Editor's Note:  Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences.   She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code. Her latest book Evidence in Anti-Doping at the Intersection of Science & Law was published in 2016 in the International Sports Law Book Series of T.M.C. ASSER Press.

INTRODUCTION

On 30 September 2016, a panel of the Court of Arbitration for Sport (“CAS”) rendered its award in the matter opposing high-profile tennis player Maria Sharapova to the International Tennis Federation (“ITF”). Maria Sharapova was appealing the two-year ban imposed on her by the ITF Tribunal in June 2016 for her use of Meldonium, a substance newly added to the WADA Prohibited List 2016[1]. Since neither the ITF nor WADA had chosen to challenge the Tribunal’s decision, the stakes of the case were rather simple: would the player convince the CAS panel that she should benefit from a finding of “No Significant Fault or Negligence”[2], thereby allowing for a reduction of the sanction down to a minimum of one year, or should the decision of the Tribunal be upheld? In its award, the CAS panel decided to grant such finding and reduced the sanction to 15 months.

This blog does not purport to be a ‘comment’ on the CAS award. Rather, it seeks to place the Sharapova matter into a broader context with respect to a specific issue: the expectations on Athletes when it comes to their awareness of the prohibited character of a substance, specifically when taking a medication[3]. In July 2016, I presented at the T.M.C Asser Institute in The Hague various current challenges of anti-doping that the Meldonium cases exposed (see the video here). One of these challenges concerned the modalities for including new substances onto the Prohibited List. This blog represents a follow-up on my presentation, in the light of the findings contained in the CAS award.

More concretely, the blog takes as a starting point one finding in the award, made by the CAS panel when evaluating whether the player acted reasonably in entrusting her sport agent – who lacked any medical or other scientific qualification – with ensuring that her medication scheme stayed compliant with the World Anti-Doping Program[4]:

“checking a substance against the Prohibited List is not an action for which specific anti-doping training is required. It is expected to be made, as a rule and under Article 3.1.2 of the TADP, by the player personally, and a player does not need to have scientific or medical expertise for such purpose. No standard in the WADC or otherwise raises such a high bar”[5].

This statement may have raised some eyebrows among readers familiar with anti-doping, after years of repeated warnings that Athletes should not only consult a doctor before taking a medication, but preferably a doctor versed in sports medicine, and that they have to take responsibility for failing to do so if the medication turns out to be prohibited.

CAS JURISPRUDENCE: BETTER SEE TWO DOCTORS THAN ONE

Since many – if not most – substances on the Prohibited List are originally therapeutic products, there is a rich body of CAS case law revolving around the Athlete’s duty to seek specialized advice before taking a medication. As the panel in the Cilic v. ITF matter noted, Athletes have a reinforced duty of care, in particular: “[w]here the product is a medicine designed for a therapeutic purpose. Again, in this scenario, a particular danger arises, that calls for a higher duty of care. This is because medicines are known to have prohibited substances in them”[6].

Though the basic position taken in the Cilic v. ITF appears uncontradicted or even supported in other CAS decisions[7], CAS case law is fluctuating on the level of diligence that can be expected from Athletes when taking a medication. It seems common ground that failure to consult a health professional is a factor pleading against the Athlete when assessing his or her degree of Fault, and, conversely, that seeking professional advice tends to make the Fault lighter[8]. The exact contours of the diligence expected, and the consequences of a failure to exercise such diligence, however, are less uniformly defined. Circumstances taken into account may include: whether the Athlete acted in an emergency or had ample time to do verifications[9]; whether the Athlete did seek some professional advice (although not necessarily fully qualified one) or proactively enquired about risks related to doping[10]; whether the Athlete initially received clearing through a doctor and was simply careless in continuing use of the medication[11], or used the medication without any attempt to seek a prescription altogether[12]; and whether the Athlete subsequently obtained a Therapeutic Use Exemption (“TUE”)[13].

Nevertheless, there seems to be consensus among CAS panels on at least one point: failure to recognize the prohibited character of the active substance in a medication never justifies a finding of No Fault or Negligence, even upon (erroneous) advice from a qualified health professional[14]. This jurisprudence finds explicit support in the Comment to Article 10.4 of the WADC: “Athletes are responsible for their choice of medical personnel and for advising medical personnel that they cannot be given any Prohibited Substance”[15]. The idea behind the jurisprudence is clear: it avoids that Athletes could ‘hide’ behind the advice of a doctor, who would then simply admit to having made an egregious error[16]. The CAS panel’s statement in the Sharapova matter seems to put in question this apparently well-established point of jurisprudence: if, as the panel assumed, the WADC only expects the Athlete to personally check a substance against the Prohibited List, no Fault can be held against the Athlete if it can be shown that the prohibited character of the substance was not recognizable to the Athlete, irrespective of whether such prohibition would have been obvious to a qualified health professional.

