International Swimming League Wins Latest Round Against FINA: Court Backs ‘Discovery’

The ISL pro-team tour is set for an inaugural season between October and December this year. Photo courtesy of ISL

The FINA executive and top-table Bureau at the international swimming federation have been dealt a blow in their fight with the International Swimming League, Swimming World understands, the latest ruling in an anti-trust challenge obliging FINA to agree to “discovery”.

Discovery could force FINA to reveal information – such as aspects of contracts with commercial partners, some with associations to members of the FINA executive and Bureau, and details of its finances and accounts, including costs of bureaucrats and ‘executive volunteers’ that exceed, in certain circumstances, the amount of prize money FINA allocates to swimmers, among other documentation – that is normally hidden from view.

The news was confirmed by a source close to the legal challenge to FINA’s monopoly and comes as the first preliminary events unfold at the World Championships in Gwangju, Korea, before the premier event’s Opening Ceremony on Friday. Competition will end after eight days of pool racing from July 21-28.

Discovery in the United States is unique compared to other common-law countries: in the USA, discovery is mostly performed by the litigating parties themselves, with relatively minimal judicial oversight. The process, in general, involves the plaintiff (ISL) initiates a conference between the parties after a complaint is served to the defendants, to plan for the discovery process. The parties must then attempt to agree on the proposed discovery schedule, and submit a proposed Discovery Plan to the relevant court within 14 days after the conference.

Discovery involves initial disclosures, depositions, interrogatories, request for admissions (RFA) and request for production of documents (RFP). In most U.S. federal district courts, the formal requests for interrogatories, request for admissions and request for production are exchanged between the parties and not filed with the court. Parties, however, can file motion to compel discovery if responses are not received within the FRCP time limit. Parties can file a motion for a protective order if the discovery requests become unduly burdensome or for purpose of harassment.

Swimming World has asked for comment from the FINA leaders and lawyers and will bring you any response we may receive.

The background:

In separate but related lawsuits against FINA filed at the Northern District of California division of the United States District Court Court, the ISL as an organisation proposing to host world-class professional swimming competitions, and then a proposed class action from triple Olympic champion Katinka Hosszú and Americans Michael Andrew and Tom Shields, brought their challenge last year: FINA, they claim, has violated United States antitrust laws.

Since the ISL and swimmers hired California law firm Farella Braun & Martel and legal papers were lodged, FINA lawyers have objected on numerous grounds and have sought to have the case ruled out.

The lawsuits followed FINA attempts to block a test event for the ISL that was due too have taken place in Italy last December. The international federation instructed its member federations around the world to impose FINA general rules forbidding relations with “non-members” and ban swimmers who raced at the planned ISL event.

At a gathering of more than 30 Olympic and World champions and medallists in London last December, Olympic champions such as Hungary’s Hosszu, Sweden’s Sarah Sjostrom, Australia’s Cate Campbell, Britain’s Adam Peaty and South Africa’s Chad le Clos were among the many athletes who slammed FINA publically for making threats and robbing of their right to chose where to work and earn money in their sport.

Earlier this year, FINA issued a statement to say that it would no longer ban swimmers and it has since given permission for ISL competition to go ahead from October. However, there are few general-rule changes proposed to the membership and no emergency measures proposed to cope with several big questions, including athlete representation, gambling and image rights, raised by the start of an era of pro-team sport. There are also proposals that sources describe as “ill-thought out”.

For example, the following two general rules forbid something that the Bureau can then overrule and allow if it chooses to do so:

GR 4.1 No affiliated Member shall have any kind of relationship with a non-affiliated or suspended body.
GR 4.4 The Bureau may authorise relations with non-affiliated or suspended bodies as in Rules GR 4.1 through GR 4.3 above.

The prevailing-rule ability to penalise anyone who breaks GR 4.1 without GR 4.4 enacted is down for removal:

GR 4.5 Any individual or group violating this Rule shall be suspended by the affiliated Member for a minimum period of one year, up to a maximum period of two years. FINA retains the right to review the suspension made by the affiliated Member and to increase it up to the maximum of two years in accordance with the circumstances involved. The affiliated Member shall abide by any such increase made on review. In the event that such individual or group has resigned its membership with the affiliated Member or is not a Member, it shall not be allowed to affiliate with that Member for a minimum period of three months up to a maximum period of two years. FINA retains the right to review any such sanction imposed by the affiliated Member and to increase it up to the maximum of two years in accordance with the circumstances involved. The affiliated Member shall abide by any such increase made on review.

Meanwhile, proposed changes to the FINA Constitution seek to place greater power in the executive and president of FINA.

Those proposals include an attempt to place FINA Rules above national and international laws. Among the proposals send out to FINA members for consideration ahead of the World Championships that get underway in Gwangju this coming weekend is the following:

“C 12.12 In addition to the the measures and sanctions provided in the case of infringement of the FINA Rules, the FINA Executive may take any reasonable decisions for the protection of the Aquatics in the country of a Member, including suspension of or withdrawal of recognition from such Member if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body, causes the activity of the Member or the making or expression of its will to be hampered. The FINA Executive shall offer such Member an opportunity to be heard before any such decision is taken.”

