Reconsideration Request 14-10, dot Sport Limited

Brief Summary

SportAccord filed a Community Objection against Dot Sport Limited's (the "Requester") application for .SPORTS and prevailed. The Requester then filed Request 13-16, suggesting that, among other reasons, the Expert Panel ("Expert" or "Panel") allegedly violated established policy or process by failing to disclose material information relevant to his appointment. On 8 January 2014, the BGC denied Request 13-16, finding, among other things, that the Requester had provided no evidence demonstrating that the Expert had failed to follow the applicable ICC procedures for independence and impartiality.

The Requester, in this second Reconsideration Request for the same matter, now claims that on 25 March 2014, it discovered additional evidence that the Expert had a conflict of interest. Specifically, the Requester claims that it recently discovered that the Expert now has, and previously has had, financial and professional relationships with an entity that is "related" to SportAccord. The Requester claims the Expert should have but did not disclose those relationships in the objection proceeding.

The Requester's claims are unsupported. First, the Request is untimely. Request 14-10 challenges Board and staff actions that occurred on or prior to 13 January 2014, yet was received on 2 April 2014, well past the 15-day deadline to file a reconsideration request. While the Requester claims that this second Reconsideration Request is appropriate because the Requester only recently discovered the Expert's alleged conflict of interest, as is discussed below, the Requester's a claim does not justify an untimely reconsideration request. Second, the allegedly newly discovered information relating to a purported conflict of interest does not support reconsideration. Therefore, the BGC has recommended that Reconsideration Request 14-10 be denied. The NGPC agrees.

Facts

Relevant Background Facts

Both dot Sport Limited (the "Requester") and SportAccord applied for .SPORTS and are in the same contention set.

On 13 March 2013, SportAccord filed a Community Objection ("Objection") to the Requester's application, asserting that there was "substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted." (Applicant Guidebook ("Guidebook"), § 3.2.1; New gTLD Dispute Resolution Procedure ("Procedure"), Art. 2e.)

On 29 July 2013, the ICC appointed Dr. Guido Santiago Tawil as the expert ("Expert" or "Panel") to consider SportAccord's Objection. On 23 October 2013, the Panel rendered an Expert Determination in favor of SportAccord ("Expert Determination")1.

On 8 November 2013, the Requester filed Request 13-162, seeking reconsideration of the Expert Determination, claiming that the Panel applied the wrong standard in contravention of established ICANN policy or process and the Expert failed to disclose material information relevant to his appointment in violation of established policy or process. On 8 January 2014, the Board Governance Committee ("BGC") denied Request 13-163.

On 25 March 2014, the Requester purportedly discovered additional facts regarding an alleged commercial relationship between the Expert and the International Olympic Committee ("IOC"), an entity that the Requester contends "effectively control[s]" SportAccord.4 (Request, § 8, Pg. 5.) Specifically, the Requester claims that it discovered that: (i) one of the Expert's clients, DirecTV, acquired broadcasting rights for the Olympics from the IOC on 7 February 2014 (but only after the Expert Determination and the BGC's Determination on Request 13-16 were issued); and (ii) a partner in the Expert's law firm is the president of Torneos y Competencias S.A. ("TyC"), a company which has a history of securing Olympic broadcasting rights and of which DirecTV Latin America is the principal shareholder.5 The Requester forwarded that information to the Ombudsman, with whom it had filed a complaint.

On 31 March 2014, the Ombudsman issued a draft report on the Requester's complaint, which was later withdrawn pending consultation with other relevant parties.

On 2 April 2014, the Requester filed Request 14-106, seeking reconsideration of: (i) the denial of Request 13-16; (ii) the Expert Determination and ICANN's acceptance of it; and (iii) the ICC's appointment of the Expert.7

Recognizing that pursuant to Article V, Section 2 of the ICANN Bylaws, a complaint lodged with the Ombudsman cannot concurrently be pursued while another accountability mechanism on the same issue is ongoing, the Ombudsman advised ICANN that he sought confirmation from the Requester as to whether it was aware of these Bylaws parameters and asked how the Requester wished to proceed. ICANN was advised on or about 13 May 2014 that the Requester confirmed that it was fully aware of these Bylaws provisions and that it would like to pursue this Reconsideration Request rather than the Ombudsman's request.

Requester's Claims

The Requester makes three claims. First, the Requester claims that the BGC failed to consider material information in rejecting Request 13-16, namely the allegedly newly-discovered information regarding the Expert's alleged conflict of interest. Second, the Requester claims the Expert violated ICANN policy and process by failing to reveal his alleged conflict of interest. Third, the Requester claims that the ICC violated ICANN policy and process in appointing the Expert.

