International Olympic Committee. Ethics Committee decision nº D/02/04
International Olympic Committee
Ethics Committee
To Judge xxxxxxxxxxxx
Vaud Canton
Court of Proceedings
Lausanne, 23 August 2004
Reference: Accusation filed by Sr. Goijman against FIVB and its President.
S/ref: FIVB /Acosta – PE02.041405 – NCT
Dear Judge and colleague:
I have received your letter of 29 July 2004 as regards case file mentioned in the reference.
After having been informed about the Ethics Committee recommendations decision and having put into consideration Mr. Rubén Acosta´s resignation to the position of IOC member, the IOC Executive Board, at its meeting in Athens on 7 August 2004, decided to pass the first three recommendations formulated by such committee. You will find a copy of the abovementioned Ethics Committee recommendation decision of 14 May 2004 attached to this letter.
The Executive Committee decision was notified to Mr. Acosta, in the position of FIVB President on 7 August 2004, in the following terms:
"After having been informed about the recommendations sent by the Ethics Committee on 14 May 2004 as regards Mr. Goijman accusations against the FIVB and its President Dr. Rubén Acosta Hernandez, we have decided:
ÿ to pass the contents of the grounds for such recommendation;
ÿ to discard the proposed recommendation against Dr. Acosta after being notified about the news of his resignation to the position of IOC member.
ÿ to accept the other three Ethics Committee recommendations, that is:
1) to remember the need for respect, in the core of the Olympic Movement, of the ethical fundamentals of the Olympics, especially that according to which “ money from sports shall go to sports”, which does not prevent sports organizations from taking care of management expenses and those of the organization’s operation, such as payments for rent, employees and sports managers salaries, travel expenses refunds, accommodation and other justified taxes for the performance of duties, as well as fair compensations for legitimate disbursements or loss of profits from interruption of business, everything in accordance with the specific practices of each sports organization.
2) to take appropriate measures to insure that those funds assigned by IOC to every and all organizations that conform the Olympic Movement be solely used for sport;
3) To remind FIVB of its obligation of respecting the Olympic Charter Fundamentals, especially on that referring to the use of Olympic resources .”
This Executive Board decision was made public during the IOC press conference, which took place that same day after the meeting.
Should you have any further questions, do not hesitate to contact me. With my kindest and most respectful regards,
Pâquerette Girard Zappelli
Special Representative
INTERNATIONAL OLYMPIC COMMITTEE
ETHICS COMMITTEE DECISION Nº D/02/04
CASE Nº 2/03
Mr. Mario Goijman,
Federación Argentina de Volleyball (FAV) former president
domiciled at
Buenos Aires / Argentina
AGAINST
International Volleyball Federation (FIVB)
domiciled at
Avenue de la Gare 12, CH-1300 Lausanne / Switzerland
and its president, Dr. Rubén Acosta Hernández, IOC member
domiciled at
Oficina de Enlace en México, San Francisco 624,
Col. del Valle, 03100 México D.F. / México
CONSIDERING:
On 10 March 2003, Mr. Goijman filed, before the Ethics Committee, an accusation against FIVB and its president, Dr. Rubén Acosta Hernández, CIO member.
The Ethics Committee, having proved that certain aspects of that accusation had been submitted to ordinary court, decided not to deal with them until justice had pronounced sentence. However, referring to two ethical principles (rule 25 from the Charter) and taking into account the matter that the invoked facts referred to IOC earnings assigned to FIVB, they decided to appoint an informer to its core.
After having received the comments sent by Mr. Seppey, FIVB General Director on 8 and 15 January and 18 and 20 February, the Ethics Committee convened in Lausanne on March 2004 and drafted a decision which was submitted to Dr. Acosta´s comments “before drawing conclusions and stating recommendations to the IOC Executive Board.”
The Ethics Committee received Dr. Acosta´s comments in written on 6, 16, 21 April 2004 with documents attached. Acting under the informer’s instructions, the special representative received Dr. Acosta in a hearing and gathered his oral comments; Dr. Acosta was assisted by his legal counselor. A record of the hearing was taken.
Dr. Acosta´s comments and annexes (Proof A), the record of the hearing (Proof B) as well as other written proof mentioned further are attached to this decision.
All documents referring to the case have been sent to the members of the IOC Ethics Committee.
