19 November 2014, by Kolawole Olaniyan.
Selecting hosts for the Fifa World Cup is an important and competitive process as the tournament can have a significant impact on nations and the pride that comes with international success is difficult to match. But intense and sometimes unfair competition for hosting rights has continued to provide opportunities for corruption in the bidding process and the operations of the once revered organization.
A new report by Fifa’s ethics committee investigating allegations of corruption in the bidding process leading to the decision to award the 2018 and 2022 World Cups to Russia and Qatar respectively has brought sharply into focus the problem of bribery and corruption within Fifa, and shows that its statutes and mechanisms are simply not up to the challenge of effectively dealing with the problem and operating a clean organization.
The 430-page report is not yet published but a 42-page summary identified bribery and other forms of wrongdoings in a murky World Cup bidding process. However, the ethics committee curiously concluded that there is not sufficient evidence to justify stripping either Russia or Qatar of the tournaments.
According to the committee, any breaches of the rules were only of “very limited scope,” meaning that the breaches as a whole “were far from reaching any threshold that would require returning to the bidding process, let alone reopening it.”
Fifa has said that “a degree of closure has been reached with the report declaring the evaluation of the 2018/2022 FIFA World Cup bidding process closed.” But American lawyer Michael Garcia, who headed the investigation is having none of it as he has described the report’s findings as “incomplete and erroneous.”
This report is nothing but a farce and raises serious questions as to whether Fifa can ever be a clean organization.
It is simply a case of Fifa investigating itself and expectedly finding itself not guilty. The principle that a man or organization shall not be a judge in his or its own cause—nemo judex in sua causa—means little or nothing to Fifa. The principle is not confined to a cause to which a body is a party, but applies also to a cause in which it has an interest.
Garcia has threatened to appeal to the Fifa appeals committee but the impartiality and independence of this body to dispense justice is questionable as the appeal committee is appointed by the same Fifa executive committee facing allegations of corruption in the bidding process.
Fifa is fighting back amidst a sea of criticism surrounding the report. A Fifa director reportedly suggested that Garcia was enjoying the publicity, and that his comments “were self-serving”. Also, Hans Joachim-Eckert, who chairs the adjudicatory chamber of Fifa’s ethics committee, has said that the report, which cost £6 million to produce, will never be available to the public.
The simple fact of the matter is that Fifa can ill afford to sweep under the carpet the pertinent issues raised by Garcia or the glaring weaknesses evident in the report.
Let’s look briefly at some of these breaches with respect to Qatar, Russia and England, and the supposed Fifa’s ‘threshold’ as contained in its Statutes.
With respect to Qatar, the report established that the former Asian Football Confederation president Bin Hammam made “several improper payments” (totalling $1.8m) for the rights to sponsor the Confederation of African Football Congress in Angola and to gain exclusive access to four of the 24 members of the executive committee. He also paid $1.2m to the former Fifa executive committee member Jack Warner to stop him testifying against him. Some payments were also made to the Argentina Football Association.
But the report strangely concluded that these payments were not directly linked to the bid for the World Cup and as such did not break any bidding rules or compromise the integrity of the process. The payments however “created a negative impression,” and that the conduct of two advisers involved in the bidding “raised concerns in the light of relevant Fifa ethics rules”.
There is no way the committee would have been able to find any direct link between the payments and the bids if it couldn’t even speak to key parties and witnesses, and when it apparently failed to seek alternative sources of evidence after it discounted evidence from two whistle-blowers.
With respect to Russia, the committee had no access to important evidence as email exchanges were missing because the computers the bidding committee rented for the bid had been destroyed. But these excuses seem to have “the smack of I left my homework on the bus”. Yet, the ethics committee didn’t even deem it fit to probe the matter further to see if it could discover something relevant to aid its investigation.
While the committee cleared both Russia and Qatar, England was not so lucky even though the three cases are not significantly different in substance and scale of alleged wrongdoings, suggesting inconsistency (or bias) in the committee’s approach to its work.
The football authority was accused of violating bidding rules by among others: paying Jack Warner, a former Fifa executive, $55,000 for a gala dinner in Trinidad and providing substantial assistance for a training camp for an under-20 Trinidad and Tobago team in 2009.
