The Independent Integrity Unit & Magna Carta Missing From Swimming

2021-01-30 Reading Time: 16 minutes
Swimming needs an independent Integrity Unit
Swimming needs an independent Integrity Unit

Editorial – An Independent Integrity Unit and a new charter for swimming, a Magna Carta Aquae, if you will, are long overdue if the sport is to move on from current malaise, division and the retarded growth inherent in a long-term leadership status quo and and the self-preserving governance structures they built.

In our Spillover Swim Stories countdown, No2 is split into two parts – the contextual text below, followed by 10 issues that should be handed over to the scrutiny of an independent Swimming Integrity Unit in a realm of self-serving, willful blindness that extends to a regulator bloated where it needs to be svelte, slender where it lacks muscle.

“Our biggest communication problem is that we don’t listen to understand; we listen to reply”. So writes Richard S. Covey in The Seven Habits Of Highly Effective People. His point is one we can all learn from and practice, starting with asking ourselves how good we are at listening to understand not reply and how much more effective does mastery of the art make us.

I wondered, for a fleeting moment, whether the FINA leadership was made up of people capable of listening to understand. My answer is this: only when the thing being said is what they want to hear. When it is not, the record shows, they approach the matter like a kitchen full of frantic pancake tossers: on the one side, active attempts to undermine and ostracise; on the other, ignore and flip.

Here are Covey’s seven habits. Which ones do you think you’re good at, which could you improve, which do not form part of your experience?

  • Habit 1: Be Proactive
  • Habit 2: Begin with the End in Mind
  • Habit 3: Put First Things First
  • Habit 4: Think Win/Win
  • Habit 5: Seek First to Understand, Then to Be Understood
  • Habit 6: Synergize
  • Habit 7: Sharpen the Saw

I find myself with a good score on a few points, a poor score on a couple and a feeling that a couple of the points need deeper understanding and explanation before a yes/no/where-on-spectrum answer is possible (ie., read his book, then ask questions that go much further that dipping a toe below the surface of what ‘win/win’ and ‘sharpen the saw’ might mean to different people in different circumstances.

I then considered, for the purpose of this exercise, which boxes we might tick for the FINA leadership, as an organisation and governance group. My opinion: none. Not a single one. It took me an instant to rule each one out, based on the facts of prevailing and historic events and developments in swimming and FINA history (some of those below, others in part 2).

The international swimming federation is an organisation lacking in transparency and independent checks and balances and tainted by decades of poor, questionable and too often damaging decision-making and culture, including a set of bad habits stretching to reactiveness (if anything at all) over proactiveness; looking the other way when issues should be dealt with head on; placing fingers in ears when victims scream; treating rules, even those specifically designed with athlete welfare in mind, and their own Constitution with contempt, a rule seen as a rule when it suits and the athlete has something to say but a rule seen as a guideline, a dune of shifting sand, when often self-serving political and financial and voting convenience need it to be so; making the athlete second, themselves first, in far too many ways and on far too many occasions (tip: there ought to be none).

The Watchman

“I ran past the first watchman. Then I was horrified, ran back and said to the watchman: “I ran through here while you were looking the other way.” The watchman gazed ahead of him and said nothing. “I suppose I really oughtn’t to have done it,” I said. The watchman still said nothing. “Does your silence indicate permission to pass?”

Franz Kafka, The Watchman, Parables and Paradoxes (Parabeln und Paradoxe).

In the introduction to the edition he edited of Franz Kafka‘s Collected Stories, Gabriel Josipovici quotes the entirety of that tight and telling story fragment “The Watchman“. Josipovici writes: ” … this is a piece of writing which demands to be read at least twice; indeed, as so often in Kafka, the narrative mimics the way we are forced to read it.” Indeed. It sums up the dilemma of many in swimming who visit the theme of ‘what to do about FINA’: they read the message, fly by it but, at some stage find themselves stopped short, pulled up, drawn back and wondering ‘What was that? What really happened, who, why and how come. Let’s return to the Watchman and ask.’

One of Kafka’s masterpieces

The Watchman follows “Before the Law“, the tale in Parables and Paradoxes in which a man seeks the law and wishes to gain entry to the law through an open doorway. The doorkeeper tells the man that he cannot go through right now. Can I ever go through, the man asks. Possible “but not now” “jetzt aber nicht”, says the doorkeeper. So begins the long wait of years by the door, the man bribing the doorkeeper with all he’s got; the doorkeeper accepting the bribes, but only “so that you do not think you have left anything undone.” Eventually, the man is about to die and, in his final moments, he asks the doorkeeper why even though everyone seeks the law, no-one else came to ask for permission to pass in all the years of his long wait.