FACTS:
The Ethics Committee by means of all documents submitted is able to prove that:
1º- the amount for some of the earnings for Sydney Olympic Games 2000 assigned to FIVB by IOC, by applying Rule 28.2 of the Olympic Charter, was of US$ 8,780,600 (i.e. around 14,048,960 CHF at an exchange rate rounded downward); the payment was made in two installments on 29 September and 30 November 2000.
2º- FIVB paid Dr. Acosta, on account of comissions, the sum of US$ 5,200,000 in two equal installments of US$ 2,600,000 each on 29 September and November 2000;
3º- at the year 2000 balance submission, the amount for Olympic Games –TV rights was of CHF 13,013,987.58, this balance was passed by Pricewaterhouse Coopers company with the exception of an annex which explained that the balance 2000 did not include the amount of commissions paid during the year for the sum of CHF 8.320. 000.- In 2001 balance there was a comparative chart with the results from the previous year, in which the amount of CHF 8,320,000 for such commissions was included and distributed under different headings, among which it is found that of “Olympic Games 2000–TV rights” at the amount of CHF 15,273,987.58. At the same time, another heading was added “Purchase Commissions” at the amount of CHF 8.320.000 so that the amount of the annual result remained without variation. However, during the FIVB General Assembly thatshould have passed the accounts of both years, the Pricewaterhouse Coopers company annex was not submitted. On the other hand, those purchase commissions were paid to Dr. Acosta separately from the annual amount of CHF 350,000 paid to his office in Mexico;
4º- Mr. Guédon , FIVB accountant, statement 17 February 2004 and submitted by FIVB, pointed out that “the settlement of assigned commissions to Mr. President Acosta during 2000 was solely based on contracts negotiated with con NTV (Japan), ESPN (USA), TBS (Japan) and TV Globo (Brazil) for an amount of US$ 52 million”; that is to say that the amount for paid commissions in 2000 of US$ 5,200,000 (i.e. CHF 8,320,000), was equivalent to the 10% of the global amount for contracts on television rights negotiated in 2000 on behalf of FIVB and was assigned to Dr. Acosta in his position of contract negotiator;
5º- despite this, the global amount of those contracts on television rights was not entered as credit of FIVB in 2000, since the amount that corresponded to such credit for the year 2000 for television rights, was just of CHF 3,640,000 (or CHF 5.640.000 including commissions). Thus, the amount of those contracts corresponded to the total earnings for television rights between 2000 and 2010, as it was set forth in the KPMG certification of 25 February 2004 handed by the FIVB, 10% commissions on television contracts and marketing corresponds to negotiating commissions payable separately from the collection of soldrights; commissions paid on 2000 whose benefits would be collected by FIVB regularly between 2000 and 2010”;
6º- since some of these television contracts were negotiated again and reduced, Dr. Acosta gave a proportional share of his commissions back to FIVB for US$ 555,000 on 5 September 2003;
7º- as regards figure differences at balances submission for the years 2000 – 2001, whether commissions were included to those FIVB balances or not, the statement made by Mr. Guédon, FIVB trustee, on 17 February 2004, explained the following: “ purchase commissions paid in accordance with regulatory provisions were entered as earnings deductions; were distributed under different credit headings according to a distribution criterion independent from the commission source;”
GROUNDS:
The Ethics Committee reminds, above all, that:
- the character of an Olympic member, whether ethical or not, is independent from its criminal aspect. As a matter of fact, the same acts can be criminally punished or not depending on the law of the different countries and be ethically condemned all the same. The acquittal of an accused person, due to acts which are not criminally typified, does not necessarily remove the violation from those acts of ethical obligations from those acts;
- IOC Executive Board, watching out for the Olympic Charter’s respect and as well as being responsible for IOC financial management, is competent to verify whether IOC funds have been applied to the development of the Olympic Movement and sport as well as whether a IOC member has respected the provisions and fundamentals of the Olympic Charter;
Likewise, the Ethics Committee underlines the following:
1º- as regards the place of International Federations within the Olympic Movement:
- International Federations belong to the Olympic Movement; now, according to the Olympic Charter terms, in order to belong to that movement it is necessary to respect the ethical fundamentals;
- Such obligation of respecting ethical fundamentals on the International Federations side by no means restrains their independence and autonomy as regards the management of its respective sports, “their by-laws, practices and activities shall be in accordance with the Olympic Charter”. (Rule 29 from the Charter);
2º- as regards the ethical principle “sports money shall go to sports”:
