A review of FIFA’s Code of Ethics 2018

Published 15 November 2018 By: Lydia Banerjee

Football players on field

On 12 August 2018 FIFA’s revised Code of Ethics1 (Code) came into force. The Code has made a number of changes to the 2012 edition and the intention in this piece is to introduce the new Code and to highlight the key changes. Specifically, it looks at:

  • Structure of the 2018 Code

  • Substantive law (i.e. infringements and levels of sanctions)

  • Organisation and procedure

    • Competence of the Ethics Committee

    • Plea bargaining

    • Appeals

    • Provisional measures

  • Comment

Structure of the 2018 Code

The 2018 Code has 4 parts:

  • Part 1 – Dealing with scope

  • Part 2 – Substantive law

  • Part 3 – Organisation and procedure

  • Part 4 – Final provisions on miscellaneous matters

The Code has been re-structured, in the words of the FIFA Circular no. 1645in order to clarify the separation between the different steps of the proceedings”. In addition, the order of the infringements (contained within Part 2) has been re-ordered to “better reflect the seriousness of each breach”.2

Substantive Law (Infringements and sanctions)

The provisions over infringements of the Code are set out in Part 2. Member associations and confederations are required to include Articles 13 to 29 within their own regulations, pursuant to Article 1, Paragraph 2 of the Code.

One of the changes introduced is to include a minimum and/or maximum sanction. In fact, as will be seen a minimum fine level is set to sit alongside a ban which is expressed by reference to a maximum duration. This means that minimum and maximum sanctions are not easily discernible. The fines have no upper limit and the bans no lower limit.

There are broadly two levels of infringement:

  • Infringements with the minimum sanction of a CHF 10,000 fine as well as a ban on taking part in any football-related activity for a maximum of two years. These include:

    • Article 13 – General duty to refrain from any activity that might give rise to the appearance or suspicion of improper conduct as described in the following sections;

    • Article 14 – A duty of political neutrality;

    • Article 15 – Imposition of Fiduciary duties owed to FIFA, the confederations, associations, leagues and clubs;

    • Article 16 – A duty of confidentiality;

    • Article 17 – A duty to report any infringements of the Code;

    • Article 18 – A duty to co-operate with the Ethics Committee;

    • Article 19 – A duty to avoid conflicts of interest*;

    • Article 20 – A prohibition on offering or accepting gifts or other benefits*;

    • Article 21 – A prohibition on receiving commission*;

    • Article 22 – A prohibition on discrimination and defamation*;

    • Article 23 – A duty to protect the physical and mental integrity of others; including a prohibition on use of offensive gestures and language, harassment, sexual harassment and threats*;

    • Article 24 – A prohibition on forgery and falsification of documents; and,

    • Article 25 – A prohibition on abusing an official position in any way**.

  • Infringements with the minimum sanction of CHF 100,000 and a ban on taking part in any football-related activity. In addition, since these infringements could involve the improper receipt of money any amount unduly received will be included in the calculation of the fine. The infringements are:

    • Article 26 – Involvement with betting, gambling or similar activities – the maximum ban in relation to this infringement is 3 years;

    • Article 27- Bribery – The minimum ban is 5 years**;

    • Article 28 – Misappropriation of funds – The minimum ban is 5 years**; and,

    • Article 29 – Manipulation of football matches or competitions including an obligation to report any approach in connection with match manipulation – the minimum ban for involvement is 5 years, the minimum ban for a failure to report an approach in relation to match fixing is two years.

* in serious cases and/or in case of repetition the ban on football-related activity may be up to a maximum of five years

** The sanction can be increased where the person holds a high position in football and in relation to the relevance and amount of any advantage received

Changes from 2012

The key changes in this area are the significant additions in relation to match manipulation. The FIFA Circular3 states that the aim is to cover more situations and therefore leave even less room for uncertainty and interpretation while still leaving the Ethics Committee with a high level of discretion.

Although the minimum and maximum sanctions focus on fines and bans on football-related activity Article 7 provides for a variety of sanctions, specifically:

  1. warning;

  2. reprimand;

  3. compliance training;

  4. return of awards;

  5. fine;

  6. social work;

  7. match suspension;

  8. ban from dressing rooms and/or substitute’s bench;

  9. ban on entering a stadium; and

  10. ban on taking part in any football-related activity.

Given the way the minimum and maximums are expressed it remains to be seen how much the other sanctions will be deployed.

Article 9 lists a number of factors to be taken into account when imposing a sanction and allows that where it is deemed appropriate the Ethics Committee may go below the minimum sanction or hand out an alternative sanction including any of those listed in Article 7, Para 1.

Perhaps unsurprisingly Article 10 provides that repeated breaches are an aggravating factor which could permit the Ethics Committee to go beyond the maximum limit provided in the Code. Where there are concurrent breaches Article 11 provides that the most serious should be used as the basis for the sanction with an increase of up to one third depending on the circumstances.

From this it can be seen that the minimums and maximums set are not absolute.