From a close reading of the summary of the report, there is no question that the ‘successful bidding’ by Qatar was influenced by bribery, regardless of what the committee chose to call it. As for Russia, questions remain as to the transparency of the whole process and why the committee chose to let Russia get off the hook so lightly.
The improper payments and wrongdoings the report documented amount to improper influence and bribery, raising questions as to the validity of the entire bidding process and Fifa’s operations. To be clear, bribery is the receiving or offering any undue reward by or to any person whatsoever, in a public or private role, in order to influence his/her behaviour in that role, and incline him/her to act contrary to the known rules of honesty, impartiality, and integrity.
The evil to which the notion of bribery is directed is that of people (such as Fifa’s officials) being bought to act other than honestly and impartially in the performance of functions within the ambit of their office (such as World Cup bidding decisions).
As it stands, no individual, organization, members or officials of Fifa will be punished for the bribery cases identified by the ethics committee.
Fifa’s lack of transparency and internal accountability, when combined with a growing perception of impunity of its leaders, are leading to an erosion of its integrity and credibility. This seriously threatens the continuing success of the “beautiful game.”
It is noteworthy that Fifa has already promised to base future decisions on a vote by all 209 members at its Congress rather than its executive committee. But this is certainly not enough to fully respond to the growing accusations of corruption against the organization.
If Fifa is to reclaim its integrity and credibility and instil public trust and confidence in its bidding process it has to now move swiftly to promote transparency by urgently publishing the full report to resolve the doubts that have been raised by Garcia.
At the moment, Fifa’s statutes regulating bidding and voting processes are too broadly worded and open-ended. Even Mark Pieth who heads Fifa Independent Governance Committee (IGC) once admitted that the World Cup bidding process is “a mix of corruption risk and conflict of interest concerns.” However, the IGC performs a “non-binding” role, and has “no decision power.” And the IGC can’t even look into past violations of Fifa’s statutes.
Fifa’s disciplinary code and code of ethics are so limited in scope and application (and unpredictable), thus falling far short of contemporary international standards against corruption. For example, whereas players, match officials, agents and spectators are subject to the disciplinary code, members of Fifa executive committee do not appear on the list. The executive committee in fact is the body that enforces the code!
Nonetheless, unlike the disciplinary code, the code of ethics applies to all officials, presumably including members of the executive committee. Even so, in cases of bribery such as those documented by the report, possibilities for enforcement are limited and open to political abuse. There is for example no requirement to rescind bidding on the basis of proven allegation of corruption.
While Fifa in 2002 recognized the Court of Arbitration for Sport (CAS), cases of corruption involving high ranking members of the executive committee are rarely taken to the court. In any case, Fifa statutes remain the primary basis for a CAS decision. While appeal against a CAS decision may be lodged before the Swiss Federal Tribunal, the tribunal is often reluctant to overturn any such decision.
Therefore, Fifa’s statutes and mechanisms will continue to provide opportunities for bribery and corruption unless the organization undertakes a ‘root and branch’ (and independent and transparent) review of them and show it can ensure accountability for alleged past wrongdoings by its leaders.
Bidders for tournaments should know what set of rules they are dealing with and the process must be less susceptible to manipulation and corruption.
A thorough, transparent, independent and impartial investigation is urgently needed, with all the requisite powers to trace and interview key witnesses, and to demand documents, testimony, and mysteriously disappeared Russian emails.
As Transparency International has recommended, Fifa must act swiftly to implement unambiguous anti-bribery codes, including declaring a zero tolerance of bribery and fully reflecting this in its operations, and imposing sanctions sufficient to serve as an effective deterrent to people who might otherwise be tempted to commit corrupt acts.
Fifa can’t restore face to the “beautiful game” if it does not clean up its own systems and processes. Now is the time for Fifa to wake up to the magnitude of the problem and ease the nerves of World Cup fans with respect to the bidding process, and its operations in general.
About Kolawole Olaniyan
Olaniyan, author of ‘Corruption and Human Rights Law in Africa’, is Legal Adviser, International Secretariat of Amnesty International, London