It is a sign of the distrust, and in some quarters hatred, for football’s world governing body that there was a sense of celebration and pleasure in the reporting of the FBI raids in Switzerland and the arrests of a number of FIFA officials.
Even the dreadful overblown and triumphalist FBI press conference (the Crown Prosecution Service are bad enough but let’s hope they don’t get any ideas from this performance) could not overshadow the sense that this was a momentous day.
The reach and power of the United States’ investigatory agencies is now well known as extensive. The US role as the world’s policeman may shrink away from ill-considered and planned wars, but they are certainly not shy in protecting their business interests and the forces of capital.
The 164-page indictment against the 14 defendants listed is breath-taking in its scope, covering multiple jurisdictions, organisations and billions of pounds of deals (both legal and allegedly illegal) all tied in by the fact that they involve “banking and investment activities with United States financial institutions” , that the activities: “operated in the Eastern District of New York and elsewhere” and that the alleged conspirators “relied on the broader strength and stability of the US financial system, including access to the private equity markets”. It is a sign of the US’s long reach that paragraph 4 of the Indictment defines FIFA as “the international body governing organized soccer, commonly known outside the United States as football”.
The Indictment is drawn under the Racketeer Influenced and Corrupt Organisations Act (“RICO”) and the Travel Act (not the Foreign Corrupt Practices Act for multiple reasons including the fact that it does not cover recipients and that FIFA officials are not foreign officials). It alleges an extensive series of racketeering conspiracies around a number of international football competitions involving wire fraud and money laundering offences stretching back 25 years. The offences are alleged to have occurred through a network of media marketing companies connected to senior figures within FIFA through whom (the indictment states) corruption “became endemic”.
The SFO has commented that it has not launched a criminal investigation but did say that it “continues actively to assess material in its possession and has made plain that it stands ready to assist continuing international criminal investigations”. The SFO remit stretches to investigating matters which undermine UK commercial/financial interests and the City of London in particular.
The reality is that the SFO is ill-equipped to mount any investigation of this size or magnitude and a number of their perceived successes over the last few years have been achieved with the power of the US in the wings focusing minds on remaining within UK jurisdiction and considering pleas carefully in order not to open up US extradition.
Despite the popularity of this particular action there must remain concerns about this level of power both in terms of its reach, the ability to protect those accused and the safeguards against reputational damage for those caught up in the investigation be they individuals, corporates or indeed law firms.
The campaign around the arrests coming out of the US since the press conference has been relentless – statements, leaks, attacks, propaganda and justification. On 1 June, the New York Times published allegations against the organisation’s secretary general stating: “The officials and others who identified Mr Valcke spoke on condition of anonymity because they were not authorised to discuss the investigation”. The comments caused Mr Valcke to make a statement denying wrong-doing. Whether or not Mr Valcke is guilty, leaks of this nature are terribly hard to counter and are deeply damaging.
Around the world financial institutions and corporate lawyers will be reviewing transactions and business undertaken waiting for the production orders from the world police. Many with innocent connections will be worrying about their names being caught up in the investigation. Those with less innocent concerns still have a right to protection and a fair trial with due process and the importance of this is even greater where the investigation is being clapped and cheered by so many.
The indictment reads impressively but those of us used to the long grind of the trial process know how initial statements of the prosecution case can lie in tatters within a few months once properly tested and crunched and how apparently flawless witness testimony can quickly fall apart (in particular where there are witnesses who have sought leniency through cooperation).
It is essential that the interests of those caught up in the investigation are not subsumed by the power, propaganda and popularity of the cause and that those tasked with representing both suspects and witnesses where the power of the US agencies is being wielded understand their roles and perform them without fear, protecting rights, liberty and reputation.
Angus McBride is a criminal litigation partner at Kingsley Napley
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