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OECD Working Group: Use the Anti-Bribery Convention to prosecute corruption in megasports

As the OECD Working Group on Bribery convenes its first 2023 meeting in Paris this week, we’d like to suggest an additional point on its important agenda: applying the OECD anti-bribery convention to major sporting organizations such as FIFA and the International Olympic Committee.

It’s not a new idea; it’s actually as old as the OECD anti-bribery convention itself (formally titled the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and referred to below as the OECD Convention).

The story begins with the very same event that catalyzed the modern megasport anti-corruption movement: the 2002 Salt Lake City Winter Olympics bribery scandal. In 1998 a letter from the Salt Lake Organizing Committee specifically describing a college scholarship to the daughter of an IOC Executive Committee member leaked to the press. U.S. prosecutors indicted the Salt Lake Organizing Committee officials for various domestic law violations: conspiracy, mail fraud, wire fraud, and racketeering. Those prosecutions all failed.

But another tool to address megasport bribery was immediately imagined, not by the United States or any other state but by the IOC itself. In September 1999, IOC Director General Francois Carrard wrote a letter to the Secretary General of the OECD. Note what Carrard requested:

“the IOC would like to be governed by the [OECD] Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. I would thus be particularly obliged if you could indicate to me the steps to take to that effect.”

That letter is available on the IOC website here. Very much to its credit, the IOC has done nothing to bury it.

The letter contained one flaw. It asked that the OECD Convention govern the IOC as a public international organization. This could be done in some countries like the U.S. but not in all. 

However, at its core, the OECD Convention prohibits bribery to a “foreign public official,” and nothing prevents a country from having an extensive definition of foreign public officials. 

It is certainly true that officials of Major International Sporting Organizations (MISOs) perform a public function. Should ratifying states define that term to explicitly or implicitly include MISO officials, then the powerful tools of foreign bribery enforcement can be used to address megasport corruption.

Following this letter, both houses of the U.S. Congress, with the support of the U.S. Olympic Committee, acted. Seemingly recognizing the United States’ part in the problem of megasport corruption, they pushed for the U.S. President to use his “explicit authority” to add the IOC to the United States’ list of public international organizations. Designating a MISO like the IOC as a “public international organization” automatically triggers FCPA jurisdiction.

It didn’t get done, and we don’t know why. But we do know it wasn’t because the U.S. President lacked the legal authority to do it. § 78dd-1(f)(1)(A) of the FCPA allows the President to designate any “international organization” to be subject to the FCPA via executive order.    

So why pick this back up now? Consider all that has changed since 1999. Laws enacted pursuant to the OECD Convention have become among the world’s most impactful international anti-bribery laws. 

We’ve developed innovative and effective enforcement tools like non-trial resolutions, multijurisdictional enforcement actions, and, indeed, the OCED Working Group on Bribery itself. At the same time, following Salt Lake City 2002, we see a long and sordid history of megasport corruption scandals across five continents. 

The problem has become truly global.

The United States took the lead in prosecuting megasport bribery with its 2015 indictments, but you’ll notice that no one was charged with bribery. Why? Because the U.S. list of international organizations did not include FIFA. 

And now the world’s two premier megasport events are both headed to the United States: the 2026 FIFA Men’s World Cup (co-hosted with Canada and Mexico), and the 2028 Los Angeles Summer Olympics.

The time is now. And it starts with the OECD Working Group on Bribery.  

_____

Nicola Bonucci is the former Director of Legal Affairs of the OECD.

Drago Kos is the former Chair of the OECD Working Group on Bribery.

Andy Spalding is Professor at the University of Richmond School of Law, Regular Senior Editor of the FCPA Blog, and author of A New Megasport Legacy: Host-Country Human Rights and Anti-Corruption Reforms (Oxford University Press 2022).

Special thanks to Whitney Busch, a 2L at the University of Richmond School of Law, for her excellent research assistance.  

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