Riesenfeld Symposium Special: Contact Corruption in FIFA
Updated: May 23, 2019
Article by Zay
In what could be construed as a brazen acknowledgement of corruption’s structural embeddedness in the Fédération Internationale de Football Association (FIFA), the global governing body for the world’s most popular sport, the organization reduced the scope and enforceability of corruption in the latest edition of its internal code of ethics. This revelation comes in the wake of criminal charges levied by multiple nations against a host of FIFA’s top officials and affiliates, raising questions about the susceptibility of non-corrupt football (“soccer”) federation and national association members to become complicit in the organization’s patterns of corruption, and, inversely, about the role of individual nation-states in preventing and enforcing against its international corruption schemes.
FIFA’s governance structure takes the form of a one member, one vote model that is also popular in other international governing bodies. In addition, FIFA’s annual revenue, which was projected to reach over $4 billion in the 2018 World Cup year, is distributed evenly to members irrespective of size or population. In his article on FIFA’s “non-intervention” policy, which is designed to protect the “autonomy of sport” from government interference, Marquette University Law Professor J. Gordon Hylton argues that the non-intervention policy has been invoked under recent leadership to prevent oversight of FIFA corruption by member states on the threat of having their federations or national teams suspended from competition. A small nation unlikely even to qualify for the World Cup, much less host it, potentially stands to gain more from selling its vote or engaging in bribery than from its minimal likelihood of a participatory role in international competition. Conversely, nations whose robust systems of justice or commitment to democracy better equip them to combat corruption correlate with those who hold higher interests in competing in or hosting FIFA-sponsored tournaments. Such an imbalance in incentives thus discourages “intervention” against corruption by those entities that are best equipped to confront it.
What internal compliance mechanisms exist to promote accountability within FIFA?
Regulatory expectations are outlined in FIFA’s code of ethics, with violations referred to the ethics committee. The prior (2012) version of FIFA’s code of ethics identified both bribery and corruption as punishable offenses, exempt from the 10-year statute of limitations that governed other offenses. The revised (2018) version, however, accounts for only the specific offenses of “betting, gambling or similar activities” and “bribery, misappropriation of funds and match manipulation,” all of which are now subject to the 10-year statute of limitations. In addition, the new code of ethics establishes a “defamation” offense prohibiting “public statements of a defamatory nature towards FIFA and/or” its officials, supplementing the non-intervention policy in deterring whistle-blowing and enforcement against corruption.
A forty-seven count indictment brought by the United States District Court for the Eastern District of New York (EDNY) against fourteen current and former FIFA officials includes reference to an incident whereby one FIFA official attempted to report payment of a $40,000 bribe promoting another official (Co-Conspirator #7)’s campaign for the FIFA presidency to a higher-level official (Co-Conspirator #1). Co-Conspirator #1 himself accepted the bribe and voted in support of Co-Conspirator #7’s candidacy, raising skepticism as to the efficacy of the ethics committee’s power to curb corruption. The 2015 indictment, developed over the better part of a decade, pertains to events beginning in 1991 and references activity as far back as 1983.
If FIFA’s internal accountability mechanisms are lacking, what is the appropriate authority to police corruption and misconduct?
The United States received criticism from notables such as Russian President Vladimir Putin for its effort to bring corrupt FIFA officials to justice. However, even the U.S. Supreme Court itself has weighed in on the limits of U.S. jurisdiction to enforce corruption-related offenses internationally under RICO, the Racketeer Influenced and Corrupt Organization Act which is central to the U.S. government’s case against the fourteen officials. (Besides racketeering, the indictment also charges money laundering and wire fraud.) Whether U.S. jurisdiction over these claims will be considered valid, which may turn on the extensiveness of defendants’ reliance on U.S. banks and financial institutions to effect their bribe payments and fraud, remains to be seen, although the Second Circuit (to whose authority the EDNY is subject) has previously upheld prosecutorial jurisdiction over certain foreign violations.
The nature of the D.O.J’s charges, which are directed against individual FIFA officials (with notable omissions), also sheds light on a government’s limited ability to address systemic corruption that pervades FIFA at an organizational level. In fact, even apart from the problem that no obvious process exists to recompense the victimized national federations and governments to whom laundered or embezzled money rightfully belonged, FIFA itself may be eligible for a cut of the forfeitures guilty individuals will be required to pay. While cooperation between governments, including the U.S., Switzerland, France, Brasil, and others, evidences the possibility that the international community may seek to hold FIFA accountable to a higher standard of integrity going forward, the most appropriate means of doing so is not entirely clear.
The parallel international governance infrastructure that FIFA commands earns annual revenue surpassing that of dozens of small nations, and is ripe for exploitation. Yet the organization lacks any sort of operative internal enforcement mechanism to check corruption. In light of the global community’s extraordinary participation rate in FIFA, the time has come to demand a functional enforcement system against corruption and reclaim the spirit of the beautiful game.