On December 16, a San Francisco court ruled that the Fédération Internationale de Natation (FINA), the body based in Lausanne, Switzerland, that governs Olympic swimming, has to answer to allegations that it has been operating an illegal monopoly, in part by financially punishing athletes who want to compete in events that it doesn’t recognize or control.
The judgment came after a year of hearings in a suit jointly filed by the International Swimming League (ISL), a new global swimming competition, and three champion swimmers pursuing a class-action suit against FINA, a subsidiary of the International Olympic Committee (IOC). The swimmers are U.S. Olympic butterflyer Tom Shields, U.S. world-champion individual-medley swimmer Michael Andrew, and multiple gold medalist Katinka Hosszú, from Hungary.
Denying FINA’s attempt to dismiss the case and keep sealed internal communications disclosed during the discovery process, San Francisco District Court magistrate judge Jacqueline Scott Corley ruled that, in their attempt to show that FINA was operating “a global anti-trust conspiracy… the plaintiffs have satisfied their burden of making a prima facie” case. The court will hold an initial case-management conference to determine the next steps in mid-January 2020.
ISL founder and owner Konstantin Grigorishin, who has accused the Olympic establishment of violating European and U.S. antitrust law, said the decision will have wide-ranging ramifications. Shields, Andrew, and Hosszú, he said, could now be joined by thousands of other elite swimmers in suing FINA for compensation for earnings they lost due to FINA’s ban on participation in commercial, non-Olympic events. In addition, Grigorishin said, “We can also apply this judgment to all Olympic sports and the IOC.”
If the plaintiffs ultimately prevail, this case and another legal precedent—in 2017, there was a similar ruling in Europe involving speed skaters and the International Skating Union—could open the way to American and European commercial operators who, before now, have been effectively barred from promoting Olympic sports.
Alex Haffner, a sports-law specialist in London who has followed the case closely, cautioned that a finding that FINA has a case to answer was not a final verdict. But, he added, “It is clear that FINA now faces a very significant battle to justify the stance taken to the International Swimming League. This in turn raises the further possibility that the substantive hearing—if matters proceed to that stage—will set an important precedent.”
A spokesman who was reached for comment at the IOC’s offices in Lausanne referred the matter to FINA, but at press time, FINA had not responded to an interview request.
The broader commercialization of Olympic sports, should it happen, would spell an end to the IOC’s insistence that participants be amateurs for the duration of the Games. While this is no great sacrifice for professionals playing tennis, soccer, and basketball—who earn millions during a typical career—the IOC’s domination of swimming and track and field, and its threat to outlaw any competitions it sees as a rival, have left athletes and swimmers relatively impoverished.
During this dispute, the IOC has claimed that it’s protecting the purity of sport from commercialism. But in an era when the governing body makes $5.7 billion from sponsorship and television, as it did in the four-year cycle leading up to the Rio Games in 2016, swimmers and runners have complained that they’re being exploited. While the IOC’s accounts show that officials spend millions a year on travel expenses, many athletes struggle to finance their training and Olympic appearances. Some swimmers have even sold their medals to stay in the sport.
Monday’s judgment follows decades of athletes’ and coaches’ frustration with the IOC’s rule. The modern Olympics are often associated with corruption, on and off the track, because of a series of scandals involving doping, bribery, embezzlement, and money laundering, particularly at the 2014 Sochi Winter Games, the 2016 Rio Games and, more recently, the run-up to the Tokyo Olympics in July and August next year.
Such associations and the multibillion-dollar sport and transport infrastructure that the IOC insists be created anew for every Olympics have left the IOC struggling to find candidates prepared to host the event. The Olympic TV audience is also rapidly aging, a symptom, critics say, of the IOC’s format of parades, podiums, and long speeches by elderly officials.
The San Francisco ruling represents only the latest shake-up of global sports. A new breakaway super league has been discussed in European soccer, while rugby, cricket, motor sports, speed skating, athletics, and European basketball have been remade by the arrival of innovative new tournaments in the past two decades. Grigorishin himself has proposed building on the ISL to create a new “professional Olympics,” held four times a year, limited to the most popular disciplines—track and field, swimming, marathon, open-water swimming, BMX, beach volleyball, and possibly gymnastics—starting as soon as 2021 in Naples, Italy.
At the heart of it, the anger directed at the IOC derives from its dual position as sole governing body for most of the 33 sports included in the Games and sole revenue provider. That twin ability to bar athletes and strangle funding has, critics say, allowed the Olympic establishment to build an unchallengeable monopoly.
In her judgment, Judge Corley said this view was borne out by the evidence. The ISL’s debut season this year, which climaxes with a two-day final on December 20 and 21 in Las Vegas, has begun to revolutionize competitive swimming. Centered on four-way matches between swim teams from eight cities—four from the U.S. and four from Europe—the event has drawn thousands of spectators around the world and millions of television viewers.
But the court heard how, in 2018, when the ISL was trying to host a trial event to introduce swimmers, coaches, and spectators to its new format, it was repeatedly blocked by FINA, which threatened to ban from the Olympics any swimmers who took part.
In a letter sent on June 5, 2018, to all 209 FINA member federations, FINA chief executive Cornel Marculescu, a former Romanian water-polo player who is now 78, warned against taking part in the “so-called international competition ‘International Swimming League,’ which FINA does not recognise.” Marculescu added that the federations were obliged to support all of FINA’s decisions and to request permission to take part in any tournament not sanctioned by FINA. The implied threat, the court heard, was that any national swimming body that defied FINA by participating in the ISL would be violating the terms of its FINA membership, thereby excluding itself from sending swimmers to the Olympics.
As part of the evidence cited by Corley, the court was shown an email sent on June 4, 2018, by USA Swimming CEO Mike Unger to his counterparts in Britain and Australia, in which Unger wrote that he was “very interested” in letting American swimmers participate in the ISL, but “there is one catch (and it’s a major one right now). FINA is apparently not happy with ISL and is intent on derailing the ISL efforts.”
Unger added that if any swimming federation defied FINA, “FINA can issue penalties against the national federation and its athletes, including suspensions.” In a later email to U.S. Aquatic Sports Inc., Unger wrote: “This is serious, not just for swimmers and not just for USA Swimming” but for all American aquatic sports. “This is not a situation to take lightly. The potential ramifications are severe.”
Soon afterward, USA Swimming told Grigorishin it would not be allowing swimmers to compete in the ISL. Faced with hosting a swimming competition with no swimmers, the ISL eventually cancelled its trial event. The first season of the league only went ahead this October after the ISL and Shields, Andrew, and Hosszú launched their legal action in December 2018, prompting FINA to capitulate and withdraw its threat of sanctions in January.