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Questionable ethics

14 November 2014

News Analysis: Questionable ethics - Read more

Good governance or terminal decline for FIFA

FIFA oversees international competition for affiliated national associations, including the World Cup, which it organises, promotes and, critically, assigns a host country. The selection of Russia and Qatar to host the 2018 and 2022 tournaments respectively has been highly controversial, with claims of corrupt practice.

Critics include ministers for sport, football authorities, fans, journalists, academics, watchdogs such as Transparency International, and perhaps most significantly for FIFA, the corporate sponsors that fund FIFA’s global enterprise. Alleged corruption in mega-event procurement has attracted the attention of lawyers and even the United States intelligence services. Lord Triesman, the former chairman of the English Football Association, has publicly agreed with investigative journalist Andrew Jennings, who characterised FIFA as behaving akin to a mafia family, citing bribery as a key feature of its operations.

Even former FIFA delegates such as Mel Brennan claim that radical change is needed and that FIFA is incapable of change from within. They suggest that FIFA be replaced with a new governing body. This would operate within a robust legislative and ethical framework, aligned to good governance principles such as transparency and independent scrutiny in decision making. It would be accountable to stakeholders and financial controls would avoid ‘loopholes’ in monetary transactions.

The tipping point

Four years ago allegations of corruption were made against the FIFA Executive Committee (FEXC) prior to the awarding of the 2018 and 2022 World Cups. Subsequently FIFA appointed Mark Pieth in 2011 to chair an Independent Governance Committee (IGC) that recommended establishing a FIFA Ethics Committee (FEC) consisting of an Investigatory Chamber and an Adjudicatory Chamber. The Investigatory arm of FEC has the power to open investigations into past and present member behaviour, bypassing existing FIFA processes that may have constrained its remit. Further, the FIFA Code of Ethics was revised to account for bribery and conflicts of interest. Following the IGC report on FIFA reform in April 2014, Michael Garcia, Chairman of the Investigatory Chamber, was tasked specifically with scrutinising the awarding of forthcoming World Cup competitions and delivering a report. This was submitted in September to the Adjudicatory Chamber of the FEC.

Partial disclosure

Full public disclosure of the report was not permitted, which raises questions around transparency and accountability. There are a number of reasons for the partial disclosure of the findings, perhaps the most significant factor being simply one of legal challenge from those cited for ‘corruption’. If an abridged version of the report for public access is made available, individual FIFA members cannot be cited due to confidentiality clauses.

Furthermore, there are complex legal issues to overcome if FIFA were to attempt to implement any recommendations in the report. These include: the difficulties of prosecuting prior infringements where Articles of the Code of Ethics have subsequently been revised; determining the extent of disciplinary powers available to the Adjudicatory Chamber; negotiating the boundaries between criminal law, civil law, and ‘sport-specific’ legal proceedings; addressing the limitations of the Code of Ethics itself – it does not specifically apply to bidding for tournaments; making distinctions between informal and formal recommendations as opposed to ‘conditions’ that must be applied; and accounting for different legal interpretations of the Code. Nonetheless, the FEC does have broad and retrospective powers to investigate allegations of corruption concerning the forthcoming World Cups.

In considering whether FIFA is meeting established principles of good governance, as identified by the UN and a raft of European and national sports organisations, the IGC’s final report states that FIFA now has the opportunity to demonstrate accountability and transparency, and that it is acting in the interests of football and the wider public. By spring 2015, it is anticipated that any decision regarding sanctions will be made public. Therefore, across a diverse range of stakeholders in football, expectations have been raised and there is anticipation that FIFA will now deliver a report that meets their concerns. However, such optimism regarding the emergence of ‘good governance’ on the basis of a report, may be unrealistic.

To facilitate publication of the report, the FEXC would have to vote for its release under Article 36 of the Code of Ethics (COE). The FEXC meet twice per annum and therefore an Emergency Committee may be required if a sense of urgency was to take hold of senior members of FIFA. Of note is that half of the executives in place today were FEXC members at the time of the vote for the forthcoming two World Cups, and a number of these members have been under suspicion for vote-rigging. Amending Article 36 under these conditions may prove to be problematic.

Nonetheless, Mr Garcia is pressing for his report to be in the public domain. He recently clarified his stance, stating ‘the investigation and adjudication process operates in most parts unseen and unheard … That’s a kind of system which might be appropriate for an intelligence agency but not for an ethics compliance process in an international sports institution that serves the public and is subject to intense scrutiny’.

Despite this protestation FIFA members charged with operating outside of a legal and ethical framework for personal gain can use human rights legislation or employ lawyers with a working knowledge of the complex Swiss libel laws to challenge the findings and recommendations of the report.

Legal action

The final report for public view may therefore contain a number of redacted statements and omissions
that side-step identifying specific individuals.Those charged could sue for defamation through the civil courts where proof is dependent on a balance of probabilities. Proof of corruption beyond reasonable doubt, however, requires such claims to be heard in a higher court; an action that will be expensive, lengthy, and unlikely to result in outcomes that satisfy the public, national football authorities and the media. If guilt is established, an appeals process may ensue. Given historical precedent, due legal process may take a long time to expel members who are proven to have acted illegally and outside of the COE. They can take the case to the Appeal Committee of FIFA and onto the Court of Arbitration for Sport if necessary. Despite this, FIFA members have been expelled previously, or banned for a specific time period, including senior figures such as Mohammed bin Hammam.

Fundamental change in the governance of FIFA is required if corrupt practices are to be eradicated from an organisation with a poor track record of meeting basic standards. Arguably, FIFA has acted with impunity in coercing World Cup bidding nations to comply with its ‘special conditions’ including tax exemption for FIFA and its sponsors, confidentiality in arrangements with host governments, and the constraint of worker’s rights. This was exposed by the Dutch government who refused to play ball, leading to threats that such a stance would damage the chances of the bid’s success.

Whatever the legal position regarding the publication in full of Mr Garcia’s report, it is clear that a wholesale transformation of this organisation is only one of two alternatives remaining. The other is its closure which may be achievable if sponsors, broadcasters and national associations establish a new body to oversee football, including an alternative series of World Cup events delivered by host countries with a demonstrable commitment to human rights, among other criteria. This new body would clearly be founded on ethical principles, accountability to those who support the game, or even owned by public representatives. The likelihood of FIFA reforming itself, given the vested interests that underpin it, is practically nil. In this context, whether the full report or only part of it is made public is ultimately inconsequential.

As the magazine went to press, FIFA released a statement saying that: 'The Investigatory Chamber of the FIFA Ethics Committee did not find any violations or breaches of the relevant rules and regulations'.

Neil King is Senior Lecturer in Sport Policy and Development at Edge Hill University

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