In the third part of our series on the future of FINA as the international governing body considers constitutional change at an extraordinary Congress in Shanghai this July, we consider one of those proposals that needs careful consideration and could be used for better or for worse: "C 12.1.3 for bringing the sport into disrepute including but not limited to falsely and openly questioning the integrity of FINA."

As members consider how to vote next month, they may wish to consider five areas of concern: 

• The words: the current wording of "bringing the sport into disrepute" is to be linked, via a bridge of "including but not limited to…", to the term "falsely and openly questioning the integrity of FINA". The problem in the phrase in its entirety is one of potential conflict and contradiction. The experience of the IOC in 1998 and at other times along the way, and FIFA of late tells us just about everything we need to know about the problems inherent in the proposed wording.
• Precision: what are we to make of "but not limited to"? It could be simply a catch-all phrase designed to protect FINA from malevolent actions and claims of a kind the federation cannot predict; it could also be a catch-all that is abused by those who have had power vested in them, people who believe ‘FINA’ means them, when in fact it means all passing through the institution. In the same vein, debates that hinge on matters of integrity - say anti-doping debates - place members of FINA on opposite sides of the argument. Yet it would be right for all questions to be raised in such a debate, including the right of individuals to call into question the integrity of individuals who suggest that the best way forward is to open the medicine cabinet for all (and yes, I have heard FINA high-flyers say precisely that back down the years). 
• Application: FINA, based in Lausanne, is subject to and protected by Swiss law. However, the federation could easily find itself up against parties who call on the laws and rights of Europeans, Americans and others if it enters into conflict with those who have a legitimate right to question - supported in law and indeed national constitutions in some cases.
• Who decides: "Sanctions shall be imposed by the FINA Executive". What if it is the FINA Executive that is being questioned? It would be wise for a provision to be made that obliged those at the centre of any allegations, whether those turn out to be false or accurate, to step aside from the decision-making process in favour of an independent panel charged with judging the issues dispassionately before entering discussion with FINA lawyers and deciding "case or no case".
• The sport: the current wording emphasizes “bringing the sport into disrepute”. The key is “the sport” and it is a good clause to have in the constitution for it means all who play a role in the sport. What FINA wished now to do is to say that FINA itself, not the sports it represents, should be somehow protected beyond all in the sport.  “The sport” is not FINA, “The sport” is what FINA is the guardian of. The difference matters. 

As John Leonard, director of the American Swimming Coaches Association, an organisation at the heart of “the sport” but not FINA, puts it : “
I have never personally done anything, I believe, but praise and support our ‘sport’. I have been brutal in my written evaluations of FINA from time to 
time. I have never brought the sport in disrepute. I hope I have, from 
time to time, expressed my disdain for the way FINA conducts itself.

 But FINA Is not the sport. FINA is an organization that all of us grant the 
right to conduct international competition and its rules.
” Similar sentiments are expressed by a host of people who live in nations where expressing opinions is not only allowed and valid but encouraged.

Writing into any constitution a potential plague on any who call your house into question raises its own question: why go that far, given that we have laws of defamation to fall back on. If someone says "Fred Bloggs, the emperor of FINA's Party Service took a bribe from Slinky Suits Ltd and has bought a mansion in the Maldives on the proceeds" and that happens to be false, then banning him will not take the accusation away. Indeed, to many who may be of the same mind as the accuser, FINA will simply be held up as an organisation that organises kangaroo courts to combat any who criticise individuals at the helm of the federation. Not in FINA's interest, and certainly not in swimming's interest, to be perceived in that light. Much better for the individual who feels wronged, or indeed FINA if needs be, to let the air of the courtroom in and defend itself against falsehood by letting the evidence shine in a proper legal forum. In other words, such things require a suit of a different kind - and there is no need for anyone in FINA to hide behind the organisation if that organisation is sound. 

We cannot judge that on the simple words of a body that is perceived to want to write into its constitution that its integrity ought not to be challenged. Actions and managerial behaviour and practice speak louder than words, even words in constitutions. Checks and balances are essential. It is critical for any who serve on the FINA Bureau, committees and commissions (including the FINA Press Commission of which I am a member), swimmers, coaches and federations around the world to raise questions and there are times when those are best put in a public forum, even if they may be perceived by some to call into question the integrity of FINA. Any proposal intended to dent that right, by design or accident, in constitutional form, ought to be questioned, for even if we are blessed with leaders as pure ad riven snow now, those about to vote cannot predict who the guardians of the future will be, while history is not encouraging on a number of fronts.

