Wednesday, July 6, 2016

Guest Post: A Scorecard for Implementation of Recommendations of the UCI CIRC Report

[RP: This is a guest post by Steve Maxwell and Joel Harris. A longer version of this article was originally published at The Outer Line.]

Brian Cookson took over the UCI Presidency in late 2013, heralding a new direction in pro cycling, and proposing sweeping changes in the way that the sport was managed and overseen.  One of the key initiatives in Cookson’s early agenda was to create the Cycling Independent Reform Commission (CIRC) – a panel of independent experts to review the history of cycling, and make recommendations for cleaning up and better managing the sport in the future.

In February of 2015 the CIRC issued a 227-page report, which dealt primarily with a historical review and analysis of doping practices in the sport.  One of the three key objectives of the CIRC process — and the stated “main purpose” of the report — was “to provide recommendations for the future.”   In terms of this task, where the Commission had the greatest opportunity for positive impact, the report was unfortunately somewhat light.   The recommendations cover a mere 11 pages at the end of the report, and while some of them raised new and specific ideas, many were either self-evident, had already been proposed in far more detail elsewhere, or were overly broad and generalized.  Nevertheless, it is important to dig into these recommendations in more detail, and gauge where the sport is today.

There were 34 different individual recommendations in all, some of which were very broad and sweeping, while others were quite narrow and specific.  Some were immediate in nature, while others were much more generalized ideas that could only be gradually put in place over a number of years.

To simplify an initial assessment of progress, we focused primarily on several “Yes/No” and “Objectively Measurable” recommendations, which are relatively straight-forward and unambiguous.  We tracked public statements over the past three years, and the UCI also provided detailed responses to our questions about the status of individual recommendations. Our assessment and description of the progress to date on twelve specific recommendations is summarized in the following Table [RP: click to enlarge], and key highlights are discussed in more detail below.
In terms of the key anti-doping focus of the Report, the creation of a new “intelligence officer” and desk function (within the ostensibly independent Cycling Anti-Doping Foundation – CADF) is reportedly beginning to help in terms of the collection, analysis and coordination of anti-doping information from different sources.  The CADF also established a “whistleblower hotline” email address.   Night-time testing of suspected dopers has been made more universal.  New sharing and collective agreements have been signed with 12 different NADOs.  The UCI has generally ended conflicts with WADA and certain NADOs that simmered under Pat McQuaid’s reign.

The UCI has made improvements in the way it manages and executes the Athlete Biological Passport program.  The process and paperwork have been streamlined, and staff has been added to speed up the administrative aspects of the program.    This in turn has significantly reduced the number of cases that have been referred on to the Court of Arbitration for Sport (CAS). 

There have reportedly been significant transparency improvements in the UCI’s electoral process, and the adoption of term limits for the President.  A few weeks ago, the UCI announced significant revisions to its Code of Ethics. A much larger number of individuals, including UCI staff, consultants and event organizers will reportedly be covered by the terms of this new set of guidelines. In addition, the UCI suggests that the Ethics Commission will increasingly be staffed by expert professionals from outside of the sport.  

Significant progress has also been made in the controversial area of therapeutic usage exemptions (TUE).  All applications must now be approved by three independent experts, and the decision must be unanimous.  This stricter process is cutting down on unwarranted TUE applications – in a critical statistic, the UCI reports that TUEs actually granted have fallen from 239 in 2009 to just 24 in 2014 and only 13 in 2015.

In terms of other forms of cheating within the sport, the UCI has cranked up its focus on so-called “motorized doping” during the past six months.  

Progress is less certain in other key areas.  For example, the Report recommended that the UCI should strive to help facilitate the creation of a stronger riders union.  Although the UCI has “reconstituted” the largely dormant UCI Athletes’ Commission, its specific role and future impact is unclear.  It’s clear that a stronger voice for the riders is a critical issue – and one which will help shape the future of the sport.  

