Why the IIHF Faulted in the Jason Holland Case
I have found time to write a more detailed account of why the IIHF Directorate Council made a serious mistake in the Jason Holland case. Since you cannot find such an account on the internet, and we are dealing with a very serious matter, I believe this account deserves a clean highlighted thread.
It is my hope that most of you will now be able to see that the Jason Holland case was a relatively clean cut case in which the exceptionality clause did not apply.
Before we go on, if anyone feel tempted to copy-paste it and publish it in their own name, it should be pointed out that this article is copyrighted, Any interested parties are of course allowed to quote and give reference to the article, which will more officially be published on the IHF's news site which will be implemented during this Summer.
IHF as a rule-based organization
First, it is very important to emphasize that IIHF officially is an international organization governed by the rule of law, and not by economic or political power or personal ties by the people who represent the organization. The rule of law is supposed to ensure fairness, predictability, consistency, efficiency, transparency and accountability
• Fairness means that no member receives favourable treatment in the application of IIHF's rules.
• Predictability means the the IIHF's stakesholders (its members, the media, international hockey fans, and others) can expect the IIHF to act or decide in a specific manner when certain circumstances apply.
• Consistency that the IIHF's stakeholders can expect the IIHF to decide in a similar matter when similar circumstances apply.
• Efficiency means that the IIHF is governed by principles aimed to ensure that the policymaking and decisions are not too resource (time and money) consuming.
• Transparency means that the governance of the IIHF remains visible and clear for the organization's stakeholders (first and foremost its members) so they know what exactly is going on.
• Accountability means that the elected people and organizational bodies that govern the IIHF can be held responsible for their actions and specific mechanisms for appeal exist.
Most of these principles are specifically laid down in the very pre-amble of the IIHF's Statutes and Bylaws that govern the organization:
"The International Ice Hockey Federation is dedicated to the worldwide growth and development of ice hockey and In-line hockey, providing exemplary leadership and governance by diligently observing the principles of democracy, fairness, solidarity and transparency for its member national associations.
The International Ice Hockey Federation achieves this by establishing in writing a governance structure with defined roles where accountability and responsibilities are clearly documented
The procedures for holding democratic elections and for all appointments to office are provided in written form with continuous communication between member national associations and the governing body and its officers on elections, appointments, goals, initiatives, the resolution of differences and all other matters in a fair, transparent, accessible and efficient manners."
IIHF's Statutes are specific rules agreed upon by the IIHF's members; bylaws are amendments to these rules. In short, the Rules and Bylaws are so to speak the very constitutional Treaty of the IIHF; it aims to prevent unfairness, unpredictability, inconsistency and so on in the governance of the IIHF.
The IIHF makes it crystal clear that the conduct of all affairs must be in accordance with the organization's Statutes and Bylaws, and regulations. This is stated in Statutes and Bylaws themselves, and in the public presentation of the organization on the IIHF's webpage:
Rules and Bylaws §3: "The IIHF will take all necessary measures to...conduct the affairs according to its Statutes, Bylaws and Regulations;"
Webpage: see "IIHF Mission Statement" and here
"The General Congress is the IIHF's highest legislative body and makes decisions about the rules of the game, the statutes and bylaws. The General Congress elects the president and the council (board). The IIHF President is elected by the General Congress and chairs all congresses and council meetings. The council is the IIHF's highest executive body. The president represents the interests of the IIHF in all external matters and is responsible that all decisions are made in accordance with the federation's statutes, bylaws and regulations".
Officially, the IIHF is thus a rule-based organization, implying that all decisions must be accordance with the organization's Rules and Bylaws. These Rules and Bylaws are legally binding.
It is also interesting to note that the IIHF repeatedly points this out on its webpage. The webpage is the public face of the IIHF and the repeated references to the Rules and Bylaws serves to emphasize that the public - the fans, media and IIHF's sponsors - can trust that the IIHF is a democratic international organization and the principles of fairness, predictability, consistency and so on are followed.
As I have noted elsewhere it is crucial that the IIHF enjoys credibility in the eyes of its stakeholders. If the IIHF squanders with the principles of rule of law (i.e. if some members receive favourable treatment by the referees or the Directorate Council in the IIHF's tournaments), the growth of international hockey - the most important objective in the IIHF's mission statement - may be damaged for years as member federations, the media and the fans cease to be interested in the tournaments the IIHF organizes or the IIHF as a whole.
