Forget Comey, what about Borbély and Eckert?

A kind of non-denial denial is not something I expect to receive when making enquiries for Compliance Week. I expect accountancy firms under investigation by the FRC not to want to speak to me on the record, but not a non-denial denial. But that is what I got from FIFA’s press office after a simple enquiry as to the status of the chairmen of their ethics committee following widespread press reports of their firing. I asked where the official announcement of their termination could be found and received this answer: “There is no official announcement, because the fact is that they haven't been fired. Based on the FIFA Statutes (article 27 and 52.5), the chairpersons, deputy chairpersons, and other members of the judicial bodies are elected by the FIFA Congress. Their terms shall last four years, beginning at the end of the Congress, which has elected them.”

This didn’t really answer my question, so I asked if what had happened was that they were simply not re-elected. I also asked for a list of the new members of the ethics committee, since the prior members were still listed on the website several days after the press had disclosed that the two chairmen had been deposed. Indeed, the prior members are still listed. The image below shows the former make-up of the committee. Only Bruno de Vita from Canada and Jack Kariko from Papua New Guinea remain.

fifa_committee.jpg

This is the reply I received to that question: “I repeat and I refer you to our previous answer: They have not been fired.” To this I replied that I was not suggesting they had been fired; I was simply asking for a confirmation that what happened is either that they were not re-elected or that their term of office was not renewed. I added that there were some members and deputy chairmen who were in place prior to last Tuesday who were still on the ethics committee and that there were holdovers on other committees. I also asked if it were possible to extend a term of office for longer than four years or was there something in the FIFA statutes that forbade this? Or were these holdovers elected by a Congress that was less than four years ago and therefore are still serving out their term?

I didn’t get any answer at all to these questions.

I went to the statutes themselves to find out for myself. This is what the statutes’ FAQs say about the terms of office:

The terms of office will be for four years, beginning on the respective date of appointment by the Council. Members of the standing committees may be relieved of their duties at any time by the Council, except for the members of the governance committee, who may only be relieved of their duties by the Congress.

There does not seem to be a prohibition on renewing a term of office. On the question of whether term limits will be applied retroactively, the FAQs state:

No, the limitation will not be applied retroactively. The term limits set forth in the relevant provisions of the revised FIFA Statutes will only apply to existing members of the existing committees as from the date of completion of their current mandates.

Cornel Borbély and Hans-Joachim Eckert, the two chairmen of the ethics committee, had reached the end of their four-year terms, but the current FIFA statutes only came into effect on 27 April 2016, so the term limits would not appear to apply to them yet.

Together with the chairmen, 11 of 13 committee members were removed. Cornel Borbély and Hans-Joachim Eckert claimed in a BBC interview that when ousted, they were in the process of investigating hundreds of cases and that their removal was a “setback for the fight against corruption” and that “meant the de facto end of FIFA’s reform efforts.”

Borbély and Eckert speak

Below is an extract from Borbély’s and Eckert’s statement.
The impending non-election will set the work of the Ethics Committee far back and is de facto the end of FIFA’s reform efforts.
It must be assumed that entire FIFA will suffer from this decision in the medium and long term.
The work of a credible and independent Ethics Committee is an important part of the FIFA reforms whose goal was to restore the trust of the public and other stakeholders.
Since 2015 the Investigatory Chamber has carried out 194 investigations and the Adjudicatory Chamber has sentenced more than 70 officials.
The impending and clearly politically motivated non-reappointment puts de facto an end to the reform efforts. This will inevitably lead to a renewed loss of trust and further hurt the already tarnished image of FIFA.
Consequently, the non-reappointment will have a negative impact on FIFA in the medium and long term.
The successors of both chairmen will have to familiarize themselves with the dossiers and the processes. The non-election will lead to long delays in current investigations and proceedings, and complicate the prosecution of violations of the Code of Ethics.
It appears that the heads of FIFA have attached greater weight to their own and political interests, than to the long-term interests of FIFA.
They have accepted jeopardizing FIFA’s integrity, and, hence, the future of the game.
Source: Play the Game

FIFA President Gianni Infantino declined to discuss the reasons for not handing new terms to the two chairmen, despite the fact that the two had received widespread support from the rest of the FIFA Council. Not only had there been no official announcement of the termination of the two chairmen, according to press reports, Eckert and Borbély said they discovered they were being removed as they arrived in Bahrain on Tuesday for the FIFA Congress.

Even more worrying, the 22-page document outlining the milestones in the ethics committee’s history from 2012 to today appears to have been removed from FIFA’s website (see the related resourcs document at right for that document). The link downloaded on Friday no longer works and repeated searches fail to find another location for it.

While attention has been focused on Eckert and Borbély, they were not the only committee chairmen and deputy chairmen to be replaced. The chairpersons and deputy chairpersons of five FIFA committees were recommended for change by the FIFA Council for ratification by the FIFA Congress later last week. The other committees are the appeal, audit and compliance, disciplinary and governance committees, as well as the two chambers (adjudicatory and disciplinary) of the ethics committee.

There were inevitable, widespread comparisons between Infantino and U.S. President Donald Trump, who fired top investigator FBI Chief James Comey on the same day as FIFA’s decision became known. While this looks like a massive own goal for FIFA, nevertheless, the association has stayed on message in a way that the Trump administration could take lessons from.

Official announcements continue to stress that the moves are just part of Congress’ day-to-day business:

The proposed list of candidates for the audit and compliance committee, the governance committee and the judicial bodies was agreed to following a thorough consultation process involving FIFA and the six confederations. The decision on the final list of candidates was then agreed to unanimously by the FIFA Council.

That explanation does not seem to be the case, however. In addition, announcements said:

These individuals have been chosen because they are recognised, high-profile experts in their respective fields. Moreover, they better reflect the geographic and gender diversity that must be a part of an international organisation like FIFA.

While it is certain that the new members of the committees greatly enhance the gender diversity of those bodies, it must be recognised that continuity of investigators ensures the continuity of investigation, while a wholesale restaffing of an investigation, especially of those at the top, like Comey, Eckert, and Borbély, will have the effect of disruption. The suspicion is that investigations were closing in on persons close to the Presidents and that those investigations needed to be disrupted.

Current investigations by the ethics committee include Russian Deputy Prime Minister Vitaly Mutko who is suspected of links to doping cases. Mutko has already been forced out of the FIFA Council because of allegations; a further judgment would remove Mutko from heading the 2018 World Cup organizing committee. German football star Franz Beckenbauer and Kuwaiti Olympic broker Sheikh Ahmad al-Fahad al-Sabah are also under suspicion of suspected fraud and bribery, respectively. Eckert and Borbély have banned multiple officials since 2012 when the corruption crisis in FIFA began, including former President Sepp Blatter and then-UEFA President Michel Platini in 2015.

While the new candidates doubtless are diverse and have judicial and legal experience, they have no experience investigating FIFA, so it is inevitable that the current investigations will falter, but it is to be hoped for the future of the beautiful game that they will not stall altogether.