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Tom Fox: Johnny Football and Accountability in Compliance

The self destruction of Johnny Manziel in public is sad and has been difficult to watch. He’s been given every opportunity to succeed, along with the tools to deal with his inner demons that seem to bedevil him right up to the present. Many us of hope he can get the assistance he needs to deal with these issues and turn his life and career around.

Yet, I have been very interested in the many lessons to be garnered for the compliance practitioner from Manziel’s imbroglio. In an article in the Houston Chronicle, David Barron quotes a statement from Manziel’s former agent who announced last week he was withdrawing from his representation of Manziel. The agent, Erik Burkhardt, said in part, “Accountability is the foundation of any relationship, and without it the function of my work is counterproductive.”

My consideration of this statement was around SAP and its former employee Vicente Garcia and their resolution of Foreign Corrupt Practices Act enforcement actions. In December, Garcia pleaded guilty to criminal violations and was sentenced to 22 months in jail. SAP accepted a cease and desist order, with profit disgorgement of $3.7 million and prejudgment interest of $188,896.

I was interested in the continued clamor that somehow Garcia was a “rogue employee” and there was simply no way SAP could be responsible for the conduct of its large number of employees. Manziel’s former agent seemed to understand the incorrectness of this position when he said, “Accountability is the foundation of any relationship”. That is why there is no single part to a best practices FCPA compliance program.

Every party must have accountability to each other. Certainly employees have accountability not to engage in illegal conduct, such as violating the FCPA. Yet companies also have accountability in not only setting up the appropriate internal controls but actually following through with and monitoring those controls in an accountable manner. Senior management has its own role, as does the board of directors and the compliance function.

It is all about accountability. Claiming that a company cannot keep employees from intentionally violating the law when they are determined to do so points in the wrong direction; it doesn’t recognize the role of accountability in a compliance program. In the case of SAP, the company didn’t meet this burden with respect to Garcia’s ease of over-riding the company’s internal controls to engage in bribery and corruption.

Once again the world of sports informs compliance. We can all only hope Johhny Manziel will take up the call of accountability. It may save his life.   

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Thomas Fox is a contributing editor of the FCPA Blog and a Compliance Week columnist. He’s the founder of the Houston-based boutique law firm tomfoxlaw.com. A popular speaker on compliance and risk-management topics, Fox is also the creator and writer of the widely followed FCPA Compliance Report. His book Lessons Learned on Compliance and Ethics topped Amazon’s bestseller list for international law. He can be contacted here.

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