Unfortunately, this description does not fit how IIHF is actually governed. Even though the detailed story remains to be told, it is no secret that economic and political power and personal ties have often resided over law in the IIHF. This goes back to the early dawn of IIHF (or LIGH as it was called at the time). In fact, Louis Magnus, left his presidency because of the creeping politicization of the organization he had founded.
The IIHF's inconsistent handling of sanctions imposed on teams with ineligible players and the random changes of tournament rules (even in the midst of the tournament) are nothing new and too countless to mention here. Sufficient to say, if there is any consistency and predictability in the IIHF's conduct of these affairs the pattern is to be found in the organization's favourable treatment of its most powerful members and in personal friendship and animosities between the various members of the IIHF's... - rather than in the Statutes and Bylaws as the IIHF claims.
On this background, one can only wonder why the IIHf still seems to enjoy a high degree of credibility in the media and among the fans. Whether the IIHF also enjoys a high degree of credibility among its member federations is another matter as less powerful members are often bought off (for instance by grants and the right to host IIHF tournaments) while others simply seems to have resigned. The IIHF does not differ from many other international organizations in this regard.
One important reason that the IIHF remains a very non-transparent organization for the general public. Most international hockey fans do not have a clue of what goes on behind the closed doors, and it doesn't help that the media do not seem to bother.
The exact story of what went on behind the closed doors of the IIHF Directorate last Wednesday also remains to be told. Even though this story is interesting as it will cast further light on the politics of the IIHF, we do not need to know what was said by whom; We only need to be concerned with the Directorate's decision and whether it is in accordance with the IIHF's Rules and Bylaws.
As the following analysis will show, there is little doubt that the Directorate violated the rules by deciding not to forfeit the games played by Germany in the preliminary round of the 2008 IIHF World Championship.
THE JASON HOLLAND CASE
The case in itself is widely known among IHF's members, and there is no need to go into detail. In short, Jason Holland, whose grandfather was born in Germany, grew up in Alberta, Canada. As a Canadian citizen and hockey player, Jason Holland played for the gold-winning Canadian team at the 1996 IIHF World Junior Championship. Jason Holland, a defenseman, who was drafted by the New York Islanders in the 1994 NHL Entry Draft (2 round, #38 overall) went on to play for various NHL teams before moving the the German Elite League (DEL) in 2005-06. In 2008, after having played in DEL for three years, Jason Holland was selected to the German team at the 2008 IIHF World Championship. At the World Championship, Jason Holland played two games in the preliminary round (adding one assist), before it was revealed that he was ineligible under IIHF eligibility rules. The still unconfirmed story is that it was Norway's captain, Tommy Jakobsen who detected the mistake after having looked up Jason Holland's player stats on the internet. According to this story, Tommy Jakobsen didn't keep his mouth sealed outside the Norwegian team. He even revealed that Norway would protest before the IIHF Directorate Council if Norway lost to Germany (a game that was to be played later that day). A German journalist who had snapped up the story immediately informed Franz Reindl, the chairman of the German hockey federation, about the Norwegians plans. Reindl then admitted that he had made a mistake, believing that Holland was eligible under the IIHFs 2-year rule, and probably contacted Rene Fasel to prompt a quick meeting in the Directorate Council to settle the issue.
As there was no doubt that Jason Holland was ineligible under the 4-year rule, applying to players who have played for another nation (as Holland did in 1996), the Directorate only had to decide on which sanctions should be imposed on the German team.
Citing IIHF Statute 204, the Council decided that Jason Holland be suspended, but the German team would not forfeit any of its previous results at the championship. The reason given for not awarding a 5-0 score was that "it would unfairly impact the other participating teams at the championship in future rounds". Statute 204's paragraph on exceptional circumstances was cited as the legal basis for this decision.
According to various sources (among others, the president of the Norwegian federation, Ole-Jakob Libæk), the decision was splitted as 6 members of the Council voted for and 3 (Canada, Norway and Slovakia) voted against.
ON THE LEGAL BASIS FOR THE COUNCIL'S DECISION
The use of ineligible players is potentially a very explosive issue. In order to avoid conflicts during (or after) IIHF tournaments, IIHF's eligibility rules are very detailed. Here we will only be concerned with the rules governing the sanctions that will be imposed on teams using ineligible players (since the ineligibility of Jason Holland is not an issue). Also, we should not be concerned with whom is responsible for clearing Jason Holland for play in the IHWC. The IIHF's Rules and Bylaws also includes rules for this, but these rules have no importance for the sanctions imposed on teams using ineligible players.
These sanction rules are covered by §204 pg.2, section a-c in the Statutes and Bylaws. Section b) and c) specify what sanctions should be imposed if the ineligibility of a player is detected after the world championship.
