CAS case clarification required

[Roger de Coverly]

This, of course, is only a problem if the Kasparov money has not been paid.

http://www.ecforum.org.uk/viewtopic.php ... 082#p93082

Although the statement isn't absolute.

The information I've received

[Jonathan Bryant]

I understand that there are difficulties invovled and that a full response may not yet be possible, but it is rather unsatisfactory that there has been no official comment from the ECF at all.

Even given Sean's 'part-time volunteers' point 10 days ago, and given possibility that the ECF might not be able provide a definitive account because the full story is not clear even to them, I think it not unreasonable to felel that by this stage the Federation might have

(a) acknowledged the issue
(b) given a committment to publishing a full account of precisely how the legal action started (who did/knew what and when they did/knew it) as soon as the facts are determined.

[Jonathan Rogers]

As I read Alex's posts, we have probably moved on slightly, and the issue now is whether some Board members really did vote in favour at all. The argument is that a conditional vote, I guess something like "yes if our financial guarantee is secure" is not really yes at all - it is at best a future willingness to vote yes when the voter has been able to make up his own mind on that issue, but at the present it is just as close to no ("not now because ...").

I am reminded of an old tale about a trial for theft, where the judge would not allow the jury to return a verdict of "not guilty, if he gives the money back"!

I agree that the importance of this does rather depend on whether the legal fees have in fact been met.

[Alex McFarlane]

I've just had a brief conversation with Andrew Farthing and asked him when a statement would be appearing on the ECF website. I got the impression that this is unlikely to happen.

He also assured me that I had my facts wrong as regards the motion presented to the Board. I have very strong reason to believe that he was in error in making this claim. The reason for this belief is that I have actually seen the motion put on behalf of CJ De Mooi to the Board. If required I will produce it on this forum.

I have asked a Non-Exec Director to take this matter further and to establish the veracity of my claims. Since Andrew made his assurance of my error in public I expect he will also correct the situation in a similar manner, hopefully on this forum.

[IM Jack Rudd]

<Non-executive Director Hat>
I have just reread all the correspondence in question, and it supports Alex M's claim. The motion as presented to the board makes no mention of financial liability; a Director voted a qualified "yes" introducing the no-liability-to-the-ECF clause, and everyone voted on the "amended motion", but no formal amendment to the motion was actually proposed.

This is something I should have spotted at the time but didn't; I shall blame my inexperience and lack of familiarity with formal voting procedures.
</Non-executive Director hat>

[Alex McFarlane]

Thank you Jack for that very speedy clarification of the matter.

Much appreciated.

[Jonathan Bryant]

<Non-executive Director Hat>
</Non-executive Director hat>

Thanks for this, Jack.

[Ernie Lazenby]

Once again Jack says it as it is and well done to him. It seems other dont follow his example?

[Andrew Farthing]

I've just had a brief conversation with Andrew Farthing and asked him when a statement would be appearing on the ECF website. I got the impression that this is unlikely to happen.

He also assured me that I had my facts wrong as regards the motion presented to the Board. I have very strong reason to believe that he was in error in making this claim. The reason for this belief is that I have actually seen the motion put on behalf of CJ De Mooi to the Board. If required I will produce it on this forum.

I have asked a Non-Exec Director to take this matter further and to establish the veracity of my claims. Since Andrew made his assurance of my error in public I expect he will also correct the situation in a similar manner, hopefully on this forum.

<Non-executive Director Hat>
I have just reread all the correspondence in question, and it supports Alex M's claim. The motion as presented to the board makes no mention of financial liability; a Director voted a qualified "yes" introducing the no-liability-to-the-ECF clause, and everyone voted on the "amended motion", but no formal amendment to the motion was actually proposed.

This is something I should have spotted at the time but didn't; I shall blame my inexperience and lack of familiarity with formal voting procedures.
</Non-executive Director hat>

Both Alex and Jack are mistaken. The following, which bears out the truth of my account, reflects the conclusions of the Chairman of the ECF Governance Committee, John Philpott, who has been considering the allegation of a breach of Article 68.

The ECF Board met on 26 Feb 2011, at which time it first discussed the CAS legal action. At that meeting, it did not vote on whether to proceed, but it did decide the following:

It was agreed that no legal action should be pursued unless the ECF were fully protected against any liability to pay any costs.

