Key legal advice to FIFA on publication of the Garcia report
ZURICH: Herewith is a published summary of the report of the chairman of the FIFA audit and compliance committee:
In a letter dated 20 November 2014, the chairmen of the two chambers of the FIFA Ethics Committee approached the chairman of the FIFA Audit and Compliance Committee to ask him to decide which information should be passed on to the FIFA Executive Committee so that it could meet its duties as the management body of FIFA.
In the case at hand, the chairman of the FIFA Audit and Compliance Committee was not called upon to resolve any differences of opinion – whether they be perceived or genuine – between the chairmen of the two chambers of the FIFA Ethics Committee, and in any case not in an authoritative manner.
He is in no way a “judge”. There should be no interference with the responsibilities and procedures of the FIFA judicial bodies. Rather, this is about the fact that the FIFA Executive Committee is the highest operating management body of world football’s governing body, and as such, it has the right to know about any potential complications and dangers emanating from the facts that have come out of the relevant investigation, but also out of the conduct of the investigation itself and the handling of the corresponding report.
As certain issues are of a significantly complicated nature, the chairman of the FIFA Audit and Compliance Committee, while compiling his report, solicited an expert’s opinion on a number of legal issues.
This opinion came from a respected expert in national and international sports law, who is also a professor at the German Sport University in Cologne (Prof. Martin Nolte). Furthermore, the expert’s comments and conclusions relating to Swiss association law have been reviewed and deemed accurate by a specialist in Swiss association law and general civil law, an emeritus professor of the University of Zurich.
Both experts were given access to the full reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018 and 2022 FIFA World Cup™ Bidding Process.
1. Legal opinion
The principal question in the legal opinion was whether the FIFA Executive Committee would have to revoke the decisions it took on 2 December 2010 in the light of the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process.
The answer from the expert is:
The report of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process revealed a number of irregularities in the conduct of several persons during the bidding process.
The report also contained a significant number of findings that dismissed several suspicions and assumptions of illegal conduct. Viewed as a whole – and purely on the basis of the relevant inquiry report – it is clear that the irregularities determined thus far are not of an extent that would lead to the bidding process as a whole being qualified as significantly illegal or in contravention of the Statutes.
Furthermore, the report contains several findings that further inquiries or investigations into specific persons and processes are necessary; consequently, the matter does not yet appear to be fully completed.
And finally – on the basis of the evidence and conclusions in the report – it is clear that the necessary “causality”, which would result in an obligation for the members of the FIFA Executive Committee to revoke the decisions taken on 2 December 2010, is missing.
Consequently, the members of the FIFA Executive Committee – given the findings of the report of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process – do not have to revoke the decisions taken by the Executive Committee on 2 December 2010.
The situation would have to be re-assessed should, in the course of any further inquiries and investigations into the relevant circumstances, any evidence emerge that, in particular, would provide the necessary “causality” for a revocation.
At the current moment in time, and on the basis of the facts currently known, there is no obligation to revoke the FIFA Executive Committee’s decision on the award of the 2018 FIFA World Cup™, nor an obligation to revoke the decision on the award of the 2022 FIFA World Cup™.
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In the light of the above, it is to be assumed that the members of the FIFA Executive Committee would violate the duty of care that is incumbent upon them were they to revoke either or both of their decisions regarding the awards.
Such a violation of a duty of care could result in liability for a wrongful act (art. 55 par. 2 and 3 of the Swiss Civil Code in connection with art. 41ff. of the Swiss Code of Obligations).
The comments from the expert make it clear that, at the present moment in time, there is no legal obligation for the members of the FIFA Executive Committee or for the Executive Committee as such to revoke either or both of the decisions taken on 2 December 2010 regarding the award of the hosting rights for the final competitions of the 2018 and 2022 FIFA World Cups™.
Consequently, the members of the FIFA Executive Committee would expose themselves and FIFA as a whole to significant legal risks were they to revoke either or both of the above-mentioned decisions on the basis of the facts that are currently known.