- the ethical principle “sports money shall go to sports” is founded on values that inspire from their origin the ideal and behavior of the Olympic Movement. As a result, such principle is not new and shall not be ignored by the members of the Olympic family;
- as a historical illustration, we can refer to the application by laws (Publisher in 1962) which set forth that “the Olympic rules stipulated that all Olympic Games eventual benefits shall be applied to boost the Olympic Movement or to the development of amateur sports;”
- if in practice these rules were used in some cases in order to increase the interest generated by the Olympic games, this does not mean that the Olympic ideal should be abandoned and should not keep on inspiring the policy and behavior of the IOC;
- thus, the current Olympic Charter continues to respect the spirit of the Olympic Movement according to which, financial profits should go to sport: Rule 11 from the Charter sets forth that “all profits resulting from the Olympic Games Celebration shall be applied to the development of the Olympic Movement and sport”. The C.1 part of the IOC Ethics Code, on the other hand, mentions that the resources of the Olympic member- parts shall only be used for Olympic purposes;
- lastly, CIO 110ª Session, on 11 and 12 December, 1999, passed 44 and 48 IOC-2000 commission recommendations which were aimed at the financial transparency in the core of the Olympic Movement with the purpose of particularly insuring that IOC funds be properly applied and controlled and that the National Olympic Committees and International Federations submit an accounting report on the use of all funds delivered by IOC;
- in consequence, the practices of International Federations acknowledged as member-parts by IOC shall not be opposed to that ideal;
- the ethical principle “ Sport money shall go to sport” which does not prevent sports organizations from taking care of management expenses and those of the organization’s operation, such as payments for rent, employees and sports managers. salaries, travel expenses refunds, accommodation and other justified taxes for the performance of duties,as wellas fair compensations for legitimate disbursements or loss of profits from interruption of business, everything in accordance with the specific practices of each sports organization;
- on the other hand, this principle which has been incorporated to Olympic Charter (application text corresponding to Rules 31 and 32) deals with Olympic National Committees management; mutatis mutandi, the same principle shall be applied to the International Federations managements;
- lastly, each situation shall be particularly assessed and not by being compared with others;
3º- as regards the Ethics Code application to Olympic members:
- the IOC Ethic Code was originally created in a particular context as a consequence of what it is still being referred to as “the Salt Lake City scandal”, which resulted in the punishment of certain IOC members. However, since the first steps submitted to the IOC Ethical Board, from the time of its creation, the Executive Board has considered the ethical Code should be applied also when the acts of the members take place outside the Olympic Games, its organization or IOC.
DECISION:
In virtue of the grounds abovementioned, the Ethics Committee in view of the proof and comments stated by Dr. Acosta, IOC member and FIVB president, considers that:
1º- as regards the 10% commission deducted from the amount of the contracts on television rights and marketing and collected by a IOC member:
- the fact that the 10% commission deducted from the amount of the contracts on television rights and marketing is authorized by the Volleyball International Federation internal by laws, has no influence whatsoever over the ethical character of such practice;
- the payment of a percentage over the amount of a contract, due to ignorance and base amount variations from which such amount is deducted, shall not guarantee any type of transparency regarding the collected amount. Therefore, that is very different to the amounts contractually dealt with in the core of an organization for a job whose duration and responsibility are defined. On the other hand, the contract amounts on television rights and marketing are in the end so substantial that the application of the 10% rate over those amounts represents sums that cannot be considered as proportional to the time and effort applied only to one negotiation of the rights amount, since the expenses have been charged separately. In addition, for the social purposes of International Federations and the payment of such sums a transparent procedure is essential;
- regarding this particular case, according to Federation internal texts, the president is the only person with the right to authorize a negotiation and to sign the relevant contracts; obscurity in accounting management, proved in the 2000 balance submission which does not show the payment of commissions to the president for the amount of CHF 8.320.000, becomes apparent in the lack of transparency;
- in consequence and as a result of the lack of transparency, the Ethics Committee deems this practice as opposed to the abovementioned Olympics ethical fundamentals;
2º- with respect to the matter of the use of assigned funds by IOC in the light of the Olympic Movement and particularly to the FIVB:
