The case of Vernon Fernando and FIFA’s code of ethicsJohn Shea
FIFA confirmed earlier this month that Vernon Manilal Fernando, a member of FIFA's Executive committee and the Asian Football Confederation, had been provisionally banned from any football activity for 90 days at the request of Michael Garcia (chairman of the investigatory chamber of FIFA's Ethics Committee) and Hans-Joachim Eckert (chairman of the adjudicatory chamber of FIFA's Ethics Committee).
The decision is based on Article 83 Paragraph 1 of FIFA's Code of Ethics, which empowers the chairman of the adjudicatory chamber of FIFA's Ethics Committee to impose provisional sanctions if it appears that a breach of the Code of Ethics has been committed in order to prevent "interference with the establishment of the truth."
Fernando reportedly has close links to former FIFA Executive Committee member and president of the AFC, Mohamed Bin Hammam, who was twice banned for life by FIFA's Ethics Committee. In 2011, Bin Hammam confirmed that he would be challenging Sepp Blatter for the role of FIFA president however, during a trip to Trinidad and Tobago in May 2011, he was accused of providing cash gifts to Caribbean Football Union ("CFU") officials in exchange for votes in support of his election campaign. Bin Hammam was charged with offering bribes for votes and was banned for life from all football activities by FIFA's Ethics Committee. Following an unsuccessful appeal to FIFA's Appeal Committee, Bin Hammam appealed to the Court of Arbitration for Sport ("CAS") who overturned the lifetime ban on the grounds that there was insufficient evidence to link Bin Hammam with the cash gifts offered to the CFU officials. However, in December 2012 Bin Hammam was banned for life for the second time by FIFA's Ethics Committee for repeated violations of Article 19 of the FIFA's Code of Ethics relating to conflicts of interests whilst Bin Hammam was AFC President and member of the FIFA's Executive Committee. Bin Hammam has since resigned from all football related positions.
FIFA have not confirmed what the specific allegations against Fernando are and so it is not clear what provisions of FIFA's Code of Ethics Fernando has alleged to have breached. It has been reported that Fernando's suspension relates to alleged misuse of AFC accounts so it is possible that the general rules of conduct under Article 13 may have been breached. Article 13 Paragraph 3 of the Code requires all persons bound by the code (all officials, players and agents) to "show commitment to an ethical attitude" and to "behave in a dignified manner and act with complete credibility and integrity." Article 13 Paragraph 4 also prevents all persons bound by the Code to "abuse their position in any way, especially to take advantage of their position for private aims or gains." Misuse of AFC accounts may, therefore, amount to a breach of the general rules of conduct under Article 13. Interestingly, Fernando accompanied Bin Hammam on the trip to Trinidad and Tobago in May 2011 and so Articles 20 and 21, which prohibit the offering and accepting of gifts or other advantages in most circumstances as well as the misappropriation of FIFA assets (See Article 21 Paragraph 2), may also be applicable. The conflict of interests provisions under Article 19 of the Code may also be relevant if, as reported, Fernando's ban is linked to the previous case against Bin Hammam.
What's next for Fernando?
Fernando can appeal the provisional sanction of the 90 day ban to FIFA's Appeal Committee providing the appeal is lodged within two days of the notification of the decision (See Article 86). FIFA have not confirmed whether Fernando has lodged an appeal and so it appears the case will now proceed in accordance with the procedure under FIFA's Code of Ethics.
Ethics Committee proceedings include an investigation and an adjudicatory process. The investigatory chamber investigates potential breaches of the Code of Ethics and once their investigation is completed, the investigatory chamber prepares a final report on the investigation proceedings, which is sent to the adjudicatory chamber (See Article 28).
FIFA confirmed that investigation proceedings in relation to Fernando opened in October 2012 and so the investigation process has now concluded and the investigatory chamber's final report and files have now been sent to the adjudicatory chamber. This final report will contain all the facts, the list of rules alleged to have been violated by Fernando, the evidence gathered and a recommendation to the adjudicatory chamber as to sanctions that should be imposed (See Article 68). The adjudicatory chamber will now review the final report and files forwarded by the investigatory chamber and decide whether to proceed with adjudicatory proceedings against Fernando or close the case if there is insufficient evidence (See Article 69). In the event that the chairman of the adjudicatory chamber decides to proceed with the adjudicatory proceedings, a copy of the final report and files will be sent to Fernando who will have a set time limit to make submissions including filing a defence, evidence upon which he intends to rely and a request for a hearing if applicable (See Article 70). The adjudicatory chamber will generally make its decision on paper without hearing the parties and once the chamber's decision has been notified, the parties will then be summoned to a hearing or invited to submit written statements when the chairman of the adjudicatory chamber will decide whether to confirm, revoke or amend his decision (See Article 84). However, in some instances, the adjudicatory chamber may decide to convene a hearing before making a decision at the request of one of the parties or on its volition (See Article 74).
In accordance with Article 30 of FIFA's Code of Ethics, the adjudicatory chamber may impose a further ban on Fernando from taking part in any football-related activity for up to two months and/or impose a fine of up to CHF 50,000. Whilst, the adjudicatory chamber's decisions are generally limited to the above, these sanctions may be increased if a breach has been repeated (See Article 10) and the adjudicatory chamber is not "obliged to adhere to the general upper limit of the fine" when there is more than one breach (See Article 11). For instance, in the case of Bin Hammam, he was found to be in violation of various provisions of FIFA's Code of Ethics that the Ethics Committee felt justified a life time ban. In reaching its decision, the adjudicatory chamber will take into account "all relevant factors in the case, including the offender's assistance and cooperation, the motive, the circumstances and the degree of the offender's guilt" (See Article 9). Once the adjudicatory chamber's decision is notified, Fernando may in certain circumstances be permitted to appeal the decision to FIFA's Appeal Committee (See Article 80) and subsequently to CAS if any such appeal is unsuccessful as in the case of Bin Hammam.
Providing the adjudicatory chamber decides that there is sufficient evidence to proceed with adjudicatory proceedings, it is likely to take a couple of months for the adjudicatory chamber to reach its decision. Until then, specific details of the allegations against Fernando are unlikely to become clear.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- FC Barcelona and the protection of minors - Article 19 of FIFA Regs
- The prospect of and need for sports arbitration in Asia - a Japanese lawyer's perspective