PtG Comment 03.05.2013

FIFA’s new Ethics Committee fails first test

Comment: The long awaited report from FIFA’s Ethics Committee about FIFA and the ISL affair is superficial, insufficient and confuses ethics with legal formalities. The exoneration of Blatter is made on a fragile basis.

The reform process at FIFA suffered another blow as FIFA’s Ethics Committee Tuesday 30 April published a much awaited report from the chairman of its adjudicatory chamber, the German judge Hans-Joachim Eckert.

The report was the first test of the only important change so far in FIFA’s structure, since the reform process was started in late 2011: the division of the Ethics Committee in an adjudicatory and an investigatory chamber and the appointment of two independent experts to lead each chamber.

On paper the change is an improvement, but in its first reality test the Ethics Committee has failed. Judge Hans-Joachim Eckert, who shortly after his appointment came in like a lion warning Sepp Blatter that he had to cooperate or leave the FIFA  presidency, seemed to go out like a lamb after reading a 30 page report and 4,200 pages documentation from his colleague in the investigatory chamber, the US lawyer Michael J. Garcia.

FIFA keeps Garcia’s report secret and it is therefore difficult to assess the quality of the investigation. But if Eckert reflects the papers correctly, it seems that Garcia has overlooked essential aspects. He has also not added important news to the knowledge about the relation between ISL and FIFA-officials that was published in 2012 after years of scrutinizing by Swiss public prosecutor Thomas Hildbrand.

Hildbrand uncovered among other things that three South American officials, former FIFA president João Havelange, the president for the Brazilian Football Confederation Ricardo Teixeira and the president of the South American football confederation Nicolás Leoz, all had received parts of the 142 million Swiss Francs – more than 100 million US-dollars – paid out by the ISL as bribes to football and other sports leaders in return for the rights to resell FIFA’s TV- and sponsor-agreements.

All three men can now write “past” on their business card. Teixeira withdrew from his post and from FIFA’s Executive Committee early in 2012 following the revelations. And the two others have probably been warned that Eckert in his report call their actions “morally and ethically reproachable”: Havelange withdrew discreetly from his position as FIFA Honorary President already the 18 April, and Leoz joined him a few days later by leaving his seat in the FIFA ExCo as well as his lifetime presidency of South American football.

Watering down established facts

The background of these events is facts from the legal settlement from 2010 that was finally published last summer after two years’ tug-of-war in the Swiss courts.

Here it was also established that FIFA knew about the decade-long embezzlement, including FIFA-president Sepp Blatter who at least once – in March 1997 – was confronted with a payment from the ISL to João Havelange which was mistakenly sent to FIFA’s bank account and immediately returned to the ISL by Blatter.

This conclusion from the legal settlement is now watered down by judge Hans Joachim Eckert, who in his report turns it into a doubt: “It must be questioned, however, whether President Blatter knew or should have known over the years before the bankruptcy of ISL that ISL had made payments (bribes) to other FIFA officials.”

It is not clear if Eckert answers this question or leaves it open. He refers loyally to Blatters explanation to investigator Garcia about the 1997 incident: Blatter said he ““couldn’t understand that somebody is sending money to FIFA for another person,” but at that time he did not suspect the payment was a commission.” Although Blatter has an obvious interest in distancing himself from this smoking gun – and avoid the truth – judge Eckert apparently has full confidence in Blatters honesty.

Eckert concludes: “The conduct of President Blatter may have been clumsy because there could be an internal need for clarification, but this does not lead to any criminal or ethical misconduct.” The word “clumsy” in this context must compete for the award of “understatement of the year”. If the top official from any other organisation with 20 years of leadership experience discovers that the most important business partner pays out a million-dollar amount to the president of the organisation, and thereafter returns the amount without following up – would that be labeled as “clumsy”?

Did Hans-Joachim Eckert in his long career never meet a defendant who lied about his actions? How can he so unconcernedly conclude that Blatter’s explanation is credible? The blank acceptance by Eckert is even more difficult to understand, as he in the next paragraph complains that former FIFA-employees have refused to cooperate with the FIFA investigator in this specific context.

Ignoring preferential treatment to ISL

An aggravating circumstance in the 1997-episode is that it might well have relation to a fully clarified scandal from the mid-1990’ies. At the time FIFA chose that ISL should continue to have the rights to the World Cups of 2002 and 2006 in spite of the fact that other contenders – including American giant IMG – had given higher bids.

IMG took the unusual step to accuse FIFA in public for foul play, and there is solid documentation that the ISL got preferential treatment. Blatter was the anchor of FIFA in this process, but did not suspect irregularities when a huge sum was directed from ISL to Havelange a few months after the signing of the contract? Eckert does mention that ISL acquired these World Cup rights, but he completely disregards the suspicious course of events.

Cannot untangle the network of key persons

But FIFA’s dual role in the negotiations with the bankruptcy administrators of ISL (which went broke in 2001) does draw the attention of Eckert. He notes that parts of this case “remain in the dark” in spite of intense investigation by Hildbrand and Garcia. Among many other things it is confusing that Blatter rejects having given any authority to the lawyer who claimed to represent FIFA in the 2004 investigations.

Both investigators also have to give up on the untangling of the network that binds key persons and companies in the ISL and FIFA together. Does Eckert conclude that this matter stinks of conspiracy and conflicts of interest, and that there is a cloud of suspicion here? Not at all. Eckert concludes simply that at the time “there were no ethics rules, even though these were being drafted… Therefore, from a formal point of view, there are also no offences which have to be pursued further.”

