The rules of the game: Beyond the downfall of Blatter and FIFA, this is about the future of power in the global age

Sepp Blatter is a man full of surprises. On Friday, his triumph over adversity and logic was absolute. Here was the man that led FIFA in its most profound crisis in ages, easily re-elected for four more years at the helm of the institution. The FIFA congress did not care about the quality of FIFA’s governance, it cared about the quantity of funding redistributed to FIFA members.

Now, a few days later, the same defiant Blatter decided to resign from his position as president of FIFA. Why? Nobody really knows. Mounting pressure coming from the US anti-corruption investigation seems to have played a decisive role. Is there a broader lesson to be learned from the hectic days that shook the world of football? We think so, beyond FIFA’s particular context, this was (and still is) about the struggle over power in the global age.

FIFA’s bad governance syndrome

FIFA’s governance problems are not new. Since we have entered the televised era of commercialization and globalization of sports, it has been sitting on a mountain of cash, waiting for trouble. And trouble there was. Starting with the ISL corruption scandal that irrupted in 2008 involving multi-million Euros kickbacks to Sepp Blatter’s predecessor, and close ally, João Havelange. It led (amongst other scandals) to a first, in retrospect hardly successful, reform process of FIFA’s governance structure initiated by Blatter in 2011. Reforming FIFA feels a bit like a mirage: it pops up every 4 years under the heat of public pressure, before quietly fading away.

ISL, however, was just a mise-en-bouche to what was to come with the Qatar 2022 bid. When FIFA decided to award the 2022 World Cup to Qatar many were stunned by the decision. You don’t need a degree in meteorology to understand that Doha’s summer is not favourable to outdoor sporting activity. Were the FIFA Executive Committee members a bunch of crazy (mainly) old men, or was it something else?

The British press did its best to unearth the dirty backdoor politics of Qatar’s win and what it found was not pretty. The suspicions of corruption loom large over the attribution of the 2022 World Cup. Even careful institutions, not prone to easy scandals, like the Parliamentary Assembly of the Council of Europe, have been calling for a revote. Combined with the many accounts of human rights abuses on the Qatari building sites, the situation makes for an explosive cocktail.

The biggest problem remains that FIFA was unable, and unwilling, to tackle those suspicions transparently. It kept promising that the infamous Garcia report, supposedly independently investigating the corruption claims, would be fully published. But the full report remains unpublished to date. FIFA has, at least for the moment, lost the trust of the global public. Its fragile legitimacy runs currently only through its institutional monopoly over the World Cup and Blatter’s ephemeral survival at its head was dependent on the one-country one-vote electoral system that equates San Marino with Italy or Andorra with Spain.

The rational complacency of Switzerland

FIFA is a mess, but the true question is why. An easy, and partially right, answer is: it is the fault of Switzerland. Switzerland is the home of a majority of the international Sports Governing Bodies (SGBs). The reasons owe something to history, with the IOC deciding to settle in Lausanne during the First World War. At that time, with no Internet to coordinate the activities of the SGBs, organizing the Olympic Games was an interpersonal adventure that required a geographic centralization of the few organisers.

This romanticized past is miles away from today’s reality, especially as far as the IOC and FIFA are concerned. Nowadays, the games are televised; we live in the times of the society of the spectacle. Consequently, the financial revenues of the SGBs have ballooned, as well as their number of employees. The legal framework, under which they operate, however, has not changed. In the eyes of Swiss law, the IOC and FIFA remain the equivalent of a local chess club. On the one hand, they enjoy a generous federal tax exemption, as they are considered to pursue objectives of public interest. On the other hand, as private entities, they are subjected to lax anti-corruption laws, making it near to impossible to actually prosecute instances of corruption involving, for example, the attribution of the 2022 World Cup.

