Rien ne va plus at FIFA. The news that FIFA’s Secretary General Jérôme Valcke was put on leave and released from his duties has been quickly overtaken by the opening of a criminal investigation targeting both Blatter and Platini.

With FIFA hopping from one scandal to the next, one tends to disregard the fact that it has been attempting (or rather pretending) to improve the governance of the organisation for some years now. In previous blogs (here and here), we discussed the so-called ‘FIFA Governance Reform Project’, a project carried out by the Independent Governance Committee (IGC) under the leadership of Prof. Dr. Mark Pieth of the Basel Institute on Governance. Their third and final report, published on 22 April 2014, listed a set of achievements made by FIFA in the area of good governance since 2011, such as establishing an Audit and Compliance Committee (A&C). However, the report also indicated the reform proposals that FIFA had not met. These proposals included the introduction of term limits for specific FIFA officials (e.g. the President) as well as introducing an integrity review procedure for all the members of the Executive Committee (ExCo) and the Standing Committees.

“In the interest of, and commitment to, transparency”, FIFA made publicly available on 10 September 2015 an 8-point reform plan issued by the Chairman of the Audit and Compliance Committee, Domenico Scala. The report maps the current governance problems FIFA is facing and outlines a list of reform proposals the A&C wants FIFA to implement. More concretely, the A&C believes that the ExCo is FIFA’s main problem, and urges the ExCo to reform itself.

This blog post aims to analyse the proposals submitted by the A&C. It will do so by firstly explaining what the FIFA Executive Committee is, what its powers are and how its members get elected. This allows us to understand the criticism this institution has received in the past by, e.g. the Independent Governance Committee, and by the A&C today. In continuation, a comparison will be made between this latest report on FIFA governance and the 2014 report issued by the IGC. The comparison will help us answer the question to what extent FIFA is seriously trying to undergo the necessary reforms. Lastly, the blog post will determine whether the proposals made by Scala and the A&C can be realistically implemented by FIFA and, where necessary, its Members and the Confederations. 

The FIFA Executive Committee: How it works and why it is criticised

The ExCo is the executive body of FIFA and consists of 25 members: The FIFA President, eight Vice-Presidents and 16 members, including one female member. The FIFA President and the female Member of the ExCo are elected by the FIFA Congress (the legislative body of FIFA, of which all the National Associations are a Member and have one vote each)[1], whereas the Vice-Presidents and the other members are appointed by the Confederations (i.e. UEFA, CONMEBOL, AFC, CAF, CONCACAF and OFC)[2]. It should be noted that the Confederations themselves are not members of FIFA. All members of the ExCo are elected for four years and may be re-elected indefinitely.[3] The tasks of the ExCo include determining the dates, locations and format of the FIFA tournaments and electing the General Secretary on the proposal of the FIFA President.[4] Moreover, the ExCo designates the members of each standing committee.[5] An example of such a standing committee is the Finance Committee, whose task is to monitor the financial management and advise the ExCo on financial matters and asset management.[6]

In a concept paper from September 2011, the IGC described the ExCo as an “assembly of member delegates” rather than executive body. “The nature of the Executive Committee as an assembly of delegates is further supported by its large size (24 members in 2011) and few meetings (two meetings per year)”.[7]

The often-mentioned governance problem of the ExCo involves the ‘double’ or even ‘triple heads’ of some of its members. For example, the man who is president of the Spanish football association (RFEF) since 1988, Ángel María Villar, is also vice-president of UEFA since 1992 and FIFA Executive Committee member since 1998. Having important functions in three related, though different, organisations could trigger severe independency and conflict of interest issues. Furthermore, as the A&C pointed out in his 8-point reform plan, “the misconduct of some, even if it happens ‘only’ at the Confederation / national association level, has a tremendous impact in FIFA itself”.[8] One only needs to remember the example of former ExCo Members, Jack Warner and Chuck Blazer, who in their other function as president and vice president of the CONCACAF laundered millions of dollars and were charged with corruption.[9]