Honestly, to reach that conclusion you did not need to spend nine months investigating. In some contexts where Eckert is not referring to non-existent FIFA-rules, he refers to FIFA’s right to make business policy decisions, without any reservation with regard to FIFA’s status as an association that should not be measured by ordinary business standards.

Jurisprudence instead of ethics

On the whole Eckert’s conclusions are marked by his expertise in law rather that any experience in ethical considerations. FIFA’s ethics code opens a window for the committee to make independent ethical conclusions, no matter when the event took place. This window is left almost unopened by Eckert, apart from the instance where Blatter is acquitted as “clumsy”, and in the instances where he without any risk can attack Havelange, Teixeira and Leoz for transgressions that others have already dealt with.

In its totality the report of judge Eckert is a disappointing piece of work, and as long as the public is prevented from studying the investigations of Michael J. Garcia, Eckert has to carry the full responsibility for the flaws that can be summarised as follows:

  1. Out of the 142 million CHF handed out as bribes by ISL, more than 100 million are still unaccounted for. Eckert does not mention this fact at all. Did FIFA’s Ethics Committee forget to ask those people in FIFA and around FIFA who are likely to know more about this huge sum of unidentified bribes. If the committee did ask, but without success, shouldn’t the public know about this culture of denial?

  2. As earlier stated, Blatter and other FIFA officials are cleared of several charges only on the ground that FIFA regulations were unsatisfying or non-existent at the time of events. Thereby the new, independent Ethics Committee fails to meet the expectations that the outside world has rightly had of decisions based on independent consideration of ethical questions and not only on well-known legal formalities.

  3. The Ethics Committee has an unclear stand on the key question if it was ethically ok for Sepp Blatter as FIFA Secretary General to watch passively in the 1990ies while the biggest corruption scandal in sport unfolded among his closest allies.

  4. Eckert does not lay out the premises behind his few assessments of ethical character – for instance the description of Blatter as “clumsy”.

  5. The Ethics Committee declares this case for closed without dealing an inch with the fact that Sepp Blatter over ten years, from 2001 to 2011, used all his powers to keep the ISL-affair secret with lies, threats and manipulation. This happened also after the introduction of an Ethics Code in 2004. Why has the Ethics Committee not pronounced itself on this behavior?

  6. Especially big sums of FIFA money were used by Blatter on lawyers’ fees to make the courts ensure that nothing came out about the persons involved in the post-bankruptcy negotiations or about the settlement that ended the ISL case in the Swiss legal system. Was this an ethical use of FIFA’s resources, or an unethical attempt to cover it all up?

  7. Sepp Blatter avoided over two years, from 2010 to 2012 – to publish the ISL settlement, although he was free to do so and although he said from October 2011 that he would like to. He claimed in contrast to the truth that the other parties in the case prevented him from doing so. Proper ethics, Mr. Eckert?

  8. Although judge Eckert recognizes that key persons in FIFA have rejected to cooperate in the investigations, that FIFA investigators do not dispose of the same powerful tools as the real police and that various important case facts remain in the dark, he chooses on this fragile foundation to wipe all doubts aside, declare case closed and exonerate all FIFA officials in the future. Effective, perhaps. But ethically sustainable?

So much for the failed responsibilities of the Ethics Committee. The real responsibility rests of course with the political level of FIFA, with Blatter, with the ExCo and with the general assembly. If FIFA leadership believes that the Ethics Committee has done an excellent job, why not support this evaluation by publishing all papers produced by investigator Garcia?

Now it is IOC’s turn

It is now time to look into the direction of the International Olympic Committee (IOC) who pushed Havelange to leave by the back door in December 2011 due to his ISL involvement, but who postponed the decision with regard to IOC member Sepp Blatter arguing that the new Ethics Committee of FIFA should be allowed to do its work.

As the IOC has had an ethical code since 1998, one can assume that the IOC can act on a number of charges from before 2004 that were dropped by the FIFA Ethics Committee. For instance, is an IOC member allowed to work intensely to cover up for corrupt colleagues? Usually the IOC hesitates to fall out with corrupt federation leaders, but it has occasionally happened. But football is a powerful sport, so adjust your expectations. It is more likely that the IOC will support the report from FIFA and hence the observation that sports organisations are usually unable to investigate themselves honestly.

One remarkable exception is the newly released report from the American-Caribbean football organisation CONCACAF on the wrongdoings of the former leaders Warner and Blazer. Perhaps the high quality of this report is due to precisely the fact that the persons under investigation are no longer part of CONCACAF.

Those in FIFA who  hope that the ISL case will now die, will be disappointed. The Swiss authorities have closed the case, but the politicians in the Alps consider to tighten legislation for the many sports organisations based there. And whereas Garcia has ended his investigations, his compatriots and former colleagues at the FBI have taken over some time ago. Their projectors are directed at the American-Caribbean football organisation CONCACAF and the two former Blatter-allies in FIFA’s Exco, Chuck Blazer and Jack Warner.

If you doubt that investigations carried out by American authorities can compare with the ones realized by sport, then ask Lance Armstrong of his former cycling mates at the US Postal team. The ISL affair has come to stay. Just as long as Sepp Blatter occupies the presidency he is now preparing to prolong, breaking a promise of leaving in 2015, the clouds of the ISL affair will keep hanging over FIFA.

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