Is FIFA a law unto itself? Jeremy Summers considers the legal context of Lord Triesman’s allegations that FIFA executive members sought bribes in return for backing England’s 2018 World Cup bid
Although football will not be coming home for many years, the evidence given by Lord Triesman before a parliamentary select committee on 10 May (and further allegations made by the Sunday Times) may well lead to a very different football governance landscape by the time England next hosts the FIFA World Cup.
The allegations relate to the bidding process for the World Cups in 2018 and 2022, and are plainly very serious.
The allegations are denied by the FIFA executive committee.
The Football Association (FA) has since appointed James Dingemans QC to examine the evidence and report on his findings by 27 May – critically, before the forthcoming FIFA presidential election.
In the light of the imminent release of Dingemans’ report, it is not proposed to address here the allegations but rather to examine the powers available to FIFA, and law enforcement agencies, to deter and sanction corrupt conduct.
Code of Ethics
Like most other leading sports organisations, FIFA has its own Code of Ethics.
This was most recently published in 2009 and is stated to apply to all FIFA officials, including members of FIFA’s executive committee who voted on the 2018 and 2022 World Cup bids.
The way in which the code deals with bribery is notably limited. Clause 11 of the code provides that:
- Officials may not accept bribes; in other words, any gifts or other advantages that are offered, promised or sent to them to incite breach of duty or dishonest conduct for the benefit of a third party shall be refused; and also that
- Officials are forbidden from bribing third parties or from urging or inciting others to do so in order to gain an advantage for themselves or third parties.
Clause 12 also forbids officials from accepting commissions, or promises of such, in the course of negotiating deals linked to FIFA duties.
These are not robust provisions and, in particular, fail to define the terms ‘bribe’ and ‘bribing’.
Remarkably, there is no standalone prohibition specifically preventing executive committee members seeking an advantage – the subject matter at the core of the present allegations.
FIFA also published Rules of Conduct regarding the submission of bids for both the 2018 and 2022 tournaments.
Given the status of the competition, it is striking that this document runs to just two pages and that, while it placed ethical obligations on the bidding countries, it did not do so on executive committee members.
As is well documented, Amos Adamu and Reynald Temarii had their membership of FIFA’s executive committee suspended during the bidding process, which concluded earlier this year, following separate allegations of bribery, which they deny.
With those suspensions still current, FIFA has been forced into holding a further inquiry into the current allegations.
Since the new UK Bribery Act was not in force at the time when Lord Triesman alleges that bribes were demanded, the Prevention of Corruption Act 1906 is the relevant law for any prosecution emanating from the UK.
According to the Crown Prosecution Service, the 1906 act makes it a crime to bribe any agent – defined as anybody employed by or acting for another, whether in the public or private sector.
Section 1 of the act also creates offences relating to other corrupt transactions by and with agents in relation to their principal’s activities, including making false statements or knowingly giving false documents to an agent intending to mislead their principal.
‘Agent’ in the 1906 act includes Crown servants, but does not include councillors in local government, so those cases should be dealt with under the 1889 act. ‘Corruptly’ in the 1906 act does not mean dishonestly, but rather a deliberate offering of money or other favours with the intention to corrupt.
The prosecution does not have to prove that the defendant actually demonstrated favour as a consequence of having received the gift, as long as he received the gift as an inducement to show favour.
Criminal law
Even if FIFA takes action, what is the scope for the criminal law to become involved? FIFA is based in Zurich, and any investigation might therefore be conducted by Swiss authorities.
However, the UK could become involved if it were to determine that it had jurisdiction to do so.
The allegations at present all appear to relate to non-UK nationals and, accordingly, for the British courts to have jurisdiction, investigators would need to establish that some part of the alleged improper conduct occurred within the UK.
Obviously, if meetings took place here at which an improper advantage was sought, that is likely to be sufficient.
However, in the era of electronic messaging and banking it may also be possible to establish jurisdiction if, for example, relevant emails or payments were received in the UK.
The Bribery Act 2010, the UK’s much heralded anti-corruption flagship will, however, not be relevant – it does not come in to force until 1 July and is not retrospective.
As such, any UK investigation would likely concentrate on potential offences under the Prevention of Corruption Act 1906.
If so, for a prosecution to follow, investigators would need to establish that an executive committee member, acting as an agent for FIFA, had corruptly attempted to obtain an advantage as an inducement or reward for supporting the bid. If any prosecution was successful the maximum sentence would be seven years imprisonment and/or an unlimited fine.
