Paolo Barelli v. FINA

V. JURISDICTION OF THE CAS

58. Pursuant to Article 186(1) of the Swiss Federal Private International Law Act (“PILA”), the CAS has the power to decide upon its own jurisdiction.

59. Article R47 of the CAS Code states as follows:

“An appeal against the decision of a federation, association or sportsrelated body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.”

60. In this case, the Appellant relies on Article C.12.13.2 of the 2021 FINA Constitution and on Article 20.1 of the FINA Ethics Panel Procedural Guidelines.

Article C.12.13.2 of the FINA Constitution provides as follows:

“A Member, member of a Member, or individual sanctioned by the Doping Panel, the Disciplinary Panel or the Ethics Panel may appeal the decision exclusively to the Court of Arbitration for Sport (CAS), Lausanne Switzerland [...].”

Article 20.1 of the FINA Ethics Panel Procedural Guidelines provides as follows:

“A final decision issued by the Hearing Panel is subject to an appeal to the Court of Arbitration for Sport in accordance with art. C12.13.2 FINA Constitution”.

61. The Panel notes that the new Constitution of FINA, now World Aquatics, entered into force on 30 January 2023 (the “2023 Constitution”), that is, prior to the adoption and notification of the First Referral Decision, which occurred on 28 February 2023. The Panel also observes that jurisdictional issues are procedural in nature and that, on the basis of the principle tempus regit actum as interpreted and applied by CAS jurisprudence, “any procedural rule applies immediately upon its entry into force and governs any subsequent procedural act, even in proceedings related to facts occurred beforehand” (CAS 2017/A/5086, para. 119). Therefore, the Panel finds that the appellate jurisdiction of the CAS in the present case is actually governed by the 2023 Constitution and not by the previous FINA Constitution invoked by the Appellant; however, in practical terms, nothing changes because the 2023 Constitution also “recognises the Court of Arbitration for Sport (CAS), with seat in Lausanne, Switzerland, as exclusive court to resolve any kind of disputes between World Aquatics, World Aquatics Members, members of World Aquatics Members, Continental Organisations, National Aquatics bodies, Athletes, Officials and any person or organisation subject to this Constitution and/or any World Aquatics rule or regulation” (Article 31.1) and provides that “a final decision of World Aquatics imposing a disciplinary sanction or measure can be appealed within twenty-one (21) Days from the date of the decision to the Court of Arbitration for Sport (CAS)” (Article 30.6).

62. In any event, neither Party has questioned the jurisdiction of the CAS in these arbitration proceedings and both Parties have confirmed it by signing without any reservation the Order of Procedure. As a result, CAS has jurisdiction to hear and adjudicate the present case.

VI. ADMISSIBILITY OF THE APPEAL

63. Pursuant to Article R49 of the CAS Code:

“In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twentyone days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document. When a procedure is initiated, a party may request the Division President or the President of the Panel, if a Panel has been already constituted, to terminate it if the statement of appeal is late. The Division President or the President of the Panel renders her/his decision after considering any submission made by the other parties.”

64. While the old FINA Constitution and the FINA Ethics Panel Procedural Guidelines were silent on any time limit for appealing against decisions issued by the FINA Ethics Panel, the new 2023 Constitution sets forth (in Articles 30.6 and 31.2) a 21-day time limit which mirrors the default 21-day deadline provided by the above Article R49 of the CAS Code.

65. Given that the First Referral Decision was issued on 28 February 2023 and the Appellant filed its Statement of Appeal on 21 March 2023, the 21-day time limit was complied with.

66. Therefore, the Appeal is admissible.

VII. APPLICABLE LAW

67. Article R58 of the CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.”

68. Since FINA is incorporated in Switzerland, the Panel deems the applicable regulations to be the Statutes and the various regulations of FINA and, subsidiarily, Swiss law. This is confirmed by the 2023 Constitution, which provides that the “CAS shall resolve any dispute in accordance with the Code of Sports-related Arbitration (the ‘CAS Code’), this Constitution, the applicable World Aquatics Rules and subsidiarily Swiss law” (Article 31.3).