In summary, progress is being made on many of the more straightforward CIRC recommendations; Brian Cookson and his team should be commended for their accomplishments to date.  Indeed, compared to the problems being experienced by other international sports like soccer, track and field, and tennis, an argument can be made that cycling is ahead of the curve, and setting an example for how a troubled international sport can act to get its house in better order.

At the same time, there is a long road ahead.  While almost all of the CIRC recommendations were well-intended, many of them were maddeningly vague or simplistic – such as the calls for the UCI to “become more accountable” or to “improve the financial stability of the sport.” And there are numerous other challenges – above and beyond the CIRC recommendations – which are also crying out for more attention and focus.   Rider safety issues are currently at the forefront of concern.  The number of WorldTour teams is contracting, key sponsors are leaving the sport without replacement, races are falling off the calendar.  Even with the procedural and protocol improvements, many people believe that anti-doping efforts will not be truly independent as long as the CADF is housed within the UCI’s offices.  

We sympathize with the enormity of the challenges faced by the UCI, and acknowledge the complexity of initiating and implementing solutions in road racing while simultaneously overseeing 7 other disciplines.  We also acknowledge the overwhelming power and control exerted over pro cycling by ASO – and the consequent constraints which this also places on the UCI’s ability to institute real change or embark upon new directions which may be optimal for the overall sport in the long-term.  (However, as we have discussed in detail elsewhere, this is a topic deserving of its own separate analysis because of the pervasive shadow it casts across all of cycling.)  But despite vague UCI proclamations about improvement in governance and economic conditions, progress remains frustratingly slow in many broader but critical areas.  We all want to see progress towards addressing these broader challenges, but until they can be broken down into more specific, bite-size and actionable steps, it will be difficult to either make or verify actual progress.  (Several specific ideas for these types of more tactical and actionable steps are discussed here and here.)

As Cookson approaches the end of his third year in power, the sport is in a better place and progress is being made – but this is no time to rest on laurels, and the UCI must be careful not to gloss over its numerous broader challenges.   While it may be easier and often tempting to talk in generalities and platitudes – and to employ the now well-worn “evolution, not revolution” posture – only with a focus on more specific tactical steps and more effective progress metrics can the UCI continue moving the sport forward.   

Thursday, June 23, 2016

The New Eligibility Rules of the IAAF

Here are the new rules for eligibility introduced last week (from here in PDF):
And here are the new criteria under these rules announced today (from here in PDF):

IAAF and the Risks of a "Strict Liability" Doctrine

Update: The IAAF released its guidelines about the same time I was writing this post. Safe to say that they did not follow the approach suggested below. See my Twitter timeline for my comments and this new post for the details on the new guidelines.

Earlier this week the ad hoc "Olympic Summit" noted that the Russian and Kenyan national anti-doping agencies are "non-compliant" under the WADA Code. Thus:
The sports organisations, in each individual case, based on the reasons for non-compliance, have to decide on the consequences of such declaration. With regard to participation in the Olympic Games, it is up to the IFs only to decide on the technical eligibility of athletes, in particular in relation to doping issues.
There are 20 sports under the National Olympic Committee of Kenya, not all of which participate in the summer games, and the Russian Olympic Committee oversees 34 summer Olympic sports. The IOC has asked each of these individuation national federations to come up with a process for determining eligibility of athletes:
Because of the WADA non-compliance declaration of Kenya and Russia and the related substantial allegations, the Olympic Summit considers the “presumption of innocence” of athletes from these countries being put seriously into question. As a result, every IF should take a decision on the eligibility of such athletes on an individual basis to ensure a level playing field in their sport. In this decision-making process, the absence of a positive national anti-doping test should not be considered sufficient by the IFs. This means that the respective IF should take into account other reliable adequate testing systems in addition to national anti-doping testing. This decision about the “level playing field” in each of their very different Olympic sports, and eligibility, including of their member National Federations, should be taken by each IF taking into account all the specific circumstances in the relevant National Federations, any available evidence, the World Anti-Doping Code and the specific rules of their sport.
This requirement has been widely interpreted to imply a process is needed to identify "clean" athletes. For instance, @Dopinglist writes of the IOC directive:
The statement goes beyond the WADA Code and is open to criticism, as there is no set actual legal criteria for how the various international sports federations to assess whether an athlete meet some not clearly defined anti-doping requirements to 'be clean'. Special federations likely to base decisions about participation on subjective judgments, which may vary from sports federations for sports federations.
How federations are going to certify athletes remains unclear, but the moment of reckoning is coming. Russia has filed a "class action" against the IAAF on behalf of its athletes before the CAS, which will force the issue. Segej Litvinov, Russian champion in the hammer throw, wrote an open letter to Sebastian Coe which likely previews the sorts of arguments that Russia will bring before CAS.

