwards, the FINA Executive will include: FINA President, First Vice President, FINA Honorary Treasurer, four Vice Presidents and one more member to be nominated by the President.
The influence in swimming of the Middle East, a region with much work to do when it comes to developing swimming programs, let alone women’s swimming, in accordance with some of the key objectives of FINA, has grown beyond recognition in the past few years.
That has coincided with the arrival on the swim scene of one of the power brokers of world sport, Sheikh Ahmad Al-Fahad Al-Sabah. His image was shaken of late following a public falling-out within Kuwait’s ruling family after a corruption case backfired.
Sheikh Ahmad was decisive in the elevation of Sheikh Salman Ebrahim Al Khalifa to the leadership of the Asian Football Confederation in 2013; he was also influential in supporting Thomas Bach when the German won the International Olympic Committee presidency that same year.
However, Sheikh Ahmad was forced into a public, televised apology to his uncle the Emir, Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabah, of late. In March 2015, Sheikh Ahmad was to be found in Male for talks with the Maldives’ President Abdulla Yameen and for an Olympic Solidarity commission meeting to discuss worldwide allocation of development funds for 2017-2020.
A week later back in Kuwait, the prosecutor’s office threw out accusations by Sheikh Ahmad against a former prime minister and a speaker of parliament. He had claimed that ex-PM Sheikh Nasser Al-Mohammad Al-Ahmad Al-Sabah and former speaker Jassem Mohammad Abdul-Mohsem Al-Karafi had plotted to topple the Kuwait government and, further, had conspired over money laundering and misuse of public funds.
The evidence provided by Sheikh Ahmad was based on computerised documents and film records which were dismissed by the court as fabrications. Sheikh Ahmad appeared on national television to say:
“I offer my deep apologies and express my profound regrets for my recent prejudice, abuse and slander, intentional and unintentional, and which were based on the information and documents concerning the interests of the country that I had received.
“I thought the information was correct and credible. But now that the competent judicial authorities affirmed they were not valid or correct, stressing the truth is a virtue.
“As I seek pardon from Your Highness, I stress that what happened will be a lesson from which I will benefit and draw appropriate conclusions. I am in full compliance with the orders and directives of Your Highness and I promise to turn the page on this matter and not to raise it again.”
The Sheikh and Swimming
Sheikh Ahmad was the guest of honour at the FINA World short-course Championships gala dinner in December 2014 in Doha. His support is said to be valuable to the moves of Julio Cesar Maglione to have the FINA Constitution changed to allow him to have a third term in office as FINA president. Maglione came to the top chair in 2009 on a ticket of “two terms only” for future presidents and one term for himself, a move steeped in criticism of Mustapha Larfaoui, the Algerian then incumbent who had been in the top seat for 20 years.
Just why Maglione and FINA, run on a day-to-day basis by Executive Director Cornel Marculescu (a man who at times has wisely, some say, sought to stay out of the political moves of the politicians around him), would wish to go back on the two-term commitment in 2017 may well be explained by a theory doing the rounds in the corridors of power in worldwide swimming.
Sheikh Ahmad, a man worth billions, has long been a close friend of Husain Al Musallam, the head of Kuwait swimming and FINA Bureau member. Husain Al Musallam, who presides over a national swim program devoid of any world-class elite program fit to make any impact of note in global waters, has been an ordinary Bureau member since 1996. He has not been regarded by the wider membership of FINA as a candidate for the FINA presidency, the FINA leadership’s moves since July 2015 taking many by surprise.
Leading figures in world swimming believe that Maglione, beyond winning a third term, would step down mid-term, making way for Al Musallam, whose “temporary position” pending a vote would simply lead to a rubber-stamping of his elevation.
That scenario is one that some in the upper echelons of FINA object to. And all of that coincides with two developing front lines:
- the creation of the World Swimming Association and a pledge to challenge the right of FINA to govern international swimming
- a swell of opinion in swimming that the head of FINA ought to hail from a nation that boasts a world-class swimming program and that the structures of FINA need to be far more transparent and include key positions with vote for experts in the sport, as opposed to such things being in the hands of men (for it is indeed largely men we are talking about) from nations that are a long way from displaying any expertise in or significant understanding of performance sport in the pool.
- At the time SwimVortex published an editorial on the news that Barelli Vs FINA was before CAS, Al Musallam was provided an opportunity to comment. He did not respond.