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Corruption in FIFA

About The Author

Joseph Switalski (Guest Contributor)

Joe graduated from Durham University in 2013 with a 2:1 in Law, and subsequently undertook the Bar Professional Training Course at Nottingham Trent Law School. Joe is to start his pupillage with a leading London family law set in 2015. Outside of the profession, he endures the bittersweet existence of supporting both Leeds United and Arsenal.

FIFA’s synonymy with corruption hit new depths in December 2014 with the resignation of Michael Garcia, the Chairman of the Investigatory Chamber of the FIFA Ethics Committee. Putting aside the pseudo-political jargon that FIFA attaches to its various positions and committees, the reason this situation is so damaging is simple to comprehend. Mr Garcia was the man tasked with investigating whether or not FIFA’s own regulations were violated by those involved in the bidding for and awarding of the 2018 and 2022 World Cups. Upon completion of his 430-page report, it was passed on to the Chairman of the Adjudicatory Chamber of the FIFA Ethics Committee, Judge Hans-Joachim Eckert. Judge Eckert deemed that the report could be condensed down into his own 42-page summary for public dissemination; the nub of the summary was that any breaches of FIFA’s Code of Ethics ‘did not, all in all, compromise the integrity of the bidding process as a whole’ (this phrase was repeated ad nauseum in the summary).

Mr Garcia appealed against the decision to only produce a summary of his report, arguing that the 'edits, omissions and additions' found in Judge Eckert’s work resulted in a misrepresentation of his report’s content and overall message. That appeal was turned down on procedural grounds as the summary constituted an opinion rather than a judgment. Sensing that his reputation stood to be tarnished due to the passivity of the Eckert summary, Mr Garcia felt he had no option but to resign. That decision came in spite of the fact that he had expressed a belief that ethical processes within FIFA were showing signs of improvement under his tenure. Put bluntly, Mr Garcia’s resignation was a clear demonstration to onlookers attempting to peer through FIFA’s opaque governance that he could not tolerate the asymmetry between his own unpublished report and the Eckert summary. This was a clear case of the janitor washing his hands of the mess he had been tasked with cleaning up.

In December 2014, at a meeting of FIFA’s Executive Committee, in an attempt to appease the avalanche of criticism provoked by Mr Garcia’s resignation, FIFA agreed to produce a redacted version of his full report. Conveniently, this report is unlikely to meet the glare of public scrutiny until after FIFA’s perennially under-fire President, Sepp Blatter, has stood for re-election at the FIFA Congress held in late May 2015. From a legal perspective, Mr Garcia’s original report will require due diligence in order to ensure that the pre-agreed anonymity arrangements with his contributors will be respected. Additionally, FIFA’s decision to publish is contingent on investigations into those accused of Ethics Code violations having been concluded. Whilst this may appear a victory for due process, it does have the predictable consequence that any alleged wrongdoing by Blatter will remain concealed until after the presidential elections for 2015 are closed. Given Mr Garcia was willing to resign in the wake of Eckert’s summary, commentators can be forgiven for wondering whether there are allegations which are yet to see the light of day.

The uncomfortable truth is that Sepp Blatter is largely supported by smaller federations because of the dividends they have received from the sponsorship boom of recent World Cups. He has been able to take huge sums, in reality generated by the appeal of stars plying their trade in European club competition, and redistribute them amongst countries whose commercial potential is limited. Honourable as this may seem, much of the criticism aimed at Blatter has come from an assertion that he has monopolised support from marginal countries through treatment that grossly overcompensates their commercial input. The closest Blatter has come to being directly complicit in corruption came in the form of an Ethics Committee report which disgraced the conduct of his predecessor as President, Joao Havelange, during the 1990s. That report characterised Blatter as ‘clumsy’ rather than ‘criminal’, asking the question whether or not he ought to have known of the bribery during that period. As Grant Wahl notes, in the 2011 election, Blatter was proposed by the Somalian FA, the world’s most corrupt country according to Transparency International. Whilst it would be slanderous to outright accuse Blatter of corruption, it is a fact that his reign as President has seen multiple resignations and life bans relating to corruption of FIFA members. His sluggish attitude to reform has been of benefit to nations where corruption is more commonplace. The overlap between commercial growth of the world game and Blatter’s tenure as President means he is a virtual certainty to win the 2015 election. Blatter can dismiss racism with a handshake, suggest female footballers should wear tighter kits and encourage homosexuals to refrain from public displays of affection; these indications of a man who is entirely out of touch with the modern game will not prevent his re-election.

Despite the apparent deficiency of the Eckert summary, based on the fact that Mr Garcia has in essence disowned it, it allows us some insight into how the World Cup was awarded. What follows is an analysis of the legal processes used by FIFA to orchestrate the bidding process and its subsequent investigation.

The Twin Chamber Arrangement

There is nothing inherently problematic about FIFA’s use of an investigatory chamber and an adjudicative chamber in order to resolve disputes. Many large companies and public bodies of such a scale use similar arrangements. What is striking about the fallout from the World Cup investigation however, is the lack of cohesion between these two bodies. One would expect each to respect the function of the other, leading to a result in which the work carried out by either body retained its own integrity and could be scrutinised in isolation. Rather, in FIFA’s case, Mr Garcia undertook his investigation having already agreed that upon its conclusion, it fell to the adjudicatory chamber to decide how to evaluate and, crucially, report his findings. The decision to suppress Mr Garcia’s report and produce only a summary was one that the adjudicatory chamber was entitled to take. Perhaps, it could be argued that Mr Garcia was naïve to think that his findings would be published in full. Structurally, the process followed was that which was agreed in advance. However, this does little to detract from the embarrassment of both bodies seeming to be in fundamental disagreement about the report’s overall assessment. 