So how should the various national sports federations - and in particular the IAAF - determine who is a "clean" athlete?

My answer: They shouldn't. Instead of trying to make a substantive judgment on individual athletes, they should follow established procedures as far as those procedures allow. Where existing procedures fall short of providing guidance, sports organizations face choices and risks. Let me explain.

The sports world has established a set of procedures for certifying eligibility for participation in international sport under WADA and its Code. Any steps by sports federations to somehow overlay or reinvent this process runs a huge risk before the CAS. As a matter of due process to athletes, it is unfair to create new standards and then apply them de novo to those who have agreed to compete under an entirely different set of rules.

Sports federations should resist any urge to certify athletes as "clean" using any sort of new process. Instead, sports federations might follow a strategy like the following.
  1. Clearly state that eligibility is determined under the WADA Code.
  2. Note that athletes who have followed the procedures of the WADA Code should be judged eligible.
  3. In contrast, note that athletes who have not followed the procedures of the WADA Code should be judged ineligible.
  4. State that athletes who participate under sporting systems that are non-compliant with the WADA Code are ineligible, because they fall under 3.
  5. Acknowledge that may be the case that some athletes in good faith tried to do 2, but actually fall into 3. 
Number 4 means that an athlete under the Russian (or Kenyan) system who may never have broken the rules, would still be banned as a result of being in a corrupt system.  This is where choices and risks come in.

The problem here is that the WADA Code is essentially silent on sanctions on sporting bodies and the implications for individual athletes. Consider by way of contrast, with respect to the presence of banned substances in an athlete's body, there is a doctrine of "strict liability" which does not consider fault or intent in the judgment of a violation. In sanctioning however, an athlete's suspension can be reduced based on considerations of fault.

Questions that may have to be resolved by CAS include:
  • Are athletes "strictly liable" for the actions of their oversight bodies?
  • If no, then what criteria are to be used to (a) assess guilt, and (b) levy sanctions?
It seems logical that IAAF is going to have the greatest chance of excluding most Russian athletes from Rio if it argues a doctrine of "strict liability" for athletes under bodies that are non-compliant with the WADA Code. The implication however is that not only would track and field athletes be prohibited, but athletes across all Russian (and Kenyan) sports who fall under the non-complaint system.

In contrast, for IAAF, the logical downside to arguing "strict liability" is that if CAS disagrees with the application of such a doctrine, then the crack in the door for Russian athletes to get to Rio becomes much wider. It is conceivable under such a circumstance that a full Russian team goes to Rio, with only those individuals who are suspended prohibited from participating.

If IAAF does not argue for "strict liability" or CAS strikes it down, then we would be in jurisprudential no man's land, with an overlay to the WADA Code needing to be invented in a hurry. How such an overlay might be created is unclear, and includes issues such as consistency across sports, respecting CAS precedent for the due process rights of athletes, and implications for future WADA Code revisions.

Tuesday, June 21, 2016

Russians in Rio: IOC versus IAAF

Above is an image of how things, in principle, are supposed to work for a Russian athlete to get to the 2016 Rio Olympic games. However, as everyone who might be reading this knows, in 2016 things aren't working as they are supposed to. Over the past few days we've heard two different versions of how things are actually going to work in 2016 from IOC and IAAF. This post tries to make a little sense of the differences.