Though this was not the case, section b) and c) are still interesting as they shed light on what would have happened if Jason Holland was detected ineligible until after the 2008 World Championship (or Norway had waited bringing the case before the IIHF until after the championship in Canada).
Section b) says:
"If the ineligibility is proved after the championship and before the following Semi- Annual Congress, the team with the ineligible player shall be disqualified"
In other words, Germany would immediately be relegated to Division 1, and the team that ended up #15 in the 2008 IHWC would probably have replaced Germany. Note that there are no ifs and buts, the rule is clean cut and there is no room for discretion.
Section c) says:
"If the ineligibility is proved after the next championship, the team with the ineligible player shall be deleted from the relevant championship rankings and its results"
Depending on the teams ranking in the 2008 IHWC, and its world ranking points relative to the Division 1 teams, this sanction opens the possibility that the team may be relegated all the way down to Division 2. Again there are no ifs and buts. The penalty is automatic.
The sanctions that shall be imposed if a player is detected ineligible after a championship are thus extremely severe.
We not turn to section a) which specify the sanctions that should be imposed if a player is detected ineligible during the World Championship, as in Jason Holland's case.
"If the ineligibility of one or more players is proved during a championship then the games played by the team with an ineligible player shall be forfeited and the ineligible player dismissed from the tournament.
In exceptional circumstances, the Council may vary the application of this clause in the best interests of the competition applying the principle that the team at fault should not take benefit of any ranking and with the objective not to disadvantage, even indirectly, other teams taking part in the competition. Any decision taken by the Directorate in this respect shall not be regarded as a precedent"
The normal rule that the Council shall follow is to suspend the ineligible player and forfeit the games played by the team with the ineligible player. This rule is consistent with section b) and c).
However, the IIHF's Statutes also points to exceptional circumstances where this rule may be deviated. Note that §204 pg. 1. section includes a more loosely formulated exceptional clause, according to which "exceptional circumstances can be decided by the Council". However, the use of this clause cannot replace §204 pg 2. section a which is specific describing the circumstances under which the forfeit rule may be deviated (judically, §204, 2a) is lex specialis to §204, 1h), meaning that the use of §204, 1h) cannot replace §204, 2a)).
Since forfeit is the general rule that must be applied in nearly all cases, the clause specifying the circumstances where the forfeit rule may be deviated is extremely detailed. A closer look on the clause reveals that the following principles must be observed:
1) The circumstances must be exceptional, implying that the clause can only be used in rare cases
2) The team at fault (read: Germany) should not take benefit of any ranking by a decision not to forfeit
3) Other teams must not be disadvantaged, even indirectly, by a decision to forfeit the games played by the team at fault
4) The use of the clause cannot be regarded as a precedent for future cases
The latter principle implies that the Ulf Samuelsson case of 1998 have no implications for the Jason Holland case.
WHY THE IIHF FAULTED IN THE JASON HOLLAND CASE
Before he was detected ineligible, Jason Holland played 2 games during the 2008 World Championship. In the first game, Germany lost 1:5 to Finland; in the second, Germany beat Slovakia 4-2 (in the latter game, J, Holland made an assist on the goal that gave Germany a 2:0 lead).
Germany's victory over Slovakia has direct relevance for the use of the exceptional clause. What would be the consequences for the ranking if IIHFs Directorate Council decided to forfeit or not to forfeit Germany's victory over Slovakia?
When the IIHF Directorate Council's meeting took place, the standings in Group C looked like this:
1. Finland 5 points
2. Germany 3 points
3. Slovakia 3 points
4. Norway 1 point
If Germany's victory over Slovakia was forfeited 5-0, the standings would change:
1. Slovakia 6 points
2. Finland 5 points
3. Norway 1 point
4. Germany 0 point
In this case, Slovakia and Finland would have been through to the Qualifying Round, and Germany and Norway would battle it out for the last spot later that evening when the Council made its decision.
Looking at the issue, the Council had two options: 1) either to look at the implications for the standings that Germany beat Slovakia with an ineligible player or 2) to second-guess about the results of future rounds, including the last games in the preliminary round.
Rather than second-guessing about the results of future rounds, one would have expected that the Council had chosen the more transparent option 1. In this case there is no doubt that Germany would benefit at the expense of Slovakia if the Germany's victory over Slovakia was not forfeited.
Nevertheless, the Council decided to choose the other route, second-guessing about the results of future round, an option that would made the principles underpinning the decision far less transparent, thus violating an important decision-making principle of the IIHF.