The Executive Committee

For the 2018 and 2022 World Cups, once potential hosts had submitted their bids, the decision making power was vested entirely within FIFA’s Executive Committee. Such a system of selection immediately raises concerns. The Executive Committee generally comprises of 25 members, representing a weighted interpretation of various international Confederations that comprise FIFA (for instance, UEFA). The Confederations themselves are left to determine the process by which they elect their allotted Executive Committee members. Prior to 2013 (i.e. when the bidding process for 2018 and 2022 took place), FIFA had not instituted its current system of an ‘integrity check’ that a prospective Executive Committee member must currently submit to. Previously, members were merely expected to follow the Ethics Code without any pre-selection vetting. In summary, the process vested its ultimate decision making power in the hands of a relatively small group, each appointed by different processes, with little demand for legitimacy or transparency and each with their own interests to further.

FIFA’s Code of Ethics

In order to combat what might look to many observers as an arbitrary and largely unchecked system of decision-making, FIFA has increasingly sought to rely on its Code of Ethics as a form of regulation for its members. In doing so, the theory is that bodies like the Ethics Committee can cite the Code, in the same way the police would cite a statute, as means of acting upon misdemeanours within FIFA. Sadly, the Eckert summary exposes both the vague nature of the Code and the ease with which it is discarded when investigating corruption.

At page 12 of Eckert’s summary, it is pointed out that all bidding teams for the World Cups signed declarations affirming the applicability of the Ethics Code to all bid related persons and activities. The code itself is continually binding on FIFA members. As such, none of the persons involved in the World Cup bidding process should have been in any doubt as to their ethical obligations.

Though much of the Code is vague, for instance ‘immoral and unethical behaviour’ is discouraged, there are specific provisions relating to bribery, gifts and conflicts of interest. It was allegations of this nature that led to Mr Garcia’s investigation. None of those involved could legitimately claim that they were unaware of this; to do so would be to admit incompetence or, worse still, indifference.

Committee Members

Before the vote had even taken place, a Sunday Times sting exposed an appetite amongst two of FIFA’s Executive Committee members, Amos Adamu and Reynald Temarii, to offer their votes in exchange for financial investments. Though both members were precluded from voting and subsequently banned for 3 years and 1 year respectively, a rare example of FIFA taking decisive action in the face of corruption allegations, it set the tone for a deep public mistrust of FIFA’s practices.

An analysis of the Executive Committee members that did get to vote does little to inspire confidence in the process. As David Conn expertly points out in this piece, a total of 6 of the 22 that voted in 2010 have subsequently been dogged by corruption allegations, with Jack Warner and Mohammed bin Hammam having resigned and been banned for life respectively. 

What is so deeply concerning about Eckert’s treatment of these events, which, I presume, would have featured prominently in Garcia’s investigation, is that he continually asserts, with almost no explanation, that they ‘did not compromise the process as a whole’. One has to question what would have to have been demonstrated in order for him to find otherwise. 

The Investigative Process

From a legal perspective, Eckert’s summary is notable in terms of how it depicts the range of powers available to Mr Garcia in the conduct of his investigation. Looking at it cynically, figures are cited in relation to the number of witnesses interviewed and documents produced in order to indicate that the investigation was thorough. Little attention is devoted to the fact that Mr Garcia did not possess powers of subpoena, meaning he could not force third parties to co-operate. 

Similarly, though bidding teams were contacted and asked to reproduce relevant documents, the degree to which they were bound to do so was enforced only via an already-tattered Ethics Code. As has been widely reported, the Russian bid team provided no emails to Mr Garcia on account of the fact they had all been deleted from rented computers.

Realistically, one cannot expect FIFA to imbue its chief investigator with the powers of a criminal prosecutor. That being said, FIFA could have given the impression that this investigation was being taken seriously by imposing internal sanctions for those unwilling to co-operate. At its heart, Mr Garcia’s investigation was one amongst willing volunteers sharing only what they wished to. 

Conclusions

If the Eckert summary itself exposes numerous corruption allegations, inadequate practices and a casual disregard of FIFA’s own Ethics Code, it poses the question: how severe must Mr Garcia’s original report have been to prompt his resignation? Eckert describes a bidding process in which some Executive Committee members did not even concern themselves with ‘Bid Books’ and the findings of ‘Evaluation Groups’. Given the immense amount of time and resources required to prepare a World Cup bid, it is simply unacceptable that the chosen few decision makers declined to consult objective material produced at FIFA’s behest. Mr Garcia’s resignation marks a definitive low point in FIFA’s history. Though Sepp Blatter and his compatriots continually insist that they are receptive to change, the proof will only come in the shape of major surgery to FIFA’s own processes of awarding World Cups and investigating corruption. Without a systemic review, the Ethics Code is little more than a public relations instrument designed to extol the virtues of FIFA, most of which have been shown to be entirely hollow. Let us hope that mooted criminal investigations by Swiss police and the FBI one day give us absolute transparency into how the World Cups were awarded. Of course, by then, it will likely be too late for the host venues to be subject to change.

Further Reading

Eckert's Report

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Tagged: Commercial Law, Sport Law

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