JURIST Guest Columnist Albert E. Scherr of the University of New Hampshire School of Law discusses four outcomes of the FIFA scandal in the context of international criminal law…

The FIFA scandal has dominated recent international sports news. As FIFA’s annual conference was about to begin, the US Department of Justice charged high-level soccer executives and several sports marketing/media executives with racketeering, money laundering, wire fraud and conspiracy spanning more than a decade. The allegations of criminal conduct included kickbacks, bribes, undisclosed and illegal payments and unauthorized World Cup ticket sales.

Seven of the high-level soccer executives were arrested, not in the US and not by American police. Rather, the Swiss police arrested them in Switzerland at a five-star hotel in Zurich with American law enforcement officials looking on. And much, if not all, of the alleged conduct occurred outside the US, engaged in by citizens of Uruguay, Costa Rica, Paraguay, Venezuela etc. Four of the 14 defendants’ whereabouts are unknown and Interpol continues to search for them. It is expected that several of those arrested will fight return to the US where the cases will be prosecuted. Only one defendant was arrested in the US.

Vladimir Putin, the Russian president, criticized the US for engaging in “another blatant attempt … to extend its jurisdiction to other states.” He defended the FIFA president and aligned those arrested with Edward Snowden and Julian Assange. A Russian news agency asserted, “The United States, which plays soccer, not football, has drawn its best resources to investigate a foreign scandal, to meddle into affairs of others and impose its rules and laws.”

International criminal law itself does not provide an international criminal justice system under which most types of crimes can be charged. But the body of international law does recognize, by default at least, the value to the international community as a whole of individual countries charging individuals who are not their citizens or residents with crimes. At the very least, the extent of the reach of a country’s criminal statutes act both as a substitute for an “international statute” and as a way of filling an otherwise gaping enforcement and punishment gap created by what would be a form of immunity.

The FIFA scandal brings to the fore at least four things about international criminal law in this context:

1. No international judicial system or court exists that can handle the FIFA scandal.

The two most obvious candidates are the International Court of Justice (ICJ) and the International Criminal Court (ICC). Neither have jurisdiction over this scandal.
The ICJ is the primary judicial branch of the UN. The ICJ handles disputes between nations: “The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.” The ICJ is not a court with criminal jurisdiction nor does it resolve disputes between a private entity and a nation that involves criminal conduct, as does the FIFA scandal.

The ICC is an independent international organization governed by what is called the Rome statute [PDF]. It is not part of the UN system. It is a permanent, treaty-based court “established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” Currently those crimes are identified as genocide, crimes against humanity and war crimes. The crimes alleged by the US prosecutors in the FIFA scandal do not fall within the ambit of the ICC’s jurisdiction.

2. US prosecutors can charge someone even if some or all of the conduct occurred outside US territorial boundaries and even if the defendant is not a US resident or citizen.

Some of the conduct alleged in the FIFA indictments occurred outside the territorial boundaries of the US. Neither the Constitution, US statutes nor international law prohibit the FIFA prosecutors from charging an individual under the US criminal code. Some US statutes explicitly provide for this possibility and others have been interpreted to allow for such a possibility. For example, several of the defendants in the FIFA indictments were charged with racketeering, a charge frequently used against what some call criminal enterprises. Some of the schemes involved in the FIFA organized crime or racketeering indictments occurred in part or in whole outside the US and US federal courts have said that the Racketeer Influenced and Corrupt Organization Act (RICO) can apply to schemes and criminal enterprises outside the US as well as those within the US. And many international scholars recognize that the country can exercise its criminal jurisdiction over the conduct as long as it fits within one of five jurisdictional principles:
1) Territorial jurisdiction: based on the location of the alleged crime or extra-territorial acts intended to produce detrimental effects within the nation;
2) Nationality jurisdiction: based on the nationality of the offender;
3) Protective jurisdiction: based on the protection of the interests/integrity of the nation;
4) Universality jurisdiction: for certain crimes where custody of the offender is sufficient and
5) Passive personality jurisdiction: based on the nationality of the victim.
The FIFA indictments allege more than enough conduct to meet several of these criteria. The defendants in the FIFA scandal are citizens of at least ten countries. However, the nationality of the defendant does not determine whether a US federal prosecutor can charge that individual with a federal crime.