VIII. MERITS

69. In the present matter, there is a confluence of several factual and legal issues which may be pertinent to its resolution.

70. First (“Question no. 1”), it must be determined whether the Appellant’s indicated actions took place before or after 22 February 2013 (or both before and after), and what bearing – if any – this has on the consequences of Appellant’s actions. In the present matter, FINA alleges that the Appellant had breached the FEC, while indicating that the Appellant might have also breached certain non-specific “other FINA rules”. The Ethics Panel, however, based sanctions on the Appellant exclusively on the FEC. The FEC entered into force on 22 February 2013. According to the nullum crimen sine lege previa principle, which is widely accepted in sports disciplinary liability systems and enshrined in CAS jurisprudence, only such conduct that violates a rule in force at the time of the alleged violation can be sanctioned. This Panel has followed the same principle in its

ruling in CAS 2022/A/9296. By way of an example, the Panel refers to the already quoted award CAS 2017/A/5086, which so stated:

“according to well-established CAS jurisprudence, intertemporal issues are governed by the general principle tempus regit actum or principle of non-retroactivity, which holds that (i) any determination of what constitutes a sanctionable rule violation and what sanctions can be imposed in consequence must be determined in accordance with the law in effect at the time of the allegedly sanctionable conduct, (ii) new rules and regulations do not apply retrospectively to facts occurred before their entry into force (CAS 2008/A/1545, para. 10; CAS para. 51), (iii) any procedural rule applies immediately upon its entry into force and governs any subsequent procedural act, even in proceedings related to facts occurred beforehand, and (iv) any new substantive rule in force at the time of the proceedings does not apply to conduct occurring prior to the issuance of that rule unless the principle of lex mitior makes it necessary.”

71. Therefore, if the Appellant’s relevant actions took place prior to 22 February 2013, he may not be held liable under the FEC. Only if the Appellant acted on or after 22 February 2013, will it be possible to ponder his potential liability under the FEC.

72. Second (“Question no. 2”), one ought to consider whether the Appellant can be found liable for allegedly breaching Article F.12 of FEC, since this provision was not specified in the First Referral and only surfaced during the proceedings before the Ethics Panel.

73. Third (“Question no. 3”), one ought to ascertain what kinds of actions (in abstracto) may be considered as breaching the FEC norms indicated by the Ethics Panel (i.e. Article C.4, quoted supra at para. 14 and Article F.12, quoted supra at para. 27); in particular, given the language of Article C.4 and the obvious fact that here we are not dealing with “betting” practices, the Panel must identify which actions may qualify as “corrupt practices”, given that they are not further qualified or detailed by the FEC. The Panel is aware that identifying all such actions would be impossible; nonetheless, at least some common denominator characterizing such negative behaviour should be identified.

74. Fourth (“Questions no. 4 and no. 5”), one ought to assess the particular actions which the Appellant took in view of the characteristics of the breaches of Article C.4 and of F.12 of FEC, while taking into accounts the factual context of those actions. This will enable the Panel to determine whether the Appellant’s actions may be deemed as breaching either one or both of those norms. The Panel will first deal with the actions undertaken by the Appellant until July 2015, i.e. personally collecting money for secretarial services (Question no. 4) and then the actions undertaken by the Appellant as of 2016, i.e. allowing the Company to receive wire transfers from FINA while not disclosing the fact that the Appellant controls the Company (Question no. 5)

75. The Panel will address these issues one by one.

Question 1. Did the Appellant undertake his actions before or after February 2013?

76. Before the Panel proceeds to addressing this issue, the actions in question should be indicated.

77. It is undisputed that FINA started paying the Appellant in cash in September 2009, i.e. long before FEC was adopted and took effect.

78. It is, likewise, undisputed that FINA continued to make such payments to the Appellant until July 2015, i.e. long after FEC took effect.