First, here are some statements from Sebatian Coe of the IAAF and Thomas Bach of the IOC from their respective press conferences.  Sebastian Coe stated last week (at 33:27)
"The eligibility of athletes to compete in international competition is entirely a matter for the IAAF ... It is a very clear proposition that the eligibility for athletes to compete internationally sits and lies with the IAAF."
Thomas Bach, earlier today said a few things that gave a different impression.

At 19:42:
"This decision [by IAAF to create a category of "neutral" athletes] applies to IAAF competitions because in IAAF there is no [Russian] national federation, the Russian national federation is suspended, therefore IAAF has chosen this option in order to allow the athletes to compete in their competitions. When  it comes to the Olympic Games all athletes then are part of the team of the Russian Olympic Committee, and this is a different situation"
And at 20:40:
"If there are athletes qualified, then they will compete as members of the Russian Olympic Committee because only a national Olympic committee can enter athletes to the Olympic Games. There are no teams of international federations there and contrary to the national federation of track and field the Russian Olympic committee is not suspended."
So, I have tried in graphical form to characterize the two perspectives. Here is how the IAAF sees things going:
And here is the perspective of the IOC:
The points of contention are over:

a) the criteria to be applied to determining the eligibility of athletes,
b) legitimacy of the notion of "neutral" athlete.

The former is a matter to be adjudicated between individual athletes and the IAAF (and under the decision today by the IOC, athletes from all Olympic sports in Kenya and Russia). The latter, if it is to be adjudicated, would be between IOC and IAAF.

However this situation resolves itself, it would be wise for IAAF and the various other IFs to "pre-arbitrate" their criteria of eligibility with the CAS in order to establish its legitimacy. Otherwise, there will likely be many substantive and procedural challenges.

Comments welcomed ... this is obviously work in progress on a fast moving target!

Monday, June 20, 2016

The Bulgarian Precedent

The title of this post sounds like a John Le Carre novel. I'm sorry to say that there is nothing that exciting here, unless of course you are a sports governance wonk.

Last week the IAAF decided that Russian track and field athletes would not be allowed to participate in Rio (unless they can squeeze through a "crack in the door"). There will be plenty more to say about that, but this post looks at a recent precedent, the decision of the International Weightlifting Federation to ban Bulgarian weightlifters from Rio. I don't think it offers much of a precedent for thinking about IAAF/Russia several reasons discussed below, but the case does raise some interesting questions about whether international federations should be more explicit about quantifying team sanctions based on individual violations.

Last October in Houston, the IWF Executive Board reported this decision (here in PDF):
Rules quoted that MF producing 9+ anti-doping violations can be suspended up to 4 years. Such MF/NOC is not allowed to enter competitors to the next ensuing Olympic Games. In case such MF participates in a competition, no Olympic qualifying points to be scored by that MF.
Bulgaria had produced 9+ anti-doping violations in 1 Calendar year (Olympic
The decision was based on changes that had been made to the IWF Anti-Doping Policy in 2012 (as reported here in PDF). The rules changes allowed the IWF Executive Board to fine and suspend national federations based on the total number of doping positives. The schedule of penalties ias as follows (from the IWF Anti-Doping Policy here in PDF):
1) 3 violations 50,000 USD; In default of payment of the fine the Member Federation will be suspended for 1 year from the date of default.

2) 4 violations 100,000 USD; In default of payment of the fine the Member Federation will be suspended for 1 year from the date of default.

3) 5 violations 150,000 USD; In default of payment of the fine the Member Federation will be suspended for 2 years from the date of default.

4) 6 violations 200,000 USD; In default of payment of the fine the Member Federation will be suspended for 2 years from the date of default.

5) 7 violations 250,000 USD; In default of payment of the fine the Member Federation will be suspended for 3 years from the date of default.

6) 8 violations 300,000 USD; In default of payment of the fine the Member Federation will be suspended for 3 years from the date of default.