The doorkeeper replies: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

For those who want to think more deeply about how all of that might apply to the condition and environment of Olympic sports governance, here’s one of many helpful and short meanings and applications out there.

The Law: a system of rules created and enforced through social or governmental institutions to regulate behaviour. Variously described as a science and the art of justice, the law is generally seen, among many interpretations and descriptions, to be there for the purpose of fairness, of setting lines across which a society and its citizens should not pass in the interests of all; will not pass without consequence. It is also a controlling mechanism that tells us where power lies, who holds it, how and who gets to say.

The law may include a constitution, a bill of rights or even a bill of where you have no rights.

The Magna Carta, originally known as the Charter of Liberties, of 1215 is among the key milestones in the history of establishing where power lies, who holds it, how and who gets to say – and who gets to take it away. Precursors in a long stream of human development included key pointers to the future such as the law of Athens in Ancient Greece and the uncodified guideline and set of principles that formed the Roman Constitution.

Magna Carta - British Library - Cotton MS. Augustus II. 106: one of only four surviving exemplifications of the 1215 text - courtesy of British Library/Wikipedia
Magna Carta – British Library – Cotton MS. Augustus II. 106: one of only four surviving exemplifications of the 1215 text – courtesy of British Library/Wikipedia

Magna Carta and the liberties therein were granted by King John on June 15, 1215, under threat of civil war. The charter was reissued, with alterations, in 1216, 1217, and 1225. Here’s the significant bit: by declaring the sovereign to be subject to the rule of law and documenting the liberties held by “free men,” the Magna Carta provided the foundation for individual rights in jurisprudence. For the purpose of this exercise, let’s make the sovereign FINA, athletes the “free men” (and women) and ask ‘how free are they?'” Does the Constitution of FINA, for example “declare FINA to be subject to the rule of law …”.

Well, in word, maybe. In deed? Just as we might balk at the idea that the sovereign was actually subject to the rule of law along the way to Henry VIII, who simply had the law changed or bent to his will when it suited (six wives, two marriages annulled, two wives beheaded), we can’t say FINA has behaved much differently to those kings and queens of old, in a manner and metaphor of speaking.

Take a time warp forward from an era of horses charging, swords clashing and battles a-raging, stop off to note the formation of FINA in 1908 before sprinting on to the latter part of a 113-year reign and focus on our raison d’être: the State of Swimming.

The sport is governed yet in a fashion that Kafka, his watchman, law seeker and door keeper might all recognise. Extend the thought to the Olympic realm as a whole, in fact. As one senior source put it of late: “The IOC intimidates FINA and FINA learns from the master and intimidates all of its National Federations, which in turn, intimidate all of their coaches and athletes. It is ‘rule by fear’.”

Or at least it has been. It held no fear for a billionaire with a passion for swimming. The International Swimming League and the world’s leading swimmers would not and could not be denied and an era of professional athlete representation is nigh.

Why nigh and not here? Because so far, it remains the ISL’s presence and the money and clout of Konstantin Grigorishin, swimmers standing as one to force the issue, the voices of a few individual athletes and the courage of Katinka Hosszu, Tom Shields and Michael Andrew that has insisted and pressed for change (more on them in part 2).

The impact of the likes of Global Athlete and peer organisations such as AthletesCAN, Athleten Deutschland and the World Players Union is yet to be harnessed, let alone matched, by swimmers and their representatives. Certainly, the Swimmers Alliance has a long way to go to catch up with the kind of campaigning Global Athlete launched yesterday when it called on Olympic sponsors to put pressure on the International Olympic Committee (IOC) and International Paralympic Committee (IPC) to rescind Olympic Charter Rule 50.2 and accept that athletes have the right to freedom of expression, including in the form of peaceful protest at the very moment the world is tuned in.

The Great Olympic Swindle", the third part in the trilogy of Games governance and games by Andrew Jennings and Clare Sambrook.

Whether FINA leaders and those who help to keep them in place, actively or through silence, agree with the accuracy of the canvas painted above is neither here nor there. The perception is widely held – and is underpinned not only by opinion but the hard facts of the matter, the concrete and girders that have held the house in place for all too long. For more on some of the substantial issues that remain untreated in dark, dank and dusty corners even to this day, I recommend the 1992 edition of John Hoberman‘sMortal Engines, The Science of Performance and the Dehumanization of Sport, and a coupling of that to a read of “The Great Olympic Swindle”, the third part in the trilogy of Games governance and games by Andrew Jennings and Clare Sambrook.