- commissions assigned to Dr. Acosta corresponded to 10% of the global amount of contracts on television rights and marketing negotiated in 2000 on behalf of FIVB and should have not been deducted from funds assigned by IOC as redistribution of Olympic Games profits;
- however, the payment of the second part of such commissions was withdrawn from FIVB equity after payment by IOC of the first part of the assignment for 2000 Olympic Games;
- thus, the result is the assumption that the assigned funds by IOC to FIVB have not been exclusively used for Olympic purposes; this assumption has not been denied by the federation since its accounting practice does not allow any type of control of the use of funds arising from the Olympics, as they are “contained” within all FIVB earnings;
- the lack of claim on the side of the IOC as regards the accounting impact of the delivered funds does not deprive it of its right to control whether the use of those funds has been made pursuant to the Olympic Charter Rules and especially to Rule 11. As a matter of fact, as opposed to what has been alleged, the fact that those funds had been delivered to the FIVB and therefore are part of their Equity, does not exempt neither the International Federation nor its president, IOC member in virtue of his position, from respecting the Charter;
- in consequence, the Ethics Committee proves that when deducting the payment of those commissions in the year 2000 not only from the amount of the sums collected in virtue of the mentioned contracts, but also from the total earnings of the Federation, within which the funds assigned by IOC were found. Dr. Acosta, member of IOC has neither respected nor insured the Olympic Charter and Ethics Code, especially the c.1 part according to which “The Olympic members resources shall be used solely for Olympic purposes.”
RECOMMENDATIONS:
In view of former considerations, the Ethics Committee, having considered Dr. Rubén Acosta Hernández and FIVB comments and having delivered pursuant to point 9 from part B of the by-laws, recommends the Executive Board:
Lausanne, 14 May 2004
By the president
Pâquerette Girard Zappelli
Special Representative
FIVB World Congress was held in Oporto, from May 12th. to 13th
The decisions adopted and the antidemocratic methods used there, will be registered in capital letters in the black story of our sport.
The delegates, near 120, were frightened by the close presence of almost 30 private body guards, who controlled the meeting rooms and followed the FAV members, in order to block any communication with the delegates.
The votes were by signs, and a request for secret ballots, made by the Swedish delegate was refused.
The delegates were unusually pressured by the guards, and for the close background of the cut heads of Goijman, Moreno, Van Zwieten, Andresen, Svensson, and many others, or the expulsion of the Argentine Federation.
Due to this pressure, it was approved without any defense right, the expelling of Goijman, Moreno and the Argentine Federation, that had neither right to be listened nor space for self defense.
Ignoring, the already recognized forgery of the FIVB statements of 2000 and 2001, they were considered again, recognizing in this way, that the previous World Congress process was fraudulent, because the treatment of those modified financial statements, is the best recognition of the fraud in the Buenos Aires Congress.
Acosta went on accusing , even after changing his speech and now recognizing that he took commissions for millions of dollars, that Goijman was a LIER.
The Congress approved the affiliation of the NEW Argentina Federation, created by the FIVB, going against the National sovereignty.
But the Worst, was the approval of new reforms to the FIVB Code of Conduct, transforming it in a dictatorial weapon.
This Code of Conduct should prevail over any national Law.
It must be clearly included in the Constitution of all the National Federations, Regional Associations and Leagues around the world.
It must be accepted by players, Judges, Managers of all levels, all over the world. It gives Acosta the FULL POWER, to decide for himself any disciplinary action even the expelling of persons or Institutions, forbidding also any OPINION that he may consider damaging his image, in what is called now as “Institutional Offenses”
THIS IS WORTH OF ANY TOTALITARIAN REGIMEN, and it deserves an absolute rejection, by anyone of us that wants a free world.
On Sunday, May 16, it was held in Lausanne, the ASOIF General Meeting Association of Summer Olympic International Federations.
Ruben Acosta , Jean Pierre Seppey and Malu Acosta attended that meeting, as FIVB’s delegates, and they tried that ASOIF could pronounce a resolution refusing the competence of the IOC Ethic Committee, in the internal life of the International Federations, considering that each one could have a different interpretation for Ethic’s.
The Federations of Basketball, Athletics and Swimming, as well as the President of ASOIF, Mr. Denis Oswald , refused the intention of Volleyball, defending the right of the Ethics Committee to judge misbehaviors of Sport Leaders that may affect the Olympic image, even inside the International Federations.