HOW CAN AN ATHLETE VERIFY WHETHER A MEDICATION IS PROHIBITED?

Putting aside for a moment the consistency of the Sharapova award with past CAS jurisprudence and its impact on the WADC system as a whole, the finding of the CAS panel raises a more practical question: is it realistic to consider that there is no duty on the Athlete to call on scientific or medical expertise to determine whether a substance is prohibited?

In order to assess this question, let us imagine the situation of an Athlete who plans to take – or is already taking – a medication, and wants to make sure that the substance does not raise any doping issues:

1. The Athlete would need to know that the substance will (as a rule) not be listed by its brand or trade name, but by the name of the active substance. More precisely, WADA announced in 2014 that it seeks to enhance the clarity of the Prohibited List by using the nomenclature of the WHO International Non-Proprietary Name (“INN”). The rationale for always listing active substances rather than trade names is rooted in a reality of international sports that one and the same active substance may be marketed under different names in different countries. For example, ‘Meldonium’ is a WHO recommended INN, which is marketed, among others, under the name ‘Mildronate’. While the distinction should be obvious to a health professional, it is much less certain that determining the active substance will always lie within the abilities of an Athlete. In the Sharapova matter, the player did in fact argue that both her manager and she “mistakenly, but honestly, believed Mildronate to be the name of the substance and did not realize that it was a brand name”[17].
2. The Athlete would need to know that the exact chemical name and spelling of a substance may vary depending on usage, language and country[18]. Thus, an automatic search through the Prohibited List is not sufficient. The Athlete would either need to do a search for all potential spellings and/or read through a few hundred substances on the List, since it is hardly imaginable that the Athlete would be able to determine on his or her own within which class of substances the medication falls. In addition, some substances may have synonyms that do not appear on the Prohibited List, but only in accompanying documents such as a WADA Explanatory Note[19]. Searching a drug database established by the Athlete’s National Anti-Doping Organization (“NADO”) is not necessarily a fool proof method either, since NADOs typically only include in their database therapeutic products that are registered or otherwise approved for sale in the relevant country[20]. Thus, a negative search result may simply mean that the medication has not (yet) obtained approval in the country.
3. An additional factor to take into account is the ‘open’ nature of the Prohibited List. The List is non-exhaustive, in the sense that it does not list each Prohibited Substance by its name. Instead, most classes include a list of examples followed by a catch-all clause. For these non-named, ‘similar’ or ‘related’, substances, the Athlete would thus need to assess whether the medication has a chemical structure and/or effect similar to other substances named on the Prohibited List[21].
4. Finally, it would be difficult to advise the Athlete as to what entity – prior to the CAS panel in a doping dispute – would have the authority to preventively ‘clear’ a substance upon enquiry. A negative search result on the WADA Prohibited List search engine appears with the following response: “No results: If a Substance or a Method you have searched for is not found, please verify with your Anti-Doping Organization to ensure that this Substance or Method is not prohibited as a related Substance or Method that falls under an existing category”.

However, it is not clear at all under the current system that an International Federation or NADO have the authority to issue a binding clarification in this respect, and WADA does not appear prepared to take on this ‘clearing’ function. In fact, the WADA Q&A on the Prohibited List openly acknowledges that the status of some substances may not be clear-cut and that “it is in the best interest of the athlete to refrain from taking any substance or use any method if its status is unknown or unclear”[22].

Considering the elements above, one may legitimately question the idea expressed in the CAS award that checking a substance against the Prohibited List is an act that is to be performed by the Athlete personally and that there is no expectation in the WADC that the assessment should be done by a qualified professional.

AN ISSUE OF FAULT OR AN ISSUE OF PREDICTABILITY?