In its concept paper, the IGC already underlined the lack of independent supervision within the ExCo and suggested introducing a number of independent ExCo Members.[10] Further recommendations were substantiated in the IGC’s final report, which included implementing integrity review procedures for all members of the ExCo and the Standing Committees performed by FIFA centrally, and having the FIFA Congress confirm each ExCo member appointment or re-appointment by the Confederations.[11] Nonetheless, more than four years after the publication of the first IGC report and even after the 2015 FIFA corruption scandal, which led to the arrests of ExCo Members Jeffrey Webb and Eugenio Figueredo, the way ExCo Members get elected has not changed. For example, so far a requirement for integrity checks of new Members has not been introduced. 

Comparing the Final Report by the Independent Governance Committee and the Scala reform plan

The Final Report by the IGC contained a list of achievements including:

• Dividing the Ethics Committee into an investigatory and an adjudicatory chamber;

• Revising the Code of Ethics, through which the rules of conduct and expected behaviour (e.g. new standards regarding conflicts of interest, gifts and other benefits, bribery and corruption) are more clearly described;

• Establishing an Audit & Compliance Committee with the typical supervisory role of an Audit Committee and the additional responsibilities for a Compliance Program as well as for Compensation & Benefits;

• Establishing that the Chairman and Vice-Chairman of the Audit & Compliance Committee are independent and meet the necessary professional requirements.[12]

In addition to the list of achievements, the report listed a set of recommendations that were not implemented. The main recommendations are listed in the table below, together with the list of reform proposals found in the 8-point reform plan. 

Analysing the two governance reports

As a preliminary note, it is worth mentioning that the establishment of the FIFA Audit and Compliance Committee came about after the IGC suggested doing so in their report, published on 20 March 2012.[13]

A quick look at the above table shows that the recommendations by the IGC and those listed in the 8-point reform plan are very similar. First of all, the introduction of term limits for the FIFA President and ExCo Members is encouraged in both reports, whereas introducing age limits is discouraged. Secondly, both reports agree that there should be an integrity check for at least the President and the ExCo Members performed by FIFA itself. What these integrity checks would entail still needs to be clarified. Thirdly, it is clear that individual compensations of the President and the ExCo Members need to be disclosed to the public. Both reports contend this is essential to improve the governance and transparency of FIFA. Lastly and, in our opinion, most importantly, both reports agree that the Confederations and Member Associations play a most essential role when attempting to effectively improve the governance of FIFA. Where the two reports slightly differentiate from one another is on what the exact position of the Confederations and Member Associations should be, how they are involved in the electoral process of the FIFA President and ExCo members, and how they should be reformed themselves.

In its report, the IGC highlights the importance of the Confederations and national associations, but it does not suggest any substantial reform in this regard. In fact, the second recommendation of the report stipulates that “the members of the Executive Committee should each be individually confirmed by Congress decision upon their appointment or re-appointment by the Confederations”.[14] The IGC’s suggestion of a limitation of the Confederation’s role in the election process of the ExCo members was heavily criticised by, most notably, UEFA. All the UEFA members voted unanimously against the introduction of term limits for ExCo members during the FIFA Congress of January 2013. UEFA also held the view that the Congress should not have the right to confirm Confederation candidates delegated to the ExCo and that integrity checks on candidates should not be performed by FIFA but by the Confederations.[15]

The Scala proposal has a slightly different take on the role of the Member Associations and the Confederations, especially with regard to the election to the ExCo: “all members of the FIFA Executive Committee (are) to be directly elected by the FIFA Congress. The Confederations will retain a right to propose candidates.”[16] Furthermore, “Confederations and FIFA Member Associations have to issue adequate ethics and disciplinary regulations and set up the bodies required to implement them. All persons assigned to FIFA bodies have to pass strict integrity checks in their respective Confederations and national associations.”[17] Lastly, there has to be an obligation for Confederations and Member Associations “to establish integrity checks with regard to positions in their top governing bodies as a precondition for eligibility”.[18]