79. It is, finally, undisputed that FINA started paying the Company on 2016, i.e. three years after the FEC became binding.

80. The First Referral Decision, nevertheless, found the Appellant guilty of violating the FEC for the entire period of receiving the payments (both directly by the Appellant and by the Company), i.e. from September 2009. This conclusion follows directly from the very language of the First Instance Decision, as well as from simply adding the amounts which the Appellant had been obliged to refund pursuant to Section 38 of the First Referral Decision.

81. One, thus, must deem a significant portion of the Appellant’s actions to have been performed prior to 2013.

82. This can lead to the conclusion that the First Referral Decision found the Appellant guilty of continuously violating – for over three years (between September 2009 and February 2013) – the provisions of a regulation (the FEC) which had not yet been adopted by FINA.

83. In the current proceedings before CAS, the Respondent argues that the nulla poena sine lege principle had not been breached for two reasons.

84. First, due to the fact that the Appellant’s violations occurred “at least partly, after the FEC came into force”.

85. Second, since “prior to its entry into force, i.e. prior to 22 February 2013, [the Appellant’s] actions would have constituted a violation of Art. 2 of the FINA By Laws which prohibited “acts of misbehaviours” and “acts of misconduct”.

86. With regard to the first point, the fact that the Appellant’s violations occurred, as the Respondent itself has emphasized (which is undisputed in the present matter), “at least partly, after the FEC came into force” does not change the fact that some of the Appellant’s alleged violations occurred before the FEC entered into force, which in its own right renders the First Referral Decision – at least partially – faulty for having applied retrospectively some substantive disciplinary rules in violation of the nullum crimen sine lege, nulla poena sine lege principles.

87. With regard to the second point, the Respondent’s allegation that the Appellant might have violated Article 2 of the FINA Bylaws in force in 2009 appears to be an attempt at “saving” the faulty First Referral Decision to the extent it pertains to the Appellant’s actions taken before February 2013. Nothing stood in the way of both FINA itself (in the First Referral) and the Ethics Panel (in the proceedings resulting in issuing the First Referral Decision) indicating the Appellant’s alleged violation of these provisions. The Appellant would have then been able to address the merits of these allegations and defend himself on this point during the disciplinary proceedings conducted by the Ethics Panel.

88. Indeed, CAS panels have constantly stated that, although an appeal to the CAS entails a de novo review of the case, it is not available to the parties the possibility to unduly broaden on appeal – especially in disciplinary proceedings – the objective scope of the case that was discussed before the sports body whose decision has been appealed: “In accordance with well-established CAS jurisprudence, the Panel’s power of review is de novo but at the same time is limited to the objective and subjective scope of the Appealed Decision. Accordingly, the Panel concurs … that its power of review is limited to the parties, facts and legal issues related to the Appealed Decision” (CAS 2018/A/6040, para. 79). Accordingly, the Panel has serious doubts that it may deal on appeal with an alleged breach by the Appellant of rules that were not even mentioned, let alone considered or discussed, in the First Referral Decision (also in view of the problematic circumstance that under Article 3 of the old FINA By Laws any sanction had to ultimately be imposed by the FINA Bureau and not by the Ethics Panel).

89. Be that as it may, the Panel need not rule on the permissibility of a sanction based on a regulation that was not even mentioned by the sanctioning sports organization in its own disciplinary decision for the following reason. Indeed, even casting aside the Panel’s doubts and admitting, arguendo, (i) that the Panel might apply the old FINA By Laws to the Appellant’s conduct before 22 February 2013, and (ii) that said Article 2 of the FINA By Laws covers and sanctions the same corrupt practices sanctioned by Article C.4 of FEC, the reasoning and outcome of this award would not change, given that the factual pattern under disciplinary scrutiny in this case was exactly the same before and after 2013 and, as will be seen below, the Panel has found on the merits that the Appellant did not misbehave – either before or after 22 December 2013 – and that no sanction is thus warranted for his conduct (see infra at paras. 101 ff.).

