Dr Laila Mintas: The first cut of FIFA’s reform taskforce is not deep enough

The FIFA Executive Committee decided in its meeting on 20 July 2015 to establish the ‘Task Force 2016 – FIFA Reform Committee’ (Reform Committee) which is currently working on its recommendations on how to change FIFA. The Reform Committee consists of 12 people, two appointed by each of the six FIFA Confederations and is chaired by Dr François Carrard. The Reform Committee will first present its proposal to the Executive Committee which will approve and submit it to the FIFA Congress where the 209 member associations will decide about it in February 2016.

Up to now, there have been different proposals made to reform FIFA. One set of proposals that are significant are the recommendations of the Chairman of the FIFA Audit and Compliance Committee Domenico Scala. His 8‑Point‑Reform Plan was published on 1st September. He highlighted eight areas within the structure and procedures of FIFA that need to be reformed. In his introduction, Scala makes clear that his reform proposals aim not on ‘a fundamental rethink of (or to ‘revolutionise’) the structures and procedures within FIFA’ nor does he focuses on ‘radical solutions’. From his perspective ‘it is much more favourable to pursue practicable advancements of existing structures in a self-regulatory framework’.

Furthermore, Moya Dodd, Chair of the FIFA Task Force for Women’s Football submitted her suggestions ‘FIFA, football and women: why reform must specify inclusion and investment’ in October 2015 to the Reform Committee. Her proposals request that the Reform Committee recommend an immediate 20% presence of women on the FIFA Executive Committee (with a longer-term target of 30% gender balance) and to require all stakeholders to actively resource participation opportunities for women and girls in football.

On October 20, 2015 the Reform Committee published, for the first time, its paper ‘Status of review and preliminary recommendations’ which aims on improving ‘efficiency, prevent fraud and conflicts of interest and increase transparency in the organisation’.

In this article those recommendations issued by the Reform Committee will be evaluated and commentated in the context of the current situation.

1. FIFA Executive Committee

The most profound change that is recommended by the Reform Committee is the one of reforming the FIFA Executive Committee which is as the name indicates, the executive body of FIFA. The Reform Committee suggests a clear separation between ‘political’ and management functions of FIFA. Therefore, it recommends that the FIFA Executive Committee should be responsible to oversee strategic matters and should have a supervisory role over the standing committees of FIFA as well as the FIFA administration but it should not have ‘executive powers over policies of FIFA’ anymore. Consequently, its name should be changed to FIFA Council. Also, the current position of the General Secretary shall be transformed to the ‘Chief Executive Officer of FIFA’ which shall be the head of FIFA administration and execute the day to day operations by implementing policies and strategy of the organisation as defined and directed by the FIFA Council.

The proposal to reform the Executive Committee is not surprising as several of its members have been involved in various scandals in the past and have put FIFA and football into disrepute. Currently, the FIFA Executive Committee is responsible to pass decisions on all cases that do not come within the sphere of responsibility of the Congress or are not reserved for other bodies by law or under the FIFA Statutes, art. 31 par. 1 of the FIFA Statutes. This very broad wording grants extensive powers to the Executive Committee and makes it in fact the most powerful body, even more powerful than the FIFA Congress.

With this proposal, the Reform Committee basically adopted the idea of Scala who has in his 8‑Point‑Reform Plan already suggested to reduce the power of the Executive Committee through changing the structure of FIFA. He suggested separating the current Executive Committee into two different boards, the Governing Board that should deal with strategic issues and supervisory functions and competences (current Executive Committee), and a Management Board that should be responsible for the business management and the specific day-to-day business (current General Secretary and its Directors). In fact, through this structure the power and competence of the current Executive Committee would be limited and transferred to the FIFA General Secretary and the respective FIFA Directors.

The idea of separating the power would principally be a step in the right direction but a final assessment is not possible at the moment as it will depend on the details about all responsibilities of the FIFA Council which are not published yet.

The other important cornerstone is the composition of the FIFA Council. The FIFA Reform Committee suggests that the FIFA Council members shall be elected by the FIFA member associations at their Confederation congresses. This would not change anything: In accordance with art. 30 par. 1 of the current FIFA Statutes the members of the Executive Committee (except the one female member and the president) are elected by the Confederations already. Therefore, the same structure would keep in place and the same people would likely keep staying in the same positions.