There is some truth to the statement in the Sharapova award in the context of the WADC, but not in the sense one would expect: when it comes to finding that a violation has been committed, the WADC does not care whether one could reasonably expect the Athlete to be aware of the prohibited character of the substance. Article 3.2.1 of the ITF Tennis Anti-Doping Programme (“TADP”) referenced in the award addresses the dynamic character of the prohibition under the WADA Prohibited List and reads, in fine[23]: “It is the responsibility of each Player and each Player Support Personnel to be familiar with the most current version of the Prohibited List”. The expression “responsibility of each Player” – which reflects the duty expressed in Article 2.1 of the WADC – has never been understood as meaning that Athletes are only expected to check the Prohibited List personally. It means that Athletes will need to carry the consequences if they are not aware of its current content.

This regulatory situation is implicit in all awards in which CAS panels are asked to deal with an argument that the Athlete was not aware of the prohibited character of the substance: as soon as a substance is determined to be prohibited and was present in the Sample, there is no question that an anti-doping rule violation was committed under Article 2.1 of the WADC[24]. Rather, the predictability is examined, if at all, under the angle of the degree of Fault, to determine the severity of the applicable sanction under Article 10[25].

By contrast, if the statement by the CAS panel in the Sharapova matter were to be taken literally, the debate would no longer be limited to the degree of Fault, but would directly affect the predictability of the prohibition for the Athlete. If the WADC truly only expected Athletes to personally check a substance against the Prohibited List, the predictability of the prohibited character would have to be defined according to an Athlete’s capabilities. There are arguments to support such a position: anti-doping rules of an International Federation – including the Prohibited List incorporated therein – are made binding on Athletes through contractual (or otherwise consensual) means. As early as 1994, the panel in Quigley v. UIT noted that: “any legal regime should seek to enable its subjects to assess the consequences of their actions”[26]. An analogy with the fiction nemo censeture ignorare legem, developed with respect to state law, is difficult to sustain. In a contractual context, the contents of the parties’ agreement needs to be interpreted based on what the other party could reasonably understand[27]. Even if elite Athletes undertake to keep themselves informed about the evolution of the rules, this implies that there may be certain limits on this undertaking.

Thus, if one were to follow the CAS panel’s findings in Sharapova that Athletes are expected to check the Prohibited List personally, one would need to deny the predictability of the prohibition in each case in which the prohibited character of the substance could not reasonably be recognized by the Athlete him- or herself, and thus find that an element of the anti-doping rule violation is missing. While a literal reading of the statement may evoke such an extreme outcome, it is unlikely that the CAS panel had in mind such implication for its statement. There is no other indication in the award that the CAS panel meant to question the ‘fiction’ of awareness of the prohibition that has been generally accepted in CAS jurisprudence, or its corollary of strict liability. In fact, the arbitrators were not asked to do so, since Maria Sharapova did not challenge the anti-doping rule violation itself.

MORE COMMUNICATION IS NOT ALWAYS BETTER COMMUNICATION

The reason why CAS panels refrain from analyzing the issue under the angle of legal predictability – apart from the fact that the parties generally do not raise this defence – is probably because, unlike the degree of Fault, predictability of the scope of the prohibition allows for no graduation: either the finding of an anti-doping rule violation can be supported, or it cannot.

Accordingly, CAS panels prefer to attenuate the harshness of the regime by evoking a framework of ‘reciprocal’ duties between Anti-Doping Organizations and Athletes. This is also perceivable in the Sharapova award, in which the CAS panel expressed its view that: “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names”.

The extent of the “reasonable steps” expected from the Anti-Doping Organizations, and the repercussions in case of a failure to take appropriate steps in a particular matter, however, is not clear[28]. In particular, the Sharapova award does not clarify whether the communication has to be such that the Athlete can genuinely be expected to verify the prohibited character of a substance personally, without specialized assistance. Though the sections in the Sharapova award addressing this issue could convey such an impression, it is unlikely that this was the CAS panel’s intent. Other paragraphs regarding the ‘delegation test’, on the contrary, clearly point at an inevitable need for medical support. As part of their assessment of the player’s Fault, the panel noted a default to instruct and supervise her agent, in particular: “to put him in contact with Dr Skalny [the physician who had prescribed the medication to Maria Sharapova] to understand the nature of the Skalny products”. According to the panel, if an Athlete could simply delegate their obligations to a non-trained third party without properly instructing them, “such a finding would render meaningless the obligation of an athlete to avoid doping”. Between the lines, the CAS panel thus acknowledges that it is part of an Athlete’s duty of diligence to involve a physician when circumstances so warrant.