Question 2. Can the Appellant be found liable for violating a FEC provision which was not expressly referred to in the First Referral?

90. In the present matter, FINA alleges that the Appellant breached the FEC, while indicating that the Appellant might have also breached certain non-specific “other FINA rules”. The Ethics Panel, however, based its right to sanction the Appellant exclusively on two FEC provisions. Out of those two provisions, only one (C.4) was been expressly referred to in the First Referral, while the other (F.12) was not.

91. The Panel believes that such actions on the part of the disciplinary authorities may – entirely hypothetically and under certain circumstances – raise concerns as to ensuring

the right to defence in disciplinary proceedings. Unequivocally formulating the allegations and providing the proposed legal qualification should be deemed the proper course of action.

92. Nonetheless, the Panel finds that the First Referral was simply an administrative communication on behalf of the FINA Executive to bring the Appellant’s conduct to the attention of the appropriate disciplinary body and that the legal qualifications of the actions taken by the Appellant were within the purview of the competent disciplinary authority – in the present matter, the FINA Ethics Panel. At the same time, the Panel fails to see in the present matter any circumstances that may indicate that the Appellant has been deprived of his right to defence. For this reason, it should be deemed that the Appellant may be found in violation of Article F.12 of the FEC even if it was not indicated in the First Referral, but only in the course of the first instance proceedings.

Question 3. What kinds of actions may qualify as “corruption” in sports?

93. As regards this issue, in view of the fact that FINA rules do not define the notion of “corrupt practices” in any manner whatsoever, this Panel already undertook a broad analysis of the definition of corruption in the sporting context in CAS 2022/A/9296. It applies the same reasoning below.

94. First, the Panel wishes to remind that corruption is not solely a local matter – as noted in the United Nations Convention against Corruption (General Assembly Resolution 58/4 of 31 October 2003) – but rather a transnational phenomenon. This allows the Panel to avail itself of various sources when attempting to define corruption.

95. Starting with the above-mentioned Convention against Corruption, which is the only legally binding universal anti-corruption instrument, the Panel notes that the Convention identifies two forms of corruption in the private sector (Article 21). These are:

(i) Bribery – (a) The promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another, in order for him or her, in breach of his or her duties, to act or refrain from acting, (b) The solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another, in order for him or her, in breach of his or her duties, to act or refrain from acting;

(ii) Embezzlement of property in the private sector – embezzlement by a person who directs or works, in any capacity, in a private sector entity of any property, private funds or securities or any other thing of value entrusted to him or her by virtue of his or her position.

96. The Panel also takes judicial notice – incidentally and without any bearing on its decision – that the recently (in December 2023) adopted ICC Rules on Combating Corruption follow the same principle and confirm the above Panel’s findings. According

to the said ICC Rules, corrupt practices in the private sector include commercial bribery and extortion or solicitation as well as laundering the proceeds of bribery, extorsion or solicitation.

97. The Panel further notes that private bribery (both active, i.e., giving, and passive, i.e., receiving) is expressly prohibited under the Swiss Criminal Code (Article 322). Private bribery entails offering, promising or giving an advantage that is not due to an employee, company member, mandatee or agent in the private sector in connection with his or her business-related duties and in exchange for an act or omission violating such duties or in exchange for a discretionary act or omission for the benefit of himself or herself or for the benefit of a third party. On the other hand, acceptance of a bribe in the private sector entails demanding, securing the promise of or accepting an advantage that is not due in connection with business-related duties as an employee, company member, mandatee or agent in the private sector and in exchange for an act or omission violating such duties or in exchange for a discretionary act or omission for the benefit of himself or herself or for the benefit of a third party (see Anti- Corruption in Switzerland by M. Berni, P. Monnier, www.globalcompliancenews.com/anti-corruption/handbook/anti-corruption-inswitzerland/).