7) 9 or more violations 500,000 USD; In default of payment of the fine the Member Federation will be suspended for 4 years from the date of default.

c) or suspend the Member Federation, from participation in any IWF activities for a period for up to four years in case of point 7 above.
The suspension from Rio for Bulgaria occurred because of  (c) immediately above and the fact that Bulgaria had 11 doping violations.

The Bulgarian Weightlifting Federation took the IWF to CAS over the ban (see CAS release here in PDF). The BWF challenged the IWF on procedural grounds, and the appeal was dismissed - reading through the lines here - because the IWF has a clear statement of regulations in its anti-doping policy quantifying sanctions according to violations.

The situation with Russia and IAAF is far less straightforward, as the IAAF is operating without such clear regulations. The BWF suspension thus offers little in the way of useful precedent, other than to indicate that if Russia goes to CAS, we may have some new case law that emerges.

More generally, however, the IWF policy of associating sanctions according to the number of violations of a particular member offers a useful option for discussion related to other sports. Should the IAAF adopt a similar schedule of sanctions according to the number of violations of a particular member?

According to WADA for 2014 (the most recent year for which data has been released, here in PDF) here is the league table for Anti-Doping Rule Violations in track and field:

1. Russia (39)
2. India (29)
3. Italy (15)
4. France (14)
5. China (13)
6. Kenya, Brazil (12)
8. Sweden (11)

Where might a line be drawn for sanctions against national track and field federations? Should such a line be drawn? Might countries take anti-doping more seriously if penalties were not just levyed on individuals?

Thursday, June 16, 2016

Some Nuggets from the November, 2015 WADA Foundation Board Meeting

In principle, the WADA Foundation Board is the body responsible for holding WADA accountable. Comprised of representatives from governments and sports bodies, the Board meets twice a year. Here are some excerpts from the most recently available minutes, published last month for the Board's November, 2015 meeting (here in PDF). There are some interesting nuggets in there.

Dick Pound on the work of the Independent Commission that he chair to look into claims made by the ARD documentary:
It was safe to say that the report was a turning point for WADA. It was the first time WADA had ever acted in that manner, and the first time there had been hard evidence of complicit behaviour that was contrary to the Code and standards.
Thanks to the NY Times yesterday, we know Pound's claim that this was the first time that "hard evidence" was available is incorrect. Here is how that article begins:
In December 2012, the World Anti-Doping Agency received an email from an Olympic athlete from Russia. She was asking for help.

The athlete, a discus thrower named Darya Pishchalnikova, had won a silver medal four months earlier at the London Olympics. She said that she had taken banned drugs at the direction of Russian sports and antidoping authorities and that she had information on systematic doping in her country. Please investigate, she implored the agency in the email, which was written in English.

“I want to cooperate with WADA,” the email said.
So was Pound in the dark or misleading the Board?

Speaking for the IOC, Professor Ugur Erdener, Member of the IOC and President, World Archery said of the report:
With respect to the Sochi 2014 laboratory, the IOC noted that the Independent Commission had not called into question the results of the Sochi Olympic Winter Games, which confirmed the report of the WADA Independent Observers relating to the Sochi Olympic Winter Games, as well as the report of the experts appointed by the IOC medical commission. Indeed, during the Sochi Olympic Games, four directors of leading WADA-accredited laboratories had been appointed by the IOC medical commission as experts for all of the operations at the Sochi laboratory. 
Whoops. We also now know, thanks to German paper FAZ, that the Sochi lab was indirectly referred to in the Pound report. Here is the relevant passage:
Edwin Moses, chair of the WADA Education Committee and also Chair of the USADA Board, made an extremely strong statement about the need to severely sanction Russia:
[B]efore there could be any talk of Russia becoming Code-compliant, there had to be a full-scale investigation into doping in every sport named by the whistle-blowers, and he congratulated the Independent Commission on going beyond the scope of the WADA report to insist on a protocol to work with whistle-blowers so that that kind of information could come out and whistle-blowers would be protected. Before any athlete who refused to cooperate with the Independent Commission was allowed to return to competition, they must be required to submit to interviews and undergo a rigorous and lengthy period of robust and independent testing.

