CAS case clarification required

[Roger de Coverly]

The subject of the possibility of a future legal action was previously touched on in a different context when discussing whether to put the ECF's name to a letter to FIDE. Specifically, the Board raised it in order to be absolutely certain that signing the letter did not commit the ECF to a subsequent action in CAS.

This was back in October 2010 and was documented both in the notes of ECF Board meetings and externally by publication of the letter to FIDE on the Chessbase website and elsewhere. Let us not forget this was an action by the President of the European Chess Federation and a dozen or so other Federations.

At some time in January 2011, this collective action became a dual action by just the ECF and the Georgian Federations and started (according to CAS) with a protest letter to the FIDE Presidential Board which was due to meet in early February. Unlike the previous protest, which was an open letter, this protest was conducted in private. The public didn't know about it, did the ECF Directors? It's not obvious why it wasn't made public, unless the intent was always that it should act as an excuse to escalate the action to CAS, or the financial backers of the action wished to keep their support out of the public eye.

[Andrew Farthing]

From the concerns of the rest of the Board in stating that they wanted financial security, it seems at least questionable that they shared Andrew's certainty in the outcome of the previous meeting.

I have asked Andrew to reconsider his previous answer, which, whilst given in good faith, reflects on a situation in which different people have different opinions. It is the sort of situation that makes lawyers rich. In such an important situation the wording of the motion put should have been clear and unambiguous. It would appear from the concerns expressed at the time by other members of the Board that it was not totally clear. Jack's subsequent posting verifies that view, in my opinion.

The comments Andrew sent out at the time were a clear warning but were equally clearly not a part of the motion which was shown in bold and contained within inverted commas.
A caveat is not part of the motion.

It would be interesting to know if the ECFs legal expert agrees with Andrew as to the clarity of the motion. It can be strongly argued that any motion which requires (without reference) consultation of other documents is not a very satisfactory motion. In some circumstances such a motion would be deemed incompetent in the legalistic sense of the word.

Alex is mistaken to refer to a "caveat". The Board took a decision at its meeting of 26 Feb 2011 that any CAS legal action subsequently decided upon would have to be on the basis of protection against financial liability. The 'Proceed/Don't Proceed' proposal circulated on 1 March did not overturn this decision, so it stood as a pre-existing condition. Indeed, not only did the 1 March proposal not overturn the 26 Feb decision, it was presented in an e-mail which repeated the condition and expanded upon exactly what it meant in practical terms.

To be fair to Jack and the director who restated the 'no financial liability' point when voting, neither had been present at the Board meeting on 26 Feb. Nevertheless, the decision at that meeting was recorded in the Minutes and was taken by a quorate Board. The fact that the condition was restated, even if done in ignorance of the 26 Feb decision, cannot alter the fact that the condition already existed. Therefore, there can be no question of an amendment being introduced and the vote was exactly what it purported to be, a 'Proceed/Don't Proceed' decision on the basis that the ECF should be protected against any financial liability if we proceeded.

I am sorry if this is starting to cause headaches among more casual readers of this thread.

[Andrew Farthing]

The subject of the possibility of a future legal action was previously touched on in a different context when discussing whether to put the ECF's name to a letter to FIDE. Specifically, the Board raised it in order to be absolutely certain that signing the letter did not commit the ECF to a subsequent action in CAS.

This was back in October 2010 and was documented both in the notes of ECF Board meetings and externally by publication of the letter to FIDE on the Chessbase website and elsewhere. Let us not forget this was an action by the President of the European Chess Federation and a dozen or so other Federations.

At some time in January 2011, this collective action became a dual action by just the ECF and the Georgian Federations and started (according to CAS) with a protest letter to the FIDE Presidential Board which was due to meet in early February. Unlike the previous protest, which was an open letter, this protest was conducted in private. The public didn't know about it, did the ECF Directors? It's not obvious why it wasn't made public, unless the intent was always that it should act as an excuse to escalate the action to CAS, or the financial backers of the action wished to keep their support out of the public eye.

I was referring to the January 2011 letter to the Presidential Board. This was the occasion on which the Board very specifically sought and obtained confirmation that signing the letter was not a commitment to future legal action in CAS.

As to the question of making the letter public, this wasn't discussed as far as I can see. It's not routinely the case that the ECF's correspondence with FIDE is published, and this was an instance of the ECF pursuing an established FIDE appeal process to the Presidential Board. It wasn't suggested at the time that this was an exception which needed to be published.