With its weak proposal, the Reform Committee stays far behind the recommendation of Scala in terms of reforming the composition of the Executive Committee. Scala has recommended in his 8‑Point‑Reform Plan that the members of the Executive Committee shall be elected directly by the FIFA Congress instead of being determined by the Confederations. This would strengthen the responsibility and accountability of the members of the Executive Committee towards FIFA which is essential as most of the Executive Committee members also hold positions with their Confederations and/or football associations. According to Scala, the 209 members of the Congress should elect the Executive Committee members in a secret vote. However, he suggests that the Confederations should be involved in the voting procedure through compiling a list of potential candidates that comprises more names than seats available, to make sure a real election takes place. The Congress would then vote for these candidates on the lists only.

There is no doubt that the FIFA Executive Committee needs to undergo some profound changes. The idea of having the Congress determining the members would definitively strengthen the legitimation of the Executive Committee and would elucidate the fact that those persons are primarily acting in their responsibility as FIFA representatives while conducting their duties.

But is it useful that the Confederations submit the list with potential candidates and therefore keep a huge influence on the decision of who will be elected to the FIFA Executive Committee? This would significantly limit the power of the Congress to elect the members and the bottom line would be that not much will change. A Confederation with two seats could, for instance, suggest three candidates and be sure that two of them will be elected whatever happens. As the process of preselection would take place through the Confederations, they would still have the most impact on the election of the candidates and therefore it is doubtful that the system proposed by Scala will really help to strengthen the responsibility and accountability of the members of the Executive Committee towards FIFA as he intends with his proposal. In fact, this concept would only give the Congress the sake of appearance of having any influence in electing the members of the FIFA Executive Committee.

More pertinent and democratic would it be to give the Congress a real choice to decide for which candidates it wants to vote without having the Confederations issuing the preliminary decision. Parallel to the requirements for the election of the FIFA President in article 24 of the FIFA Statutes, it could be implemented that every person is legitimised to run for a position on the FIFA Executive Committee if supported by a certain number of members of the own Confederation. While it is necessary to have the support of at least five member associations to run for FIFA presidency, for the election into the FIFA Executive Committee the support of, for instance, three member associations would be sufficient as the Confederations have a different number of members and it should not be established as an inappropriate hurdle. This approach would lead to the result that every candidate that has the support of three member associations within their Confederation can run for a position on the FIFA Executive Committee no matter if their member association has majority support at Confederation level or not. The Congress would then decide between all potential candidates applying per Confederation.

Under the same conditions it would even be possible to admit a certain percentage of female members or even external people to be directly elected by the Congress as external members of the FIFA Executive Committee.

In fact, the proposal of the FIFA Reform Committee is not appropriate enough to change the structure of FIFA and to implement the required and urgently needed changes to FIFA. The same group of people will still have too much influence in shaping FIFA’s future. In fact, the Confederations will keep the power as they have it now instead of giving some of it over to the Congress. But why not allowing the Congress to make important decisions such as electing the members of the Executive Committee resp. FIFA Council? This would be more democratic as all 209 members would make the decisions together. In particular taking into account that the Confederations determine the members of the FIFA Executive Committee, including the FIFA Vice Presidents of which several have been involved in the corruption scandals over the last two decades, a change of this structure is essential to rebuild FIFA’s reputation. But unfortunately it is not surprising that according to the proposal of the Reform Committee the Confederations will keep their power and no real change will be made regarding the FIFA structure as the FIFA Reform Committee consists of people representing the Confederations only. When FIFA first announced the idea of creating a FIFA Reform Committee, it was said that this committee should also include representatives appointed by FIFA commercial partners but this idea was obviously dismissed without officially giving reasons. It remains to be seen what the final reform proposal will look like but for the time being it looks like no drastic change will be implemented.

2. Eligibility checks and integrity tests for the candidates for the FIFA Council

The fact that the Reform Committee proposes that all candidates for the FIFA Council shall be subject to eligibility checks and integrity tests which will be conducted by FIFA is not fundamental. The current FIFA regulations already require integrity checks for certain positions including the members of the Executive Committee (cf. 13.1 of the Standing Orders of the Congress). However, up to now the Confederations have been responsible for conducting the integrity checks for the FIFA Vice-Presidents and the other members of the FIFA Executive Committee prior to their election (cf. 13.4 of the Standing Orders of the Congress) while the integrity checks for the candidates for the offices of the President, the female member of the Executive Committee, the chairman, deputy chairman and members of the Audit and Compliance Committee and the chairmen, deputy chairmen and members of the judicial bodies shall be conducted by the investigatory chamber of the Ethics Committee. Therefore, it would be only consequent to shift the responsibility for the eligibility checks regarding the other members of the Executive Committee to FIFA as well and have the investigatory chamber of the Ethics Committee conduct the checks.

