[From the Editors’ Desk]
In this article, we have discussed and analysed the global problem of corruption specifically in the context of the world of football. Time and again, the world has witnessed major corruption cases relating to the most popular sport on the planet, which not only violates the integrity of the beautiful sport, but also devoid countries of opportunities for development, especially considering the economic benefits this sport can bring to nations. To provide the reader with a thorough understanding of this issue – major judicial pronouncements, applicable laws and jurisprudence laid down by the Fédération Internationale de Football Association (‘FIFA’) as well as the Court of Arbitration for Sport (‘CAS’) have been comprehensively discussed. A comparative analysis has been provided, which essentially captures the comparison of various mechanisms and actors that have a bearing upon this issue. We have also discussed the evidentiary concerns in football-related corruption cases. Furthermore, in the capacity of students of sports law, we have also propounded certain suggestions which can potentially curb this menace of corruption.
Keywords: Football, FIFA, CAS, Corruption, Bribery, Ethics, Integrity, Code of Ethics
Corruption in sports is not a new phenomenon and it is imperative to address the same insofar as it distorts the integrity of sport, which is of utmost importance to its development and success. Football is the biggest global sport, both in terms of fan following as well as revenue; it is a prominent sport that has developed into an industry with an economic impact on a variety of social structures at various levels. It is worth noting that football maintains a variety of mechanisms that enable economic, social, educational, and cultural development. Rapid capitalism has had an effect on the football industry, notably since the early 1990s, when money invested in the game increased significantly, primarily as a result of television rights and corporate sponsorships. Moreover, the labour market for professional football players witnessed unprecedented globalisation and football players literally became international celebrities.
In today’s increasingly globalised world, corrupt actors pose complex risks to exploit the beautiful game for personal and illicit benefits. Due to the enormous amounts of money involved in modern sports, there has been an ever-increasing risk of economic crimes such as fraud and corruption. Corruption in football happens institutionally (for example – FIFA, Federations and Member Associations) as well individually (for example – Players, Coaches and other stakeholders). Prior to discussing the issue of corruption in football, it is imperative to note that FIFA is the governing and regulatory body for the game at the world level and controls inter alia, the holding of world cups and continental tournaments, regulating the national football associations of each country, and legislating on the laws of the game.
LANDMARK JUDICIAL PRONOUNCEMENTS
The following are a few important cases relating to global corruption in football:
In 2015, various FIFA officials were charged of the offence of corruption, mainly concerning the bidding processes for the 2018 and 2022 FIFA World Cups. During investigation and subsequent to a raid conducted on FIFA’s headquarters by the Swiss Authorities – Sepp Blatter, who was the President of FIFA, and Michel Platini were both found to be involved in criminal misappropriation of funds and corrupt practices. This led up to the landmark cases of Sepp Blatter v. FIFA [CAS 2016/A/4474] and Michel Platini v. FIFA [CAS 2011/A/2426] wherein both the officials were found guilty of breaching various provisions of the FIFA Code of Ethics (‘Code’) and were banned for eight years from all football-related activity.
- The Amos Adamu Case [Amos Adamu v. FIFA, CAS 2011/A/2426]:
Nigeria’s Amos Adamu was charged by FIFA for serious corruption and bribery in relation to the bidding for the 2018 and 2022 FIFA world cup elections. He subsequently appealed before the CAS which upheld FIFA’s decision. This case was a significant development inasmuch as the standard of proof in corruption cases was determined by the CAS to be that of ‘comfortable satisfaction’. This allowed the Panel to be comfortably satisfied on the basis of the available material on record regarding the allegations of corruption. The Authors have explained this standard of proof and other evidentiary concerns in the subsequent sections of this article.
- Ahongalu’s Case [Ahongalu Fusimalohi v. FIFA, CAS 2011/A/2425]:
Ahongalu was also found to be guilty during investigations conducted in the previously mentioned case of Amos Adamu. In this case, a reporter from Sunday Times faked his identity to bring to light the corrupt conduct by this official; further, the call recordings and transcripts were leaked and therefore, there were concerns regarding the nature of obtaining the evidence and whether the same can be considered to be in breach of Article 6 of the European convention on Human Rights (‘ECHR’). CAS finally allowed the illegally obtained evidence to be considered to establish the corruption charge against Ahongalu in light of involvement of public interest, which is to be balanced against the personal rights of an individual.
- Kwesi Nyantakyi’s Case [Kwesi Nyantakyi v. FIFA, CAS/2018/A/6072]:
In this case, corrupt practices and conduct in African Football was brought to light after an undercover investigation, and Kwesi Nyantakyi, the erstwhile president of African Football was found guilty. This case is important insofar as the jurisprudence regarding sanctions to be imposed for corruption cases was discussed at length. This has been further analysed by the Authors in the subsequent sections of this paper.
ACTORS AND DRIVERS OF CORRUPTION IN FOOTBALL
Prior to analyzing and comparing the actors and mechanisms which contribute to corrupt practices in football, it is imperative to take note of the general level of corruption globally on a geographical basis. The following data can be looked at for the same :-
Comparison of actors and drivers of corruption in football:
As can be observed from the previous section of this Article, almost all the big corruption cases in football concern institutional level corruption, mainly in the bidding and election processes for the FIFA World Cup. On comparing the cases of corruption in the 2018 and 2022 FIFA World cups respectively, a similarity can be observed, which is essentially that high-ranking officials exploited their legal responsibilities and public positions to obtain an unfair advantage. They obtained this unfair advantage by approaching members of national federations prior to their vote for the country they believed would be the best match to host. Following the allocations, court actions were initiated in response to claims of unlawful payments made in attempt to get votes from these members.
