Can FIFA legally publish the Garcia corruption report?

The COE is a document which is issued by the FIFA Executive Committee (‘ExCo’) [8], the executive body of FIFA [9], pursuant to Article 63(3) of the FIFA Statutes (Ethics Committee). [10]

The key provision of the FCE 2012 which applies to Mr Garcia’s investigation and Report is Article 36 (Confidentiality). Paragraph 1 of Article 36 states:

“The members of the Ethics Committee and the members of the secretariats shall ensure that everything disclosed to them during the course of their duty remains confidential, in particular, the facts of the case, contents of the investigation and deliberations and decisions taken, as well as private personal data in compliance with the FIFA Data Protection Regulations. Equally, the members of the Ethics Committee shall not make any declarations related to ongoing proceedings dealt with by the Ethics Committee.”

This appears to be supported by a letter which has been obtained by the website Inside World Football, whereby Mr Garcia promises confidentiality to an interviewee for the investigation. [11] However this is in contrast to a recent statement issued by the law firm of which Mr Garcia is a partner where he called for “an appropriate publication of the Report” to be made to the public. [12] In addition, in response to the document obtained by Inside World Football, he has said to the German newspaper Der Spiegel that the paragraph in the letter on confidentiality was a "standard statement" and "irrelevant" to the decision of "whether or not and to what extent the results of a completed investigation should be kept confidential or not", which one may not find entirely convincing. [13] During a speech given by Mr Garcia at an American Bar Association (‘ABA’) lunch in London Mr Garcia also said, "It's one thing to tell people that a rigorous process is in place. It's another thing to show them how that process works and what it has uncovered". [14] In the aforementioned interview with the FIFA website Mr Eckert confirmed, "Michael Garcia has never said the report should be 100% published.  He merely said that the ‘appropriate’ publication of his report should be authorised." [15]

How does FIFA’s position marry with the characteristics of good governance?

Mr Garcia, in now calling for his Report to be made publicly available, "the investigation and adjudication process operates in most parts unseen and unheard…That's a kind of system which might be appropriate for an intelligence agency but not for an ethics compliance process in an international sports institution that serves the public and is the subject of intense public scrutiny" [16]. This would certainly follows established principles of good governance. For instance, when presenting on good governance in sport, I often refer people to the United Nations 8 characteristics of good governance [17], two of which are accountability and transparency. Indeed, the IGC’s final report makes this comment about the FEC’s investigation:

"This is also the opportunity for FIFA to demonstrate they have learned the lessons of the past and are determined to see a transparent and open organization setting an example of the highest ethical standards in the interests of the game and the wider public interest." [18]

In his FIFA interview, Mr Eckert said that he expects to make a statement by mid-November 2014 which will contain, “an overview of the investigation report, a summary of the main findings, conclusions and recommendations of the report, as well as a brief evaluation of the same.” [19] This approach (with similar words being said by him in an earlier interview [20]) seems to strike an appropriate balance against the restrictions imposed upon him not only by paragraph 1 of Article 36 COE, but also paragraph 2 which states:

“Only the final decisions already notified to the addressees may be made public.”

In that earlier interview Mr Eckert indicated that were any findings made by the Adjudicatory Chamber of the FEC against any person covered by the COE, then in due course - he estimated around Spring 2015 - the decisions and sanctions handed down pursuant to the FIFA Disciplinary Code [21] would be made public. This is the same approach taken to previous sanctions given to other members of the so-called “FIFA family”, including Mr Mohammed bin Hammam (the central protagonist in the voting allegations) [22], Mr Amos Adamu [23] and more recently the five year ban from football placed on Mongolian Football Federation President, Mr Ganbold Buyannemekh, for having solicited and accepted bribes from Mr Mohammed bin Hammam in the context of the elections for the ExCo, as well as the FIFA presidential election in 2011. [24]

Of course, should any member of FIFA be sanctioned according to the contents of Mr Garcia’s Report, they would have the right to appeal, first to the Appeal Committee of FIFA (Article 81 COE; Articles 188 to 127 Disciplinary Code) and then to the Court of Arbitration for Sport (Article 81 COE).[25] Given the seriousness that an adverse finding of corruption can have, one would think they would exercise those rights.

How could FIFA publish the Report?

Alternatively, is there a way FIFA could publish the Report if so minded? As already mentioned Article 36 COE currently precludes publication, therefore any changes to the COE would have to be voted for and passed by the ExCo. The ExCo currently meet twice a year [26] and do have the ability, if there is a matter of urgency to be dealt with (one could put the publication of Mr Garcia’s Report in that category), then they are able to meet as an Emergency Committee which consists of a six member panel of the wider 25 members of the ExCo. [27] Interestingly however, 12 members of the current ExCo were part of the previous ExCo at the time the vote for the 2018 and 2022 World Cups took place on 2 December 2010. Of these 12, there are 5 individuals about whom a variety of allegations of corruption have been made in relation to that voting procedure. [28] Therefore one may doubt whether a motion to amend Article 36 COE to allow the Report to be published would be passed.

Is there a risk of defamation claims?

In addition to the sports law elements, there are also additional defamation/privacy/human rights considerations for Mr Eckert to be aware of. Indeed as he says in his FIFA interview, “The main requirement is that personal rights must not be damaged." [29] Although I am not a specialist in human rights or Swiss libel law (the jurisdiction where FIFA has its legal seat [30]), if Mr Eckert did choose to publish the document in full, un-redacted, before disciplinary proceedings had been brought against those individuals mentioned in the Report as being involved in alleged corrupt practices, then there is a potential breach of the confidence which arises out of Article 36. In addition, FIFA may also be open to defamation claims, which importantly only have to be proved on the civil standard of balance of probabilities, whereas any charges laid upon members of the ExCo, or others in the FIFA family, for alleged corruption would have to be proved on the higher and unique sporting standard of comfortable satisfaction. [31] If such a claim was launched against FIFA they may have a defence of truth, privilege or publication on a matter of public interest, but this would not be straightforward.

What Next?

In the absence of substantial political pressure being successfully applied upon FIFA, it appears that Adjudicatory Chamber Chairman Mr Eckert is quite right to state that he does not have the ability to publish the full un-redacted version of the Investigatory Chamber’s Report into alleged corruption surrounding the voting for the 2018 and 2022 FIFA World Cups due to restrictions in the sporting regulations of FIFA and the potential risks from the civil law. We can only hope that Mr Eckert’s November statement, and any disciplinary action taken in the Spring of 2015, will contain enough information to sate a public, media and other stakeholders in football who are baying for blood.

This article was written for and first published on LawInSport.