But, noting that Germany played Norway, and Finland played Slovakia in the last round of Group C, let us look at the various scenarios. The outcome of Germany vs Norway is especially important:
Scenario A: Germany beats Norway, Finland beats Slovakia or Slovakia beats Finland
In this case, Germany would go the Qualifying Round (QR) at the expense of Norway, regardless of whether Germanys victory over Slovakia was forfeited or not. However, if the Council decided not to forfeit Germany's victory, Germany would have benefitted at the expense of Slovakia in the QR Standings (if Finland beat Slovakia, Finland would have transferred 6 points to the QR, Germany 3 and Slovakia 0.
If Slovakia beat Finland, the situation in the QR had become more interesting as the three teams would have transferred 3 points to the QR if no forfeit, while Slovakia would have transferred 6 points, Finland 3, and Germany 0 if forfeit.
If forfeited, Slovakia would have gained at the expense of Finland. If not forfeited, Germany would have gained at the expense of Slovakia.
On the face of it, we thus see a clash between 2 principles in the use of the exceptional clause, namely that b) the team at fault should not take benefit of any ranking and c) Other teams must not be disadvantaged, even indirectly, by a decision to not to forfeit the games played by the team at fault.
However, in the way the exceptional clause is formulated, there is no doubt that all 4 conditions specified above must be observed. Since Germany would gain at the expense of Slovakia, the Council was not allowed to decide not to forfeit Germanys victory over Slovakia, under the IIHF's Statutes and Principles. If the Council misinterpreted the rules, believing it had the right to select among the restrictions, it would still error, as it would attach more weight to principle c) than the more fundamental principle b). This is exactly what the Council did. The council chose to completely ignore the fundamental principle that the team at fault must not take benefit for a non-forfeit, focusing instead on the less important restriction laid down in c).
The question is whether we can construct a scenario where the Council did not make a wrong decision? Let us take a look at the other possible scenarios:
Scenario B: Norway beats Germany; Finland beats Slovakia
The final ranking if no-forfeit would look like this:
1. FIN 8
2. NOR 4
3. GER 3
4. SLO 3
Since Germany benefits at the expense of Slovakia, the exceptional clause cannot be used. The same applies if Norway beat Germany in OT.
Scenario C: Norway beat Germany. Slovakia beat Finland
The final ranking if no-forfeit would look like this:
1. Slovakia 6
2. Finland 5
3. Norway 4
4. Germany 3
The points transferred to the QR would look like this: Slovakia 3, Finland 2, Germany 1
If forfeited, the final rankings would like this:
1. Slovakia 9
2. Finland 5
3. Norway 4
4. Germany 0
The points transferred to the QR would look like this: 1. Slovakia 6, 2. Finland 3, Norway 1
In scenario C, it is important to take note of two things:
1) Germany would go to the relegation round, regardless of whether Germany's victory over Slovakia was forfeited or not. The application of restriction b) in the exceptional clause therefore has no relevance (implying there would be no need to look at the exceptional clause)
2) Germany's games against its opponents in Group C would not count in the Qualifying Round, implying that the Council cannot refer to the principles laid down in restriction c) in the exceptional clause (implying once again that there would be no need to look at the exceptional clause).
In conclusion, given the previous results in Group C, it is impossible to imagine a scenario where the exceptional clause could be used. What is more, the Council's argument that "The reason given for not awarding a 5-0 score was that "it would unfairly impact the other participating teams at the championship in future rounds" is logically wrong. Having looked carefully at all imaginable outcomes of the last round in Group C, it is impossible to imagine a scenario where a forfeit would unfairly impact the other participating teams.
The IIHF's Directorate Councils decision not to forfeit Germany's victory over Slovakia was thus not only legally wrong (i.e. not in accordance with IIHF's Statutes and Bylaws), the argument on which Council based its decision was also logically wrong.
If the Council's decision cannot be considered to be based on the IIHF's Statutes and Bylaws, it is tempting to conclude that it was based only on the economic importance of Germany in IIHF affairs and/or personal ties (friendship and amenosities) within the IIHF's Directorate Council. The fact that Germany is economically very important for the IIHF and the rumors that the president of the IIHF has very friendly and personal ties to the German hockey federation and less than friendly ties to a number of other federations (including the Slovak federation) lends support to this interpretation. However, as long as high ranking officials of the various federations do not speak up in public, rather than off-the-record, it cannot objectively be verified whether these rumours are true or false. The true story of the politics of the IIHF thus remains to be told.