In FINA context, here are three examples:

• A leading FINA official sits at a dinner in a public place with leading figures from the world of sports and politics, including investors in swimming. In the course of talking about suits, the official attempts to justify what has already been banned by FINA by suggesting that it is thrilling to watch two doped athletes do battle, and that most people don't care if the athletes are doped. Question: which of two options ought we to go with - pursue a case against the official for undoubtedly bringing the sport of swimming into disrepute (it is against the rules of FINA and international sport, Olympic and WADA Codes to use doping); or pursue a case against the official, swimmer, journalist or any other who leaves the room and reports what he or she has heard and asks 'why has FINA not reprimanded that official' - a question that could be said to call FINA's integrity into question. 
• The GDR - no records, no reprimands, no removal of a single award, FINA pin or any other accolade from people (not talking about the athletes) who now have criminal records for abusing under-age athletes and feeding them vast quantities of steroids and other substances, some never tested on lab rats before being given to teenagers. All on the record. Correct, many feel, to ask the question - why is Dr Lothar Kipke, a convicted criminal, still listed among those honoured with a FINA Pin when what FINA ought to have done was strip the bastard of any honour and put out a short statement to the effect of: "In accordance with FINA rules, we do not condone any form of cheating, the supply of banned substances, coercion and abuse of athletes…and in recognition that this man is a convicted criminal under the national laws of Germany, one of our members, we strip him of his honour just as we take medals away from athletes who test positive for doping)". What is proposed for FINA’s constitution could lead to a man who describes FINA as “incompetent” being banned, while Kipke, a man criticised by his own Stasi secret-police watcher as a brute who took sadistic pleasure in ramming needles into athletes, would remain among the ranks of those honoured by the organisation. The tendency to leave sleeping dogs to lie has caused many to call into question the integrity of FINA. But should FINA ever attempt to muzzle such questions? It did so on China in the 1990s - and it was wrong to do so.
• Fran Crippen lost his life in a FINA 10km race off the coast of the UAE last October. There were two investigations, one in the US, one by FINA. There were communication problems along the way, some of which left many to question FINA's intention. Questions of integrity were raised. Those questions forced FINA to stare at issues from more angles than it might have. Those questions were also helpful to FINA and its understanding: of the death of a young man that ought to have been avoided, of its own problems, of problems related to the status of open water swimming within federations international and domestic, of problems in the way FINA enters relationships with bidders and hosts, of problems in communication and crisis management. Questions that could easily have been perceived and judged to have called FINA's integrity into question were essential and extremely useful to FINA. Just as many thought that the international federation would call it wrong, FINA emerged in a much better light with many people - by publishing a report that criticised the organisation and highlighted problems that needed to be solved. In the face of tragedy, the Fran Crippen Task Force report marked a watershed in FINA history: it was the first time an athlete had died in FINA waters - and it was the moment FINA learned that raising questions about how you do things, how things might have been done better, questions that from time to time do indeed raise issues of integrity, puts you on the path to a better future and makes for a safer and healthier environment for athletes.

Lessons do not only come from within, of course. Set FINA aside for a moment and consider the lot of other bodies who work within similar tramlines and systems. Their experience can help FINA to see the storm approaching long before the rain starts falling - in other words, avoid having to take shelter each time controversy calls by staying clear of the storm in the first place through good governance. 

I stand with the likes of Jens Weinreich and other journalistic colleagues who see matters of integrity in black and white, for colouring the issue is fodder to those of weasel words and ill-intent. In a blog this week, Weinreich tackles the thorny subject of Germany's failure to systematically take on the fight against doping and corruption in sport. He notes the initiative of the Bavarian Minister of Justice Beate Merk, who pressed for a "law to fight doping and corruption in sport". The move failed spectacularly, in the main, the reporter notes, because of the lobbying of sports federations and their own lobbyists, partners and sponsors (and that scenario does not only apply to Germany, of course). If you can read German, I commend Weinreich’s site to you - and brace yourself before you take the plunge. He concludes: "And if the sports partners Siemens, Adidas, Telekom, Daimler, Bavarian, BMW, Volkswagen, Allianz should feel the urge to call: they can do something about corruption. Quite simply: sponsor this blog or invest in other journalistic work; it would be a pleasure to talk to them about research projects. A good expose is not so expensive at all - you just have to want to do it."

Now there's a challenge for those who say they sponsor sport because they have the best interests of sports and athletes at heart. We have to assume that those involved in world sport want clean sport conducted in a transparent financial, commercial and organisational framework. The standards of decency expected of athletes matched in the boardroom, so to speak. Yet dark clouds of history hover over the troubled plains of sporting governance. Just as the cheating athlete, coach or doctor prepares in secret and attempts to present a different face in public, so does the corrupt official do one thing in the light and another in the dark. As Weinreich puts it: systematic deceit.

The model of how bodies such as the IOC, FIFA and many international federations in the Olympic realm, is based on a German invention: former Adidas boss Horst Dassler created marketing body International Sport and Leisure (ISL) as an interface between those with the money (and that started to boom in Olympic circles from the 1980s) who wanted contracts and worldwide exposure that linked them to the fit, healthy and wholesome image of modern gladiators, and those who could provide that platform in return for a fat fee, the destination of which was sometimes kept secret because to have declared it would surely have converted “willing volunteer” to “greedy fat-cat on the make”. Ultimately, it all went badly wrong: ISL collapsed - and from the spill and the worked of investigative journalists came accusations, then allegations, then proof of corruption on a monstrous scale, with bribes paid to high-ranking sports officials running to more than 100 million Swiss francs, according to investigators. The scandal did not stop at ISL. Along the way, some were caught with their hand in a number of tills, including money paid by hosts or agents of hosts to secure success for their bids. To those in the same bidding process but unaware of the corruption: fraud. Some officials were ejected, and now the spectre of Salt Lake City 1998 that visited the IOC is here to haunt FIFA.

