FINA Reform Part 2: The Road To Good Governance & The Climate Change Required
FINA Reform, Part 2 – Good governance, what is it and why did a review of Olympic Governance among international sports bodies in June 2020 place FINA at the bottom of a league of 27 summer-sport international federations, level with weightlifting and judo?
A reform process at FINA has been asking that question and a Reform Committee has come up with a first line of responses and recommendations that have won the backing of the ruling FINA Bureau and are now heading to a vote of the Congress of 209 nations in December.
In Part 1 of our series on FINA Reform, we considered the pressing issue of anti-doping and the recommendation that looks set to become policy and action, namely the adoption of an independent Integrity Unit that will remove from the political and day-to-day life of FINA doping and other issues of contention and ethical challenge.
FINA’s fresh pathway, one that may soon see the global regulator renamed as “World Aquatics” or similar, is being rolled out by the new president, Husain Al-Musallam, and the new executive director, Brent Nowicki. Some of their challenges will be easier to handle than others. Over the course of several weeks, SOS is looking at the “Six Pillars of Reform” proposed by the committee charged with the task of making recommendations for change.
Today, a first look at the biggest section of the FINA Reform Group’s report:
THE FIRST PILLAR: GOOD GOVERNANCE
In the following article, the original note and recommendation of the Reform Group is in standard black text (grey where the timeline of change is described) and preceded by “RG: etc., “. SOS notes are prefaced by “SOS: etc., in Italics xxx ” and end with “End of SOS note” for clarity.
RG: For years FINA has been criticized for the way in which it handles not only alleged anti-doping rule violations, but all other matters of integrity such as ethical violations and corruptible offenses. Alleged offenses were referred to the respected adjudicatory body in clandestine fashion, often without explanation why certain matters were considered alleged offenses and others were not. The adjudicatory bodies within FINA – while facially independent – where not operationally independent from FINA. Athletes, in particular, have had little faith in the integrity of the FINA anti- doping, adjudication and ethical system.
Put simply, independence is the hallmark of any integrity system and the current systems employed by FINA lack this necessary independence and transparency.
SOS: Bravo on the latter. Spot on. It is a great pity that that message, written by this author and other media at various times over the past 25 years, the archive of cuttings confirms, was treated to a wilful blind eye by at least seven consecutive ruling Bureau leaderships. Key members of the executive from leading swimming nations have been at the top table for more than two decades and have backed at leats one president, Julio Maglione, who over 12 years on the throne failed to respond to requests from stakeholders for a reform process. That failure negates any claim to ownership of the current reform process by such people: they can back it, they can accept and adopt it and change their behaviour but given that they have accepted no responsibility for what went wrong, they have no right to claim any credit for any successes that may flow from changes to come, changes that could and should have happened a long time ago. Much of the credit for this reform process must go to the stakeholders, most significantly athletes, who have helped FINA’s leadership understand that the days when blazers insist that athletes – the key asset on which those in positions of authority rely – know their place and, like children in a Dickensian nightmare, be seen but not heard – are well and truly over. Even so, credit is also due to those driving the reforms, Husain Al-Musallam and Brent Nowicki, both of whom need now to reach out to coach leaders, acknowledge the woeful events of 2013-14, when a request for a reform process sent from coaches to FINA failed to elicit even a police reply, and make a pledge that such atrocious lack of engagement with key stakeholders, especially those seeking to hold leadership to account for obvious failings and bad practices, will never happen again. End of SOS opinion
RG: 1. Aquatics Integrity Unit
In the lead up to his re-election as IOC President in 2021, Mr. Thomas Bach laid out the 15 priorities of the Olympic Movement until 2025 in a document called Agenda 2020+5. One of the priorities highlighted in Agenda 2020+5 is the need for the Olympic Movement to reinforce the fight against doping and all ethical and integrity violations. Ensuring that these violations are investigated and adjudicated by specific units independent of the International Federations is key for the Olympic Movement to meet this priority.
In light of this, many International Federations have already created independent integrity units to manage Anti-Doping and other Integrity issues such as event manipulation, ethical violations, harassment, and other disciplinary allegations. For all of these examples, each international federation tailored how the independent integrity unit operates and is governed in order to meet their specific needs and challenges.
After having examined the current structure in place at FINA, the Reform Committee recommends the creation of an independent Integrity Unit by FINA (i.e. the “Aquatics Integrity Unit”) to oversee three separate areas: (1) Anti-Doping; (2) Event Manipulation and Corruptible Offenses; and (3) Ethical Violations.