A conclusion that can be drawn from the Scala reform plan is that it assumes the same governance problems highlighted in the IGC reports, especially as regards the ExCo, but suggest more far-reaching proposals. Improving the governance of the ExCo cannot simply be achieved by introducing term limits and integrity checks at FIFA level, rather similar reforms must be introduced in the Confederations and in the National Associations. This would require that the Confederations and National Associations put in place credible integrity self-checks. Yet, it is clear from the recent past that the Confederations are not willing to implement this type of accountability mechanisms, nor are they really committed to giving them the necessary teeth. 

Conclusion: Can the Scala reform plan be implemented?

The Scala report offers a newish take on old recipes to solve FIFA’s bad governance syndrome. Nearly all of the reforms proposed require amending the FIFA Statutes. For example, “the passing of the integrity check and the introduction of equivalent integrity checks by Confederations and Member Associations to qualify for elections to FIFA governing bodies need to be included in the FIFA Statutes and therefore need to be adopted by the Congress”.[19] Similarly, “direct elections of members of the FIFA Executive Committee mandatorily needs to be provided for in the FIFA Statutes; corresponding revisions would therefore have to be approved by the FIFA Congress”.[20] In accordance with Article 26(6) of the FIFA Statutes, for a proposal to adopt or amend the Statutes, a simple majority (more than 50%) of the valid votes cast is required. Procedurally, implementing the reforms proposed by Scala is straightforward: a simple majority of the votes at a FIFA Congress (the next one being on 26 February 2016) is needed.

However, achieving a simple majority might not be as simple as that. Introducing term limits, for example, would mean that many of the Members voting for this measure would create an “expiration date” for a job they have held for years (decades even in many cases) and do not want to lose. One only needs to remember the fact that during the FIFA Congress of January 2013, the Members of UEFA voted unanimously against the introduction of term limits for ExCo members.

Introducing integrity checks at FIFA level is one thing, but having similar checks at the Confederation and/or National level would imply that the people voting at the FIFA Congress would introduce integrity checks against themselves. In any normal global organisation this should not be a problem. However, as regards the governance of football, in light of the never-ending list of scandals, one can easily understand why many members would prefer not to see such integrity checks taking place in their backyard.

Scala attacks the ‘old boys’ networks’ within the ExCo, the Confederations and the Member Associations.[21] Similarly, the IGC held that “the ultimate success of the reform depends on a change in culture on all levels of the organization, especially with the key opinion leaders who need to lead by example and act in the interest of FIFA and football overall”.[22] Changing FIFA is not only about pushing a reform measure through the FIFA Congress, already an extremely difficult endeavour, it is also about changing a culture of omerta and corruption that has been around since the organisation’s earliest days, and to which the key players want to cling on as long as possible. Whether this can be done from inside the organization is doubtful. Instead, only the pressure of the public and the external legal control exercised by national (and European) authorities will force the great leaders of the beautiful game to bend and finally put in place mechanisms securing their accountability.

[1] Article 25(2)q) of the FIFA Statutes (2015 Edition) – available at http://resources.fifa.com/mm/document/affederation/generic/02/58/14/48/2015fifastatutesen_neutral.pdf.

[2] Article 20(3)g) of the FIFA Statutes.

[3] Article 30 of the FIFA Statutes

[4] Articles 30 and 31 of the FIFA Statutes

[5] Article 34(3) of the FIFA Statutes. This provision also stipulates that the members of the Audit and Compliance Committee are elected by the FIFA Congress.

[6] Article 35 of the FIFA Statutes.

[7] Governing FIFA – Concept Paper and Report, 19 September 2011, page 13.

[8] “Substantiation of the Reform Proposals Presented at the FIFA Executive Committee Meeting of 20 July 2015”, Reports submitted to the FIFA Executive Committee by the independent Chairman of the FIFA Audit and Compliance Committee, page 4.

