Tuesday, December 16, 2014

You Don't Like FIFA Jurisprudence? Tough Shit

FIFA is an odd, insular organization. As such, it has developed a form of jurisprudence that to an outsider looks amateur, self-serving and inconsistent. But if you don't like it, too bad. Illustrating this, today FIFA released two decisions related to its ongoing investigation of the 2018 and 2022 World Cup site selections..

One was a decision on an appeal lodged by Michael Garcia, the lead investigator looking into the 2018/2022 decisions. After submitting his 400+ page report to the FIFA Adjudicatory Chamber, its chairman, Hans Joachim Eckert, released a 42 page statement with four findings (here in PDF):
  • The evaluation of the World Cup bidding process is "closed for thr FIFA Ethics Committee;"
  • The investigation was conduction in "full compliance" with FIFA's Code of Ethics;
  • Eckert supports the recommendations in the Garcia report;
  • The Adjudicatory Chamber will consider "specific cases" of ethics violations if Garcia open proceedings against any individuals.
Garcia protested in the media that Eckert's report "numerous materially incomplete and erroneous representations of the facts" and lodged an appeal with FIFA. Today FIFA ruled on that appeal (here in PDF). 

In short, FIFA rejected Garcia's appeal. FIFA explained that:
In its assessment of the matter, the FIFA Appeal Committee pointed out that the chairman of the adjudicatory chamber of the Ethics Committee (and not the adjudicatory chamber as such) had released a statement on the Report prepared by the investigatory chamber. In doing so, the chairman had merely commented on the Report of the investigatory chamber on a voluntary basis. 
In other words, FIFA is saying that it has no basis for adjudicating a dispute over a representation of facts. Further, because no sanctions were recommended by Eckert against anyone, then there is no basis for an appeal, which can apparently be lodged only against a sanction of an individual.

In plain English, under FIFA's bizarre jurisprudence, a whitewash (defined as giving a clean bill of health based on factual errors) is simply not appeal-able. (Whether this is in fact a whitewash or not is irrelevant.)

One possible silver lining is that FIFA may have opened the door for Michael Garcia to prepare his own "voluntary" comment on his report. As FIFA notes of Eckert's summary: "the Report, as transmitted by the chairmen of the investigatory chamber to the chairmen of the adjudicatory chamber, is as such not foreseen under the FIFA Code of Ethics." The same presumably goes for any summary that Garcia chooses to release "voluntarily."

The second decision handed down today involved a complaint lodged by two whistle blowers which FIFA had identified in Eckert's "voluntary" summary of the Garcia report. The whistle blowers had been promised confidentiality by FIFA, a promise which was broken. So Phaedra Almajid and Bonita Mersiades lodged a complaint.

FIFA dismissed the complaint. James Corbett observes that the media release by FIFA says something different than the letter sent to the whistle blowers. In the media, FIFA said that the complaint was dismissed because the whistle blowers had already spoken to the media, a claim that Corbett shows to be untrue. Either way, it makes one wonder why FIFA promised confidentiality in the first place, if it had no intention of respecting that promise. But in a letter to Almajid, FIFA says that her complaint was dismissed because she is not a football official, and thus FIFA has no jurisdiction over her complaint.

In other words, FIFA is saying that it has no accountability to its behaviors with respect to anyone outside FIFA. More to the point, FIFA is saying: "Don't like it? So sue us." The next stop for the whistle blowers would necessarily be the Swiss court system, which seems unlikely due to costs and precedent.

For all the absurdities surrounding FIFA's odd style of jurisprudence, there is little point in complaining. FIFA is a non-profit association located in Switzerland. They are not a public body and have essentially no accountability to anyone outside the association. They have every right to make up rules, change them on a whim and ignore them as is convenient. Don't like it? Tough shit. That is the way it is.

For change to occur in how FIFA does business, FIFA will have to be changed.


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