FINA Cites Freedom-To-Choose Rule As It Distances Itself From Dutch ‘Block’ On League Racing In Favour Of Championship Waters
FINA, the global regulator for aquatics, has distanced itself from moves by the Dutch Swimming Federation (KNZB) that effectively oblige its elite swimmers to forfeit their eligibility to race for their country in international championship waters if they opt to race at International Swimming League (ISL) events.
In response to the SOS article noting the relevance of the Dutch move to one of the key issues at the heart of an ongoing antitrust legal dispute between the ISL and FINA in the United States, as well as rulings made by the European Commission competition authorities on relationships between federations and athletes and touching all sports, FINA noted that its recent bylaw 16.1.10 “ensures athletes the right to participate in whichever events they choose”.
The global regulator, in the midst of a radical reform process led by FINA president Husain Al-Musallam and new executive director Brent Nowicki, former counsel for the World Anti-Doping Agency (WADA), acknowledged that its rescheduling of dates for the World Championships “due to COVID-19 restrictions in Japan has raised potential scheduling conflicts“.
However, while it hoped that as many swimmers eligible for the Budapest 2022 edition of its showcase will be able to compete, FINA emphasised that it has “no rule or regulation requiring athletes to participate in the World Championships” or any other FINA event.
Further, bylaw 16.1.10, added since 2019, makes clear that “FINA will not undertake disciplinary action for Aquatics Athletes who choose to participate in events that are not FINA Sanctioned Events.”
The KNZB move appears to go beyond the provisions of FINA Rules and follows a decision by the ISL to extend its season to six months, a shift that turned the choppy waters of calendar chaos and clashes into a maelstrom bound to result in swimmers being forced to make a choice between league or championship racing.
FINA puts distance between its own stance and the Dutch move today when it told SOS:
“FINA has no rule or regulation that requires athletes to participate in the FINA World Championships or otherwise restricts them from competing in other, concurrent events. Indeed, FINA Bylaw 16.1.10 ensures athletes the right to participate in whichever events they choose: “FINA will not undertake disciplinary action for Aquatics Athletes who choose to participate in events that are not FINA Sanctioned Events.
“While FINA of course hopes that eligible athletes will choose to compete in the upcoming 19th FINA World Championships Budapest 2022, FINA understands that the rescheduling of the event due to COVID-19 restrictions in Japan has raised potential scheduling conflicts. FINA respects whatever decisions athletes make in resolving those conflicts.
“FINA has become aware of reports that some National Federations have asked athletes to swim in the FINA World Championships instead of other events. The relationships that athletes have, financial and otherwise, with their respective National Federations differ from country to country and are not governed by FINA.
“FINA has no comment on these reports, which involve matters between certain National Federations and their respective athletes, other than to reiterate that FINA has no rule or regulation requiring athletes to participate in the World Championships and that “FINA will not undertake disciplinary action for Aquatics Athletes who choose to participate in events that are not FINA Sanctioned Events.”
FINA – Freedom to take the plunge at FINA and non-FINA sanctioned events – Photo by Patrick B. Kraemer
Meanwhile, the timing of the KNZB move has raised eyebrows in The Netherlands. It follows hot on the heels of the retirements of two of its biggest stars of the past two decades, Ranomi Kromowidjojo and Femke Heemskerk, both pioneers of the ISL and its Pro-Swim system of paying wages to swimmers who race for professional, branded teams, each made up of athletes from several nations.
Kromowidjojo noted in an interview with SOS that the International Swimmers’ Alliance, the leadership group of which she is a member of, that athletes were seeking a fairer shares of revenues and greater consultation from all event organisers and regulators to ensure that the Athlete Voice was reflected in the structures and governors and race conditions in aquatic sports.
Whether the KNZB instruction to swimmers is interpreted as a threat remains to be seen. It would take just one complaint from any European swimmer to the whistleblower service of the European Commission to invite the attention of European competition authorities that are seriously unkeen on sports authorities removing choices from athletes when it comes to where they compete and how they may earn a living from their sport.
It was the presence of threats, perceived or real, that led to legal action against FINA in the United States. There were two strands of process.
Where the ISL sued FINA on its own behalf in what has turned out to be a costly (the FINA bill alone is running at $6m) and bitter antitrust dispute, Katinka Hosszu, the Hungarian triple Olympic champion, Tom Shields and Michael Andrew, both members of the United States swim team and major-meet champions and medal winners, launched a class action on similar grounds, designed to tell FINA “we will compete under FINA Rules but you cannot tell us where, at whose event and when”.
FINA has since changed its rules and set off down the road to reform. Against that backdrop the class action was dismissed, though the matter is not over yet: the claim for damages has been dismissed but the matter of injunctive relief is yet to be decided (“a remedy which restrains a party from doing certain acts or requires a party to act in a certain way. It is generally only available when there is no other remedy at law and irreparable harm will result if the relief is not granted”).