[9] For more information on the Chuck Blazer case, read our previous Blog post.

[10] “Governing FIFA”, Concept Paper and Report, 19 September 2011, pages 23-25.

[11] “FIFA Governance Reform Project”, Final Report by the Independent Governance Committee to the Executive Committee of FIFA, page 12.

[12] Ibid, pages 11-12.

[13] “FIFA Governance Reform Project”, First Report by the Independent Governance Committee to the Executive Committee of FIFA, page 9.

[14] Supra 11, page 12.

[15] Ibid, page 10

[16] Supra 8, page 26.

[17] Ibid.

[18] Ibid, page 25.

[19] Ibid, page 8.

[20] Ibid, page 11.

[21] Ibid, page 4.

[22] Supra 11, page 11

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. 

Background

The saga can be traced back to the interview by the Spanish sports newspaper AS with the cyclist Jesus Manzano in 2004. During the interview, Manzano admitted that he, as well as other members of his team (Kelme), were involved in blood doping practices, and denounced his team doctor Eufemiano Fuentes as the mastermind behind the operations.[1] As a result of his declarations, Manzano became the victim of regular abuse by the “professional cycling world” and even received death threats. Manzano reported the death threats to the Guardia Civil (a Spanish law enforcement agency), who saw itself obliged to investigate the matter. The results of the Guardia Civil’s investigation proved that the information provided by Manzano regarding names, locations and practices were correct. However, the scope of the Guardia Civil’s investigations was limited due to the fact that, according to Spanish law in force at the time, doping was not considered a criminal offence.

On 23 May 2006, several people were arrested, including doctor Fuentes, who was accused of committing a “crime against public health” enshrined in Article 361 of the Spanish Criminal Code.[2] After his arrest, the Guardia Civil conducted domiciliary visits in the various domiciles owned by Fuentes, in which it found over 200 blood and plasma samples. The blood and plasma bags were labelled with coded names, in order not to reveal the true identity of Fuentes’ clients. Nonetheless, it was clear that Fuentes’ network was much more extensive than previously anticipated and that he had hundreds of clients, from a variety of sports and nationalities.

The relevant SGBs, such as WADA, petitioned for the blood samples to be analysed and all the identities revealed, with the aim of sanctioning the athletes involved. The Spanish public authorities, however, denied the SGBs requests[3], claiming that handing over the blood samples would breach the athletes’ right to privacy and reiterating that athletes involved in doping practices were not (at the time) committing any criminal offence according to Spanish law.

A long-awaited judgment was finally delivered[4] by the Madrid criminal court on 29 April 2013, a judgment which raised many eyebrows worldwide (see for example this critical analysis by the French newspaper Le Monde). Fuentes received a one-year prison sentence for committing a crime against public health and was suspended for four years from practicing sport medicine. More importantly, the court ordered the destruction of the blood samples, as well as other pieces of evidence, such as documents and recorded telephone conversations once the decision becomes final.[5] Given that the case was not about a doping offense but about a crime against public health, the court argued, the investigation of the blood samples would be in breach of the privacy rights of the athletes.

The judgment was appealed by several parties, including Fuentes and the SGBs (AEPSAD, WADA, UCI and CONI). Fuentes demanded to be acquitted, whereas the SGBs appealed the order to have the blood samples destroyed.  

Sentencia Nº 302/2016 of 14 June 2016

The Audiencia Provincial made its judgment public on 14 June 2016. The judgment consists of 23 different appeals by different parties. This case note, however, will only analyze section 18 (on the question whether blood is considered a medicine) and section 21 (regarding the blood and plasma samples). 

Section 18 – Is blood a medicine?

The answer to this question was highly relevant for Fuentes’ appeal against the prison sentence. Article 361 of the Spanish Criminal Code provides inter alia that a person who offers medicine in unauthorized locations[6] or does not fulfill the relevant hygiene criteria, shall be punished with an imprisonment from six months to three years.[7] Fuentes argued that blood extracted from an athlete, which is later injected back into the athlete, was legally not considered a medicine in 2006.

