The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
The International Federation of Football Associations (FIFA) has defended its 2018 Code of Ethics, after it was criticised for removing the word ‘corruption’; introducing a Statute of Limitations; and introducing a Defamation Clause. The 2018 Code of Ethics came into force on 12 August, after being approved by the FIFA Council on 10 June, and the major changes were explained in a 27 July Circular sent out to FIFA Member Associations. However, that Circular doesn’t mention any of the changes highlighted above.
FIFA explained that the title of Article 21 of the 2012 Code of Ethics was changed from ‘Bribery and corruption’ to ‘Bribery’ in Article 27 of the 2018 Code of Ethics ‘for reasons of language clarity in the English, Spanish and German versions’. It pointed out that there is no change in the French version of the Code, where Article 27 is still entitled ‘Corruption’. The French version of the Code is available here.
‘The same conduct that was punishable under the previous code is still punishable today under the new one’, explained FIFA. ‘Moreover, and for the sake of clarity and comprehension, the new code is actually more stringent regarding bribery, by dint of having minimum sanctions to punish any instance of bribery, which did not exist under the previous code. Thus, any bribery offence will be sanctioned with a minimum ban from all football-related activity of five years, as well as a minimum fine of CHF100,000.’
Article 12 of the 2012 Code mandated that breaches of its provisions could no longer be prosecuted after a time lapse of ten years. Under Article 12 of the 2018 Code, the time limit applicable to breaches is cut in half to five years, expect in cases of bribery and match manipulation.
Under the 2012 Code, the investigation of bribery and corruption cases was not subject to a time limitation period. Under the 2018 Code, ‘bribery, misappropriation of funds and manipulation of football matches or competitions may no longer be prosecuted after a lapse of ten years’. If an investigation is opened before the expiration of the time limitation period, such a time limit may be extended for half its length. In explanation, this could give FIFA up to 15 years to investigate bribery, misappropriation of funds or match manipulation cases.
‘The Ethics Committee believes that ten years (or 15 years if an investigation is open) is a sufficient period of time in which to complete the investigation in cases of serious infringements’, read FIFA’s defence of the 2018 Code of Ethics. ‘This change will bring more legal certainty to the world of football by ensuring that potential infringements to the code are dealt with in a swift manner. The statute of limitations is a general principle of law that is applied in civil law and common law systems, as well as in civil and criminal matters. Assuming that an infringement can be prosecuted, it should be pursued with reasonable diligence. If too many years have passed after the facts have occurred, an investigator and/or a defendant might have lost evidence necessary to prove or disprove the claim.’
FIFA’s explanation doesn’t mention that changes to the Code of Ethics are also designed to lessen FIFA’s case load. In its 27 July Circular, FIFA explains that its Ethics Committee will investigate breaches of the Code where such conduct:
• Has been committed by an individual who was elected, appointed or assigned by FIFA to exercise a function;
• Directly concerns their FIFA-related duties or responsibilities; or
• Is related to the use of FIFA funds.
In all other cases, FIFA Member Associations and/or Confederations will be required to ‘investigate and judge the matter’. However, FIFA will retain the competence to investigate if the Ethics Committee becomes aware of a case and nothing is done within three months.
In addition, any appeals against decisions taken by the FIFA Ethics Committee must now be appealed to the Court of Arbitration for Sport (CAS) rather than the FIFA Appeals Committee, except in match manipulation cases. ‘The two-instance procedure for most ethics-related cases shall not only ensure a more effective handling of appeals and the reduction of costs, but will also help the persons concerned to have their cases settled in an even more timely manner’, explains FIFA in the July Circular.
The 2012 Code of Ethics did not contain a Defamation Clause. Article 22.2 of the 2018 Code of Ethics prevents persons bound by the Code from ‘making any public statements of a defamatory nature towards FIFA and/or towards any other person bound by this Code in the context of FIFA events’. A violation is punishable by a fine of ‘at least’ CHF10,000 (€8,850) as well as a ban up to a maximum of two years. The maximum ban for repeated violations is five years.
‘The Ethics Committee considered that such a prohibition, which exists in most legal systems and which was not contained in the previous code, needed to be included in the Code of Ethics’, reads FIFA’s defence of the 2018 Code. ‘The world of football is not immune to conduct that aims to tarnish the reputations of others, and such conduct, like any other unethical conduct mentioned in the Code of Ethics, must be sanctioned accordingly. The article concerning defamation is not only there to protect FIFA, but also to protect any other person covered by the code who may be subjected to discriminatory or defamatory statements in the context of FIFA events.’
Critics have suggested that such a clause is controversial because it goes against the trend of encouraging corruption whistleblowers to speak out. “This will tamp down criticism of all kinds, which is presumably what FIFA is hoping for”, former FIFA Governance Committee member Alexandra Wrage told The Associated Press. “While well-governed organisations are encouraging transparency and urging people to speak up if they have concerns, FIFA takes the authoritarian stance that people should stay quiet. Defamation requires a false statement and FIFA would have to prove that any criticism was false, but the real value to FIFA is the chilling effect this will have on critics.”
