The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
• The Office of the Attorney General of Switzerland (OAG) has filed an indictment against the former Secretary General of the Fédération Internationale de Football Association (FIFA), Jerôme Valcke, the chairman of the BeIN Media Group, Nasser Al-Khelaifi, and a businessman in the sports rights sector in connection with the award of media rights to various World Cup and FIFA Confederations Cup tournaments.
The OAG has charged Valcke with accepting bribes (Art. 4a para. 1 in conjunction with the former Art. 23 of the Federal Act on Unfair Competition [UCA]), several counts of aggravated criminal mismanagement (Art. 158 No 1 para. 3 Swiss Criminal Code [SCC]), and falsification of documents (Art. 251 SCC). The facts alleged in the indictment are no longer characterised as fraud (Art. 146 SCC). Al-Khelaifi and the third accused are charged with inciting Valcke to commit aggravated criminal mismanagement (Art. 24 and Art. 158 para. 1 SCC). The third accused is also charged with bribery (Art. 4a para. 1 in conjunction with the former Art. 23 UCA).
The investigations revealed that Valcke had received undue advantages from both co-accused. Valcke was refunded the down payment of around EUR 500’000 that he had made to a third party on the purchase of a villa in Sardinia, after Al-Khelaifi had purchased the villa through a company instead of Valcke. Valcke then received from Al-Khelaifi the exclusive right to use the villa for a period of 18 months – until he was suspended by FIFA – without having to pay an estimated rent in between about EUR 900’000 and about EUR 1.8 mio. From the third accused Valcke received three payments totalling about EUR 1.25 mio to his company Sportunited LLC.
The charge of criminal mismanagement relates to the fact that Valcke had not reported the mentioned advantages that he received to FIFA, as he was required to do as its Secretary General, thus unlawfully enriching himself. In this context, Al-Khelaifi and the third accused are charged with corresponding incitement. In relation to the falsification of documents, Valcke is charged with causing the issuance of untruthful balance sheets for Sportunited LLC in 2013 and 2014, in that he had the three payments from the third accused entered as loans.
The charges of paying and accepting bribes are based on the allegation that between 2013 and 2015 Valcke exploited his position as Secretary General of FIFA to influence the award of media rights for Italy and Greece for various World Cup and FIFA Confederations Cup tournaments in the period between 2018 and 2030 in order to favour media partners that he preferred. In return, the third accused promised and indeed made the aforementioned three payments to Valcke totalling EUR 1.25 mio.
On the other hand, the suspicion that Valcke accepted a luxury watch that Al-Khelaifi offered him in return for exerting his influence as Secretary General of FIFA was not found to be substantiated. As a result, an abandonment of proceedings order in relation to this matter was issued in February 2020.
The basis for these criminal proceedings, which were opened in March 2017 and conducted in close cooperation with Federal Office of Police fedpol, included a criminal complaint of bribery of private individuals (Art. 4a in conjunction with the former Art. 23 UCA) which FIFA filed against all three accused in December 2016. After the OAG had held a final examination hearing* in December 2019 and given the parties written notice that it would be concluding the proceedings by filing an indictment, FIFA informed the OAG at the end of January 2020 in writing that it had reached an unspecified “amicable agreement” (“accord amiable”) with Al-Khelaifi, and that as a consequence it was withdrawing its criminal complaint against Al-Khelaifi and also partially against Valcke.
The withdrawal relates to the allegations of bribery involving Al-Khelaifi and Valcke in connection with the award of media rights for the World Cup tournaments in 2026 and 2030 as well as for other FIFA events for the region Middle East and North Africa in the same period in return for granting the aforementioned advantages in connection with the villa in Sardinia. As the bribery of private individuals in this specific case was an offence prosecuted only on complaint**, the withdrawal of the complaint meant that a procedural requirement for the prosecution of these offences was no longer met.
Contrary to the notice already given to the parties, the OAG therefore will have to abandon the proceedings in relation to this allegation. For this purpose, the OAG ordered that part be dealt with as separate proceedings as from February 2020.
The partial withdrawal of complaint does not relate to the allegations of bribery involving Valcke and the third accused that are now part of the indictment. Further, the partial withdrawal has no effect on the proceedings relating to the offences that are prosecuted ex officio, i.e. the allegations of criminal mismanagement, incitement to criminal mismanagement and falsification of documents, which are now also part of the indictment.
Within the framework of these criminal proceedings, a recusal request in connection with the conduct of the final examination hearing is still pending before the Federal Criminal Court (FCC). Although the court’s decision on this matter may have an effect on the proceedings, after having analysed the risks and weighed up the competing interests as well as taking account of the fact that the prosecution of certain matters will become time-barred in the final quarter of 2020, the OAG decided to file the indictment at the present time.
The OAG will make its application at the hearing before the FCC. The accused are presumed innocent until a judgment enters into force. A soon as the indictment is filed, the FCC alone is competent to provide any further information.
*Under Art. 317 of the Swiss Criminal Procedure Code (CrimPC), in extensive and complex preliminary proceedings the accused is questioned in a final examination hearing before the investigation is concluded and is requested to comment on the investigation findings.
**The bribery of private individuals is prosecuted in accordance with Art. 4a para. 1 in conjunction with the former Art. 23 of the Federal Act on Unfair Competition (UCA) where the alleged offence took place before 1 July 2016. Offences committed on or after 1 July 2016 are governed by Art. 322octies and 322novies of the Criminal Code (SCC), which came into force on the same day.
• This media release was published by the Swiss Office of the Attorney General (AOG) on 20 February 2020. Click here for the original.
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