98. The Panel proposes to list and then to address four types of actions which are commonly considered corruption in business: They are:

a) Bribery: accepting items in return for a preferential treatment;

b) Embezzlement: taking the company's goods or funds for personal gain;

c) Kickbacks: payments made to businesses by vendors in exchange for contracts that overinflate the cost of the work performed at the expense of those receiving the services, and paying for the contract;

d) Fraud: dishonest and illegal activities perpetrated by individuals or companies in order to provide an advantageous financial outcome to those persons or establishments.

99. In the Panel’s assessment, the above list of potentially corrupt behaviour also applies to the world of sports with regard to the conduct of any officials entrusted with managing sports organizations.

100. Consequently, in order to consider whether the Appellant had breached Article C.4 of FEC (and/or Article 2 of the old FINA By Laws, insofar as applicable, in accordance with the Panel’s remarks supra at para. 89), its alleged actions should fall within one of the above characteristics.

Question 4. Did the Appellant’s acceptance of money for secretarial services breach Article C.4?

101. Article C.4 of FEC reads as follows:

“Betting on Aquatics and other corrupt practices relating to the sport of Aquatics by any person being subject to this Code, including improperly influencing the outcomes and results of an event or competition are prohibited. Any person being subject to this Code is forbidden from having stakes, either actively or passively, in any entity or, organization that promotes, brokers, arranges or conducts such activities or transactions.”

102. The Panel notes that Article C.4 addresses two distinct types of conduct.

103. First, it encompasses acts of corruption, including improperly influencing the outcomes and results of a sporting event.

104. Second, clearly the purpose of Article C.4 was also to render certain conduct – otherwise permissible (i.e. legitimate actions) – punishable under the FEC. In other words, the aim of this provision was not only to eliminate corruption (forbidden under virtually any legal system), but to also “capture” certain perfectly legitimate actions, such as betting on sporting events or holding stakes in entities promoting or arranging for betting, and to render such actions “illegal” in the light of the FEC. While no sports organization or federation can render otherwise legitimate conduct illegitimate in the legal sense (e.g. criminalize such conduct), a sports federation or a sports body can, of course, prohibit its direct and indirect members from participating in such actions in order to maintain sports integrity.

105. The allegations formulated against the Appellant pertain to his conduct that may potentially fall within the part of Article C.4 of the FEC addressing corruption. The Panel will focus on the corruption issues, leaving out of its analysis the aspects concerning gambling in the broad sense of the term.

106. The point of departure for this analysis is the language of Article C.4 of FEC, already quoted supra at para. 101.

107. Clearly, the main purpose of this provision is evidently to address specific illicit actions (improperly influencing) or lawful but undesirable conduct (betting, having stakes in betting organizations). The common denominator for these different types of actions is their relation to sports betting.

108. On top of that, Article C.4 also prohibits “other corrupt practices” relating to sports.

109. As this Panel has already noted in CAS 2022/A/9296, one may wonder whether such a general reference to “other corrupt practices” should be included among the several actions clearly related to one form of commercial activities (betting), but this Panel

accepts the Respondent’s position that it is in fact a reference to any corrupt practices, whether or not related to betting.

110. Having said that, the Panel notes that a general prohibition of “other corrupt practices” renders it impossible to unequivocally identify what kind of actions fall within the scope of that term without referring to the general rules of the law and the commonly followed business practices. The same consideration applies to the old FINA By Laws’ prohibition of “misbehaviour” and “misconduct” in reference to corruption. This Panel has already conducted such an analysis in CAS 2022/A/9296, and will do so again in this Award, while looking at the Appellant’s actions as specified in the First Instance Decision.

111. The Panel also notes that the present matter differs substantially from other sports corruption cases, in that in most corruption cases, also those brought before other CAS panels, evidence is substantially scarce. As the CAS Panels noted “[…] while assessing the evidence, a panel will have in mind that corruption is, by nature, concealed as the parties involved will seek to use evasive means to ensure that they leave no trail of their wrongdoing” (Arbitration CAS 2010/A/2266 award of 5 May 2011 and, CAS 2010/A/2172, award of 18 January 2011, § 21).

