FIFA Ethics Committee’s legal role in the investigation into the World Cup voting allegations
Published 05 June 2014
| Authored by: Kevin Carpenter
Following the publication in The Sunday Times on 1 June 20141 of new evidence of alleged corruption in the voting for the 2022 World Cup there have been comments from various media sources2 regarding the legal position not only the alleged payments themselves but also the process to be followed when investigating and adjudicating on such allegations. This blog will seek to clarify some of the confusion relating to the FIFA Code of Ethics and the role of the FIFA Ethics Committee.
It is useful to speak briefly about the background of the FIFA Ethics Committee3
. Allegations of corruption against FIFA Executive Committee4
(‘ExCo’) members leading up to the voting for the awarding of the 2018 and 2022 World Cups on 2 December 2010 were published by The Sunday Times on 5 December 2010
This led FIFA to mandate Professor Mark Pieth, a leading figure in the field of anti-corruption, in August 2011 to analyse FIFA’s existing governing structures to express an opinion on its standards and to make recommendations for improvements. He would do this as Chair of what came to be called the Independent Governance Committee (‘IGC’)
The first report of the IGC was approved by FIFA’s members7
and the FIFA Congress8
in 2012 and one of the key provisions implemented was to establish the FIFA Ethics Committee.9
This would consist of two chambers, an Investigatory and Adjudicatory chamber. Both chambers were to be independent by having an independent chairman and vice-chairman. It was to be empowered to investigate and adjudicate past issues or behaviour and the Investigatory Chamber has the power to open investigations completely independently from any other FIFA bodies or officials. Not only that, the FIFA Code of Ethics was revised to include more stringent provisions regarding conflicts of interest, gifts and bribery and corruption (FIFA Code of Ethics 2012 Edition, Chapter 2, Section 5, Subsection 2: Undue advantage). The FIFA Code of Ethics 2012 Edition10
covers all the substantive and procedural elements relating to both Chambers of the Ethics Committee.
In its final report of 22 April 2014 11
, the IGC specifically refers to the investigations undertaken by lawyer Michael Garcia since his appointment by FIFA in July 2012 to the post of Independent Chairman of the Investigatory Chamber of the Ethics Committee. These investigations explicitly include allegations in relation to World Cup hosting decisions, which was an issue singled out in the IGC’s first report. It has been reported that co-incidentally Mr Garcia is in the Middle East this week to conduct the final stages of his interviews and investigations where he intends to speak to members of the Qatar 2022 Organising Committee and could, in light of new evidence, call on Mohammed Bin-Hammam to give evidence to him.12
His final report is then due shortly after the World Cup13
, which is around the same time which, prior to the new allegations, FIFA were to decide whether or not the 2022 tournament should stay a summer tournament or move to the winter given the weather in the Gulf state.14
One of the areas of confusion seemingly is whether or not Mr Garcia has the power to interview Mr Bin-Hammam, given he was been banned from football for life by FIFA in December 2012 for conflicts of interest during his time as both a FIFA ExCo member and President of the Asian Football Confederation.15 Article 2 of the Code of Ethics says that the Code shall apply for all officials “on the day the infringement is committed”. The alleged infringement took place from the period starting June 2008 going through to when the bid was awarded in December 2010. However, under Article 3, it would be the previous version of the Code that would have to be applied to Mr Bin Hammam by the Adjudicatory Chamber should they decide to take any action against him after Mr Garcia’s report. However, that will be somewhat futile given the fact that he is already banned for life, so why should he co-operate with the investigation? Perhaps the threat of information being passed on to law enforcement under Article 6(3) (see below) may persuade him?
Importantly the combination of Articles 2 and 3 of the Code allows the Ethics Committee to ‘go after’ some former ExCo members mentioned in the most recent Sunday Times allegations. Thankfully FIFA’s previous edition of the Code of Ethics, applicable to the latest allegations, also covered the areas of gift giving and bribery. Evidence of these provisions from the previous Code of Ethics, and their application, can be seen in the two cases brought again then ExCo members Mr Adamu16
and Mr Bin Hammam17
himself, both of which went to the Court of Arbitration for Sport.
One of the other principle areas of legal misunderstanding is the disciplinary powers available to the Adjudicatory Chamber once Mr Garcia has passed his report on to them. Article 6 lists a broad range of “disciplinary measures”/sanctions available to the Adjudicatory Chamber, from a mere warning to a ban on taking part in any football related activity. Interestingly there is also a provision at Article 6(3) which enables the Ethics Committee to recommend to the responsible FIFA body that the notification of a case be made to the appropriate law enforcement authority. This would take the investigation outside a pure sporting investigation and into the realms of criminal law. Many people are calling for a re-vote should the voting process for the 2022 World Cup be found to have been tainted by corruption. 18 This is not provided for in Article 6 as the Code was not written with the intention of applying specifically to bidding for FIFA tournaments. However, the Adjudicatory Chamber could make an informal (i.e. not provided for in the Code) recommendation to the FIFA President, ExCo and/or member associations that the process should be re-run.
The final legal and governance issue that is being debated in the media is whether the Ethics Committee and Mr Garcia are truly independent of FIFA? This is clearly a matter of perception. To counter any such claims, in relation to the composition of the Ethics Committee
itself, as already mentioned both Chambers have an independent chairman and vice-chairman meeting, in the IGC’s view, the necessary professional requirements for the body. Mr Garcia is a former US Attorney19
for the Southern District of New York and a partner at the global law firm Kirkland & Ellis. People should be wary to question the independence and professional integrity of such an individual and I am sure he would strongly resist any suggestion that his report has been influenced by anyone connected to FIFA when it is passed to the Adjudicatory Chamber after the World Cup this summer.
There promises to be further revelations in upcoming editions of The Sunday Times which will undoubtedly shed more light and provide more evidence for Mr Garcia as he considers and writes his report over the Summer. However this blog makes it clear that both Chambers of the Ethics Committee have a remit and powers that are retrospective and broad in nature which should mean, in the words of the IGC, “[they] should not rest until there is a conclusive answer to the allegations surrounding the voting for the 2018 and 2022 World Cups.”
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About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.