3. Other countries retain the power and right to charge the FIFA defendants under their domestic statutes no matter what the outcome of the US prosecutions.

The FIFA defendants come from a number of countries. If the country of residence/citizenship or in which some of the conduct may have occurred has statutes prohibiting such conduct and/or allowing for extra-territorial jurisdiction over conduct occurring in other countries, the defendants could also be charged in those countries. The American constitutional principle of double jeopardy does not prohibit the prosecution of a defendant in another country that has statutes prohibiting conduct exactly like the conduct charged by the American prosecutors. Those charges could be concurrent in time with the US charges or they could follow the resolution of the US charges. The country that has custody of the defendant either directly or through the extradition process most often proceeds first in its prosecution effort. Sometimes, custody over the defendant reverts to the next country upon completion of the sentence, if convicted. Sometimes, custody is transferred to the country with the next-in-time charges after conviction and sentencing, but before the serving of the sentence.

To simplify, the US does not have exclusive domain over charges against the FIFA defendants. In fact, it appears that South Africa is conducting an investigation into bribes related to awarding the 2010 World Cup to that country even though the current FIFA indictments cover that conduct.

4. The law of Extradition most likely determined the choice by the US prosecutors to arrest six defendants in Zurich, Switzerland

Swiss police arrested six of the defendants in Zurich. Some have questioned why Switzerland was the locus of arrest when the charges were not of Swiss origin nor were any of the arrested defendants Swiss. The law of extradition may offer some explanations. Extradition is the process by which a criminal justice system brings an individual who has been charged and then arrested outside the charging jurisdiction back to for trial. In the US, a uniform process exists for bringing defendants back to the charging state from another state. When the arrested individual is outside the US, any formal extradition process depends upon whether the charging country and the holding country have an extradition treaty.
In form, international extradition treaties are relatively similar. For example, the process allows for a defendant to challenge the extradition request in the courts of the holding country. Several FIFA defendants have expressed a desire to challenge extradition.

In substance, such treaties vary. The treaties are not as simple as a charging country extraditing a person from the holding country for any crime. Many such treaties articulate a specific list of crimes for which a country will extradite. For example, Switzerland has an extradition treaty with the US. It does not allow for extradition for tax crimes, but does allow it for the FIFA crimes.
Even if the charging and holding countries have an extradition treaty, the government of the holding country can make what is essentially a political decision not to extradite an individual. For example, in the FIFA scandal, some have suggested that countries like Argentina, Venezuela and Paraguay may choose not to complete the extradition process by declining to formally approve extradition once the court process is complete. That result might be for reasons of the health of a defendant, concern about possible punishments or political concerns. It is very possible that US prosecutors chose to arrest six defendants in Zurich not only because it is easier to arrest six in one country than six in six different countries but also because the extradition process will work more predictably in Switzerland than in some other countries.

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Without doubt, the wrongs for which a criminal justice system might hold the FIFA defendants responsible are primarily those affecting FIFA itself, an international organization, and the international community—football players, fans etc. Though by location of commission, the crimes are country-specific the harms are much more to global institutions and the global community, undifferentiated by country. Yet, no international criminal justice system exists designed to hold individuals responsible for these harms, and so attentive countries, powerful countries, aggressive countries and imperialistic countries with all the strengths and weaknesses of their individual systems fill the gap.

Professor Scherr is Chair of the International Criminal Law and Justice Program at University of New Hampshire School of Law. He also directs the School of Law online graduate programs. Professor Scherr was in charge of a Rule-of-Law project in northern Russia and he presented lectures in Check Republic, Morocco and Armenia.

Suggested citation: Albert Scherr, Four Things the FIFA Scandal Tells Us About International Criminal Law, JURIST – Academic Commentary, July 1, 2015, http://jurist.org/academic/2015/07/albert-scherr-fifa-scandal.php.