But why does the Reform Committee suggest the eligibility checks and integrity tests only for the members of the FIFA Council and not for all other decision-makers such as the General Secretary (Chief Executive Officer), committee members etc.? Additionally, FIFA cannot be changed only through making changes on FIFA level. FIFA needs to take the lead more proactively and establish uniform standards also for its Confederations and member associations in order to restructure the football family. Keeping this in mind, it would be requisite for FIFA to establish the direct requirement for its Confederations and member associations to conduct the integrity checks and tests for their own officials as well. Finally, FIFA needs to oversee the implementation of such measures to make sure that the necessary changes will be realised.

No details are published by the Reform Committee concerning the criteria for the checks and tests. Scala made comprehensive and important suggestions on how the content of the current integrity checks need to be enhanced. The Reform Committee would be well-advised to use them in order to improve the current integrity checks. Also, it doesn’t mention which body or committee of FIFA will conduct those checks and tests. As mentioned above, it is preferable to have the Ethics Committee conducting these checks. Scala suggested in his proposal that the FIFA Ethics Committee ‘should be permitted a certain degree of discretion’ while conducting the check. This is not a problem as long as the Committee works independently and without any influence from third parties. However, a potential abuse of this regulation could theoretically occur if the person in charge of FIFA wants to avoid a certain candidate to be eligible for election and therefore uses the requirement of an integrity check to exclude the person from the election process. Therefore, it is necessary that the requirements of the integrity check as well as the reason for a decision made are transparent and a person that fails the check receives full reasoning and the option to appeal against the decision with suspensive effect.

3. Term and age limits

A simple but very essential change would be the introduction of term limits. Scala was absolutely right to say that too long periods of office can create dependencies and the risk of conflicts of interests. Therefore, he suggested limiting the terms of office of the FIFA President, the members of the Executive Committee, the Secretary General and members of the independent committees to three terms of four years each, so 12 years in total. The Reform Committee mentions in its proposal only the implementation of a term limit for the FIFA President and the members of the FIFA Council of maximum 12 years but no term limits for other positions. There is no clear reason why the commission didn’t follow his suggestion. The term limit of 12 years is an appropriate time period for the person in charge to achieve the set objectives and can help to minimize nepotism. People in charge know exactly that after 12 years someone else will be in charge and their successor may look into what has been done under the previous period of responsibility and may reveal certain irregularities. As the offence of bribery and corruption (cf. art. 21 FIFA Code of Ethics) is not subject to a limitation period for prosecution, such offences can be still investigated and sanctioned by the Ethics Committee after the term of 12 years , art. 12 par. 2 of the FIFA Code of Ethics.

Also for the FIFA President and the members of the FIFA Council the reform committee suggests age limits of 74 years of age. Age limits in general raise concerns from the perspective of the principle of non-discrimination. There is no compelling necessity to implement these limits in order to prevent corruption as it’s not likely all people over the age of 74 years are corrupt. Also, the question of whether someone is able to do a good job should be evaluated individually and not just based on his/hers age.

4. Transparency

A generally recognized principle of good governance and already under much discussion by the public is the disclosure of individual compensations of the FIFA officials as part of establishing more transparency and control through the organization. Accordingly, the reform committee proposes the disclosure of the individual compensations of the FIFA President, the FIFA Council members, the General Secretary and the chairmen of the independent standing and judicial committees. Furthermore, it suggests that the compensation of these people should be reviewed and approved by a fully independent Compensation Committee.

Scala had suggested that all income and compensation paid to these group of people should be published to the Congress which is FIFA’s supreme body and also responsible to approve the budget and financial statements in accordance with article 25 par. 2 (k) and (i) of the FIFA Statutes. The demand to publish to the FIFA Congress the payments made by FIFA to its FIFA officials seems more like a natural progression rather than a landmark reform, hence it is even more incomprehensible why the Reform Committee denied this idea and suggests that an ‘independent Compensation Committee’ should review and approve the compensations instead. The Reform Committee prefers to distribute the responsibility to a small group of only a few people instead of involving the Congress consisting of the 209 FIFA members although the members of just one committee are easier to corrupt then the Congress.

In addition, Scala also claimed that all other football-related income and/or compensation also need to be disclosed in order to effectively avoid or uncover (potential) conflicts of interest. However, even Scala proposes only that the information published would just distinguish between compensation/incomes received from FIFA and compensation/incomes received for other football-related activities. Giving a more specific reason for the benefits would not be necessary. Also, the height of the income would only reveal a certain framework such as up to $100,000, up to $250,000, up to $500.000 and over $ 1 million p.a.