112. In the matter at hand, nothing appears to have been concealed. The facts of the matter, albeit complex, are known and unchallenged by either Party. As a formality, the Panel notes, then, that the burden of establishing that a corruption offence has been committed rests with the Respondent.

113. Further on in this Award, the Panel will analyze the Appellant’s actions and assess whether they fall within any of the above-referenced corruption categories.

114. In the Panel’s assessment, the Appellant’s alleged actions – collecting, at irregular intervals, EUR 3,000 per month toward secretarial costs – may neither be deemed to constitute any of the acts, carried out for the purpose of committing corruption in the private sector (as defined in the United Nations Convention against Corruption), nor any of the four above-referenced forms of corruption. This is for the following reasons.

115. As regards the acts identified in the United Nations Convention against Corruption, the Panel notes that the Appellant’s actions do not fall into either form of bribery, since bribery (the promise, offering, giving, soliciting or accepting of an undue advantage to or from any person who directs or works for an entity, for the person himself or herself or for another) requires that this is done in order for that person or another person to breach his or her duties by acting or refraining from acting. This is clearly not the case here, since the payments for secretarial services were not provided or accepted in order for the Appellant or another person to breach his duties or refrain from acting (despite being obligated to do so). Indeed, no evidence whatsoever was presented to this Panel of situations in which the Appellant, or another person instigated by the Appellant, breached any duties to act or to refrain to act.

116. For the same reasons, the Appellant’s collecting payments for secretarial services cannot be treated as violating Article 322 of the Swiss Criminal Code, which also requires a connection between an undue advantage received and an omission or acts violating the recipient's duties. Here, there is no evidence on file of any violation of the Appellants’ duties as Honorary Secretary of FINA (see the list of those duties infra at para. 124) and, therefore, no corruption can be surmised.

117. Moving on to the four types of actions which are commonly considered corruption in business, the Panel would like to observe the following.

118. As regards bribery (accepting items in return for preferential treatment), the two key elements are financial or other form of gain, received or promised, and some preferential treatment. While one may try to claim that the Appellant had been receiving financial gain (payments of EUR 3,000 per month for secretarial services), these proceedings have failed to demonstrate that such payments had been made in exchange for any preferential treatment. Indeed, no evidence whatsoever was submitted in this case which could hint that the Appellant accepted said reimbursements in return for granting a preferential treatment to somebody.

119. No allegations of kickbacks have been made against the Appellant.

120. This leaves only embezzlement (taking the company's goods or funds for personal gain) or fraud (dishonest and illegal activities perpetrated by individuals or companies in order to provide an advantageous financial outcome to those persons or establishments) as the only two potential forms of corruption that the Appellant might have committed. However, the Panel is of the opinion that Appellant’s actions can neither qualify as embezzlement nor as fraud for at least several reasons.

121. First, the amounts received by the Appellant were paid upon the instructions of the FINA Director General and were recorded on FINA’s books. The financial statements were subsequently approved by FINA’s competent bodies (in particular by the FINA Congress) and therefore well known within FINA. FINA itself would consider these payments as legitimate spending for technical (secretarial) services.

122. Second, as has been demonstrated during these proceedings (through some FINA documents and the testimony of Ms X.), cash withdrawals from the FINA bank account and cash reimbursements to FINA executives were not uncommon. In particular, similar reimbursement for secretarial services were also being collected by other individuals serving in executive capacities at FINA, such as the then President of FINA (as was testified at the hearing by Ms X.). This indicates that such practices were not uncommon FINA at the time and were decided by FINA itself.

123. Third, such payments were always approved by FINA management. As testified by Ms X., she would each time seek and receive her line manager’s approval for disbursing the amounts for secretarial services directly to the Appellant.