Issues

The issues for reconsideration are as follows:
Whether the Board failed to consider material information in rejecting Reconsideration Request 13-16, namely the allegedly newly-discovered information regarding the Expert's alleged conflict of interest;
Whether the Expert violated any ICANN policy and process by failing to disclose his alleged conflict of interest; and
Whether the ICC violated any ICANN policy and process in appointing the Expert.

The Relevant Standards for Evaluating Reconsideration Requests

ICANN's Bylaws call for the BGC to evaluate and make recommendations to the Board with respect to Reconsideration Requests. See Article IV, Section 2 of the Bylaws. The NGPC, bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the BGC Recommendation on Request 14-10 and finds the analysis sound.8

Analysis and Rationale

The Request is Untimely.

The BGC concluded, and the NGPC agrees, that Reconsideration Request 14-10 is untimely and does not support reconsideration. Reconsideration requests must be submitted within 15 days of either "the date on which information about the challenged Board action is first published in a resolution [including rationale]" or "the date on which the party submitting the request became aware of, or reasonably should have become aware of, the challenged staff action." (Bylaws, Art. IV, § 2.5.) The Requester seeks reconsideration of: (i) the appointment of the Expert, which occurred on 29 July 2013; (ii) the Expert Determination, which was issued on 23 October 2013; and (iii) the BGC's determination on Reconsideration Request 13-16, which was issued on 8 January 2014 and posted on 13 January 2014.

Reconsideration Request 14-109, however, was received on 2 April 2014, which is: (i) over six months after the Expert was appointed; (ii) nearly six months following the issuance of the Expert Determination; and (iii) nearly three months following the BGC's determination on Request 13-16.

The Requester claims that on 25 March 2014 it discovered new evidence that: (i) one of the Expert's clients, DirecTV, acquired broadcasting rights for the Olympics on 7 February 2014, following the issuance of the Expert Determination ("DirecTV Contract"); and (ii) a partner in the Expert's law firm is the president of TyC, a company which has a history of securing Olympics broadcasting rights and of which DirecTV Latin America is the principal shareholder ("TyC Relationship"). In sum, the Requester suggests that an alleged connection between the Expert (or his law firm) and DirecTV, a "recipient of IOC broadcasting rights," creates a conflict of interest because SportAccord and the IOC enjoy a "close collaborative relationship." (Request, § 8, Pg. 5-8.)

Based upon this belated discovery of new evidence, the Requester claims the 15-day deadline for reconsideration requests should be tolled. (Request, § 5, Pg. 2.) The Requester, however, does not explain how it suddenly became aware of this information on 25 March 2014, or explain why it could not reasonably have become aware of the information at an earlier date.

The only recent event that the Requester claims creates an alleged conflict of interest is the DirecTV Contract, but that contract was signed on 7 February 2014, almost two months prior to the filing of the instant Request (and nearly five months after the Expert issued the Determination). The Requester's only other evidence for an alleged conflict is the TyC Relationship, a business relationship that appears to be decades old. In addition, all of the Requester's evidence regarding the DirecTV Contract and the TyC Relationship is based on publicly available information from Internet sites such as Wikipedia, Chambers and Partners, and a public sports website, which could have been discovered long prior to 25 March 2014.

Because the Requester could have become aware of the alleged conflicts earlier, the Requester's belated discovery of publicly available information does not justify tolling the 15-day time limit. (Bylaws, Art. IV, § 2.5; see also, id. at Art. IV, § 2.2 (reconsideration based on alleged failure to consider material information is inappropriate where the requester could have submitted, but did not submit, the information for the Board's consideration).)

The "Newly-Discovered" Evidence Does Not Support Reconsideration.

The Requester cites to two pieces of "newly-discovered" evidence that allegedly establish the Expert's conflict of interest: (1) the DirecTV Contract; and (2) the TyC Relationship. Separate and apart from the timeliness issue, the BGC concluded, and the NGPC agrees, that the "newly-discovered" evidence of an alleged conflict of interest does not support reconsideration10

The DirecTV Contract is Not Evidence of a Conflict of Interest Sufficient to Support Reconsideration.

In support of its claim that there is a "direct commercial relationship" between the IOC and the Expert, the Requester relies on the 7 February 2014 DirecTV Contract, stating that: " just 3 months after [the Expert's Determination on the SportAccord Objection,] Direct TV[, one of the Expert's clients,] secured a highly lucrative and sought after broadcasting rights deal covering Latin America for the 2014 winter Olympic Games in Sochi, Russia and the 2016 summer Olympic Games in Rio de Janeiro, Brazil." (Request, § 8, Pg. 7.) The Requester concedes that the purported "direct commercial relationship" arose more than three months after the Expert Determination, and does not even attempt to establish that the belated 7 February 2014 DirecTV Contract somehow affected the Expert's 23 October 2013 Determination.

