The FIFA scandal involves the illicit paying and receiving of monies in relation to marketing rights, elections, and host country bids. And though both the U.S. and Switzerland have now begun formal criminal proceedings, with 15 total defendants and myriad criminal counts, there are absolutely no bribery charges.
Why? The reason isn’t scandalous. Rather, it highlights the parameters of both U.S. and Swiss law, and underscores the importance of attacking corruption from multiple fronts.
First, the U.S. The 14 indicted individuals have been charged with honest services wire fraud, money laundering, and racketeering. Why no bribery? It has less to do with who paid the bribes or how they paid them, than with the persons to whom they were paid.
The FCPA prohibits payments to foreign officials and several other categories of persons, including “public international organizations.” But the term isn’t for prosecutors to define at their discretion; it requires a formal executive order. Organizations thus classified include the World Bank, IMF, OECD, and the like. FIFA has never been classified as a public international organization, and that’s probably as it should be.
On the Swiss side, Blatter is being formally investigated for the criminal mismanagement of entrusted funds, but not the paying or receiving of bribes. Rumors have circulated to the effect that private-sector bribery was not illegal under Swiss law during the years in question, but that’s not quite true. The bribing of private-sector entities was indeed a criminal offense in Switzerland, but of a peculiar kind, for which there is no good analogue in U.S. law. It was an “antragsdelik,” which means a violation that the government could charge only upon a petition from the victim of the crime.
As of September 10, that’s no longer the case. The Swiss government passed a bill making private-sector bribery a violation that the government can charge without a victim’s petition.
But despite the absence of any bribery charges, these prosecutions are for real. They illustrate why governments must have multiple tools in their arsenal if they are to attack corruption. And perhaps the FIFA scandal shows us the importance of UNCAC, the international convention that calls upon member nations to prohibit corruption in all its myriad forms.
Ultimately, Sepp Blatter’s case may resemble Al Capone’s, the notorious gangster whom the U.S. government brought down with tax evasion charges. It may not much matter what we get the bad guys for, so long as we get ‘em.
Special thanks to my exceptional research assistant, Finn Fechner, who is at UR on exchange from Germany and helped me research Swiss law.
Andy Spalding is a Senior Editor of the FCPA Blog and Associate Professor at the University of Richmond School of Law.