It is true that this was a necessary precursor to any subsequent decision to pursue a CAS appeal, because, as Roger has rightly stated, it is a requirement that internal processes must be exhausted first before appealing to CAS. The Board understood this at the time, hence the care taken to establish that it was not making any commitment to a later legal action if the response from the FIDE Presidential Board proved unsatisfactory.

[Roger de Coverly]

The Board understood this at the time, hence the care taken to establish that it was not making any commitment to a later legal action if the response from the FIDE Presidential Board proved unsatisfactory.

So the Board as a whole, took a decision in January 2011 to join a action against FIDE with only the Georgian Federation in support. In general, protests against actions by FIDE or the FIDE president have usually been made public. Particularly as this was a follow up to a previously public protest, one might have expected such an action to be made public, unless there was legal advice (White & Case?) that it needed to be kept secret.

[Roger de Coverly]

I was referring to the January 2011 letter to the Presidential Board. This was the occasion on which the Board very specifically sought and obtained confirmation that signing the letter was not a commitment to future legal action in CAS.

The ECF Board first discussed this matter at a meeting on 26th February 2011

We are getting into semantics, but deciding to write a protest letter but not to automatically escalate an issue to CAS is to my mind a "discussion" of "this matter" ie the protest about VPs back in January. As AMcF points out, the CAS action appears to have been under way by Feb 24th. The Board could have voted to abandon the action, but that's not quite the same vote as one to start an action, nor was it a fresh issue, rather being a continuation of something already under way.

[Jonathan Bryant]

The timeline as a whole will be covered in the promised statement.

Andrew, thanks for joining the discussion your comments are most welcome.

Do we have an estimated time of arrival regarding the statement. I appreciate all of the points raised earlier (part-time volunteer based organisation etc), but perhaps you'd agree that this matter would be better resolved sooner rather than later. If it can't be sooner for whatever reason - reasons that could be quite legitimate - then it seems to me communicating in some way with the membership is probably a better policy than silence.

(in much the same way that it is better to be told that your train is 20 minutes late rather be left waiting on the platform not knowing when or if it will ever arrive)

[Andrew Farthing]

The Board understood this at the time, hence the care taken to establish that it was not making any commitment to a later legal action if the response from the FIDE Presidential Board proved unsatisfactory.

So the Board as a whole, took a decision in January 2011 to join a action against FIDE with only the Georgian Federation in support. In general, protests against actions by FIDE or the FIDE president have usually been made public. Particularly as this was a follow up to a previously public protest, one might have expected such an action to be made public, unless there was legal advice (White & Case?) that it needed to be kept secret.

What we decided was to agree to add our name to a letter, addressed to David Jarrett, FIDE Executive Director, asking for the immediate publication of the Minutes of the General Assembly, which had taken place on the previous 28 Sept to 3 Oct. The Minutes were overdue. To describe the letter as a protest may not be the most appropriate term (the term used was "We request that..."), and I would still argue that it was not something which the ECF would routinely make public. There was no legal advice to keep the letter secret. As I stated previously, the question of publishing it was not discussed at all.

Nevertheless, there was a connection to a potential CAS action, because the publication of the Minutes would mark the formal confirmation of the decision of the General Assembly to appoint the extra Vice Presidents. The possibility of a CAS action was mentioned in correspondence relating to the proposed letter to FIDE, which is why the confirmation was sought that the ECF was not committing itself at this stage.

[Andrew Farthing]

Do we have an estimated time of arrival regarding the statement. I appreciate all of the points raised earlier (part-time volunteer based organisation etc), but perhaps you'd agree that this matter would be better resolved sooner rather than later. If it can't be sooner for whatever reason - reasons that could be quite legitimate - then it seems to me communicating in some way with the membership is probably a better policy than silence.

(in much the same way that it is better to be told that your train is 20 minutes late rather be left waiting on the platform not knowing when or if it will ever arrive)

Almost every detail of the timeline was established as soon as the question was raised. I documented the events in a detailed paper which I circulated to the Board. However, I identified that there were a few points which needed to be confirmed by reference to others, including White & Case, the American law firm involved in the action. As was mentioned at the time, it coincided with the Worcestershire Chess Congress, which I help to organise and which occupied me fully for a period of four days and delayed my initiating the necessary queries to clarify the few points which were not already established unambiguously. I obtained the final responses late on Friday. Since the matter had been raised with the Chairman of the Governance Committee,the correct thing for me to do was to update the picture of events in the light of the clarifications received and discuss the conclusions and next steps with him. Unfortunately, due to illness, this was not possible until late yesterday. The Board is being informed of the conclusions today, after which a statement will be published.