In this regard, one of the expert’s findings in particular must be highlighted, namely the fact that certain irregularities were indeed noted in the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process.
In the expert’s opinion: “Viewed as a whole – and purely on the basis of the relevant inquiry report – it is clear that the irregularities determined thus far are not of an extent that would lead to the bidding process as a whole being qualified as significantly illegal or in contravention of the Statutes.”
The expert also noted that the conclusion that the “causality” (which is currently missing) required for a revocation of the award decisions in December 2010 would have to be re-assessed should, in the course of any such procedures, any evidence emerge that there was indeed more misconduct than previously known.
According to the expert, and purely on the basis of the findings of the procedures conducted thus far, as well as on the basis of the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process, it can hardly be expected that such evidence would emerge during such procedures.
2. Comparison of the two documents
Many of the relevant changes in the statement of the chairman of the adjudicatory chamber of the FIFA Ethics Committee compared to the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process are due to the fact that the statement was a summarising document that, by its very nature, entailed making significant abridgements to and omissions from the reference document.
Other differences in the statement that may give the impression of changes to the content of the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process are judgemental additions that can be recognised as such by reading the statement closely.
Moreover, as far as the judgements made by the chairman of the adjudicatory chamber are concerned, it should be pointed out that he is entitled to make such judgements.
In addition, the chairman of the adjudicatory chamber was obliged to protect ongoing or imminent proceedings against individuals as well as the corresponding personal rights.
The FIFA Code of Ethics does not contain any rules for dealing with reports of the investigatory chamber of the FIFA Ethics Committee such as those under discussion, and consequently there are no provisions that would conflict with an assessment of such reports by the chairman of the adjudicatory chamber.
In view of the above, there is no indication that any of the information in the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process should, as a matter of course, be made available to the FIFA Executive Committee – apart from the explanations in the statement of the chairman of the adjudicatory chamber of the FIFA Ethics Committee of 13 November 2014 – in order for the committee to fulfil its functions in accordance with the Statutes.
Furthermore, Ethics Committee proceedings are now to be expected against certain individuals, as stated in the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process.
Regardless of the differences between the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process and the statement of the chairman of the adjudicatory chamber of the FIFA Ethics Committee, the report contains numerous conclusions and recommendations that merit approval.
Consequently, some of these conclusions and recommendations need to be highlighted and expanded upon with further comments and recommendations.
– Decisions on more than one award of hosting rights for the final competition of a FIFA World Cup™ at the same meeting of the decision-making body should no longer be permitted (this has already been implemented by means of art. 80 par. 3 of the current FIFA Statutes, which is to be welcomed).
– The notification requirements regarding gifts, procedures for friendly matches and the role of consultants need to be tightened.
– The promotion of football development projects by bid teams outside of the country or member association concerned should no longer be permitted.
– The bid teams should be subject to a strict legal obligation to allow an audit upon completion of the application and award procedure and to send the corresponding report to FIFA.
– The bid teams should be subject to a strict legal obligation to store all documents relating to their activities and to keep them available for FIFA for a specified period.
3. Publication of the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018 and 2022 FIFA World Cup™ Bidding Process
According to the chairman of the Audit and Compliance Committee, it is necessary to assess whether it is possible to publish the reports of the chairman and deputy chairman of the investigatory chamber of the FIFA Ethics Committee on the inquiry into the 2018/2022 FIFA World Cup™ Bidding Process upon completion of all ethics proceedings to be conducted against specific individuals based on the findings in the report on the inquiry.
As to whether the reports should be published or not, this entails weighing up confidentiality promises and the right to privacy against the public interest.
Only the FIFA Executive Committee can do this.
The reports may only be published once these considerations have been weighed up and then only in the appropriate form and upon completion of all ethics proceedings against individuals, and publication is therefore recommended on this basis by the chairman of the Audit and Compliance Committee to the Executive Committee.
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