124. Fourth, life experience leads one to conclude that EUR 3,000 for secretarial services seems to be a reasonable amount, particularly in consideration of the many relevant tasks that the Honorary Secretary had to perform in compliance with Article C 18.3 of the FINA Constitution of 2013, as also reminded by the Appellant himself at the hearing: “C 18.3 The Honorary Secretary shall have the following roles and duties: C 18.3.1 in the absence of the President conduct the Congresses and FINA Bureau meetings with all the rights and duties, C 18.3.2 represent FINA in the absence of the President at FINA Competitions, ceremonies or other activities requiring the presence of the highest FINA authority, and C 18.3.3 coordinate in cooperation with the FINA Executive Director: a) the FINA relations with the Continental Organisations, b) the World Competition Calendar in coordination with the Continental Organisations, c) the FINA Committees agendas, d) finalizing the minutes from the meetings of Congress, Bureau and Executive”.

125. Fifth, the Panel is not convinced by the Respondent’s argumentation that said secretarial services had never actually been rendered. The Panel is of course aware of the fact that, in principle, direct evidence of a negative fact is not to be provided. The Panel notes, however, that the Respondent itself clearly recognized at the time of the payments, through its own actions and written documents, that the payments were done for secretarial services that were actually rendered to Mr. Barelli. In particular: (i) in the documents on FINA stationery prepared by the FINA accounting department and having as references “RECEIPT FO-06793”, “RECEIPT FO- 10077”, “RECEIPT FO-I4979” and “RECEIPT FO-14982”, all addressed to Mr. Franco Concordia, the deliveries by FINA of, respectively, EUR 18,000, EUR 33,000, USD 39,960 and EUR 36,000, were done for “Mr. Paolo Barelli secretary services”, for “agreed monthly allowance for secretarial services Assistant FINA Honorary Secretary”, and for “Monthly allowance for secretarial expenses, Assistant FINA Honorary Secretary”; (ii) in all the invoices issued by Mr Franco Concordia (and accompanied by his Identity Card) it was clearly indicated that they were for secretarial services performed for the FINA Honorary Secretary, and FINA itself approved all of them by printing on them “comptabilisé” (i.e., registered in the accounting books) and by paying the invoiced amounts (Exhibits R-2, R-3, R-5, R-6, R-8); (iii) in the invoices issued by the Company it was clearly indicated that they were for “Logistic and secretarial services and other activities provided to the FINA Honorary Secretary”, and FINA itself approved all of them by printing on them

“comptabilisé” and paying the invoiced amounts through bank transfers (Exhibits R-10, R-12); (iv) in the email sent by FINA to Mr. Barelli on 12 April 2016, the subject of the email was clearly indicated as “Secretarial services Mr. Franco Concordia” (Exhibit R-9).

126. The above evidence clearly shows that, at the time of the facts under scrutiny (thus in tempore non suspecto), the Respondent itself had no doubts that secretarial services were in fact rendered for Mr. Barelli and, by its own volition and in all officiality, FINA was paying for those services without casting any doubts whatsoever on the fact that they were actually performed. Indeed, the Respondent had ample opportunities during the time when the Appellant served as the Honorary Secretary of FINA and later to request proof that such services had been truly provided. It has not been demonstrated during these proceedings that such requests were ever made. The only reference to an actual request for additional documentation regarding Mr. Concordia’s services on file is the already mentioned email from FINA to the Appellant dated 12 April 2016 (Exhibit R-9); yet, even in this email FINA merely quoted administrative requirements from international agreements between the European Union and Switzerland and asked for Mr. Concordia’s bank details. The Panel notes that the current Respondent’s contention – many years after the facts – that those services were not truly performed is an extraordinary case of venire contra factum proprium that the Panel cannot allow (it is indeed well known that the prohibition of venire contra factum proprium is enshrined in Swiss law and frequently applied in CAS jurisprudence).

127. In light of the above, the Panel finds all the considerations made by the Respondent on the personal or professional qualities of the provider of the secretarial services (Mr. Concordia) to be irrelevant. The fact that the person to render such services is not fluent in English and is not that young anymore does not automatically preclude him from rendering such services. Obviously, in order to serve in a secretarial capacity for another individual, what one first and foremost needs is the command of that individual’s usual language. In this case both the Appellant and the person hired to render secretarial services could speak in their mother tongue: Italian. Furthermore, the age beyond 70 by no means stands in the way of working as a secretary or – broadly speaking – of doing intellectual work, as many political leaders around the world have demonstrated.

