Makudi v Triesman: FIFA corruption allegations and the scope of parliamentary privilegeKevin Carpenter
One of the continuing hot topics in sports governance is the allegations of corruption surrounding the awarding of the 2018 and 2022 FIFA World Cups to Russia and Qatar respectively1. These allegations were directed at specific members of the then FIFA Executive Committee (ExCo)2, whose votes decided who the two hosts were going to be, unearthed by various channels of the English media.
It is no co-incidence that England were one of the bidding countries who failed in their bid for the 2018 World Cup. Ever since England failed in their bid, and more allegations of corruption have been uncovered in English and world media, the UK public, through the Government, demanded answers from the bid committee and the Football Association as to the failure. The anger was particularly strong given public and FA money had been spent previously for the failed bid for the 2006 World Cup, which was awarded to Germany, and the public were promised lessons had been learnt for the 2018 bid3.
The Chairman of the England 2018 World Cup bid was David Triesman, who at that time was also Chairman of the FA. As part of the investigation into why England’s bid failed for a second time, the Government established a Culture, Media and Sport Committee of the House of Commons (‘the Committee’) before which Mr Triesman gave evidence. In a previous blog4 from July 2011, I discussed some of the key findings from the report produced by that Committee.
One member of the ExCo Mr Triesman specifically mentioned in his evidence to the Committee regarding potential corrupt practices was Mr Dato Worawi Makudi, the then President of the Football Association of Thailand. Being a Committee hearing open to the public, the evidence given by Mr Triesman received much media attention, leading the FA to conduct its own review into Mr Triesman’s allegations. James Dingemans QC, appointed by the FA to conduct the review, interviewed Mr Triesman on 20 and 25 May 2011. The general response to all questions directed towards Mr Triesman by Mr Dingemans was, “Well I have covered this in the evidence I gave to the select committee. Although the uncorrected transcript is in the public domain and available to you, that is the entirety of the statement that I made, and it was given under conditions of Parliamentary privilege. I think that if I try to add to it I will stray into territory not covered by Parliamentary privilege.”5
He was right to be cautious as parliamentary privilege is a key concept in English democracy that allows people to speak freely in Parliamentary proceedings without fear of being sued for defamation. This principle is based on an ancient piece of English law, Article 9 Bill of Rights 16896, and is a form of absolute privilege. However the common law as developed through the courts has shown that people can be at risk if such words are then repeated outside Parliament. This is the basis on which Mr Makudi launched a defamation claim for the evidence Mr Triesman had given to the FA review7. After the claim was issued, Mr Triesman then brought an application to strike out the claim, or in the alternative be awarded summary judgment. In English law these are two of the applications a defendant can make to seek to dispose of a claim without any merit before it proceeds to a full trial.
At first instance, heard in the High Court on 23 January 20138, Tugendhat J set out the key question, “whether…the Defendant’s statements (which have caused serious damage) is a reference to the words complained of in this action, that is the statements by the Defendant to Mr Dingemans, or a reference to the statements made to the [Committee] (the Parliamentary evidence).” The High Court, and the subsequent appeal judgment discuss historical yet important concepts regarding the law of defamation, in a sporting context, which is becoming an important area in UK sports law with sport’s autonomy coming under increasing scrutiny from organs of the state.
The issues of interest in the sporting arena were those regarding the ambit of the protection offered by Article 9. The Court found that the statements made outside of Parliament were, where actionable, covered by qualified privilege. This can be a defence to a libel claim where the Defendant has published defamatory words about the Claimant but has done so on an occasion that is protected. Here, the evidence given to the Committee would be protected by privilege. However, unlike parliamentary privilege, this is not absolute, meaning that the Defence can be defeated if the Defendant has published with ‘malice’.9 Tugendhat J said that the publications were clearly all occasions of qualified privilege. Tugendhat J struck out the claim of Mr Makudi for two reasons. First, given Mr Triesman merely referred to his evidence given to the Committee when interviewed by Mr Dingemans, to decide on whether malice existed the Court would have to analyse the Committee evidence which is not allowed due to Parliamentary privilege flowing from Article 9. Secondly, the judge did not believe that the case as pleaded would lead to the conclusion that Mr Triesman had been dishonest, rather he could have merely been mistaken or misinterpreted in his exchanges with Mr Makudi.
Lord Justice Laws’ analysis of the appeal on qualified privilege and Article 9, giving judgment for the Court of Appeal10, analysed in some depth both the political and legal reasoning behind the Bill of Rights 1689 to determine to what extent Article 9 could immunise speech outside of Parliament, which has traditionally been strictly delineated, “It is clear that the protection afforded by Article 9 is not given for the sake of the individual member, but for the integrity of the legislature’s democratic processes. Accordingly a member who for his own purposes chooses to repeat outside Parliament, whether by quotation or cross-reference, what he has said within its walls has no claim to the protection of Article 9. He does not deserve it for himself, and the integrity of Parliament’s process does not require it.”
However Judge LJ did go on to set out two circumstances where Article 9 could apply to “extra-Parliamentary speech”:
- Public interest in repetition of the Parliamentary words which the speaker ought reasonable to serve; and
- So close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or closely related.
In applying this analysis of the law to the facts Judge LJ found Mr Triesman’s words to fit into both of the characteristics above. Therefore Mr Makudi’s appeal was dismissed and the claim against Mr Triesman struck out.
This case is an interesting development and offers wider protection to those involved in sport who give evidence to governmental committees, for instance the related recent high profile issues of the House of Commons Select Committee on Olympic and Paralympic Legacy report (November 2013)11 and the controversial funding decisions made by UK Sport in early 2014. However, whilst there will be protection in some circumstances, there is no guarantee that wider statements, if you repeat to the press, for example, what you said in such a committee about an individual decision maker that you will be immune from a defamation lawsuit being brought against you.
The case also indicates the need for specialist defamation legal advice where attacks on sporting reputations are made, preferably with some appreciation of sport as a unique and idiosyncratic sector.
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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.