The U.S. lawsuits are similar to that filed in Europe against the International Skating Union in 2017. The judgment in that case led to the ISU being handed a ruling demanding that it changed monopolistic rules. The skating body, it was judged on the basis of rules very similar to those in swimming when it comes to control over athletes, was blocking skaters from competing in non-authorised competitions. That was in breach of European Union antitrust laws.

At the time, the EU Competition authority noted that if it received any similar complaints from athletes in other sports, the federations of those sports would also be handed the same ruling by which the ISU had to change its rules and ways.

The U.S. swimming lawsuit claimed violations of the Sherman Antitrust Act of 1890, which forbids organisations from engaging in anti-competitive behavior. The Sherman Act resulted in the breakup of Standard Oil and AT&T, among other organisations. The ISL attorneys also claim tortious interference with contractual relations or prospective economic relations, for collusion to unreasonably restrict competition, and for monopoly. The lawsuits seek injunctive relief and monetary damages for the named plaintiffs and for all class members, which could include dozens of professional swimmers from around the world who signed contracts.

The class, if accepted, would not be limited to just Americans: the global swim community would be affected.

Farella Braun & Martel stated last year that the suit was only undertaken after FINA demanded a $50 million (£39 million/€44 million) fee to approve ISL events.

When the financial backer and mastermind of the ISL, Konstantin Grigorishin, first met members of the FINA leadership to discuss his League and concept and seek official backing, he told the blazers opposite:

“You call yourself the Fina family, so how come you treat your children so badly?”

Grigorishin told this author: “Swimmers are treated like experimental laboratory rats, with risks to their health. They have no salary, social guarantees, no welfare, no medical and life insurance, no pension rights, no insurance. Aquatics athletes are at the core of Fina’s activities. They fully deserve all our respect.” He added:

“Fina intends to hold on to its 110-year monopoly … but it has never been in a real fight with real people; they have just bullied kids with no experience. I have told them I am ready for a big litigation process.”

And so it began, a statement from Farella Braun & Martel including the following:

“On behalf of elite swimmers around the world, the plaintiffs charge FINA with unlawfully restraining competition in the market for top-tier international swimming competitions. Their lawsuit follows FINA’s crackdown against a two-day competition that a new professional league planned to sponsor in Turin, Italy, in late December 2018.

“Organisers were forced to cancel that meet after FINA said it would ban from the Olympics any swimmer who swam in it. As result, swimmers lost the chance to compete for more prize money and were blocked from earning appearance fees.

“The popularity of competitive swimming has soared over the last decade. Its athletes believe a professional league that will compensate its best athletes and better reward them for a lifetime’s worth of hard training and sacrifice is long overdue.”

Hosszu weighed in with:

“My passion has always been to push swimming in the direction where swimmers are partners of the governing body, not just muppets. ISL takes swimmers seriously, not like FINA.”

FINA responded by taking aspects of the proposed ISL competition format and launching a “Champions Series” in which the Olympic and World Champions, the world record holders and the prevailing world No 1s in every event would do battle in a new and unique showcase. The event was launched in spring but none of the three rounds managed to fulfil the line-ups promised, the likes of Peaty, holder of all four promises, declining the invitation to attend.

The Champions Series, hastily arranged, marked the first time in FINA history that the international fededaration has officially abandoned the concept of universality, only swimmers ranked very high in the world rankings and hailing from less than 20% of FINA nations, invited.

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Paul Robbins

4 years ago

Excellent news, about time there was some transparency . ISL is for Athletes and their coaches. FINA seems to have its focus on money and control of the agenda – a gravy train.

Tony MacGuinness

4 years ago

Reply to Paul Robbins

Paul Robbins
Not ALL swimmers and coaches just the selected few.

Paul Robbins

4 years ago

Reply to Paul Robbins

Tony MacGuinness I can’t argue with that. That unfortunately is the nature of elite sport. I wish it were not so!

Tony MacGuinness

4 years ago

Reply to Paul Robbins

Paul Robbins
So, how is the ISL going to help ALL swimmers as originally stated by ISL swimmers?

Paul Robbins

4 years ago

Reply to Paul Robbins

Tony MacGuinness good question which I will pose to them. I am on your side Tony. I raised this with David Sparkes some time ago. There should be much more of the revenues that reach the development areas. Premier football is exactly the same – very disappointing!!

Tony MacGuinness

4 years ago

Reply to Paul Robbins

Paul Robbins
For once we agree. The common ground of the club swimmer actually has the upper hand… if only they would realise this and act as one unit.

Paul Robbins

4 years ago

Reply to Paul Robbins

Tony MacGuinness agreed, grass roots don’t realise their potential.

Tony MacGuinness

4 years ago

Reply to Paul Robbins

Absolutely.

Craig Lord

4 years ago

Paul and Tony… there are specific ways that the elite end of pro sport can help ‘all’ (relatively speaking, as is the case universally and in many sports); we’ll be looking at those issues and others down the line… Like the Olympic movement that has failed to put in place a system that genuinely ripples through the ranks in the way claimed by some of those running the show, the potential is enormous, the reality all too often disappointing … it needn’t be.