The court firstly established that the Criminal Code does not legally define “medicine”, meaning that the definition needed to be found in administrative laws,[8] such as the Medicine Law[9]. This law stipulates that blood derivatives could be considered medicine, but blood as a whole cannot.[10] The court also looked for a definition in EU law, more specifically EU Council Directive 98/381/CEE laying down special provisions for medicinal products derived from human blood or human plasma. Article 1, point 2, holds that whole blood, plasma or blood cells of human origin are outside the scope of the Directive. Having established that the blood and plasma samples found in Fuentes’ domiciles cannot be considered medicine, the court concluded that the doctor could subsequently not be punished for committing a crime against public health as stipulated in Article 361 of the Criminal Code. A punishment of any kind would be contrary to the “principle of legality”.[11] 

Section 21 – blood and plasma samples

The RFEC, WADA, UCI and CONI wanted to see the destruction order of the blood and plasma samples overturned and, instead, the samples delivered to them.[12]  Importantly, both the criminal court in first instance and the Audiencia Provincial recognized that a possible doping investigation by the SGBs after a handover of the blood samples would be an administrative procedure, rather than a criminal procedure such as in the case at hand.[13]

However, the first instance court had also indicated that the SGBs could not use the blood samples, because administrative sanctioning procedures do not allow this type of evidence to be used. To reach this conclusion, the court in first instance referred to an administrative law case involving disciplinary proceedings against a magistrate. In that case, recorded phone conversations were not deemed receivable evidence because of a breach of privacy, which would infringe Article 8 of the ECHR. The court transposed this reasoning to Operación Puerto and held that using the blood samples for an administrative proceeding was inadmissible.

The Audiencia Provincial did not follow this reasoning. Instead it referred to criminal case law, which established a difference between the recording of phone conversations on the one hand and domiciliary visits on the other. So-called “casual findings” during domiciliary visits of evidence for crimes that were not the ones the visits were authorized for, can still be used as evidence. In fact, the blood and plasma bags cannot be considered “casual findings”, since the public authorities were authorized to undertake the domiciliary visits to find evidence for an alleged crime against public health. Moreover, contrary to the recording of phone conversations which is only authorized in case of a penal procedure, domiciliary visits are measures that could also be authorized in administrative procedures.[14]  In other words, this type of evidence obtained in the framework of a criminal procedure can also be used in an administrative disciplinary procedure, such as doping cases.

As regards the transfer of the blood and plasma samples to an SGB, the court stated the following: In accordance with the provisions of the 2013 anti-doping laws, the samples can be handed over to the Spanish Anti-Doping Agency. The Agency would need to submit a formal request to a court, and the court would consider the request taking into account the principle of proportionality.[15]  The Audiencia Provincial considers that a transfer of the blood samples could be proportionate since it pursues the objective of fighting against doping. This is so because: doping use is contrary to the ethical values of sport, which are fair play and competition. Not allowing the transfer of the blood and plasma samples would give the impression that doping is not really a problem and might indicate that in sports the end justify the means.[16]  

Conclusion

On the day the judgment was released, AEPSAD expressed its satisfaction with the Audiencia Provincial’s decision and stated that it is studying the possible measures it can now take, either by itself or together with the other SGBs referred to in the judgment. WADA too acknowledged the court “for having reached the decision to provide anti-doping authorities with this crucial evidence”, but also stated that it is “dismayed that it took so long to receive the decision”. Finally, UCI regrets it had to wait this long for the decision, but will now partner with WADA, the RFEC, AEPSAD and CONI, to determine the legal options available with regards to analyzing the blood and plasma bags; and, where applicable, pursuing anti-doping rule violations.