Article 29 of the 2018 Code of Ethics introduces a prohibition on the manipulation of football matches and competitions, as well as a requirement to report any suspicious approaches. Unlawfully influencing match results is also prohibited by Section 10.69 of the FIFA Disciplinary Code.
FIFA explains that it has also been included in the Code of Ethics to provide a ‘holistic approach’ to tacking match-fixing. ‘With this holistic approach, collectively employed with the will and commitment to fight corruption and to safeguard the integrity of football, we are aiming to provide the Ethics Committee with appropriate and effective legal means in order to combat this (often complex) threat to football’, reads its 27 July Circular.
Article 67 of the 2018 Code also introduces a ‘plea bargain’ procedure, which allows the application of a sanction by mutual consent, a process common in US law. However, this section of the Code will not apply to cases involving bribery, misappropriation of funds and manipulation of matches or competitions. FIFA said that this Article had been introduced to speed up its disciplinary procedures.
Given FIFA’s recent history, it is easy to take a sceptical view about the 2018 FIFA Code of Ethics. For example, if the Statute of Limitations present in the 2018 Code had been applicable in 2013, FIFA would not have been able to investigate ‘commission’ allegedly paid by International Sport and Leisure (ISL) in the 1990s to FIFA officials in return for FIFA audiovisual rights.
However, Statutes of Limitation are common in international law and in sport. For example, Article 17 of the World Anti-Doping Code prevents an anti-doping rule violation being asserted against an athlete ten years after the violation is alleged to have occurred.
FIFA’s Defamation Clause is harder to defend. There is a long list of football administrators who allege that they have faced retaliatory action as a result of revealing past allegations of corruption at FIFA.
For example, in 2014, Phaedra Al-Majid and Bonita Mersiades gave evidence to the FIFA Ethics Committee about the 2018/22 World Cup bidding process. They later complained about how FIFA’s summary of the Ethics Committee Report made a point about stating that their evidence had been discounted, enabling them to be identified and targeted through the media.
In Mersiades’ case, she was sacked, told she would never work in Australia again and faced computer hacks, after exposing payments made by Australia’s bid to host the 2022 World Cup to football’s confederation heads. Earlier this year, she published a book detailing her allegations and experiences.
In 2013, FIFA launched a whistleblower system, known as BKMS*. Whether its Defamation Clause will discourage whistleblowers from coming forward to report allegations of wrongdoing is debatable, as the BKMS system is anonymous. It could mean that officials that sit on FIFA judicial committees are more reserved about allegations of wrongdoing concerning fellow FIFA officials. It is easy to see why some come to the conclusion that the Defamation Clause is an attempt by FIFA to gag critics.
Last year, a Report compiled by the former President of the Parliamentary Assembly of the Council of Europe (CoE), Anne Brasseur, warned about a loss of independence in decision making within FIFA’s supervisory bodies. ‘I have especially strong reservations concerning the loss of independence for the so-called “independent” bodies’, writes Brasseur in the ‘Good Football Governance Report’ (PDF below). ‘I note that in less than one year the four chairpersons of the FIFA key supervisory bodies were changed. I find this regrettable and I believe this is a bad signal. The way all this happened cannot be reasonably considered as a normal turnover of key positions and, regretfully, the general feeling is that FIFA Council and Mr Infantino in particular wished to get rid of persons who might have embarrassed them.’
FIFA’s Defamation Clause is unlikely to have eased Brasseur’s concerns. Such concerns were prompted by the removal of three senior figures from FIFA judicial bodies after they raised questions about Russian Deputy Prime Minister Vitaly Mutko’s roles within football, ahead of the 2018 FIFA World Cup Russia.
Mutko was directly implicated in the Independent Person (IP) Reports produced for the World Anti-Doping Agency (WADA) by Richard McLaren as covering up the positive test of a footballer whilst he was Russia’s Minister of Sport. He was banned from any involvement in future editions of the Olympic Games by the International Olympic Committee (IOC), which accepted evidence that he was involved in State doping of athletes.
However, moves to streamline FIFA’s judicial process could also be seen as a nod towards transparency and expediency. Limiting the FIFA Ethics Committee’s investigatory competence to serious breaches of the Code of Ethics should mean that it is able to respond faster to such breaches. Also, as appeals against Ethics Committee decisions will now be heard at the CAS rather than the closed FIFA Appeals Committee, it becomes more likely that the full reasoning behind such decisions will be published through a CAS award. Whilst such a move is good for transparency, whether it will be welcomed by an already very busy CAS remains to be seen.
Given FIFA’s recent history, it is very easy to be critical of such changes. There is some credence in the idea that its Defamation Clause may need a second look. But it would appear that the majority of changes introduced in the 2018 FIFA Code of Ethics will lead to a faster and more transparent judicial process in cases of corruption. And that should be welcomed.
* The Sports Integrity Initiative initially reported that FIFA did not operate a whistleblower programme, as it was unaware of such a programme and was unable to find details of any such programme. On 16 August, FIFA pointed out that it operates the BKMS system.
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