Demonising Justin Gatlin
13th September 2015
Swiss senators have voted to approve a law (14.035) known as ‘lex-FIFA’ that will make private bribery a criminal offence, however only in cases that affect the public interest – cases that do not affect the public interest will only be opened if there is a specific complaint. The vote gives final approval to reforms first suggested in 2012, which specifically include sporting organisations in plans to make the bribery of private individuals a criminal offence. The Swiss Federal Council approved the amendments in April last year, but final proposals must go back to it for approval.
“People here are saying ‘enough is enough’ Swiss politician Roland Büchel told Sky Sports News. “Our reputation as a country has definitely been damaged. It’s an incredibly big step to make private corruption a criminal offence. Maybe we have been too slow, but now we are doing it.”
“To be a criminal offence, it is no longer necessary that private bribery distorts the market or distorts competition unduly”, said State Councillor Fabio Abate in 3 June Senate debate. “Private bribery can only be punished if the behaviour of an individual violated a contractual fiduciary duty to a third party. The existence of a private law relationship is a prerequisite of criminal liability. And only official and business activities are liable to prosecution.”
Previously, bribery was only an offence under Swiss law if it distorted competition. ‘Private corruption is punishable today if it causes competitive distortions within the meaning of the law on unfair competition’, read a 30 April 2014 statement. ‘In the absence of this classic competition situation, acts of corruption between individuals are not punished. This situation has led to criticism because of corruption cases reported involving international sporting federations. The new rules also punish such acts of corruption committed – for example – in the award of major sports events.’
Senators heard that FIFA had opposed the Federal Council’s draft both verbally and in writing, during several hearings that were held on the matter, whilst UEFA supported the draft on all points. However, Senators were not prepared to go as far as some in the Federal Council had hoped.
“Private sector bribery should in future not only be punishable when it comes to economic competition, and private corruption should be prosecuted ex-officio, and not only if someone files a complaint”, said Justice Minister Simonetta Sommaruga. “This adjustment is absolutely coherent with our criminal law, because similar offences involving property – I have already mentioned misappropriation or dishonesty – are already official offences. From the Federal Council’s view, there is no reason why this should not also apply to private sector bribery. There should also be no distinction between private sector bribery and bribery of public officials. There is no reason to water down measures on the bribery of public officials.”
On 12 December last year, the Swiss Federal Council also passed a new law requiring banks to monitor the accounts of heads of international sporting federations for any suspicious activity. The law (13.106) re-classified the heads of international sporting federations as Politically Exposed Persons (PEPs). Under the 2012 recommendations (12 and 22) of the Financial Action Task Force (FATF), designed to combat money laundering and terrorist financing, countries must ensure that financial institutions and other professions implement measures to prevent ‘misuse of the financial system and non-financial businesses and professions by PEPs, and to detect such potential abuse if and when it occurs.’
• FIFA’s Secretary General, Jerome Valcke, has said that FIFA plans to postpone the bidding process to host the 2026 FIFA World Cup. “Due to the situation, I think it’s nonsense to start any bidding process for the time being”, he told media in the Russian city of Samara. “It will be postponed”. Valcke also admitted that he had authorised the transfer of US$10 million to Jack Warner while he was President of the CONCACAF – FIFA had initially denied that Valcke was involved. “Why is this the fault of FIFA when the money is not FIFA’s money, FIFA has no responsibility on this money, it is South Africa’s money, and it was a gift to the African diaspora in the Caribbean?” he said.
• The Football Federation of Australia (FFA) has said it did pay A$500,000 (€343,100) into a CONCACAF bank account, but expected it to be spent on a Centre of Excellence, not pocketed by Jack Warner. ‘The Centre centre asked Australia to donate A$4 million [€2.7 million] to the project’, read a statement from Frank Lowy, AFA Chairman. ‘We compromised and offered $500,000 to fund a preliminary feasibility study. The Chief Executive of the Centre, not Warner, gave us the bank account details for CONCACAF. We paid the money into that account and received confirmation it was received by the bank. It was paid into a CONCACAF account, not Jack Warner’s personal account. When CONCACAF contacted us to say they were conducting an inquiry into its accounts, we provided information about our donation. That inquiry – conducted by two former judges and a senior accountant – found that Jack Warner had committed fraud and misappropriated the funds – in other words he had stolen the money from CONCACAF.’
• Argentinean sports marketing executive, Alejandro Burzaco, has handed himself in to Italian police, reports Italian news agency AGI. Burzaco was one of six executives listed in a ‘red notice’ issued by Interpol last week at the request of US authorities.