In its press release, UCI points to the crucial question that will need an (un)satisfying answer: Can the SGBs still pursue anti-doping violations, or is too late? Article 17 of the 2015 WADA Code enshrines that the statute of limitations is 10 years. Coincidentally, it has been 10 years and two months since the arrests of Fuentes was made and Operación Puerto started taking shape. It is therefore unlikely that doping sanctions will be handed out on the basis of blood samples collected during the period 2002-2006. But simply discovering the identity of the doped athletes could have far-reaching consequences on its own. For example, when Bjarne Riis admitted in 2007 that he used EPO during his victorious 1996 Tour de France, the UCI was not able to sanction him anymore. However, the Tour de France organizing organization (ASO) has removed him as a past winner. Similar consequences are thinkable with the discoveries of the identities in the Operación Puerto case. Furthermore, Operación Puerto, widely recognized as the darkest chapter in the history of Spanish professional sport, can only truly be closed when the identities of the athletes are revealed. Publicly naming and shaming the athletes is an important mean to create a fairer competition and to prevent other athletes from doping themselves.  

[1] The actual interview with AS is not available anymore. A summary of the interview can be read at http://velonews.competitor.com/2004/03/news/more-from-manzano-its-like-an-open-bar_5763.

[2] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 7. A few months later, in 2006, Article 361bis was added to the Spanish Penal Code, a provision that made doping a criminal offense.

[3] Cyclists, such as Jan Ullrich, Ivan Basso, Michele Scarponi and Óscar Sevilla were known to be among Fuentes’ clients, for the most part thanks to journalist investigations. The German cyclist Jörg Jaksche admitted voluntarily, and Spanish cyclist Alejandro Valverde received a suspension by the Italian Olympic Committee CONI in 2010.

[4] As can be seen from the 176-page judgment, the names of the suspects have been changed. For example, primary suspect Eufemanio Fuentes is called “Juan Máximo”.

[5] Sentencia del Juzgado Penal de Madrid Nº 144/203 de 29 de abril 2013, pages 175-176.

[6] A hospital, for example, would be considered an authorized location. A cycling team bus, or a hotel room, could be considered unauthorized locations for the offering of certain types of medicine.

[7] Artículo 361 Código Penal: “El que fabrique, importe, exporte, suministre, intermedie, comercialice, ofrezca o ponga en el mercado, o almacene con estas finalidades, medicamentos, incluidos los de uso humano y veterinario, así como los medicamentos en investigación, que carezcan de la necesaria autorización exigida por la ley, o productos sanitarios que no dispongan de los documentos de conformidad exigidos por las disposiciones de carácter general, o que estuvieran deteriorados, caducados o incumplieran las exigencias técnicas relativas a su composición, estabilidad y eficacia, y con ello se genere un riesgo para la vida o la salud de las personas, será castigado con una pena de prisión de seis meses a tres años, multa de seis a doce meses e inhabilitación especial para profesión u oficio de seis meses a tres años”.

[8] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 61.

[9] Ley 25/1990, de 20 de diciembre, del Medicamento.

[10] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, pages 59-61.

[11] Ibid., pages 69-73.

[12] Ibid., pages 76-77.

[13] Ibid., pages 78-79.

[14] Ibid., pages 80-81.

[15] Artículo 33(5) de la Ley Orgánica 3/2013, de 20 de junio, de protección de la salud del deportista y lucha contra el dopaje en la actividad deportiva: “La Agencia Española de Protección de la Salud en el Deporte podrá solicitar que le sean remitidas aquellas diligencias de instrucción practicadas que sean necesarias para la continuación de los procedimientos sancionadores. Dicha petición será resuelta por el Juez de instrucción, previa audiencia de los interesados, en el plazo de 20 días. En dicha audiencia los interesados podrán solicitar que sean también remitidos los documentos que les puedan beneficiar. La resolución del Juez será plenamente respetuosa con el principio de proporcionalidad, entregando a la Administración, mediante resolución motivada, únicamente las diligencias que la aplicación de tal principio autorice”.

[16] Sentencia de la Audiencia Provincial de Madrid Nº 302/2016 de 10 de junio 2016, page 83.