By Joe Houchin
On the heels of the inaugural season of the International Swim League (ISL), a pair of parallel lawsuits against FINA will continue to move forward. On December 16, 2019, an order issued by the U.S. District Court for the Northern District of California denied FINA’s motion to dismiss the cases which were originally filed in December 2018. Additionally, amended complaints were filed by the plaintiffs on January 17, 2020, containing updated factual allegations against FINA including claims that FINA misappropriated ISL’s format by scheduling its own events with a similar prize format. FINA has three weeks to file an answer to the amended allegations.
The amended complaints allege that only upon filing of the initial lawsuits did FINA withdraw its threat of sanctions against swimmers and national governing bodies for associating with ISL. Plaintiffs go on to identify specific correspondence from FINA Executive Director Cornel Marculescu culminating in a June 5, 2018 letter where USA Swimming was pressured to break ties with ISL. According to the amended allegations, even though ISL unsuccessfully sought to partner with British Swimming and the Italian Swimming Federation, USA Swimming was seen by FINA as a key member federation and once they were influenced to end discussions with ISL, other federations predictably refused to lend their support.
Plaintiffs’ amended complaint additionally alleges that once the December 2018 ISL event was halted under pressure from FINA that FINA misappropriated ISL innovations by scheduling its own events mimicking the proposed ISL format. Although not specifically mentioned by name, the amended complaint references an event held from May 31 through June 1, 2018, in Indianapolis so it is safe to assume that plaintiffs are referring to the FINA Champions Swim Series as the copycat format. Plaintiffs acknowledge that following the filing of the initial lawsuit that FINA has indeed reversed course regarding the threatened sanctions, but contend that does not excuse the impermissible conduct.
Those tracking the litigation will remember that Americans Tom Shields and Michael Andrew along with Hungarian Katinka Hosszu brought a class action lawsuit against FINA alleging, among other claims, federal antitrust violations over FINA’s control of international competitions. The ISL filed a separate lawsuit for similar claims against FINA arising from the same conduct. The specific factual allegations contained in the complaints are detailed, but the distilled version of plaintiffs’ allegations are that FINA leverages its market dominance to control the terms of compensation and competition for elite level swimmers. In doing so, plaintiffs contend that FINA engages in impermissible anti-competitive conduct.
The dispute arises out of ISL’s original efforts to host an international competition in 2018 which was allegedly scuttled by FINA’s influence over various national governing bodies who were in talks with ISL to host the meet. FINA reportedly issued statements to member federations threatening sanctions for violation of FINA’s rules against unauthorized relations with a non- affiliated body. Subsequently, potential hosts for the planned December 2018 ISL event – including USA Swimming, British Swimming, and the Italian Swimming Federation – all declined to host the competition and the meet was cancelled resulting in lost appearance fees to athletes.
In responsive filings, FINA argues that clarification was provided on January 15, 2019 that swimmers choosing to participate in competitions staged by independent organizations like the ISL would not be in violation or sanctioned. Due to the clarification, FINA argued that the claims are moot; a contention the Court rejected. In a forty-four page Order, the Court ultimately denied FINA’s motions to dismiss the cases which will now proceed through a formal discovery process with trial scheduled in January 2022.
The future of professional swimming has shifted following the completion of the inaugural International Swim League season compared to when the lawsuit was filed in December 2018. Since then, the ISL concluded a three month season consisting of seven separate events involving more than 200 swimmers with more than $2.5 million awarded in prize money. Although not directly impacting the course of the case, the financial opportunities available to professional swimmers have improved since the cases were initiated. While the continued viability of the ISL is yet to be seen, FINA appears to have acquiesced to the existence of the ISL as an independent swim league and responded by increasing prize money to swimmers at FINA events.
The lawsuits are captioned Shields, et al. v. FINA, Case No. 18-cv-07393, and International Swimming League, Ltd. v. FINA, Case No. 18-cv-07394. Both cases are pending in the U.S. District Court for the Northern District of California.
ABOUT JOE HOUCHIN
Joe Houchin is a former collegiate swimmer and an attorney at Dysart Willis Houchin & Hubbard in Raleigh, North Carolina. The firm focuses on the areas of criminal defense, antitrust, and Title IX/student disciplinary investigations.
Sometimes people don’t even notice that they contradict themselves. Saying that Olympic committee won’t deal with FINA means actually that Olympic Games are not based on national sport associations. Do we want national associations to disappear completely? But who will take care about all these organizational and bureaucratic jobs to manage and develop the particular sport within the country and be official representative of the nation internationally? Wants someone it or doesn’t that is the necessary part and expenses of any organization. Rules, laws, books, overseeing duties, you name it. And of course the fund allocation. And that is where it becomes interesting. They have to get money from somewhere somehow to exist. Membership fees will never be enough.
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Well Yozhik – I have to admit that for the first time I tend to agree to a comment you have posted on this site.
dont get used to it
the assumption was that FINA dissolves and ISL takes over or another international governing body arises.
I hate FINA as much as the next guy, but is this move by ISL just to get rid of a competitor?
I bring this up because there would be less prize money given to athletes.
I actually interpreted the article in the opposite way. This is the ISL trying to stake its claim as a part of the swimming world and be included in the yearly schedule of meets.
Slightly below the surface it is coming across like FINA is trying to remove the ISL and started hosting these large prize meets only after the ISL proved it is a feasible format. They also strong armed the USA Swimming Organization into backing out of a relationship with the ISL, even though 4 of the 8 OG teams are in the US and its swimmers make up over 45% of the total participants.
This could be the last olympics where FINA is the governing body! A new dawn is upon us
MA’s true plan has been uncovered. He’s been training for stroke 50’s his whole life because he was planning to replace FINA right before his prime and add stroke 50’s to the Olympics.
I hope this is true stroke 50s should be an Olympic event. There are some great 50 swimmers who deserve the accolades of being an Olympic winner.
And 50s are more interesting from a spectator perspective. Would help swimming grow as entertainment.
It’s crazy that anyone would downvote this. It doesn’t make any sense that there aren’t stroke 50s in the Olympics. It’s very arbitrary.
FINA proposed to add 50s to Olympics, but was rejected by IOC.
They need to remove the 800 and move the 1500 to open water. And get rid of the stupid mixed relays. This way they can add the stroke 50s without adding more events, all while making the whole event schedule more sensible from a logical standpoint to spectators and competitors alike.
I’m hopeful too but you must remember that organizations like USA swimming and LEN must be pushed to divorce from FINA too, and unfortunately they are often quite corrupt as well, I mean FINA and LEN are almost the same organization in a lot of ways, literally the same people in quite alot of positions…
Haha! I wonder what all you “screw The Man” types will say when the ISL becomes The Man. And while FINA could use a good scrubbing, I’m not sure the ISL is run entirely by choir boys, either.
What makes you say that please?
I say that because:
1. Whether it’s the NBA, NFL, FINA, FIFA, ow whatever, the governing body always becomes “The Man,” especially as far as the players are concerned.
And
2. The ISL is owned by a guy named Konstantin Grigorishin, a Ukrainian billionaire is wanted in Russia for tax evasion of like 700 million Rubles. Look him up and do the math.