There are allegations - a vast and widespread soup for suspicion in the mix - that those who have so far taken the can represent the tip of a larger body of dark matter, while some of those named and shamed as having played a key part in past corruption continue to be seen swigging cocktails with sports leaders and even journalists, some of whom fall into the category best-loved by those who govern sport: "you're just here to cover the swimming," as one politician once said to me, his desire blinding him to reality and truth.

Actually, what reporters and writers are also there to do is inform readers about the likes of what has been described as the ISL bribery system, a 138 million Swiss francs handout to high-ranking officials in Olympic sport.

Some weeks ago, Jens Weinreich reported a conversation he had  with head of the international handball federation Hassan Moustafa: “We are a handball family. If anybody has a problem, we have to find a solution within our family - not outside the family." 

Such comments are reasonably common. I have heard them myself. It is as though such people believe themselves to be beyond the common laws that bind us, beyond having to account, beyond having to justify their positions, decisions and methods. You can read much more about that in the 1992 book “The Lords of the Rings” written by Andrew Jennings and Vyv Simpson and subsequent publications and reports that stemmed from it. 

What it all led to was the 2008 ISL bribery court case in Zug, Switzerland, via FIFA threatening to sue ISL and then withdrawing that threat after deals were done. The Swiss court verdict was handed down in 179 pages. In Swiss law, it came down to this: reporters were not allowed to report the details of those pages in full; and bribery, at the time in question, was not a crime in Switzerland, the country that hosts the IOC and many of its member federations, including FINA. The ISL system of paying sport officials was determined, the court in Zug heard, with accountants and lawyers and was officially permitted by the Swiss Tax Authorities. 

None of which changes this fact: ISL paid more than 100 million Swiss francs to men who go by the name of "volunteer", who are in it "for the love of the sport", who "sacrifice so much in dedication to sport". Actually, some of them were in it for the money - huge amounts of it - and working within a self-protection network of associates and acquaintances making each other filthy rich without declaring any of that to athletes, coaches, parents, viewers, journalists, domestic tax authorities back in home countries where Swiss law does not govern or protect the individuals concerned, and the rest of the wider world. 

Is it fair to call all of what has unfolded ‘corruption’, a term defined by Transparency International as "the misuse of entrusted power for private gain"? I let you decide. To help you out, here are some quotes from the Zug court case:

Christoph Malms, former Chief Executive of ISL: “I was told the company would not have existed if it had not made such payments. I was always told they went to well-known decision-makers in the world of sports politics."

Hans-Juerg Schmid, former Head of Finance for ISL: "If we hadn’t made the payments, the other parties wouldn’t have signed the contracts. It was like paying salaries. Otherwise they would have stopped working immediately! The other side doesn’t want to be named, that is the very sensitive aspect of this business."

In other words: secrecy, behind closed doors, you scratch my back I scratch yours are the watchwords that stand in stark contrast to the public face of "family", "love of sport", "the interests of the youth of the world" and so on and so forth.

To get an idea of the scale of a system that deserves to be exposed and felled, read Jens Weinreich in English, as he reported at the time when head of the ISL operation was Jean-Marie Weber, who has been described as "The Bagman", was fined for embezzling cash that he refused to account for. He also refused to identify recipients of all that money he handed out through ISL, telling the Swiss authorities: "These payments were confidential and I must respect that confidentiality."

It is a world that we believe, pray and hope has never and does not now apply to FINA, merely one that offers warning signs as temptation grows in tune with the amount of money flowing into and through aquatic sports. FINA already understands the meaning of all that happened with the IOC and FIFA and ISL: FINA is listed on ISL/ISMM's accounts for 1997-2007, according to Swiss court documents. It has subsequently worked with Dentsu and individuals who worked in the business at the time ISL was in full swing. 

Today, FINA works with marketing agents as it deals with broadcasters, sponsors, partners and others wedded to driving their businesses by paying for a role in the world of swimming. As FINA gets ready to consider its constitution this summer, it would have been far more heartening to see less concentration on any deemed to have "falsely and openly" questioned the integrity of FINA and far more focus on how the organisation intends to avoid being drawn into any questionable practices related to deal-making. A code of conduct aimed at officials who carry responsibility and ought to work within a framework and financial structure transparent for all members of a "no-profit" organisation to see and approve of would be a good start. Such things, like anti-doping rules, are not called for because anyone wishes to accuse people falsely, they are  there because we all recognise human nature and its potential to do harm. 

FINA has a chance to set a new standard and tone in international sport, to be a pioneer. That takes courage - but the rewards are immense.

Previous articles in our June series:

• Part 2 - Coaches
• Part 1 - Who Decides