Although, as stated, the Bribery Act is not relevant for the purposes of the present allegations, it is interesting to consider how such alleged conduct would be dealt with if it occurred in future World Cup bids.
Again, in the absence of conduct by a UK national, there would need to be some conduct occurring in the UK.
Section 2 of the act expressly prohibits a person requesting, agreeing to receive, or accepting a financial or other advantage intending that a relevant function or activity should be performed improperly.
Accordingly, and in contrast to FIFA’s rules, there would appear to be an offence that could specifically target executive committee members improperly seeking an advantage in return for their vote.
Lord Triesman took advantage of parliamentary privilege when making accusations against members of FIFA’s executive committee. This is an ancient right in British law and has a unique place in British constitutional history enshrined in the 1689 Bill of Rights.
Parliamentary privilege originally developed as a means of preventing a monarch interfering with the workings of parliament.
One of the rights in the Bill of Rights is that ‘the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament’.
In practice that means that parliamentarians cannot be sued for libel for things they say in parliament.
It also covers the preparations MPs make for debates, such as their papers, tabled questions and their own notes.
The draft statements submitted by witnesses to parliamentary inquiries are also protected.
As a parliamentary committee made clear in 1999, the 1689 act ‘protects activities that are recognisably part of the formal collegiate activities of parliament’.
The right of the press to report on most parliamentary proceedings has, in practice, meant that MPs and members of the House of Lords could use the protection of parliamentary privilege to place information fully in the public domain.
There was, therefore, huge and as yet unresolved, controversy when it became known that courts had been granted ‘super-’ and ‘hyper-’ injunctions to prevent the reporting or even debate by parliamentarians of some matters. This conflict remains largely unresolved.
Learning from the past
The holy grail of transparency has of course long since been sought, and sadly this is not the first time that allegations of this kind have been made, including in previous World Cup bids.
The most high-profile incident to date involved allegations around the bidding process for the 2002 Salt Lake City Winter Olympics, although no charges were brought.
That said, in the wake of the furore generated by the present FIFA scandal, the International Olympic Committee has been quick to highlight the changes made to its system following Salt Lake City.
In March, the UK government issued guidance to accompany the Bribery Act and provide further clarification on the corporate offence of failing to prevent bribery.
While this offence would not at present appear to be relevant to the current FIFA allegations, the guidance sets out six principles, one of which is the need for a top-level commitment to stamp out corrupt and unethical practices.
FIFA now has an opportunity to take a proactive stance against corruption. It should begin by imposing a mandatory requirement that the voting process for all future World Cups should be wholly transparent.
If executive committee members were forced to disclose their votes, potential irregularities would be more likely to be revealed.
The prospect of detection, and the risk of criminal sanction, often proves an effective deterrent to improper conduct. In any event, by the time football finally does come home, its governing body may have endured some very difficult times.
Jeremy Summers is a partner in the business crime and regulatory team at Russell Jones & Walker. Boxes contributed by Eduardo Reyes
James Dingemans QC, who is conducting the FA’s inquiry into contested allegations made against members of FIFA’s executive committee, came to public prominence as senior counsel to the Hutton Inquiry into the death of the government scientist Dr David Kelly.
Head of chambers at 3 Hare Court, his practice is strongly focused on constitutional, human rights and public law, including claims involving written constitutions and cases raising issues of: freedom of expression; property rights; rights to life and religious rights; and rights of statutory bodies.
He regularly appears in the Privy Council in a wide range of cases, including those involving constitutional and administrative law, commercial, common law and criminal cases.
A particular feature of his practice is his expertise in, and experience of, cases which involve a mix of public law and civil liberties and human rights issues.
Dingemans will report on his findings by 27 May – before the FIFA presidential election.
David Triesman is the son of East End Jewish immigrants, both communists, who taught him to observe International Workers Day as well as Yom Kippur.
He held positions as the Labour Party’s general secretary, general secretary of the Association of University Teachers, Foreign Office minister in the House of Lords and minister at the Department for Innovation, Universities and Skills.
He was made life peer after leaving his position with the Labour Party in 2004, becoming Baron Triesman of Tottenham.
He became the first independent chairman of the Football Association in January 2008, but he resigned as both head of the FA and the England 2018 World Cup bid after a newspaper reported that he had allegedly suggested Spain could drop its 2018 bid if Russia helped it to bribe referees at last summer’s tournament.
Both countries deny any such conduct.
Triesman made contested accusations about four members of FIFA’s executive committee at a parliamentary select committee on 10 May.
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