In our view, the level of communication expected from Anti-Doping Organization must take into account the nature of the substance, as well as the channels through which an Athlete is supposed to come into contact with this substance. As far as medications are concerned, communication that makes the prohibited character of a substance easily identifiable for a health professional (e.g. a doctor or a pharmacist), would appear an adequate and sufficient level of communication. There is no doubt that the Prohibited List has evolved to a degree of complexity that imposes heightened duties on Anti-Doping Organizations to do their share to prevent inadvertent violations. However, while appropriate communication is essential, caution must be applied with respect to communication of information of a very technical nature. The information related to the Prohibited List is at the intersection of two technical domains: it is both a legal and a scientific-medical document. In this constellation, one should also factor in the risk that more communication would merely increase the potential for misunderstanding. It might be preferable for Anti-Doping Organizations to refer to one unique document with accurate and precise language that can be interpreted reliably by the relevant professional, than to draft multiple ‘information notices’, ‘warnings’ etc. attempting to adapt the information to lay-persons also, but in which each minor change of wording may create new ambiguities. Of note, this also supposes an appropriate training and awareness on part of the health professions, in particular those practitioners who know they are regularly dealing with sportspeople.

THE NEXT MISSION OF ANTI-DOPING: SAFER ELITE SPORT?

The finding in the Sharapova v. ITF award that no anti-doping training is needed to ascertain the status of a substance, and that the check is to be conducted, as a rule, by the Athlete personally, without scientific or medical qualifications being required, should not be taken in isolation from its context. It would be dangerous to assign too strong a precedential value to this element in the CAS panel’s analysis. In other sections of the award, the CAS panel acknowledged - at least between the lines - that checking a medication against the Prohibited List without appropriate specialized advice is not commendable and would hardly be sufficient to consider that the Athlete discharged his or her duties of diligence under the WADC.

More generally, CAS panels have so far refrained from assessing the predictability of the prohibited character of a medication as a requirement for establishing an anti-doping rule violation. However, they do seem to recognize that there are certain duties on Anti-Doping Organizations to assist Athletes in properly performing their own duties under the WADC. Communication deemed insufficient will not invalidate an anti-doping rule violation, but may be taken into account in reducing the Athlete’s degree of Fault. This can be viewed as an incentive towards intensified communication efforts on part of the anti-doping movement, but without jeopardizing the prohibition itself in individual cases.

Ultimately, the lesson to retain from the Sharapova award – and the Meldonium cases in general – goes beyond the duty for Athletes to be aware of the prohibited character of a substance. The underlying question that these cases raise is the health risk involved in elite sport, and the Athlete’s willingness to go to great lengths to practise at the highest level. There is widespread abuse of medications – sold over-the-counter or reused after an initial prescription – in the population in general[29]. Athletes are not an exception, but the problem seems to be exacerbated by competitive sport, where Athlete often feel they depend on a ‘quick fix’ to a health condition to meet their goals[30].

As pointed out in a previous comment to the ITF Tribunal Decision in Sharapova, it is not for adjudicatory bodies to deliver a ‘moral’ judgement on the manner in which elite sport should be practised. The CAS panel was asked to consider whether Maria Sharapova was at Fault with respect to her anti-doping duties, not whether she was conveying a ‘respectable’ or ‘responsible’ image of elite sport, or whether she was acting reasonably in terms of healthcare.

Nevertheless, given the WADC’s stated goal of protecting the Athlete’s health, the anti-doping movement cannot entirely disregard the messages that are sent out to Athletes when it comes to the use of medication. CAS awards indirectly reflect the panels’ perceptions on the subject, and the diverging attitudes that also coexist in health systems in general. In the eyes of some CAS panels, including in the matter of Maria Sharapova, taking a medication without medical supervision or outside the purposes for which the medication was prescribed does not seem to constitute Significant Fault[31]. When Athletes are at times held to extremely high standards of care for taking nutritional supplements[32], or even for being sabotaged at a social drink[33], CAS panels should be mindful not to encourage Athletes to view self-medication as part of their training routine.

[1] The decision was commented on http://wadc-commentary.com/sharapova/

[2] The capitalized words in the text are terms defined in the World Anti-Doping Code (« WADC »).

[3] Defining what is to be considered a ‘medication’ for purposes of anti-doping is a delicate topic in itself and will be the object of a separate analysis in a future blog. Within the context of the Sharapova decision, typical ‘medications’ envisaged here are those in the core domain of prescription drugs, without regard to borderline cases (health supplements, herbal remedies, functional food etc.).