When the proposal to proceed with the legal action was presented to the Board for an e-mail vote on 1 March, it was on the basis of the above condition, set by the Board on 26 Feb. I spelled out in my e-mail presenting the proposal how the requirement for protection against liability would need to be met. The fact that, in voting, a director restated the pre-existing condition does not constitute an amendment. One cannot make an amendment adding something which has already been included (indeed, already decided).

The condition relating to 'no financial liability' was NOT added to the proposal. It had already been set by the Board days earlier and restated in the e-mail initiating the 'Proceed/Don't proceed' vote.

Contrary to what has been alleged, Article 68 was not breached. The vote on 1 March was legitimate as reported, and it was correctly enacted, i.e. I did not give the go-ahead to proceed (on 5 March) until the condition established right at the outset was met (late on 4 March). What was enacted reflected the wishes and intention of the Board. I have always strictly followed the wishes of the Board in this matter and done my utmost to ensure that the Federation's interests were protected and its rules respected.

I trust that this lays this particular myth to rest. Whilst it is easy for people to come onto this forum making statements questioning my integrity or competence (or both), I hope that people will understand the impact that such statements have. I do not have the luxury of being free to jump to conclusions or make accusations based on a partial picture, and I try to take care in every instance to be strictly accurate in any statement that I make.

A statement will be made shortly setting out the facts of the timeline relating to the initiation of the CAS action.

[David Gilbert]

Whilst it is easy for people to come onto this forum making statements questioning my integrity or competence (or both), I hope that people will understand the impact that such statements have. I do not have the luxury of being free to jump to conclusions or make accusations based on a partial picture, and I try to take care in every instance to be strictly accurate in any statement that I make.

Hear, hear.

[IM Jack Rudd]

Fair enough. If the Chair of the Governance Committee is satisfied, I'm less unhappy with this than I was.

(I would also like to make it clear that I was not intending to attack anyone's integrity - whether or not the vote was legally taken, I believe that everyone involved was voting in good faith.)

[Roger de Coverly]

The ECF Board met on 26 Feb 2011, at which time it first discussed the CAS legal action.

I'm aware that the decision to become a signatory to a protest letter along with the ECU President and around a dozen other federations was taken and publicly documented back in October 2010. FIDE rejected this protest in January according to the CAS timeline.

The actions which led to the appeal to CAS, namely the decision by the ECF and Georgia to launch a dual protest to the FIDE Board started in January. Was this ever discussed by the Board as a whole?

I don't think CAS will accept jurisdiction until internal channels had been exhausted, so it was the refusal of FIDE to consider both the original letter and the Georgia/ECF follow up which created the opportunity for the CAS action. The other unknown is when White & Case came into the picture.

[Alex McFarlane]

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.

[Andrew Farthing]

The ECF Board met on 26 Feb 2011, at which time it first discussed the CAS legal action.

I'm aware that the decision to become a signatory to a protest letter along with the ECU President and around a dozen other federations was taken and publicly documented back in October 2010. FIDE rejected this protest in January according to the CAS timeline.

The actions which led to the appeal to CAS, namely the decision by the ECF and Georgia to launch a dual protest to the FIDE Board started in January. Was this ever discussed by the Board as a whole?

I don't think CAS will accept jurisdiction until internal channels had been exhausted, so it was the refusal of FIDE to consider both the original letter and the Georgia/ECF follow up which created the opportunity for the CAS action. The other unknown is when White & Case came into the picture.

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

Just for the avoidance of any doubt, in the sentence quoted by Roger above, I was referring to the Board's discussion of the Statement of Appeal dated 24 Feb. 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.

[Roger de Coverly]

Contrary to what has been alleged, Article 68 was not breached.

68. A resolution in writing, passed in accordance with this Article, shall be as valid and effectual as if it had been passed at a meeting of the Board duly convened and held. Notice of such a proposed written resolution shall be sent in hard copy form or in electronic form to all Directors for the time being entitled to receive notice of a meeting of the Board. A Director signifies his assent to a proposed written resolution by sending to the address specified in the notice a document indicating the written resolution to which it relates and indicating his agreement to the resolution. The document can be sent in hard copy form or electronic form. A written resolution is passed when a majority of the total number of current directors have signified their agreement to it.