Magna Carta Aquae & The Integrity Unit

An independent Integrity Unit, along the lines of the Athletics Integrity Unity that left swimming lagging in the race for good governance when it was set up in 2017, is an essential stroke in getting swimming’s governance back above water. It needs an accompanying, new charter for swimming, a ‘Magna Carta Aquae’ in which FINA rulers, like all other aquatic citizens are subject to the Constitution, the laws they set and independent scrutiny that stretches to never being allowed to judge whether they themselves have broken rules or not.

Given that the rules and codes and constitution as set and maintained by the current leadership include obvious contradictions and places where the will to silence, let alone establish a culture in which a whistleblower might come forward and raise serious issues, is strong, then it is clear that such a ‘Magna Carta Aquae’ cannot be written by those currently ruling FINA: it would have to be overseen by an independent review committee.

To cut a long and complex story as short as possible for the here and now, here are a few key descriptions of the FINA realm. This feature is labelled ‘editorial’, my opinion clearly in the mix – but make no mistake, these views are based on and speak to facts, some of which will be raised in part 2.

Pointers to why FINA’s current structure of governance is not fit for purpose:

  • FINA is the regulator for swimming (and the other aquatic disciplines of water polo, diving and synchro) but its appetite for A-grade funding status in the Olympic Movement has led it to adopt a bolt-on diet in which more is more (when clearly less is the result for swimming) and too much is taken on beyond its remit and, indeed, international law.
  • The roles FINA has assumed beyond its core purpose of regulator have led to a huge conflict of interest: no organisation can be policemen and promoter at once.
  • The reason FINA has strayed beyond its role as regulator rests in ambitions of FINA ‘volunteer executives’ to run the federation not as a service to the sport with ‘athletes first’ as their priority but instead to govern as if they are the owners of a business serving themselves first and making sure that the ‘laws’ they set are designed to maintain the status quo.
  • That status quo includes long terms in office that reinforce the system, the culture and the malaise at the heart of governance. Even the new recruits who do make it past Kafka’s doorkeeper or watchman soon learn that they will be booted back out it if they don’t worship at the altar of “go-along to get-along”, a mantra reinforced by leading national federations that have long cultivated “international-relations committees” to help navigate their way through FINA world instead of doing the right thing for their athletes, forming alliances with other leading nations and then applying pressure on FINA’s leadership to either submit to review and reform or be forced to leave the stage.
  • At the surface, a business-chumocracy leadership “just wants to run events, develop new competitions, help spread the aquatic word around the world and keep aquatics at the pinnacle of Olympic sports”; in the depths lurks a wholly different fish.
  • Money has been FINA’s key motivator in a culture of subsidised finance earned by but not handed over to athletes. Those who doubt that FINA leaders place themselves and their status quo centre stage and not athletes need only look at the scene of a World Championships: president in the suit of a 5-star hotel; leadership and key committees along the corridor; chauffeur-driven limos outsider, gourmet menus inside, first and business-class travel. I invite you to compare and contrast that with what the average (not the best and wealthiest) team members of a national swim squad experience during their peak moments in between Olympics: 3-star, sometimes dormitory accommodation, cattle-class travel, often the least direct and cheapest flights, buses and so on. Add to that this scenario, taking South Africa as an example: parents often fund the bulk, if not all of the trip for their selected offspring because the federation has insufficient funds; FINA funds all South African officials, committee members, top to bottom – and there have been occasions where there are as many, if not more, of those folk as there are South African swimmers in the pool.
  • The FINA culture and system has all too often translated into honours for dubious political leaders while athletes are punished for staging peaceful, non-political protests; omertà; conflicts of interests, some involving substantial amounts of money going to leadership figures; terms of office lasting several decades on the gravy train that keeps giving; a lack of transparency; ostracisation of those advocating change and even paid campaigns to silence critics.
  • That culture includes attempts to keep athletes (and others) in their box under threat of ban should they make choices FINA does not condone but actually has no right of say in. Legal cases are still in play but some issues are already effectively settled and waiting to be tested should FINA make more unwise moves. They include European law covering the rights of athletes to compete as professionals in global competitions that may be regulated by FINA but are not organised or controlled by FINA beyond the adherence to the rules of the sport; and the Empowering Olympic, Paralympic, and Amateur Athletes Act recently signed into law in the United States after bipartisan agreement in both houses, an Act that has huge implications for athletes and the entire Olympic Movement.
  • That culture includes active engagement in and failing to deal with rule-breaking past and present; failing to provide the mechanisms and environment in which victims, survivors and whistleblowers (various forms of abuse, sadly, well-established realities of aquatic sports) can and would feel safe to report; failing to enforce rules where to do so might upset the funding and voting model that keeps the status quo in place.
  • That culture includes failing to insist on independent scrutiny of, and consequence for, leadership figures, past or present, who have been found guilty of corruption and other criminality and/or have been or are being investigated for such, and/or have been accused of such but have never faced an independent legal entity such as a court of law – nor even an independent integrity unit. Point to one name among them who has been asked by FINA’s leadership to step aside and clear their name through independent scrutiny before being allowed to continue in or stand for high office … let me know if you find one.