[4] The CAS panel chose a tripartite test known in the liability of the employer in Swiss tort law, based on the ‘three culpa’ : culpa in eligendo (lack of diligence in choosing the person), culpa in instruendo (lack of diligence in instructing the person), or culpa in custodiendo (lack of diligence in supervising the person) (see Sharapova award, para. 85). The details of this test and its appropriateness for the context of anti-doping will be analyzed on the WADC Commentary Anti-Doping Blog http://wadc-commentary.com/antidopingblog/ .

[5] Sharapova award, para. 88 iii.

[6] CAS 2013/A/3335, Cilic v. ITF, para. 75 b.

[7] CAS 2016/A/4371, Lea v. USADA, para. 91, limiting, however, this duty of diligence to the situation « of an athlete taking prescribed medication fo the first time »; in the Sharapova award, para. 84, the panel also insisted that Athlete cannot be expected in each case to meet all factors proposed in the Cilic guidance.

[8] “Did the athlete consult appropriate experts” is a factor to assess the Athlete’s objective Fault in the guidance issued in CAS 2013/A/3335, Cilic v. ITF, para. 74; CAS 2015/A/3876, Stewart v. FIM, paras 77/78; CAS 2011/A/2645, UCI v. Kolobnev & RCF, para. 92, with further references; CAS 2006/A/1133, WADA v. Stauber, para. 39.

[9] CAS 2006/A/1133, WADA v. Stauber, para. 36.

[10] CAS 2008/A/1565, WADA v. CISM & Turrini, para. 66.

[11] CAS 2011/A/2645, UCI v. Kolobnev & RCF, paras 87 & 93.

[12] CAS 2010/A/2229, WADA v. FIVB & Berrios, para. 100 ; CAS 2011/A/2585, WADA v. Marino & UCRA, para. 112.

[13] CAS 2015/A/3876, Stewart v. FIM, paras 77 & 84.

[14] CAS 2008/A/1565, WADA v. CISM & Turrini, para. 63 ; CAS 2006/A/1133, WADA v. Stauber, para. 35 ; CAS 2005/A/828, Koubek v. ITF, para. 60; even applied to an Athlete who was administered the substance as part of an emergency treatment in hospital but failed to subsequently enquire about the substance that had been administered (CAS 2006/A/1041 Vassilev v/ FIBT & BBTF); even applied if the tournament organization delivered the wrong medication after prescription by the official tournament doctor (CAS 2005/A/951, Cañas v. ATP).

[15] See also Article 21.1.4 of the WADC, whereby Athletes are “to take responsibility to make sure that any medical treatment received does not violate anti-doping policies and rules adopted pursuant to the Code”.

[16] CAS 2006/A/1133, WADA v. Stauber, para. 35.

[17] Sharapova award, para. 43 v.

[18] See e.g. the stimulant spelt “metamfetamine” in the WADA Prohibited List, is spelt “methamphetamine” in FDA-approved drugs.

[19] CAS 2013/A/3075, WADA v. Szabolcz, para. 9.8.

[20] See e.g. the drug enquiry database of Swiss Anti-Doping: “This database contains drugs authorized in Switzerland, only.”

[21] For a critical analysis, see Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser Press / Springer, The Hague, pp 465-479.

[22] For more details, see Viret Marjolaine (2016), Evidence in Anti-Doping at the Intersection of Science & Law, T.M.C Asser Press / Springer, The Hague, pp 472-477.

[23] This provision concretizes Article 4.1 of the WADC.

[24] In CAS OG 12/07, ICF & Sterba v. COC & IOC, which involved a non-listed stimulant, the CAS panel noted that the use of the substance by the Athlete “could have been avoided if indeed the substance had been expressly included on the Prohibited List or in any other data base that can be easily accessed with modern technology and the internet”, but added that “This, of course, does not change the fact that the Anti-Doping violation occurred”, but was “important and relevant in respect to assessing and examining the level of fault of the Respondent and the consequential sanction” (para. 6.6.18).

[25] See e.g. CAS 2016/A/4371, Lea v. USADA, para. 92, citing the CAS jurisprudence that “athletes should have clear notice of conduct that constitutes an anti-doping rule violation”, but only to determine the degree of fault involved in failing to anticipate the excretion time needed for a substance prohibited In-Competition only.

[26] CAS 94/129, quoted in CAS 2016/A/4371, Lea v. USADA, para. 92.