SOS: Independent. Integrity Unit. Excellent – but only if the full stop between the I and the IU is removed entirely, with not a hint of grey area anywhere to be seen or felt.
End of SOS opinion
RG: An overview on the application of each area within the Aquatics Integrity Unit is set out below:
i. Anti-Doping
Under the current FINA system, out-of-competition anti-doping testing is currently managed by the Independent Testing Agency (ITA); in-competition testing is handled by FINA vis-à-vis the organizing committee of each event. FINA maintains the results management responsibility as it concerns any positive test, subsequently charges the athlete, and asserts an anti-doping rule violation (ADRV) before the FINA Anti-Doping Panel. In this respect, FINA essentially is acting as the prosecutor and the judge in maintaining complete control over the results management responsibility, deciding who to charge with an ADRV, and then determining to bring the case to its own internal panel. This process arguably lacks the operational independence required under WADA’s International Standard for Results Management.
To alleviate the lack of independence within the current system, the Reform Committee considers that the Aquatics Integrity Unit should be responsible for the following (as it concerns anti-doping):
- Monitor compliance by FINA with its obligations as a signatory to the World Anti- Doping Code and its integrity compliance obligations;
- Investigate potential violations of the FINA Doping Control Rules;
- Handle all anti-doping responsibilities of FINA, which have not already been delegated to independent third-party agencies;
- Prosecute potential violations before the Court of Arbitration for Sport’s Anti-Doping Division (CAS ADD) (in lieu of the FINA Doping Panel);
- Pursue/defend appeals to the CAS Appeals Arbitration Division from first-instance decisions of the CAS ADD;
- Obtain relevant intelligence and information and share relevant intelligence and information with relevant authorities; and
- Educate FINA Officials, Member Federations, Member Federations, Athletes, Athlete Support Personnel, and others who are bound by the FINA Rules about their anti-doping obligations, and monitor their compliance with those obligations.
SOS: Point 3 is an issue. When it refers to “responsibilities … which have not already been delegated to independent third-party agencies”, it raises questions about the meaning of independence. FINA may be sincere about its wish to remove the anti-doping issues from the political realm and day-to-day operations of the federation. Even so, there are questions about whether the International Testing Agency is as independent as it could be, a factor that led to a change to the first name proposed for the outfit before Swiss authorities objected.
End of SOS opinion
More on that theme and other related to Governance in our interview with the former head of the World Anti-Doping Agency:
RG: ii. Event Manipulation and Corruptible Offenses
Allegations of event manipulation strike to the core of fair play and FINA has an absolute obligation to ensure that its events are free from interference and manipulation. In the current FINA system, allegations of event interference and/or manipulation are usually derived from whistleblower(s). Such allegations are notified to the FINA Executive who according to C 24.7 of the FINA Constitution, would determine whether to refer the matter to the FINA Ethics Panel. In turn, the Ethics Panel would investigate, hear and determine any alleged violation and impose any necessary sanction.
The Reform Committee considers the independent decision-making authority of the FINA Executive as to whether to refer a matter to the Ethics Panel potentially problematic. Moreover, equally potentially problematic is the investigative responsibility of the Ethics Panel, who is in essence acting as the investigator, prosecutor and jury, in each matter.
Moreover, allegations of event manipulation and corruptible offenses often require hundreds of hours of investigation before they can be asserted and prosecuted. The first allegations received by whistleblowers very often do not meet the burden of proof to establish a violation. They need to be followed up on and investigated thoroughly by experienced individuals in order to sustain the evidence required to bring the case forward. Following up with the whistleblowers and keeping them updated on the process is also time consuming. This cannot reasonably be expected from the members of the FINA Ethics Panel who are volunteers.
The Reform Committee considers that the Aquatics Integrity Unit should be responsible for the following (as they concern event manipulation and corruptible offenses):
a. Investigate alleged event manipulations and corruptible offenses through a newly-formed Investigative Chamber, with the assistance of a Chief Ethics and Compliance Officer;
b. Follow-up with whistleblowers and witnesses in a confidential and independent manner, and provide support where needed to protect the identity of whistleblowers and witnesses;
c. Provide a proper independent reporting system that would eliminate the ability of a single person to determine whether (or not) to bring charges before the newly-formed Adjudicatory Chamber;
d. Develop a focused education plan including e-learning courses, seminars, webinars and on-site promotion at events;
e. Prosecute potential violations before the Adjudicatory Chamber; and
f. Pursue/defend appeals to the CAS Appeals Arbitration Division from first-instance decisions of the Adjudicatory Chamber.