In short, Switzerland is an ideal safe harbour, where SGBs and their administrators can enjoy the necessary freedom to conduct their affairs autonomously, preserving the sacrosanct autonomy of sport. To some extent this makes sense: the Swiss do not directly suffer from the wrongdoings of FIFA officials. The money laundered is usually destined to developing countries, Switzerland is neither (and will probably never be) a candidate to host the World Cup, nor is FIFA engendering human rights violations on the Swiss soil. To the contrary, hosting FIFA (and all the other SGBs) is a source of both (declining) prestige and substantial economic revenues. Political and economic incentives run counter to any regulation that might scare the SGBs away.

FIFA and global private powers

The story of FIFA is important not only because we want football to be governed by a transparent, accountable, democratic, in short, good institution. Rather, the problems we are facing with FIFA are not specific to FIFA. In our globalizing world, many private entities are able to easily project themselves beyond their state of incorporation. Thus, they are accumulating wealth and institutional strength to an extent that they can overtake and confront the most powerful institution of the previous century: the nation state.

The post-national constellation is populated by a multitude of footloose global private powers, which are not really checked by the necessary counter-powers. The states could in theory play that role, but many, like Switzerland in the case of FIFA, have very little incentives and/or capacity to do so. Or, even worse, they have a lot of incentives not to do so. Moreover, our conceptions of private law remain stuck in the 20^th century, when private institutions were deeply embedded in a specific territory and less mobile than they are today. An association like FIFA has little to do with a chess club exercising old-fashioned private autonomy. It is a new type of global authority and should be acknowledged as such. Its public function has been rightly recognized by the Swiss state, but it has failed to draw the appropriate legal consequences.

Public power or authority has to be matched by suitable control mechanisms. Democracy is not only about deliberative will formation (a widely missing element in FIFA politics), but also about counter-democratic checks, as the French political philosopher Pierre Rosanvallon has convincingly shown. In practice this should mean, for example, that corrupting a FIFA official is analogous to corrupting a public official and should be treated as such under Swiss law.

The need for new counter-powers

Last week’s FIFA raid epitomized, for a day at least, the end of impunity and the comeback of the (Swiss) state. It demonstrates that Swiss law could rein FIFA and its equivalents if it wanted to. In fact, the much touted lex fifa adopted in December by the lower chamber of the Swiss parliament is a first step in this direction.

But, beyond the façade of official commitments, there is still very little political willingness to tackle this issue. The legislative process in Switzerland is a long and winding road and if public pressure recedes, as it will probably do at some point, the good intentions might reveal themselves to be simply that. Nation states in general are in an uncomfortable position: if they want to get the games, they need to play the SGBs’ game. Recently, both France and the UK have bowed to the power of sporting associations. The former secured the Euro 2016 by offering a tax break to UEFA, while the latter was blindly implementing the IOC’s regulatory requirements into national law ahead of the 2012 Olympics.

The national versus global asymmetry is extremely difficult to transcend for states that are often the weak side in the political relationship with these gigantic Swiss chess clubs. There are exceptions, the US’s indictment on Wednesday is one. It is mainly possible because the US is closer to an empire than a normal state. Ironically, this imperial quality was often seen in the past as a supporting force for private powers, but it can be turned around to bring those same powers to account, as in FIFA’s case.

The EU is another powerful candidate to offer a strong counter-balance to the global power of FIFA. The Bosman case, decided by the Court of Justice of the European Union 20 years ago, impersonates that capacity. It has been widely vilified and misrepresented, but at its core it is about imposing a duty of justification on the regulatory power of the FIFAs of this world. This duty should not be understood as necessarily implying a liberalization of sport. Instead, it is a political duty to explain and discuss the reasons behind the rules and decisions of the SGBs.

Finally, as we have experienced over the Qatar bid scandal, the press and the global public have a fundamental role to play. Global outrage at FIFA can be as potent a check, especially if it targets the sponsors that financially prop-up the institution, as traditional legal or political interventions.

Blatter’s slow and painful downfall illustrates the difficulties faced by our political and legal systems in confronting the rise of global private powers. The focus ought to be on reinventing the adequate counter-powers for a globalizing age.  In this regard, FIFA is the ideal candidate to start doing so.