[27] This was explicitly recognized, though with respect to a violation of failure to submit to Sample collection, in CAS 2008/A/1557, FIGC, Mannini & Possanzini v. WADA, paras 6.15 et seq.

[28] For a more extensive analysis, see the upcoming contribution on the WADC Commentary Anti-Doping Blog,

[29] E.g. the WHO warnings about antibiotics resistance acquired through inadequate use of antibiotics without specialized advice (e.g. prescribed for viral infections, or patients using the rest of their tablets when they experience similar symptoms).

[30] See e.g. the current debate surrounding the use of glucocorticoids among elite Athletes, and the use of TUEs for common health conditions after the data leaks revealed by hackers.

[31] CAS 2016/A/4371, Lea v. USADA, para. 91, in which the Athlete had taken a medication prescribed for pain relief as a sleep aid, as he had witnessed his teammates do.

[32] CAS 2009/A/1870 WADA v. Hardy & USADA, para. 120.

[33] CAS 2008/A/1515, WADA v. Daubney & Swiss Olympic, para. 125.

Our first report on the FIFA business dealt with FIFA’s revenues and highlighted their impressive rise and progressive diversification. In parallel to this growth of FIFA’s income, it is quite natural that its expenses have been following a similar path (see Graph 1). However, as we will see FIFA makes it sometimes very difficult to identify precisely where the money is going. Nonetheless, this is precisely what we wish to tackle in this post, and to do so we will rely on the FIFA Financial reports over the last 10 years.

The question of the final destination of FIFA’s money is a contentious one. Many allege that FIFA executives may be profiting directly or indirectly from the revenues amassed. In order to better understand to what end FIFA’s money is disbursed, we have gathered the data contained in FIFA’s Financial Reports over a 10 year time frame and we have adjusted the numbers for inflation, thus easing any comparison. This data is synthetized in Graphs 2 and 3.

Graph 2 provides a comparative overview of the evolution of the expenses of FIFA in absolute numbers. This shows that event-related and personnel expenses (to a lesser extent also other operating costs) have been rising, while FIFA’s expenses on development and committees and congresses have remained more or less stable. Graph 3 confirms that the evolution of FIFA’s expenses is not linear, but general lessons can be drawn. The event-related expenses have been representing more than 50% of FIFA’s expenses for 4 years out of the last 5 (2010 stands out as an outlier). The trend towards the reduction of the share of FIFA’s development expenses is clearly observable (from 25% of total expenses in 2003 to 15% in 2013). This trend was only reversed in the particular context of the South-Africa World-Cup in 2010. Besides that, the share of expenses linked to wages and personnel has remained fairly stable (from 7% in 2003 to 8% in 2013). Finally, the share of the other operating costs is difficult to compare across the years, as FIFA has changed its accountancy system. Nonetheless, one can assume that from 2007 onwards, other operating expenses and Football governance (Legal costs and Committees and Congress expenses) expenses should be read together to match the previous understanding of the notion of operating expenses. Thus, read together, operating expenses would have risen from a 16% share in 2003 to a 20% one in 2013. 

Graph 2: FIFA Expenses (per stream) in USD million (adjusted for inflation) 2003-2013

Graph 3: Share FIFA expenses over 2003-20013

FIFA’s expenses are concentrated on the organization of its events (see Graph 4). In 2013, 58% of the expenses incurred by FIFA were event related (Graph 3). Indeed, since 2003 FIFA’s expenses on its events have increased from USD 286 million in 2003 to USD 728 million in 2013. However, it is very difficult to extract from the reports provided by FIFA the precise objects of these expenses. It should be noted that the organizing country is tasked with the financing of the main infrastructural investments (stadium, transportation etc…), leaving little infrastructural costs bearing on FIFA. The event-related expenses can be traced back to the financing of the local FIFA World Cup Organizing Committee (the Brazilian committee received up to USD 221.6 million), prize money, travel and accommodation costs of the FIFA officials and the participating teams and other expenses. Furthermore, they also include the FIFA Club Protection programme that compensates clubs in case of injuries suffered by players while on duty with their national teams.