The In-House Courts & Culture Well Past Their Sell-By Date

An Independent Integrity Unit would not only serve athletes and coaches and parents and swimming as a whole but would be good for FINA and the businesses and partners that invest in swimming. It might even bring more sponsors and partners through the door. Ethics, Integrity, fairness, inclusion, freedom of expression: whether business likes it or not, athletes are already making demands of organisations that have all too often thought their access to and association with excellence and high athletic achievement depended on impressing Olympic and International federation chiefs.

The coffee is brewing. It would be good to wake up and smell it before athletes make you:

Of course, FINA leaders may not be persuaded of that trend just yet, after all, they stage their events and get substantial backing from places in the world that don’t value personal freedom and rights as highly as many others. They also know that without the leading athletes from those nations where the tide is turning, there will be no FINA unless FINA, too, turns with the tide.

Swimming remains a sport, despite the pro trend, in which many must surely bang their collective head against the wall every time a footballer or track athlete is hired to be the face of a water company, not a swimmer in sight. And that is just one example among many where swimming leaders have simply failed to reach even the most obvious sources of income from beyond those with a direct vested interest in the sport (suit and equipment makers, lane-line manufacturers, timing firms and so on).

Questions have been raised about whether the ISL can reach and draw in that wider commercial market. The jury is still out, timing such to do with that – season one required “take off”; season two was the one global swimming event that managed to circumnavigate – and successfully – the serious challenges of the COVID-19 pandemic.

Swimming’s image as a stuck-in-a-rut sport void of personalities, stacked with controversies, held back by reactive not proactive governors, does not help. It was June 2017 when the Athletics Integrity Unit took flight. two World titles have passed without aquatics making any discernible progress on matching the move, in accordance with IOC wishes.

There were many fine words in the first statement from David Howman, former head of the World Anti-Doping Agency (WADA), when he introduced himself to athletes as the first Chair of the new Athletics Integrity Unit, a body he described as “fully independent of the IAAF” (now World Athletics).

One of the lines in the mission statement of the Athletics Integrity Unit draws the swimming eye:

David Howman, Chair, Athletics Integrity Unit – On behalf of Abby Hoffman, Marc Peltier and Dr. Andrew Pipe: Athletics Integrity Unit Board Members.

Dr. Andrew Pipe. Some of you will remember him. I do. As with Prof. Malcolm Cameron, before him (and mentioned below), Dr. Pipe was a key figure at the helm of FINA’s anti-doping expert group. A man of honour, he, along with two of his peers, felt he/they had no other option than to quit swimming and his anti-doping role at the height of the Russian doping crisis. The charge: FINA had ignored their expert advise.

Extract, From The Craig Lord Archive, September 3, 2016:

Almost half of the independent anti-doping experts on FINA’s Doping Control Review Board, including chair Dr. Andrew Pipe, have resigned amid claims their advice on how to deal with the Russian doping crisis was ignored before the Rio Olympics.

Canadian Professor, Dr. Pipe, who chaired FINA’s doping control review board (DCRB), Dr Larry Bowers, of the USA, and Dr Susan White, of Australia, three key figures on the review board eight-strong panel wrote to FINA president Julio Maglione last Thursday to tender their resignations.

The move by the experts inflicts a damaging wound on a FINA leadership over a weekend when the international swimming federation is co-hosting the World Cup with the Russian Swimming Federation in Moscow.

