Out-Law Analysis | 11 Jun 2015 | 9:52 am | 3 min. read
The organisation has lost trust amidst allegations that some senior officials have been involved in corrupt activities. With the promise of further bad news to come as investigations by US and Swiss authorities deepen, FIFA faces a fight to survive.
FIFA must expose all wrongdoing so that it can reform, and a public inquiry-style review by an external independent body is the best way to achieve this.
FIFA would not be the first major sports body to conduct such a review. In 2002, the the International Olympic Committee (IOC) undertook an investigation into corruption surrounding the winter Olympics. That review helped to deliver change and restore some credibility to the IOC.
While an inquiry into FIFA would dwarf the IOC's inquiry, it would also provide a level of closure to long-standing controversial issues such as the selection of host nations for major tournaments. If an external, public investigation proves no wrongdoing took place, then there will be greater acceptance that the game is not corrupt at a fundamental level. Conversely, if wrongdoing is proven it can expose the governance failings that allowed a culture of corruption to develop, and ensure the errors of the past are not repeated.
To be credible, and to achieve the aim of identifying the steps necessary to deliver meaningful changes in corporate governance, the investigating committee would require the power to investigate, publish findings and make recommendations for reform up to and including a review of the structure and governance of football worldwide.
To build trust in the committee's work FIFA could decide that it should have a quorum of three retired independent judges from nations such as the UK, US and France who have no links to either FIFA or any other football association or confederation. Terms of reference to the inquiry are something that could be agreed between FIFA's interim leadership and former judicial members who have been appointed to lead it.
Open and full participation and cooperation with the inquiry by FIFA officials and members will also be necessary. As it remains the overall governing body for football across the globe, FIFA can place an obligation on all participants in worldwide football to co-operate in providing witness statements and/or documents.
Thought would have to be given to the doctrine of privilege against self-incrimination. Individuals under investigation will be mindful that any documentation and/or information they provide to an inquiry could be used against them in criminal proceedings and could cause them to offer only limited assistance.
To overcome this problem, FIFA could explore adopting a similar approach to the one used for evidence given in the Baha Mousa public inquiry, which looked at the circumstances surrounding the death of an Iraqi civilian when in the custody of British soldiers. No evidence given by an individual during the course of that inquiry could be used against him in any criminal proceedings. However, FIFA might find it difficult to convince law enforcement agencies across the world to agree to a similar undertaking.
An inquiry of this nature would far exceed the scope and transparency of the review carried out by former FIFA investigator Michael Garcia into the awarding of the 2018 and 2022 FIFA World Cups to Russia and Qatar respectively. FIFA has never published the full Garcia report and Garcia quit his post after complaining that the summary of his report FIFA issued was not an accurate reflection of his findings.
A major public inquiry-style review would be expensive and time consuming. The Garcia inquiry alone lasted for 18 months and cost an estimated £6 million. However, to restore faith in football governance, the costs to FIFA of such a review would be worth bearing.
FIFA can survive its current crisis. It is a formidable organisation and has a body of support among football governing bodies in emerging nations. However, major football nations and sponsors have indicated that they are willing to abandon their association with FIFA unless the organisation subjects itself to real reform.
A legitimate, transparent global football organisation which delivers spectacular World Cups and significant social benefits around the world is in the interest of everyone who loves the sport. Whether FIFA remains the body delivering those projects will depend on the decisions it takes in the coming weeks.
Julian Diaz-Rainey of Pinsent Masons, the law firm behind Out-Law.com, is an expert in resolving high-profile commercial and regulatory sports disputes. He was also a member of the Shipman public inquiry team, represented a number of soldiers in the Baha Mousa inquiry and has been involved in the Al-Sweady inquiry.