But Acosta pressed for a vote, and a definition from ASOIF, in order to stop the clear recommendation against him made by the IOC Ethics Commission.
And the Vote was made, and 28 Federations voted against, while 2, including FIVB, supported the motion.
At the sight of this clear pronunciations of his own pairs, the FIVB exit immediately from the meeting very upset.
On Monday , May 17, Ruben Acosta presented his resignation as member of IOC, although his membership should end on December 31st.
The text of the resignation, may be found at the FIVB Web Site, but is very clear that it was only a decision taken to stop the consideration by the IOC’s Executive Committee of the serious recommendation by the Ethics Commission, asking for a sanction against him.
The recommendation was very clear that Acosta attitudes of taking “commissions” for him, and altering financial statements to hide them, were serious breaches of the Basic principles of the Olympic Charter.
The IOC’s Ethic Committee is composed by personalities beyond all pressure or influence.
Kurt Furgler:
3 times President of Switzerland, in 1977, 1981 and 1985
From 1971 elected for the Swiss Federal Board .
Between 1972 and 1982 Federal Justice and Police Minister
From 1983 to 1986 Federal Ministry of Economy Affaires.
Honor Member of the IOC since 2000.
Robert Badinter:
French Senator.
Member of several Comissions at the French Senate
Member of the European Union Parlament
Emeritus University Proffesor
Former French Minister
Former President of the Constitutional Board
President of the Conciliation Court of the European Community
Keba Mbaye:
Former Vice President of the International Court of Justice (The Hague)
Honorary President of the Senegal Supreme Court
Member of the Belgium Royal Academy of Sciences
Member of IOC since 1973
President of the Jurist International Commission from 1977 to 1985
Andrew YOUNG:
Former Ambassador of the USA at the United Nations in 1977
Three Periods member of the House of Representatives of the USA Congress.
Two times Atlanta City Major
Former President of the US Church National Council.
Awarded with the Honor Legion and Freedom Medals
Author of many books
Sir Ninian Stephen:
Former General Governor of Australia
Judge of the Australian Supreme Court
Javier Perez de Cuellar:
Former General Secretary of UN 1981-1991
Professor of Internacional Law
Doctor Honoris Causa of many Universities
Member of the French Academy of Moral and Political Sciences
Pernilla Wiberg:
Well known Swedish skier
IOC Member since 2002
Chiharu Igaya:
IOC Member since 1982
University Professor
Slalom Champion
Member of the Sky Federation
Paquerette Girard Zapelli:
Former President of the European Judges Association
Former Member of the Cassation Chamber – France.
Executive Representative of IOC to the Ethic Commission
The Tribunal considered the denounces against Ruben Acosta and founded him guilty of serious ethics offenses. Its recommendation to the Executive Board was returned to the Committee, due to the Acosta resignation and his change of status as IOC Member, and shall be considered again at the next Executive meeting to be held in Athens in August 6th.
The FIVB appointed as President of the FIVB Television, Marketing and New Media Commission, Mr. Willy Burckard, former Vicepresident of ESPN.
The decision was taken because he was mentioned as witness in the suit against Acosta for the Commissions he took, related to the agreement between FIVB-FAV- and ESPN for the broadcasting of the 2002 World Championship in Argentina.
The FIVB used this technique in the past when the former FIVB Internal Auditor, Gudmundur Helgi Thortesteinsson, was appointed as Technical Manager in the FIVB, to compensate his testimony and signature in the adultered financial Statements.
In this way they suppose are compromising Mr Burkhard, to witness in favor of Ruben Acosta in this serious challenge to the President for his misappropriation of funds.
The Swiss Justice condemned Jean Pierre Seppey for the fiscal frauds committed, in 1997, 1998 and 1999 when he was the General Director of a Swiss Professional Cycling Team, and he eluded the V.A.T., related with the money paid by the Swiss Poste for the sponsoring of such team.
A Judge at the Valais Canton condemned him the last May 24th, and was greatly underlined by the Swiss Press.
The severe FIVB’sCode of Conduct, was not considered in this case, in a fraud committed by the FIVB’s General Manager.
The lack of scruples of Seppey was one of the main reasons considered by Rubén Acosta when he selected Jean Pierre for the FIVB.