Matt Scott: FBI probe suggests FIFA is set for its ‘Salt Lake City moment – but not how you might expect

They say a week is a long time in football and the pace of change at FIFA has indeed been remarkable in the four years since the decision to award Russia and Qatar the 2018 and 2022 World Cup hosting rights.

Since 2010, 12 of the 24 people who voted on the destinations of those World Cups are no longer involved in the FIFA ex-co. Some, such as Ricardo Teixeira, were proved to have been guilty of taking irregular payments at one time or another. Some, such as Reinaldo Teymarii, were culpable of apparently soliciting them. Others still were found to have paid them.

As discussed in this column last week (http://www.insideworldfootball.com/matt-scott/15779-matt-scott-fifa-now-faces-an-altogether-different-spotlight) and detailed elsewhere in Insideworldfootball, all this has prompted the attention of the Federal Bureau of Investigation. It seems keen to discover whether, as a 2022 World Cup bidding nation, US strategic interests were undermined by the undisclosed activities of ex-co members.

Now it is important to remember at all times when considering this subject that no evidence of wrongdoing by any bidding nation has been discovered – at least until the imminent publication of Michael Garcia’s investigative report into the matter for the FIFA ethics committee. But for the purposes of this article only, let us suspend our disbelief and consider what happens if the FBI finds bribe-taking fingerprints around the World Cup bid decisions.

It is, granted, a big leap to assume that it will. Given the difficulty of penetrating the inner circle of FIFA’s ex-co, even so powerful a force as the FBI, with all its powers of subpoena, might find it impossible to discover wrongdoing among FIFA’s powerbrokers. But many have pointed to what the New York Daily News reported last week – the presence of Chuck Blazer as a cooperating witness in the investigation – as cause to believe that the FBI might be on to something.

As Andrew Warshaw has posited in these pages, what does Blazer know? What has he told? These are questions that might occupy anyone who served in the ex-co at the time of the 2018/22 World Cup bid decisions, particularly if there is anyone left who has anything to hide. Also providing evidence to the FBI is Daryan Warner, son of the former vice-president Jack Warner who upon his arraignment by FIFA’s ethics committee promised to unleash a “tsunami” of evidence against the FIFA establishment that has not materialised. Yet.

So for the purposes of this article only, we will academically assume that some of the chatter is credible, that the FBI will prove that someone or other in the ex-co took a bribe to vote for one World Cup bid or another. The repercussions of a successful investigation are certainly worth considering because this is no small matter financially. Whether or not the FBI’s investigation led to Qatar being stripped of its hosting rights, FBI proof of wrongdoing could have a very important effect on the Qatari economy.

Within 48 hours of the Sunday Times reporting in its June 1 edition this year that it had seen evidence of payments by a Qatari football official to FIFA executive-committee decision makers, the Qatari Exchange stock market fell 2.3 per cent. This reflected a fear of the consequences that stripping Qatar of the World Cup would have on the local economy.

And the market jitters were with good reason – World Cup-related investment is central to the diversification of the Qatari economy, whose growth has hitherto been powered exclusively by its globally significant natural-gas reserves. In its Article IV report on Qatar in April this year, the International Monetary Fund noted: “Having successfully completed a strategy to develop natural gas resources, the authorities have embarked on a large public investment program to advance economic diversification and prepare for the FIFA 2022 World Cup.

“Diversification is supported through budget-financed investment projects worth an estimated $160 billion (80% of last year’s GDP) over 2014–21, supplemented by some $50 billion from public enterprises.”

Big bucks then, even for a country where money is seemingly no object – on the face of it, Qatar could ill afford the FBI finding its man. Yet even if the FBI can prove that there has been corruption within the bidding process for a World Cup, there can be no guarantee it will lead to a successful prosecution. And the reason for this is the applicable law in the United States.

As Roger Pielke noted on his blog last week, the Washington-based law firm Murphy & McGonigle has written a very interesting paper on the allegations of FIFA corruption. It points out that all the corruption talk around the bidding nations brings relevant consideration of the Foreign Corrupt Practices Act [FCPA] and whether the matter might warrant prosecution on US soil. But as the author of that paper, Tim Peterson, told me, the test for its application is very narrow indeed.

“Absent there being some indication that some kind of material gifts have been transferred through the US or wired through US bank accounts – unless the investigators can find some material advancement or facilitation of bribe payments with a strong US nexus or wire fraud, it is going to be very difficult to pin down,” said Peterson.

The point is that for the FCPA to have jurisdiction the money has to have been paid by or passed through a “domestic concern” and, on the face of it for now, it seems unlikely anyone involved in bribe-taking would have been so careless. Under the FCPA prosecutors would also have to prove that the people in receipt of the cash are government officials or “instrumentalities” of government.

Yet FIFA expels national associations from its competitions upon the merest hint of government interference. An argument that FIFA ex-co members are directly linked to governments would seem difficult to prove in a US federal court.

Moreover there is also the question of appetite within the US judicial system to prosecute a case against the regulator of the world’s most popular sport. Peterson’s colleague, Robertson Park, added: “There is a prior circumstance when federal prosecutors went after misconduct here – [the Olympic Games in] Salt Lake City,” said Park.

“That [prosecution] didn’t go well. The case was effectively bounced. The fact was it was an effort at an aggressive, creative prosecution using state commercial bribery laws. And that precedent can leave prosecutors to be cautious about going there again.”

There would perhaps seem more of a US public interest in looking into FIFA affairs than there was for Salt Lake City, given how the US bid for the 2022 World Cup failed. Indeed, it could be said that the federal judge who sat in the Salt Lake City case was a local who might naturally have been hostile to a prosecution that might have led to the Olympics being taken away from the city.

However you cut it though, on the face of it at least, a prosecution against FIFA over the 2018/2022 bidding would seem to be an aggressive and creative application of the FCPA. Its chances of success without prima facie evidence of US territorial implications in any bribery seem slim. And if the FCPA does not apply, the Murphy & McGonigle attorneys say there is nothing else on the US statute book that does.

It is possible that the UK’s Bribery Act 2010, which has a broader scope than the FCPA, might be different. But there remains the question of appetite among UK prosecutors, and it is conspicuous how the inertia of the Serious Fraud Office in investigating the matter contrasts with the FBI’s activity.

A political rather than a judicial outcome seems far likelier to me. FIFA’s president, Sepp Blatter, has been making emollient noises about a USA 2026 World Cup tournament. Perhaps that might serve American strategic interests better than a vexatious prosecution that for now, at least, appears unlikely to succeed.

Journalist and broadcaster Matt Scott wrote the Digger column for The Guardian newspaper for five years and is now a columnist for Insideworldfootball. Contact him at oc.ll1596664800abtoo1596664800fdlro1596664800wedis1596664800ni@tt1596664800ocs.t1596664800tam1596664800m.