SOS: Excellent start. Further details of who would select and appoint members of the Investigative Chamber, how that would be conducted and what skills candidates would require are pending but would be best placed in the public domain if trust is to be a treasured commodity.
End of SOS Opinion
RG: iii. Ethical Violations
The process and procedure for adjudicating ethical violations within FINA is neither transparent nor clear, and historically left too much discretion in the hands of the FINA Executive to determine whether to pursue an ethical claim (or not). Because of these issues, the Reform Committee suggests removing C 24 from the FINA Constitution and replacing it with a new Code of Ethics. Included therein is an Investigative Chamber, a Chief Ethics and Compliance Officer and an Adjudicatory Chamber. A draft proposed new Code of Ethics is attached as Exhibit A.
The Reform Committee considers that the Aquatics Integrity Unit should be responsible for the following (as they concern ethical violations):
- Investigate alleged ethical violations through a newly-formed Investigative Chamber, with the assistance of a Chief Ethics and Compliance Officer, in accordance with the Code of Ethics;
- Provide a proper independent reporting system that would eliminate the ability of a single person to determine whether (or not) to bring charges before the newly-formed Adjudicatory Chamber;
- Prosecute potential ethical violations before the Adjudicatory Chamber; and
- Pursue/defend appeals to the CAS Appeals Arbitration Division from first-instance decisions of the Adjudicatory Chamber.
SOS: Again, excellent start but the changes to the Ethics Code, yet to be considered and voted on, will be critical to how effective the Investigative Chamber can be: if, for example, it is not clear how and in what circumstances such things as conflicts of interest will be viewed and handled, then the chamber will have no teeth (or blunter teeth with which to bite with when biting is the only right thing to do) and trust in its work will diminish. See our interview with David Howman, Chair of the Arthletics Integrity Unit.
End of SOS opinion
iv. Composition
The Aquatics Integrity Unit would be governed by an independent board composed of:
- a Chairperson of the Board, elected by the General Congress, upon recommendation from the FINA Bureau; and
- a Vice-Chairperson of the Board, elected by the General Congress, upon recommendation from the FINA Bureau; and
- three independent Members of the Board (including, at least, one retired elite athlete), elected by the General Congress, upon recommendation from the FINA Bureau; and
- a Chief Ethics and Compliance Officer, elected by the General Congress, upon recommendation from the FINA Bureau.
The Board would have a critical governance role rather than a management function, similar in style to that of a corporate board. It would be responsible for approving and reviewing strategy, policies and plans for the Aquatics Integrity Unit and for appointing and monitoring the performance of a Chief Ethics and Compliance Officer. It is expected that in its initial stages, the Aquatics Integrity Unit would require approximately two to three staff, including the Chief Ethics and Compliance Officer (who could conduct such work remotely). The day-to-day work of the Aquatics Integrity Unit would be managed by an Integrity Manager.
Additionally, the Integrity Unit would be comprised of an Investigative Chamber, which from time- to-time could seek the assistance of the Chief Ethics and Compliance Officer. The members of the Investigation Chamber, as well as the Chief Ethics and Compliance Officer, shall be independent from FINA and all National Federations and Continental Organizations, and be elected by the FINA Congress in Fukuoka (2022) on the recommendation of the FINA Bureau.
The Doping Control Review Board, which currently provides independent anti-doping expertise to FINA and the TUE Committee, which currently decides on the Therapeutic Use Exemption requests from athletes, would both retain the same roles but would become committees of the Aquatics Integrity Unit in order to maintain independence from FINA.
Currently, anti-doping rule violations are adjudicated by the FINA Doping Panel. The Doping Panel is composed of legal experts who work on a voluntary basis and who are appointed by the FINA Bureau. After having reviewed the current format of the FINA Doping Panel as well as the other solutions now offered to international federations, the Reform Committee considers that the anti- doping rule violations brought forward by the Integrity Unit should be adjudicated by the CAS ADD, for the following reasons:
- Doping Panel members are appointed by the FINA Bureau and the clerk of the Doping Panel is the FINA Office so this leaves a risk of allegations of conflict of interest;
- There is little transparency in the current adjudication process of anti-doping violations within FINA; and
- The CAS ADD is completely independent of FINA, so any claims of conflict of interest could no longer stand.