Before there was any talk of Russia becoming Code-compliant, there had to be a detailed, well thought-out plan to reform RUSADA and prevent the possibility of future state-sponsored doping. The plan should be effectively implemented. There had to be a period of successful auditing and testing so as to be able to give the world’s athletes a guarantee that an effective and robust antidoping programme was operational in Russia, and that all of Russia’s elite athletes in all sports had been subjected to at least a six- to nine-month period of reliable testing and investigation. As for the sport of athletics, in which widespread and systematic doping had already been found, censure was not enough. The claim that RUSADA was non-compliant was merely words on paper. The only sanction that would send out the message that enough was enough and that WADA cared about that generation and future generations of athletes was to state loudly and clearly that the Russian athletics team could not go to Rio. 
Pound on scope of the doping problem:
[T]he Independent Commission had made it very clear that it did not think Russia was the only country with a problem and it did not think that athletics was the only sport with a problem.  
Pound on whistleblowers:
[W]hen it came to the whistle-blowers, WADA had not been as good as it should have been. He did not think that the Olympic Movement had not been as good as it should have been. The IFs, NOCs and NADOs had not been welcoming of whistle-blowers; in fact, the whistle-blowers tended to get worse treatment than the perpetrators. 
Beckie Scott, WADA's athlete representative and Canadian athlete, questioning the limited scope of Pound's investigation:
The individual members of the Athlete Committee had been approached by athletes who wondered why only athletics had been targeted as opposed to all sports. The Athlete Committee would like to make a very specific request that WADA expand the mandate of the Independent Commission to include all sports in Russia. It was a pivotal moment for WADA and a chance to really stand behind clean sport and the protection of clean athletes in all sports, not just athletics, and she really hoped that WADA would do the right thing. She felt that there were a lot of athletes watching and waiting, a lot of athletes worldwide in all sports who were really counting on the forces of the anti-doping movement to bring their full strength and resolve to the fight. WADA was at a crossroads, and she urged the members to please consider the athletes and the impact on sport as a whole and as a movement at that meeting as they made their decisions. 
In response to Scott, Sir Craig Reedie, President and Chairman of WADA, seems dismissive:
THE CHAIRMAN responded to the very last suggestion made. It would be quite difficult to agree round the table to investigate all sports all round the world. The issue of investigation and the part that that played in WADA’s operations going forward had clearly been made and it was up to WADA to work out its reaction to that and how it could be delivered. All he could do was thank Ms Scott for reinforcing the view expressed round the table, and he asked her to watch that space.
We are watching.

Tuesday, June 14, 2016

It's Time for More Questions for and Answers from Sunil Gulati

I want to think Sunil Gulati - the head of US Soccer and a member of FIFA's governing Council (formerly Executive Committee) - is a good guy. I really do. He is an academic, an American and a soccer guy, all things that bias me in his direction. But Gulati has repeatedly said and done things to raise questions about his integrity and loyalties.

The most recent is to be somewhat economical with the truth to a group of reporters about the recent changes to FIFA's governance that eliminated the independence of key officials in FIFA, roles that were once deemed essential to FIFA's governance reform. Gulati's role as FIFA consigliere is not consistent with a commitment to FIFA reform, and FIFA reform is in everybody's interest.

Here are the details.

FIFA's president Gianni Infantino recently had a conflict with Dominico Scala, the chairman of FIFA's Audit and Compliance Committee. Scala was appointed after a set of governance reforms were passed by the FIFA Congress in 2012, in Budapest. These reforms were based on a first set of recommendations proposed by the so-called "independent governance committee" led by Mark Pieth (here in PDF), of which Gulati was a member (prior to being appointed to the FIFA ExCo).