In order to establish transparency in terms of revealing conflicts of interests and potential cases of corruption, it would be necessary that the FIFA officials at least need to reveal the person or organization they receive compensation/incomes from for other football-related activities and the reason for these payments. It must be provided enough information to enable a review that could evaluate if a certain relationship between the position in FIFA and a third party could lead to conflicts of interests. Because of the personal data of third persons involved, it would be an option to reveal this information only to the Congress and but not to the public. This would give FIFA the possibility to control their executives effectively. Implementing such measures would not only be necessary but also prevent corruption and demonstrate the willingness to reform FIFA fundamentally.

The compensation for certain FIFA positions should be published publicly as part of good governance.. This should also include positions such as for the chairman of the 2016 FIFA Reform Committee, Dr. François Carrard and its members. Because of transparency reasons, FIFA should make clear if persons in such position receive a compensation for their task, how the amount is calculated and how high it is. Through small measures like this FIFA could prevent corruption and improve its reputation instead of giving the impression that it has something to hide. An excellent example in this context is the International Olympic Committee (IOC) which has published this year for the first time its indemnity policy. This policy reveals i.a. the salary of the IOC President, the compensation and annual administrative support for the IOC members and IOC honorary members etc.

5. Greater Recognition of the Role and Promotion of Women in Football

The paper submitted by Moya Dodd, Chair of the FIFA Task Force for Women’s Football, to the Reform Committee highlights the importance and need to develop women’s football but also the requirement to increase the number of female football executives. The Reform Committee acknowledges these facts partly by suggesting that each Confederation shall have at least one voting FIFA Council seat for women. If that one voting seat is appropriate depends on the total number of seats per Confederation. The proposal leaves open if the allocation of the seats of the FIFA Council will be the same as it is currently for the Executive Committee. At the moment every Confederation has one FIFA Vice-President except UEFA that has three Vice-Presidents, and additional to those, UEFA has five seats, CAF and AFC have three seats, CONMEBOL and CONCACAF have two seats and OFC has no seats on the Executive Committee.

The Reform Committee also suggests the review of the statutes and regulation to encourage and enhance gender equality in the game. However it doesn’t follow the proposal of Dodd that all stakeholders shall be required to actively resource participation opportunities for women and girls in football. Resources are essential to raise awareness but also actually develop opportunities. Also regrading this point, changes need to be coordinated by FIFA but must reach the Confederations and member associations as well.

6. Conclusion

The review of the FIFA Reform Committees paper ‘Status of review and preliminary recommendations’ published on October 20th, 2015 leads to the conclusion that the proposed changes are not sufficient in order to reform FIFA fundamentally. It’s rather a ‘light’ reform then a real reform as the latter requires significant modifications which are missing. It can also be doubted that the proposals will achieve the defined aim of improving ‘efficiency, prevent fraud and conflicts of interest and increase transparency in the organization’. Old structures need to break up in order to improve the organisation significantly. However, the recommendations made are too weak to conduct a radical reform. It looks more like small changes are made that don’t hurt too much in order to generate a story which shall help to assuage the criticisms in the media.

The Reform Committee’s proposal doesn’t make any changes regarding the Congress, in particular whether the Congress will receive more power or influence in any decision making process. This would have been urgently necessary to put important decisions on a broader foundation and therefore to have the supreme body consisting of the 209 member associations to be deeper involved in FIFA instead of having just a small group of people controlling the organisation. Taking this into consideration it is remarkable that even after the reform committee’s suggestions the members of the Executive Committee will still be determined in fact by the Confederations. Innovative ideas such as equipping the Congress with the power to elect the Executive Committee or changing the FIFA voting system to prevent corruption (The Point-Voting-System – FIFA’s election system needs to be reformed http://bit.ly/1MEfmV7) were not taken up. Therefore, the proposal fails to change the power structures of FIFA which would be essential to remove people that have been in the same positions for too long and to really bring reform to FIFA.

Dr. Laila Mintas is a lawyer and was formerly Director of Sports Integrity at CONCACAF. Prior to this she was Head of Legal and International Development for FIFA’s Early Warning System (EWS) in Zurich. She previously practised law at international law firm White & Case LLP, headquarters in New York, and has lectured law at the Humboldt University of Berlin. She is a professor for Sports Law at the ISDE program at Columbia University and St. Johns University in New York.