Wednesday, July 25, 2012

bin Hammam vs. FIFA: A Victory for Sports Governance

The Court of Arbitration for Sport has released its full decision in the dispute between Mohammed bin Hammam and FIFA (available here in PDF). The dispute centers on FIFA's lifetime suspension of bin Hammam for allegedly bribing Caribbean football officials in May, 2011 in his effort to win the FIFA presidency.

In a nutshell, $1,000,000 was distributed at a special meeting of Caribbean football officials -- that is, representatives to FIFA with a vote in the FIFA presidential election. The money was distributed in cash in brown paper bags in $40,000 allotments to 25 individuals. The disbursement was done by Jack Warner, then head of the Caribbean Football Union (since caught up in his own series of scandals). Of note, the CAS judgment says that "Mr. Warner appears to be prone to an economy with the truth." You can actually see a video of the disbursements being made here.

Almost immediately bin Hammam was accused by FIFA (and coincidentally Sepp Blatter supporters) of violating FIFA's ethics rules. An investigation took place, incidentally led by Louis Freeh who also led the recent Penn State investigation, which concluded that circumstantial evidence implicated bin Hammam in the bribery.

The result of all this was that bin Hammam was forced to step aside in the FIFA presidential election, leaving Blatter to run unopposed, and ultimately was given a lifetime ban from FIFA, which was upheld on appeal. For bin Hammam, the next step was to take FIFA to the Court of Arbitration for Sport, which has jurisdiction over such disputes as described in the FIFA statutes.

Here is where it gets even more interesting. (Yes, more interesting than cash in paper bags!) The defense offered by bin Hammam was not that he was falsely accused, but rather that FIFA volated his due process rights in its decision making process that ultimately led to his suspension. From the decision:
79. The Appellant challenges the Decision.

80. He alleges that FIFA has disregarded the principle of due process in reaching its decision to sanction him.

81. The Appellant submits that, from the very beginning of the proceedings (i.e. the letter dated July 14, 2011, to the FIFA Ethics Committee), he demanded that the FIFA Ethics and Appeal Committees should apply the standards of due process as guaranteed in the European Convention of Human Rights (hereinafter, “ECHR”), Swiss law and general principles of sports law.
The decision further explains bin Hammam's argument:
83. The Appellant considers that the principle of due process set forth in the ECHR applies to FIFA, even if it is not a state, since it is the private regulator of football in many countries that are signatories of the ECHR, including Switzerland, where FIFA is based. The Appellant states that the European Court of Human Rights has ruled that a private body, such as FIFA, that undertakes the role of a tribunal to the exclusion of state courts, must comply with Article 6 ECHR. In this case, FIFA took a decision affecting Mr. Bin Hammam’s civil rights, and adjudicated on a criminal charge, namely bribery. Thus, FIFA is bound to apply ECHR principles.

84. Further, the Appellant alleges that CAS jurisprudence has long recognized that it must apply the standards of the ECHR. Moreover, it considers that the relevant provisions of the ECHR form part of the lex sportiva or lex ludica recognized by the CAS. Therefore, by rejecting the principles of Article 6, the FIFA Ethics and Appeal Committees committed a grave violation of the principles of the lex sportiva which CAS jurisprudence demands that they apply.
The decision then goes on at some length to describe in detail the substance of what it sees are due process violations in FIFA's decision making.

In response FIFA focused on bin Hammam's alleged guiltiness of the charges and decided to punt on the issues of due process. The decision explains that FIFA argued,
... CAS panels should not in such circumstances consider arguments alleging the violation of due process. The Respondent sees no reason to address in any detail the Appellant’s complaints on those items.
Wow. It is telling that FIFA appeared to believe that addressing questions of due process would be unnecessary.

The CAS found, in a 2-1 judgment, in favor of bin Hammam, noting that their judgment was not a statement about the likelihood of his innocence, but rather a statement about FIFA's failure to prove its case. In fact, the CAS suggested that bin Hammam was likely guilty of the charges.

The verdict offered a series of stinging rebukes to FIFA. Among the conclusions reached in the CAS judgement:
201. It is readily apparent that the investigation carried out by FIFA was neither thorough in respect of the matters that it did address, nor comprehensive in its scope. Of great concern to the Panel is the decision by FIFA to terminate the investigation of Mr. Warner when he resigned from FIFA (see FIFA press release quoted at para. 160 above).

202. The Panel is bound to note that there was apparently no requirement to close those FIFA Ethics Committee procedures, as it is plain to it that FIFA would continue to be able to exercise jurisdiction over acts occurring whilst Mr. Warner was a FIFA official. Mr. Warner is at the heart of the events of May 10 and 11, and there is every possibility that if the FIFA investigations of Mr. Warner had continued at least some of the missing facts that have hampered the work of this Panel – facts that go to the heart of the gaps in the events - might have been clearly established, one way or the other. By closing the Ethics Committee procedures, FIFA disabled itself from pursuing a proper, thorough and complete investigation of Mr. Bin Hammam’s role in the matters that give rise to these proceedings. In effect, the paucity of the evidence is connected to FIFA’s own actions and inactions. In this regard, the Panel notes that Mr. Blatter declined to answer its questions concerning the circumstances of Mr. Warner’s resignation and the termination of disciplinary proceedings against him, as well as the relationship between these two events.
The CAS in effect has told FIFA to clean up their decision processes and try again:
208. By lifting the ban of Mr Bin Hammam, the Panel does not necessarily consider that this matter is concluded. FIFA is about to set up two new ethics committees, one to undertake investigations, and the other to adjudicate cases that may follow an investigation. In the event new evidence relating to the present case is discovered and without prejudice to the principle of res judicata and other principles of applicable law, it would still be possible to re-open this case, in order to complete the factual background properly and to determine if Mr. Bin Hammam has committed any violation of the FCE.
This judgment represents a victory for the rule of law, for due process and for the notion that FIFA must conform to such norms rather than operate in an ad hoc manner. Of further note is that bin Hammam's victory in this dispute, which certainly does nothing to change his status in world football (as he is being investigated under other allegations of violations), reinforces the need for a jurisprudence of  sport consistent with the widely accepted norms of jurisprudence which comprise democratic governance.

That, in the end, is a victory for sports governance.


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