Long story short, those reforms created several "independent committees" described in the FIFA Governance Regulations (here in PDF) as follows:
[T]he independent committees as well as their individual members shall conduct their activities and perform their duties entirely independently but always in the interests of FIFA and in accordance with the Statutes and regulations of FIFA. 
Scala was the chair of the Audit and Compliance Committee, which has a wide ranging mandate and important role in FIFA governance. Arguably, the chair of this committee has institutional authority that exceeds FIFA's president. One of Scala's responsibilities, as described by FIFA's Governance Regulations was the following:
To determine the compensation of the President, the vice-presidents and members of the Council, and the Secretary General;
This is where his dispute with Infantino originated. Don't take my word for it, you can hear it straight from Infantino in the leaked recording of the FIFA Council meeting in which he explained that he found Scala's salary proposal "insulting" and complained about his laundry bill. As a result, Infantino decided that Scala had to go, and Gulati agreed.

In response to this dispute over Infantino's salary, Infantino and the Council devised a mechanism to authorize them to remove Scala from his position in the form of a change to FIFA's Governance Regulations. The change was proposed to the Congress as a dry technical matter and passed with essentially no discussion, debate or apparent understanding by members of the Congress.

Here is how FIFA described the change after its Congress in Mexico last month:
The Congress authorised the Council to appoint office holders for the remaining vacant positions within the judicial bodies, the Audit & Compliance Committee and the Governance Committee until the 67th FIFA Congress, and to dismiss any office holder of these committees until the 67th FIFA Congress.
See what they did there?

They eviscerated the independence provisions of these committees by placing their "independent" members and chairs under the Council. Thus, these members are far from "independent" but rather, they all serve at the pleasure of the Council and Infantino. To call them "independent" is ridiculous.

To be very clear - this important institutional change was the result of Infantino wanting a higher salary, and Scala standing in his way.  Scala resigned in protest, which actually was a huge favor to Infantino and FIFA, saving them the trouble of removing him. But I digress - back to Gulati.

In a media roundtable before the Copa America Centenario Gulati was asked about this episode. Here are his comments in full, courtesy @thegoalkeeper :
Jeff Carlisle: Speaking of Infantino, what did you make of that resolution that was passed in Mexico City that basically stripped the Audit and Compliance Committee of its independence?

Gulati: Well, I don't think it stripped the Audit and Compliance Committee of its independence, first. What it did was give the Council the ability to add or remove people for the next - what is now 11 months.

I don't know if the Council - what used to be the Executive Committee - has ever recommended someone for any of the independent committees that's been turned down by the [FIFA] Congress. The Congress [voting as a whole] isn't coming up with new names for those positions.

We had a situation in the last year where people that got themselves into trouble legally couldn't be removed, except by the Congress itself. So what Congress did is delegate that authority to the FIFA Executive Committee/Council for the next 12 months. It's a temporary measure.

I don't see any chance - and I've seen this written - that the Ethics Commitee chairpersons or members are going to be affected by any of this. Clearly, there was an issue regarding the Audit and Compliance Committee. But in the end, [Audit and Compliance Committee chair] Domenico Scala resigned, so there wasn't any action by the Council.
Gulati is not playing things straight here. The change completely stripped the committee of its independence, and the issue of individuals getting into legal trouble who couldn't be removed is a red herring. The independent chairs were in no such trouble, and even if they were, the Congress had authority to remove them. There was no problem needing this solution - other than Infantino's desire for a higher salary.

One of the reporters in the roundtable saw through this nonsense and returned to the topic. Here is that exchange, with my comments:
Carlisle: Getting back to the [FIFA] Audit and Compliance Committee, you said that people got themselves into trouble and they couldn't be removed, but I guess I'm confused. If the intention of that body is to be independent from the FIFA Council, that just seems like a contradiction to me.

Gulati: So if somebody gets indicted and they're on a FIFA committee and you can't remove them, I think the independence kind of ends at that point.
To be clear, Gulati is talking about provisions that came from recommendations he helped to author as part of FIFA's governance reform process. The reforms have been eliminated with no discussion and no debate. Gulati's redefinition of "independence" is not in line with FIFA's statutes.