Time limits were in place under the 2012 Code but the 2018 Code introduces new time limits for the match manipulation offences. The time limits are generally five years but for infringements under Articles 27, 28 and 29 it is 10 years. The time limit is for an investigation to start. Once an investigation has commenced the time limit can be extend by half its length, i.e. to 7.5 years or 15 years. Time limits are suspended during criminal proceedings. Interestingly Article 12, para 5, states that in the case of repeated breaches the limitation period shall start only after the last of the repeated breaches has ended. It is not clear how this will be interpreted in practice. Does the repeat breach need to be of the same Article? Of similar character? Connected in some way? Or can any breach of the Code open the door to investigate an earlier breach even where prima facie the time limit for the earlier breach had expired? This has potential to cause significant injustice and uncertainty. One assumes that the safeguard will be swiss law provisions in relation to limitation.

Organisation and procedure

A number of changes are made to the organisation and procedures of the Ethics Committee. Taking these in the order in which they appear:

Competence of the Ethics Committee

Article 30 provides for an exclusive competence of the Ethics Committee to investigate and judge the conduct of all persons bound by the Code of Ethics where such conduct:

  • Has been committed by an individual who was elected, appointed or assigned by FIFA;

  • Directly concerns FIFA related duties or responsibilities; or

  • Is related to the use of FIFA funds.

Conduct outside of these categories will generally be investigated and adjudicated on by the member association or confederation. The Ethics Committee reserves competence in the event that the member association or confederation does not act within three months of the date that the matter was made known to the Ethics Committee.

Plea Bargain

Article 67 provides for an agreement to be reached between the chairperson of the investigatory chamber of the Ethics Committee and the party being investigated as to the application of a sanction by consent. When such an agreement is reached, the chairperson of the adjudicatory chamber must confirm that it complies with the Code and the sanction agreed is correctly applied. This plea bargain process is a new addition.

This mechanism is not available for infringements of bribery, misappropriation of funds or manipulation of football matches or competitions.

Appeal

Articles 81 to 83 deal with challenges to the decisions of the adjudicatory chamber. An appeal in relation to an infringement of Article 29 (Manipulation of matches) is made to the Appeal Committee and if necessary a further appeal lies to the CAS. An appeal on any other matter is made direct to the CAS under Article 82. The FIFA circular explains that the rationale behind the shorter two-step process was to reduce costs and increase efficiency in dealing with appeals. The rationale for maintaining the three stages for Article 29 is that such infringements, of their nature, have more connection to the field of play.

Article 83 provides a limited right to review a decision. A case can be reopened if "significant new facts or proof" are discovered which, despite the investigation, could not have been discovered earlier. An application to review must be made within 10 days of the new facts being discovered. In any event an application can only be made within a year of the enforcement of the decision. This raises an interesting issue. The recent historical abuse cases in the FA came to light long after the events giving rise to the complaint. If there had been an investigation and a decision at the time in relation to an individual any new information arising as a result of others coming forward would not, under these provisions, lead to a re-opening of a decision no matter how significant the new facts or proof were. There is an attraction in providing certainty for an accused but one questions whether it is necessary to put a time limit in place. If there was a discretion to re-open then the cogency of the new facts or proof could be weighed against the delay and the seriousness of the allegations to consider whether or not it was appropriate to re-open matters which were otherwise closed.

Provisional measures

Articles 84 and 85 provide power for the chairperson of the investigatory chamber (or the chief of the investigation if not the chairperson) to apply provisional sanctions

"to ensure that investigation proceedings are not interfered with or when a breach of this Code appears to have been committed and a decision on the merits of the case may not be taken early enough".

An appeal against a provisional sanction may be made within 5 days of notification of the provisional sanction. The appeal is heard by the chairperson of the adjudicatory chamber. Provisional sanctions can be imposed for 90 days and in exceptional circumstances the chairperson of the adjudicatory chamber can authorise an extension for a further 90 days.

Provisional sanctions could be imposed under the 2012 Code but there have been changes to both the process and duration.

Conclusion

The purpose of the revision of the Code of Ethics was to guarantee greater opportunities for transparency and understanding in particular of the work of the Ethics Committee. Obviously professional integrity within sports governing bodies is a hot topic and football is at the centre of it. Critics of the Code suggest that the introduction of defamation as an infringement will discourage whistle-blowers and others seeking to highlight malpractice. In this article I have highlighted some other areas which may need further thought but on the whole the revisions appear to streamline the process and place sensible limits on the powers of the Ethics Committee so as to provide the opportunity for matters to be addressed proportionately, quickly and fairly.

Author

Lydia Banerjee

Lydia Banerjee

Lydia is an active member of the Littleton Chambers Sports law group. In line with the broader chambers specialisms Lydia’s core areas of practice are commercial law and employment law.  Lydia’s commercial practice encompasses disputes including contractual interpretation, professional negligence and directors’ duties.  Lydia’s employment work has a particular focus on disability discrimination but also incorporates all areas of tribunal disputes and high court action in relation to bonuses and restrictive covenants.

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