SOS: Bravo! This author and The Times exposed the disturbing depth and detail of the Sun Yang case hat led to the Chinese swimmer being suspended for four years and three months for what constituted a second anti-doping offence. It was the FINA Doping Panel that lambasted Sun and the behaviour of the swimmer and members of his entourage during an acrimonious and fateful dispute with three members of a Chinese out-of-competition testing team working on behalf of the international agency hired by FINA. However, the FINA Doping Panel, having listed a vast array of reasons why a penalty should follow, opted to leave it at a caution and keep its investigation and report a secret known only to the parties concerned. After I exposed what ought never to have been kept confidential in view of public interest and the interests of all athletes and clean sport, the World Anti-Doping Agency challenged the FINA Panel’s lack of action at the Court of Arbitration for Sport. That challenge concluded that Sun was at fault. What it failed to do was call any of the other adults isn the room among Sun’s entourage to account for encouraging an athlete to break the WADA Code and for the threats made against a testing team, all of which were a part of the evidence put before the CAS.
The recommendation of the FINA Reform Group marks a big turning point for the international regulator, its integrity and the potential boost to trust in anti-doping processes in swimming. It is a pity that executives there for the past 20 years and more and still in positions of authority at FINA did not get to this long ago; and a matter of shame that none of them has accepted responsibility and issued an apology for FINA’s appalling role in the Sun Yang case, one that, in support of one athlete now proved to have gone down the wrong road twice, instead of in support of all those who want clean sport and have a right to expect nothing less.
End of SOS Opinion.
Conclusions and Timeline
The Committee considers that FINA should establish an Aquatics Integrity Unit to independently address anti-doping, event manipulation and corruptible offenses and ethical violations. This unit should be operational from 1 June 2022 following the following timeline:
Extraordinary Congress of 18 December 2021 (Abu Dhabi): The General Congress would approve the recommendation of the Reform Committee to establish an Aquatics Integrity Unit.
January 2022 – May 2022: The FINA Bureau launches the election process for the Integrity Unit Board Members. FINA Office finalizes the rules and the required amendments to the Constitution.
General Congress of May 2022 (Fukuoka): The General Congress would confirm the rules of the Aquatics Integrity Unit and election the Integrity Unit Board members, upon the recommendation of the FINA Bureau.
1 June 2022: The Aquatics Integrity Unit begins its operations.
2. Modification of Code of Ethics
Historically, the FINA Code of Ethics left large latitude to certain individuals to take decisions. The process for such investigations and referral to the Ethics Panel was not transparent, and created significant distrust within the FINA Family and general public. A detailed review of the Code of Ethics was, therefore, conducted, and the end result is a comprehensive, transparent and procedurally-friendly revised Code of Ethics.
The new Code of Ethics defines the most important core values for behaviour and conduct within FINA, as well as with external parties. The conduct of persons bound by this Code of Ethics reflects both the principles and objectives of all persons within FINA, National Federations, Continental Organizations and local clubs around the world, and refrains from anything that could be harmful to these aims and objectives. Importantly, this new Code of Ethics disbands the prior Ethics Panel in favour of an Adjudicatory Chamber established under the Aquatics Integrity Unit.
A summary of key changes within the Code of Ethics is as follows:
a. A clear direction as to who is covered under the Code of Ethics: all members of the FINA Bureau, National Federations, Continental Organizations, as well as those Officials, Referees, Coaches, Athletes, Staff, Medical and Support Personal and Media attachés associated therewith, regardless of whether they are elected, employed, or appointed to any position. It shall also apply to consultants and contractually-connected individuals or entities representing or serving FINA, National Federations and Continental Organizations or any other bodies or personnel falling under the provisions of the FINA Code.
b. A new composition and structure:
The Code is governed by an Investigative Chamber, an Adjudicatory Chamber, and a Chief Ethics and Compliance Officer.
- The Investigative Chamber is composed of five (5) Independent Members as follows: one (1) Chairperson, one (1) Vice Chairperson and (3) Members.
- The Adjudicatory Chamber is composed of five (5) members as follows: one (1) Chairperson, one (1) Vice Chairperson, and three (3) Members.
- The Chief Ethics and Compliance Officer will lead the investigations of alleged breaches of this Code.
The members of the Investigation Chamber, as well as the Chief Ethics and Compliance Officer, shall reside within the Aquatics Integrity Unit and be independent from FINA and all National Federations and Continental Organizations, and be elected by the General Congress, upon recommendation from the FINA Bureau.
Similarly, members of the Adjudicatory Chamber shall be independent from FINA and all National Federations and Continental Organizations, and be elected by the General Congress, upon recommendation from the FINA Bureau. Additionally, they shall remain independent from the Aquatics Integrity Unit.
c. An expansive reach of jurisdiction to protect the entire FINA Family, notably with ethical violations and/or cover-ups at the National and Continental levels.
d. Clear procedural rules and processes that eliminate the ability of one individual from deciding when to pursue an alleged ethical violation.
e. A requirement to have all candidates for positions within FINA to sign a transparent Eligibility Questionnaire.