128. Drawing on all the above evidence, the Panel deems that the Appellant’s collecting EUR 3,000 per month for paying secretarial services linked to his role as Honorary Secretary of FINA may not in these circumstances be considered corruption under Article C.4 of the FEC or misbehaviour/misconduct under Article 2 of the old FINA By Laws (insofar as applicable).

Question 5. Should the Appellant's actions leading to FINA making wire transfers to the Company, which is under the control of the Appellant, be regarded as a corrupt practice in sports in accordance with Article C.4 of the FEC? Furthermore, should his omission to disclose his controlling interest in the Company be considered a violation of his obligation to disclose conflicts of interest under Article F.12?

129. As regards the first of the above grounds (causing FINA to make wire transfers to the Company), the Panel believes the Company’s receipt of wire transfers from FINA does not detrimentally differ from the situation described above when analyzing Question no. 4. If anything, such difference would rather be in the Appellant’s favour. If we consider it permissible – under these specific circumstances and given the facts described in great detail above – for the Applicant to collect EUR 3,000 per month in cash toward secretarial services rendered by a third party, then it should be all the more permissible for the same amount to be collected via wire transfers to a commercial company against duly issued invoices.

130. As regards the second of the above grounds (failure to disclose the Appellant’s controlling stake in the Company), the Panel opines that it may not be considered a breach of Article F.12 of the FEC. This is for two reasons.

131. First and foremost, regarding the allegation of breaching Article F.12, one may formulate a similar thesis as that concerning the allegation of breaching Article C.4. As FINA had been, for years, reimbursing the Appellant for secretarial services directly and in cash, and the FINA authorities had been approving this seemingly routine practice, then this manner of payment between the Company and the Appellant should not have come as any surprise to FINA.

132. Additionally, the Panel notes that the Appellant’s stake in the Company has been disclosed in the relevant registers, available in the public realm. Disclosing a certain fact in a relevant register, i.e. in the public domain, warrants an assumption of general awareness of said disclosed information. Obviously, this does not mean that each and every individual interested in the facts disclosed in such registers (including the FINA employees) will always be familiar with the register entries and the Panel recognizes that in certain situations an individual may be obligated to directly disclose certain facts related to him or her even if they have been recorded in publicly available registers. Yet, as a rule, whether others verify the data disclosed in a register is beyond the control of the individual under the disclosure obligation. The individuals disclosing certain particulars in such registers need not demonstrate that any third party has perused such particulars. It is sufficient for them to demonstrate that they have disclosed the relevant information, particularly in a situation like the one in this case, where the cooperation between the Appellant and the Respondent had been already in place for several years. In fact, as indicated above (at para. 125.iii), it was clearly spelled in the invoices issued by the Company and approved by the Respondent that the payments were done for the secretarial services provided to the Appellant; hence, it was totally transparent and known within FINA that the Company was merely a vehicle used by the Appellant to obtain the agreed reimbursements for the secretarial services provided to him.

133. For the above reasons, the allegation of the Appellant breaching Article F.12 should be deemed misconceived.

134. In conclusion, the Panel holds that the Appellant did not breach Articles C.4 or F.12 of the FEC, nor did he breach Article 2 of the old FINA By Laws (insofar as applicable). As a consequence, the Panel upholds the Appellant’s appeal and annuls (i) the decision

of the Ethics Panel to ban the Appellant for a fixed period of one year from taking part in any Aquatic-related activities under the auspices of World Aquatics (formerly FINA) or its members, and (ii) the decision of the Ethics Panel to order the Appellant to reimburse to World Aquatics (formerly FINA) a net amount of EUR 297,540. Any other or further motion or prayer for relief is dismissed.

IX. COSTS

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