Likewise, the BGC could not have considered this information on 8 January 2014, when it rendered its determination on Request 13-16, because the DirecTV Contract had not yet been executed.

As a result, the Requester has failed to demonstrate that the Expert or the ICC violated established policies or procedures or that the BGC failed to consider material information. Therefore, reconsideration is not appropriate. (Bylaws, Art. IV, § 2.)

The TyC Relationship Does Not Support Reconsideration.

The Requester also alleges a "newly discovered" conflict of interest based on the TyC Relationship. (Request, § 8, Pgs. 7-8.) Specifically, the Requester claims that DirecTV Latin America is the principal shareholder of TyC, another sports broadcasting firm in the Latin American region. (Id., § 8, Pg. 7.) The Requester states that TyC is "a major client of M&M Bomchil law firm," where the Expert is a partner. (Id.) The Requester further states that the President of TyC is also a Senior Partner in M&M Bomchil and "is therefore a business partner of [the Expert]." (Id.) The Requester alleges a conflict of interest based on its claim that TyC "has a longstanding business relationship with IOC having secured broadcasting rights on 5 consecutive occasions since the Atlanta Games in 1996," and that TyC "most recently won the Argentinean television rights for the Vancouver 2010 Winter Olympics and London 2012 Olympic Games." (Id. at § 8, Pg. 8 (emphasis added).) In this regard, the Requester claims that the Expert should have disclosed the TyC Relationship and, having failed to do so, has violated ICANN policy and process.

Section 3.4.4 of the Guidebook governs the selection of expert panels for purposes of the objection procedures at issue here. Section 3.4.4 provides that the ICC will "follow its adopted procedures for requiring such independence, including procedures for challenging and replacing an expert for lack of independence." (Guidebook, Section 3.4.4.) The ICC Rules of Expertise would therefore govern any challenges to the independence of experts appointed to evaluate community objections. Requester provides no evidence demonstrating that the Expert failed to follow the applicable ICC procedures for independence and impartiality prior to his appointment or that the ICC failed to require the Expert to do so. As the BGC noted in its determination on Request 13-16, the Expert submitted to the ICC, and to the parties, his curriculum vitae, as well as his Declaration of Acceptance and Availability and Statement of Impartiality and Independence in accordance with the ICC Rules of Expertise. (13-16 Determination at Pgs. 12-13.) As such, reconsideration is not appropriate with respect to the Expert's disclosure.

Reconsideration is also unwarranted with respect to the BGC's failure to consider the TyC Relationship in its determination on Request 13-16. Reconsideration is appropriate for "actions or inactions of the ICANN Board that have been taken or refused to be taken without consideration of material information, except where the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of the action or refusal to act." (Bylaws, Art. IV, § 2.2(b)) (emphasis added). As discussed above, the TyC Relationship appears to be decades-old, and the Requester gives no explanation for why it did not submit, or could not have submitted, the information regarding the relationship to the BGC at the time the BGC considered Request 13-16.

The Requester's failure to submit the evidence for the BGC's consideration with Request 13-16 does not constitute a failure on the part of the BGC to consider material evidence and does not constitute a basis for reconsideration of Request 13-16.

Decision

The NGPC had the opportunity to consider all of the materials submitted by or on behalf of the Requester or that otherwise relate to Request 14-10. Following consideration of all relevant information provided, the NGPC reviewed and has adopted the BGC's Recommendation on Request 14-10, which shall be deemed a part of this Rationale. The full text of Recommendation can be found at https://www.icann.org/en/system/files/files/recommendation-sport-21jun14... [PDF, 147 KB] and is attached to the Reference Materials to the NGPC Submission on this matter.

In terms of timing of the BGC's Recommendation, Section 2.16 of Article IV of the Bylaws provides that the BGC shall make a final determination or recommendation to the Board [or NGPC as appropriate] with respect to a Reconsideration Request within thirty days following receipt of the request, unless impractical. See Article IV, Section 2.16 of the Bylaws. To satisfy the thirty-day deadline, the BGC would have to have acted by 2 May 2014. Due to the Requester's invocation of multiple accountability mechanisms on parallels tracks, including the complaint the Requester lodged with the Ombudsman and the instant Reconsideration Request, additional time was required for the Ombudsman to confer with the Requester and to clarify which accountability mechanism the Requester intended to pursue, delaying the BGC's consideration of this matter. Moreover, due to the volume of Reconsideration Requests received within recent months, the first practical opportunity for the BGC to make a decision on this Request was on 21 June 2014; it was impractical for the BGC to do so sooner. Accordingly, the NGPC meeting on 18 July 2014, was the first NGPC meeting that has been scheduled following the BGC's action on Request 14-10 with sufficient time to evaluate and consider the BGC's Recommendation.

Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function that does not require public comment.