“Watchgate”- can sports officials be bribed without knowing it?

Published 25 September 2014 By: Neil Swift

Greg Dyke at 2014 World Cup

The Guardian reported on Friday1  that Greg Dyke, Chairman of the FA, received a limited edition Parmigiani watch, worth £16,344, from the Brazilian FA during a FIFA congress in Sao Paulo prior to the World Cup.

Section 2 of the Bribery Act 2010 outlaws the receipt of bribes. It applies to British citizens wherever they are in the world. The Act sets out a number of ways in which the offence can be committed2, but central to all is the concept of performing a relevant function improperly. Relevant functions include those of a public nature, activities connected with a business, performed in the course of a person’s employment or on behalf of a body of persons3. Because of Mr Dyke's role and The FA's remit he probably ticks most if not all of those boxes. Someone carries out one of those functions improperly if they breach the standard expected of them by the archetypal reasonable man on a UK street4.

So, by accepting a 'goodie bag', would an English football official have committed a criminal offence inadvertently?

To commit the offence you must request, agree to receive or accept a financial or other advantage. If you do so as a reward for you or another acting improperly, or intending that you will act improperly, or if, given your position, the mere acceptance would amount to breach of the standards expected of you (to act in good faith, to act impartially, or to act in a position of trust), then you commit an offence.

Mr Dyke has already said that when he received the goodie bag he had no idea what was in it. No doubt he was aware of FIFA's code of ethics, and the restriction on accepting gifts of more than symbolic or trivial value. It's difficult to see on a construction of the ordinary words of the Act that a person can accept a financial or other advantage (which, no doubt, a £16,344 watch would be) without knowing that it was such a thing. In that respect, and as you would expect, the obligations under FIFA's code of ethics on the acceptance of gifts and other benefits - where it appears ignorance is no defence - are more stringent than the criminal law. 

But let’s pose a different scenario: what if either at the time of receipt or at some point afterwards, the official knew what was in the bag, and its value, and nevertheless went on to keep it? Under section 2(3) of the Act it is an offence to accept a financial or other advantage where the acceptance itself constitutes the improper performance of a relevant function or activity. It is arguable that a football official is expected to perform their functions in good faith, including at the very least adherence to FIFA’s code of ethics5. Evidence of an official knowingly in receipt of a financial or other advantage in breach of that code would be sufficient to prosecute for an offence under the Act. 

Clearly, given the apparent pervading culture of at least some members of FIFA, the watchword is caution. 65 of these watches were handed out. That's almost £1m worth of wrist wear. Why? The Guardian also reported another instance where permission was sought but refused for the handing out of 28 Hublot watches to the members of FIFA's executive committee6. Some people either have strange ideas about symbolic or trivial value, or act with blatant disregard to the rules. It's clearly uncomfortable at such events to open the bag and Google the price (of bag and contents), but given the heightened level of suspicion about corruption at the heart of football's governing body, caution and constant vigilance about potential risks are words to live by, particularly if one is to avoid being associated with that which one condemns. 

 

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Author

Neil Swift

Neil Swift

Neil Swift is a Partner in the business crime department at Peters & Peters Solicitors LLP. He qualified in 1999 and became a Partner in 2010.  He has a broad range of experience in the fraud area, advising individual and corporate clients in relation to investigations and prosecutions by all major law enforcement bodies, including in particular the Serious Fraud Office, HM Revenue & Customs, and the Office of Fair Trading (now Competition and Markets Authority).
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