SOS: In general good but more meat is required on bone to judge how effective this would be. For example, point e. sounds hopeful and certainly better than what’s been in place (or not) before but will the questionnaire ask for confirmation that speaks to the new ethical values of FINA? If we take conflicts of interest, for instance, we might ask “As FINA Treasurer, you cannot be a member of the board or a director of any organisation that will seek funding from FINA – do you comply?” Or is that not the kind of conflict that FINA has an issue with. It’s the kind of question that some have become infuriated over in the past and may well still be irritated by but it is a question that cuts to the heart of trust in the reform process underway and the distance it truly intends to go to prevent FINA’s leadership fitting the profile of a group of men (for they have and remain mainly men) apt to place self-interest above the interests and welfare of athletes.
End of SOS Opinion
Conclusion and Timeline
The Committee considers that a revised and updated Code of Ethics (See Exhibit A) should be enforced as from 1 June 2022 according to the following timeline:
Extraordinary Congress of 18 December 2021 (Abu Dhabi): The General Congress should approve the attached Code of Ethics for implementation on 1 June 2022.
January 2022 – May 2022: The FINA Bureau launches the appointment process for the Integrity Unit Board Members and notably the Adjudicatory Chamber, which would replace the function of the prior Ethics Panel.
General Congress of May 2022 (Fukuoka): The General Congress would confirm the Integrity Unit Board members upon the recommendation of the FINA Bureau.
1 June 2022: The new Code of Ethics would take force.
i. Constitutional Reform
The Reform Committee considers it necessary to conduct a general review and overhauling of the FINA Constitution. In the same way, the FINA General Rules – the basic regulations for FINA competitions in Swimming, Open Water Swimming, Diving, High Diving, Water Polo, Artistic Swimming, and Masters Competitions, as well as the FINA By-Laws – need review and reconsideration. While not legally improper, the multi-layers of these governing documents over time creates confusion and provides for contradictory governing language between documents.
In the interim, the Reform Committee recommends narrowly focused amendments to the Constitution which reflect a greater need for balanced power and control between FINA and its Members. Such changes reflect the need for more protection against wrongdoings by FINA Members and Continental Organizations and greater involvement and engagement between the Bureau and its Committees.
Following the adoption of the foregoing changes, the mandate for the Governance Sub-Committee should be extended to consider, for example, specific amendments to the FINA Constitution such as an alignment of the Presidential term limits with those of the IOC and moreover, an extension of the Bureau to reflect the need for greater inclusion of women.
SOS: Excellent. A move I have been suggesting for at least 20 years, having studied the language of the Constitution and the blurred lines it leaves all over the pages of the guiding principles and supposed red lines of aquatic sports. In the depths are some very new clauses that ought never to have made the book and should now be removed if FINA is to grow into a democratic and transparent organisation. Take for example the rule that came in after the bitter in-fighting linked to the 2017 presidential race. The challenger lost and so the winners came up with a clause to say that challengers who challenge in future presidential campaigns but lose must relinquish all positions in FINA and will not be able to continue as a member of the ruling Bureau and/or executive. Throw every argument in favour of that and I will still say: totally undemocratic and illogical, especially in sport. Imagine saying to Arno Kamminga: you can enter this race with Adam Peaty but if he beats you, you may never compete again. Not a precise parallel but you get the drift. Elite swimming is about competition. In a well governed sport, it should be possible to oppose an incumbent but lose the argument without having your throat cut because you dared to offer a different opinion and vision.
End of SOS Opinion
Conclusion and Timeline
The Reform Committee considers that certain narrowly focused changes should be made to the FINA Constitution (attached as Exhibit B) should be approved and enforced according to the following timeline:
Extraordinary Congress of 18 December 2021 (Abu Dhabi): The Extraordinary Congress should approve the attached amendments to the Constitution for implementation.
The Reform Committee should conduct a detailed review and overhaul of the Constitution, By- Laws, and General Rules, ideally according to the following timeline:
General Congress of May 2022 (Fukuoka): The General Congress should confirm a new, complete Constitution, By-Laws, and General Rules.
1 June 2022: The new Constitution, By-Laws, and General Rules would take force.
In Part 3 next week, we will look at he Second Pillar of Reform: Marketing, while taking up our talk with David Howman to consider whether governors engage in the storm-warning exercises required to put sports federations in a better place to see what’s coming and consider how to react long before reaction is required.