There is a correlation between corruption in football-related institutions and actors from deemed extremely corrupt countries. However, actors from seemingly more clean countries would be influenced by the environment and institutional norms to which they are exposed.
In most corruption cases in football, high-ranking officials present valuable gifts which can be monetary or non-monetary in nature and are offered in exchange for an unwarranted advantage. The individuals approached are authorities from nations where corruption-related circumstances are governed by norms. These authorities come from countries with a lack of infrastructure, such as football facilities, and a struggling economy. Furthermore, on comparing the instances and cases of corruption, there is a strong indication that the greatest motivation behind corruptive behaviour is monetary gain.
APPLICABLE LAWS AND RELEVANT JURISPRUDENCE
It should be noted that the law governing corruption and bribery in the world of football is the FIFA Code of Ethics, specifically Section 27. Section 27 essentially provides that individuals are prohibited from accepting, giving, offering, promising, receiving, requesting, or soliciting any personal or undue pecuniary or other advantage in order to obtain or retain business or any other illegal advantage from anybody within or outside FIFA. Such acts are banned regardless of whether they are committed directly or indirectly through third parties or in collaboration with them.
In corruption cases, people try to use to evasive methods and therefore it might be rendered extremely difficult to prosecute the offenders. To cater to this concern, the Code and the established precedent as discussed previously provides that for corruption and bribery cases, the standard of proof which is applicable is that of ‘comfortable satisfaction’. This standard was established in the landmark Pobeda judgment of the CAS and it is essentially a standard which is lower than the criminal standard of proof beyond reasonable doubt and higher than the civil standard of balance of probabilities. Ergo, this standard is subjective in nature and both FIFA and CAS are not bound by the criminal standard of proof beyond reasonable doubt to prosecute the offenders. Further, the sliding scale test under the applicable jurisprudence allows for a high degree of confidence [Köllerer v. FIFA, CAS 2011/A/2490] in the available evidence in such cases due to the involvement of public interest.
Furthermore, as embodied under the Code, the sanctions which can be imposed for such offences could be the following:
- compliance training;
- return of awards;
- social work;
- match suspension;
- ban from dressing rooms and/or substitutes’ bench;
- ban on entering a stadium;
- ban on taking part in any football-related activity.
To prove the offence of corruption in football related cases, a four part criteria needs to be established. The elements of this criteria are as follows:
- Firstly, the person must be bound by the Code;
- Secondly, there should be an acceptance or promise to accept an ‘advantage’;
- Thirdly, the advantage must be ‘undue’ and ‘personal’ in nature;
- Fourthly and lastly, the undue advantage must be given in order to obtain or retain business or any other advantage.
All the four elements are of a compulsory nature and need to be established for charging an official under Article 27 of the Code. With respect to sanctions imposed on the officials, it is pertinent to note that the judicial precedent, as well as Article 9 of the Code provides for mitigating factors to be considered. These factors form the recognised principle of mitigation of guilt and include, inter alia :-
- the nature of the offence;
- the offender’s substantial interest in deterring similar misconduct;
- the offender’s cooperation and assistance;
- the motive;
- the circumstances;
- the degree of the offender’s guilt;
- the extent to which the offender accepts responsibility; and,
- where applicable, whether the person mitigated his guilt by returning the advantage received.
SUGGESTIONS AND CONCLUSION
The Author would like to put forth certain suggestions which can potentially help curbing down the menace of football-related corruption. The suggestions are as follows:
- Firstly, considering the recurring nature of corruption cases especially in relation to FIFA world cup bidding and elections, a separate oversight committee specially dedicated to monitor the world cup elections should be formed;
- Secondly, the sanctions as provided under the Code should be made more strict so as to serve as an effective deterrent for people engaging in corrupt activities;
- Thirdly, a whistle-blower policy should be formulated which is lacking now, considering the fear of people to bring to notice such conduct;
- Fourthly, continuous audits should be conducted at regular intervals in the working of all national football associations as well as FIFA itself;
- Fifthly and lastly, a more detailed and specific set of rules and regulations, relating to the offences of match fixing and corruption (considering the serious nature of the same) could be contemplated and discussions should be initiated on the relevant policy reforms.
In conclusion, the Authors would say that the inherent nature of sport is dependent on uncertainty and chance – which is that sometimes you win and sometimes you lose; corruption destroys this element of chance and ergo affects the very nature of sport.
*For any query, feedback, or discussion, Aakash and Ria can be contacted at [firstname.lastname@example.org]
*NOTE- The opinions and views expressed in this article are that of the Author(s) and not of SLPRR- the expressed opinions do not, in any way whatsoever, reflect the views of any third party, including any institution/organisation that the Author(s) is/are currently associated to or was/were associated to in the past. Furthermore, the expressions are solely for informational and educational purposes, and must not be deemed to constitute any kind of advice. The hyperlinks in this blog might take you to webpages operated by third parties- SLPRR does not guarantee or endorse the accuracy or reliability of any information, data, opinions, advice, statements, etc. on these webpages.
PREFERRED CITATION: Aakash Batra and Ria Mishra, Corruption and Controversy in the world of Football – Recurring cases of Bribery in FIFA, SLPRR <https://sportslawandpolicyreviewreporter.com/2022/05/23/corruption-and-controversy-in-the-world-of-football-recurring-cases-of-bribery-in-fifa/(opens in a new tab)≥ May 23, 2022.