In the letter the three experts say that the review board had unanimously agreed a process to assess each Russian swimmer’s eligibility for the Rio 2016 Olympic Games in response to the World Anti-Doping Agency-commissioned investigation into state-sponsored doping in Russia, led by Prof. Richard McLaren.

In their letter of resignation, the three experts state:

“Despite the anti-doping expertise of the individuals who make up the DCRB, FINA chose to ignore our advice. We learned of FINA’s decisions regarding the eligibility of Russian competitors only by observing the Olympic competition. We were disappointed to note that our recommendations were not followed – and even more disappointed to receive no specific response to a subsequent written request for information regarding the reasons for FINA’s decision.”

Professor Andrew Pipe, Dr Larry Bowers and Dr Susan White,

The resignation letter comes with a note of explanation that ” … a unanimous recommendation that provided the criteria for a competent review of the adequacy of the anti-doping scrutiny to which Russian competitors had been subjected” was disregarded by FINA.

The experts conclude:

“This decision, combined with the failure of FINA to enact other recommendations that the DCRB has made in the past, is incompatible with our dedication to clean sport and optimal anti-doping practice.”

In a statement, FINA noted how it sees things, failing to note the many public statements from Julio Maglione in support of leniency, Russia’s position and that of those at the IOC advocating leniency that led to Russian swimmers towing doping records, including one swimmer with two suspensions to her name (and that was not Yuliya Efimova, who carried one offence to her blocks):

FINA in focus: Julio Maglione, top right, is the latest in a line of federation presidents going back to George Hearn in 1908
 FINA in focus: Julio Maglione, top right, is the latest in a line of federation presidents going back to George Hearn in 1908

FINA statement on its Doping Control Review Board (DCRB)

FINA was surprised to receive the letter of resignation from three officials from its Doping Control Review Board (DCRB), including the Chairman Dr. Andrew Pipe.

While FINA obviously regrets this decision, our International Federation expresses its deep appreciation and recognition for their supportive action in our successful anti-doping policies over the recent years.

Concerning the claims expressed in their resignation letter, FINA would like to clarify that the Olympic Games are an IOC event. For Rio 2016, the decision on the participation of the Russian athletes has been made by the CAS and the IOC. FINA fully respected and implemented their decisions.

In this very complex process, FINA did express the DCRB position but our International Federation was not the body ultimately deciding the outcome on this matter.

With regard to the FINA DCRB technical recommendations, FINA would like to confirm that these have always been implemented, thus leading to a fruitful anti-doping strategy.

In his letter to the three former members of the DCRB following their resignation, the FINA President Julio C. Maglione stated: “I am sure you agree that FINA is in the forefront of the fight against doping with an important financial investment in doping control activities. FINA always coordinates with all stakeholders in the sport movement to assure that transparency and zero tolerance in the fight against doping is in place, thus protecting the clean athletes”.

Where FINA leaders short on knowledge but high on politics had chance to step back and defer to experts in the realm of detective work, they did not. The moment the three experts resigned should have been a moment when they could have taken their case to an independent Integrity Unit and asked “do current developments and the issue at hand present a conflict of interest for the regulator’s political leadership in its constitutional role as promoter – and if so, ought they not to have differed to the appropriate authorities and experts”?

That prospect reminds us of the need to revise and rewrite key sections of a FINA Constitution in conflict with itself at times but ultimately always on the side of the leadership, the status quo, deference and omertà.

The one time the leadership did not get its way was over shiny suits in 2009 – because the USA insisted they should be sunk, providing the leading national federation of the world with confirmation that there is a better way that going along to get along. The death of Fran Crippen and subsequent events indicate that several key lessons, both related to that preventable open-water tragedy and in terms of general governance and how power is used, we’re not learned as they ought to have been.

That failure to learn lessons from bad outcomes and use the moment to fuel change is part of a sad thread in FINA and federation governance.

Fast-forward four years from the resignation of the experts and we find FINA lawyers arguing against WADA lawyers in the Sun Yang case because WADA did not agree with the leniency granted to a swimmer handed no penalty (despite previous form) but given a serious warning about events that “threatened to end his entire career”. The FINA Doping Panel is selected in-house, as its name implies, and is, therefore, not independent of FINA.

Part 2: 10 Issues that should be handed over to the scrutiny of an Independent Swimming Integrity Unit

In our No1 spillover story, we will then consider the impact of Nos 2 to 5 in the particular context of a global health crisis and what it all now means for the Stater of Swimming.

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