Whilst I take the point about train announcements, I know from bitter personal experience on many a station platform that it is if anything even more annoying to be told one time and then find that the arrival time keeps slipping beyond this. I didn't know when the answers would be received and preferred not to make a promise that I might not be able to keep, especially since I was dependent on something outside my control, namely the timing of responses.

The point raised clearly demanded serious attention, and I preferred not to comment at all than to comment without the benefit of the full facts.

[Alex McFarlane]

Since Andrew has refused to confirm on at least 3 separate occasions that the costs awarded to FIDE have been paid one is left to assume that this has not happened.

This means that the ECF could currently have a substantial debt.

If the money is sitting in a bank account somewhere why has it not been forwarded? Is an appeal in the pipeline?

If it has been paid why has the good news not been given to the membership.

[NickFaulks]

White & Case will clearly delay payment for as long as possible, assuming they do intend to pay. Fingernail biting time...

[Paul Cooksey]

The point raised clearly demanded serious attention, and I preferred not to comment at all than to comment without the benefit of the full facts.

Since Andrew has refused to confirm on at least 3 separate occasions that the costs awarded to FIDE have been paid one is left to assume that this has not happened.

A nice asymmetry to these adjacent sentences. I suppose we all decided which approach to the investigation we most sympathised with some time ago, and are now waiting for the facts to be published.

(Andrew is presumably now well used to his integrity and competency being questions. But for Jonathan to compare his organisation to our railway system is surely the hardest blow to date. Still, if we are being unfair, here is a link for the next blog. )

[Alex Holowczak]

Andrew, thanks for joining the discussion your comments are most welcome.

Do we have an estimated time of arrival regarding the statement.

I suspect the time it takes for him to write the statement is inversely proportional to the number of times he's asked how long it'll take him to write it.

[Bill Porter]

Andrew, thanks for joining the discussion your comments are most welcome.

Do we have an estimated time of arrival regarding the statement.

I suspect the time it takes for him to write the statement is inversely proportional to the number of times he's asked how long it'll take him to write it.

I suspect the time it takes for him to write the statement is proportional to the number of times he's asked how long it'll take him to write it.

[Martin Regan]

Am I the only one to find this thread increasingly resembling a witch hunt.

Alex - you began this thread with the polite but unmistakable suggestion that either the ECF CEO had lied in his statement concerning the time-line of the case, or that he himself (and the board) had been "misled" ie. lied to by the President. I know which one you hoped to prove.

Your suggestion prompted a number of posts which all threw doubt, of course ever so politely, on the integrity of the CEO and the President.

When this accusation failed to have legs, you immediately reverted to the type of procedural babble that chess officials love, accusing the CEO of procedural incompetence and indeed suggesting that the entire board might end up in court.

When even this second front has now been demolished, you begin a third, suggesting that the CEO who you accused wrongly of misleading statements and incompetence is now hiding facts over payment. That he refuses to confirm one thing merely proves to you the opposite.

Perhaps I am alone in thinking that the accusations you have cheer-led are every bit as bad as accusing someone of homophobia.

Perhaps I am also wrong in thinking that the type of unreserved apology you are undoubtedly owned by CJ is the type of unreserved apology you undoubtedly now owe to Mr Farthing.

[Roger de Coverly]

What we decided was to agree to add our name to a letter, addressed to David Jarrett, FIDE Executive Director, asking for the immediate publication of the Minutes of the General Assembly, which had taken place on the previous 28 Sept to 3 Oct. The Minutes were overdue. To describe the letter as a protest may not be the most appropriate term (the term used was "We request that..."), and I would still argue that it was not something which the ECF would routinely make public. There was no legal advice to keep the letter secret. As I stated previously, the question of publishing it was not discussed at all.

#

According to the CAS chronology, there were two January letters. The first was on the 7th January ("14") in the name of the ECU President and 18 Federations. The second ("16") was on 21st January in the name of the Georgian Federation and ECF only. So somewhere between the two dates, the ECU President and 16 other Federations declined to continue. Indeed once FIDE rejects a protest, options are limited. One might have expected a gripe to the chess websites though on the lines of "FIDE reject complaint about Vice Presidents".