Graph 4: FIFA Event-related Expenses in USD million (adjusted for inflation), 2003-2013

FIFA is often keen on trumpeting its development-related investments. It is even a key argument to justify its public utility: FIFA is to favour the development of football worldwide. This myth falls partially apart when one looks at the numbers and at their recent trajectory. Indeed, as shown in Graph 5, since 2003 (omitting the exceptional South-African peak of 2010) the Development-related expenses of FIFA have remained fairly stable (139 USD million in 2003, 185 USD million in 2013), in spite of the tremendous growth of both its overall revenues and expenses. Thus highlighting that FIFA has not been very keen on developing redistribution streams in favour of its members, the players or the supporters. Furthermore, the development schemes of FIFA are notoriously lacking transparency and their ability to achieve any real trickle-down effect is not warranted. The recent corruption scandals surrounding former FIFA vice-president Jack Warner, have highlighted the risks of this development aid getting lost in the pockets of corrupted local football officials. If FIFA is serious about football development, and not only interested in PR, it should overhaul its development funding scheme, both in terms of absolute numbers and of its institutional set-up.

Graph 5: FIFA Development related expenses in USD million (Adjusted to inflation) 2003-2013

On the other hand, FIFA’s own personnel costs have grown over the last 10 years (Graph 6) from 37 USD million in 2003, to 103 USD million in 2013. FIFA employs 400 staff members at its administrative centre in Zurich. The administration of FIFA is a costly enterprise. In 2013 the operating expenses reached 219 USD million (Graph 8), this includes the personnel expenses (Graph 6), but not the football governance expenses (the Committees and Congress expenses in Graph7 and legal expenses), overall the operating cost reaches 276 USD million! Those costs, especially the one dubbed other operating costs (Graph8) are relatively obscure. What do they include? Personnel (102 USD million in 2013), information technology, buildings and maintenance (22 USD million in 2013), taxes and duties (17 USD million in 2013), depreciation and amortization (12 USD million in 2013), communications (31 USD million in 2013) and other non determined expenses (32 USD million in 2013); but without providing any more details about the concrete content of those categories. This lack of explanation can only play in the hand of those that dismiss FIFA altogether as an organization interested solely in its own wealth and well-being. One is left puzzled by the amount of the operating costs, which are neither disbursed for the organization of specific events (those are the event-related expenses in Graph 4), nor for the organization of important meetings (those are the Congress and Committees expenses in Graph 7). It may be that the FIFA building’s toilet are made of gold or that its canteen is a three-star Michelin restaurant, but if so we would like to know.

Graph 6: FIFA Personnel Expenses in USD million (Adjusted to inflation) 2003-2013

Graph 7: FIFA Committees and Congress Expenses in USD million (Adjusted to Inflation) 2003-2013

Graph 8: FIFA Other Operating Expenses in USD million (Adjusted to inflation)

Finally, FIFA has constituted a richly dotted war chest. Over the last 10 years of economic success it has amassed huge financial reserves (Graph 9), reaching up to 1453 USD million in 2013. Money lying still at a Swiss bank instead of being invested in the development of football. This money is making money for FIFA through the interests it produces. However, one can wonder why FIFA would need to hold onto such a mountain of cash, instead of redistributing in (in one way or another) to the ‘football family’. This perceived need is illustrative of the transformation of FIFA into a proper business, far remote from the interests of football and its actors.

Graph 9: FIFA reserves in USD million (Adjusted to inflation)

Conclusion: Follow the money…

We have tried to follow FIFA’s money, in order to better understand if some of the criticisms raised against the management of FIFA were justified. From a macro point of view one fact needs to be highlighted: FIFA has been making a lot more money over the last 10 years and very few of this additional money has been redistributed via its football development schemes. In fact, it is the only stream of outgoings that has seen its share in FIFA’s overall expenses drastically cut from 25% to 15% over the last 10 years. FIFA should take its development programmes seriously if it is to continue relying on them to argue its good faith and willingness to contribute to global welfare.

Moreover, one characteristics of FIFA’s financial report is the lack of transparency and readability of the data. One is challenged to figure out what certain categories concretely mean. FIFA is spending a lot for things that cannot be traced easily. At a micro-level, there is an urgent need for external observers to be able to go through the detailed account of FIFA. One of the trigger for rumoured, but also probably for real, instances of corruption lies in the fact that the supervisory mechanisms provided by public scrutiny (through the press and other institutions) is rendered moot by the accounting walls built by FIFA to isolate its spending from the public’s eye.

Eventually, FIFA must let us (and help us to) follow its money. This would be a giant step towards countering the corruption allegations being made and also legitimating the role of FIFA as the governing institution of world football. If the ‘football family’ is able to see and control the path followed by FIFA’s money, the trust in FIFA as an institution will most likely improve.