Joga Bonito? The FIFA Corruption Scandal and the Movement Toward Cooperative International Criminal Justice from the Ground Up

By Jeff Najjar

“Futbol,” “football,” or “soccer,” is known throughout the world as the “beautiful game.”  Indeed, one of the trademark phrases about the world’s most popular sport is the Portuguese phrase joga bonito—meaning, “play beautifully.”  However, the Federation Internationale de Football Association (“FIFA”)—football’s world governing body—presents a stark contrast to notions of joga bonito amidst a widespread corruption scandal that dates back several decades. 

FIFA is one of the most significant international organizations and makes billions of dollars in revenue from organizing the World Cup—the world’s most popular sporting event.  The World Cup is big business.  For example, it is estimated that Brazil spent $4 billion dollars to host the 2014 World Cup.  FIFA received more than $2 billion from the tournament in sponsorship money and the sale of broadcasting rights and merchandise. 

Despite generating substantial revenue for this month long event, the social and economic impact to Brazil was in many instances devastating in the form of inefficient investment of public money for stadiums that go largely unused and the displacement of local communities to make way for the construction of the numerous world cup venues.  The next World Cup events in 2018 and 2022, which were controversially awarded to Russia and Qatar, already are tainted by allegations of bribery, corruption and inefficiency.  Costs are projected to dwarf the billions spent in Brazil.  FIFA’s global monopoly on the sport of soccer, coupled with the substantial financial gain from media rights and countries vying to host the World Cup, have made corruption and bribery a constant in FIFA’s bidding process for nations to host events.  Additionally, Qatar, which is one of the least suitable climates in the world to host a World Cup, has been widely criticized throughout the international community for human rights abuses in their use of migrant workers to construct stadiums.

Notwithstanding the apparent systematically corrupt practices of FIFA, the organization has largely escaped criminal prosecution.  Although the international media has been a constant critic of FIFA, governments have several challenges in attempting to prosecute an international organization for corrupt activities that are transnational in nature.  Globalization is producing new challenges for criminal justice.  Moreover, no international criminal justice system or institution currently exists that can adequately address the corrupt practices of an entity like FIFA. 

Two of the most notable international institutions, the International Court of Justice (ICJ) and the International Criminal Court (ICC) both lack jurisdiction over the FIFA scandal.  The ICJ presides over disputes between nations.  The ICC is an independent international organization governed by the Rome Statute concerned with the most severe crimes such as genocide, war crimes, and crimes against humanity.  Ironically, the nation at the forefront of the attempt to tackle FIFA is the United States—which has historically maintained little interest in soccer.

On May 27, 2015, U.S. Attorney General Loretta Lynch announced an investigation into FIFA, unveiling decades of corruption that amounted to more than $150 million dollars in bribes and kickbacks to the organization’s officials.  The U.S. Department of Justice announced a 47-count indictment, including federal racketeering charges against 14 individuals, nine of whom are current or former FIFA executives.  Additionally, Swiss authorities have arrested seven of these individuals on charges of buying and selling votes to deliver the 2010 World Cup to South Africa and soliciting kickbacks from sports marketers.  Swiss authorities have also opened criminal proceedings against Sepp Blatter—FIFA’s President since 1998.  The U.S. Department of Justice is confronted with a significant challenge in finding a legitimate basis for jurisdiction over FIFA officials because the alleged corruption occurred outside the U.S. and FIFA is an organization governed by Swiss law.
           
The U.S. has based its theory of jurisdiction on alleged violations of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), which was established to prosecute crime syndicates that had taken control over otherwise legitimate organizations.  A threshold problem for the FIFA arrests is whether RICO can be applied extraterritorially.  Nothing in RICO expressly states that the law may be applied outside U.S. borders.  However, in 2014, the U.S. Court of Appeals for the Second Circuit held in European Community v. RJR Nabisco, Inc., that RICO could apply extraterritorially if the “predicate acts” violated statutes that apply outside of U.S. borders.  In addition to the RICO claims, the U.S. Department of Justice also asserts jurisdiction due to the breadth of U.S. tax and banking regulations, the significant revenue generated by the U.S. television market, and substantial money transfers through U.S. financial institutions.  
             
The joint prosecution of FIFA officials by the U.S. and Switzerland has significant ramifications for international criminal justice efforts to prosecute global corruption.  In the absence of effective supranational institutions that can prosecute transnational crimes, cooperation and coordination by governments focused from the domestic criminal justice level on up can be an effective way to confront the problems presented by FIFA and other similar cases of corruption that cross international jurisdictional boundaries.  Instead of ad hoc international tribunals and institutions such as the ICJ and ICC, international cooperation may be the best model to confront the FIFA scandal, which can be broadened to other areas of international criminal law.  

The U.S. Department of Justice’s prosecution of FIFA officials raises several notable questions which still must be answered: whether the U.S. should assume the role of a global prosecutor for crimes that have largely affected other nations, particularly since the U.S. has refused to submit to the jurisdiction of the ICC; and what is the motivation behind these actions by the U.S. Department of Justice?  Nevertheless, the implications of these actions for international criminal law could establish a significant precedent for the expansion of criminal justice systems across international borders.