Next Gulati muddies the issue by conflating adding members to committees with authorizing the Council to remove them:
Carlisle: You're saying that's all that's -

Gulati: No, no, I'm not saying that all. But right now, you've got a new president [and] you add members. The recommendations of who's on that committee come from the FIFA Council, from the Executive Committee.

So, Domenico Scala, [ethics investigator] Cornel Borbély and Mike Garcia [who investigated FIFA corruption] and all the people that were independent members, those came from either the administration or the Council. These aren't recommended by a U.N. commission, right? They're added and subtracted by [the FIFA] Congress. My comment earlier was, the Council recommended them [and] sometimes the administration.

Straus: You mean the FIFA president, when you say "the administration"?

Gulati: Yeah. Or the General Secretary, but yeah. And the FIFA Congress has approved all of them that have ever been appointed. They haven't said, "Nope, we don't want this one, we're going to add a different one." That's my main point: that the two have been consistent, number one, and two, it's a temporary measure for 11 months.

And I would be very surprised if any of the existing three groups - and now it's more than three, it's multiple committees now at FIFA have independent members. And there's going to be additions to those.

The Governance Committee is a good example. There's only three people on that. There have to be people added over the next 12 months, otherwise you live with three. So except for that 12 months - then the power will go back to the FIFA Congress.
The powers are temporary because the issue was Scala. Once he is gone, then Infantino wouldn't need these powers ... until the next "independent" official gets in his way.

Gulati does hint at the real reason for the changes, but the reporters do not follow up. What is not revealed (until we hear the tapes) is Gulati's central role in ousting Scala and concerns he expressed about the changes to FIFA's governance regulations. Gulati tells the reporters something different than what he said to his FIFA colleagues - being a good company man, I suppose.
Tannenwald: Can I go back to something you said a moment ago, and try to get more of a layman's explanation of it? Which is, "when a person is indicted, they cannot be removed." Indicted, as in, by the U.S. government? Or by -

Gulati: Under the FIFA statutes, the people on some of the committees are approved, and removed, by only the FIFA Congress. So, it's not only about indictment. It could be anything else. If anything happens in the course of a year, you can't remove them, or you can't add someone new until the [next] FIFA Congress.

Tannenwald: Okay. That's what I was trying to parse out.

Gulati: And look. There was obviously some tension between the chairman of the audit and compliance committee and the president. I'm not going to make bones about that. That's absolutely the case. And I think it's pretty clear that they didn't have a working relationship.

McIntyre: Why not?

Gulati: You'd have to ask one of them.

Carlisle: So, fill us in. I know one of the issues was Infantino's compensation. Has that been resolved?

Gulati: Not that I know of.
Serving in FIFA is challenging. I get that. At the same time, Gulati is being paid more than $300,000 by FIFA, which is far in excess of his compensation by US Soccer (reportedly zero). Gulati has an obligation to uphold the interests of US Soccer, and I am pretty sure that gutting FIFA reform so his FIFA boss can get a higher salary is not among those interests.

Gulati is rapidly becoming the Forrest Gump of international soccer. He has been present when many of the various scandals and controversies have occurred - including CONCACAF, Chuck Blazer, FIFA's secret bonus deals, and now Infantino's dirty laundry. Perhaps, like Forrest he is just a simpleton who finds himself at the right place at the wrong time. What I want to believe and what the evidence suggests are not quite the same.

Gulati owes US Soccer some greater transparency in his FIFA work. The US soccer media should ask some more questions, even if they are uncomfortable.

Sunday, June 12, 2016

Infantino's Dirty Laundry Tape

Courtesy of Swiss newspaper Tages Anzeiger here is the full 17+ minute audio recording leaked following last month's FIFA Congress. The audio is all in English and includes Infantino complaining about his salary and laundry expenses.

The only person who comes out sounding reasonable is England's David Gill, who several times expresses that he cannot really believe what is going on. He's got a point.

Have a listen, it is worth it. Here it is as mp3.