It has been a popular notion throughout the ages that fear of
punishment can reduce or eliminate undesirable behavior. This
notion has always been popular among criminal justice thinkers.
These ideas have been formalized in several different ways. The
Utilitarian philosopher Jeremy Bentham is credited with
articulating the three elements that must be present if deterrence
is to work: The punishment must be administered with celerity,
certainty, and appropriate severity.
These elements are applied under a type rational choice
theory[1].
Rational choice theory is the simple idea that people think
about committing a crime before they do it. If the rewards of the
crime outweigh the punishment, then they do the prohibited act. If
the punishment is seen as outweighing the rewards, then they do not
do it. Sometimes criminologists borrow the
phrase “cost-benefit analysis” from economists to
describe this sort of decision-making process.
The world woke up on Friday, August 16, 2019 to learn that a
life ban has been imposed on ex Super Eagles and Olympics coach,
Samson Siasia. This development has sent legal shock waves across
the continent and especially amongst soccer lovers. In a statement
released by the world football governing body at about 18:00 hours
Nigerian time, FIFA stated as follows:
“The formal ethics proceedings against Mr. Siasia were initiated
on February 11, 2019 and stemmed from an extensive investigation
into matches that Mr. Wilson Raj Perumal attempted to manipulate
for betting purposes.
This large-scale investigation was conducted by FIFA
via its competent departments and in cooperation with the relevant
stakeholders and authorities. In its decision, the adjudicatory
chamber found that Mr. Siasia had breached art. 11 (Bribery) of the
2009 edition of the FIFA Code of Ethics and banned him for life
from all football-related activities (administrative, sports or any
other) at both national and international level. In addition, a
fine in the amount of CHF 50,000 has been imposed on Mr Siasia.
“The decision was notified to Mr. Siasia today, the date on which
the ban comes into force.”
The former player and coach has since denied any wrongdoing in
the saga and has vowed to clear his name; stating that his lawyers
are reviewing the ruling with a view to taking a firm decision on
the mater. In addition, the Nigeria Football Federation, NFF,
has thrown its weight behind the embattled former coach.
The NFF in an August 19, 2019 statement said that
its lawyers were reviewing the decision by
the FIFA Ethics Committee. The NFF’s Acting
President, Seyi Akinwunmi, said on Monday that the Federation had
already reached out to the former U20, U23 and Super Eagles head
coach and is aware that he is receiving appropriate legal
advice.
“The NFF was shocked to learn of the
investigation and subsequent decision by the FIFA Ethics
Committee (Adjudicatory Chamber) placing a life ban on Mr. Samson
Siasia. But we have however now received documents, including one
known as the Motivated Decision, and we have handed them to our
lawyers to study and provide legal advice to the Federation. It is
a massive sanction on one of our legends. Siasia is a football
legend but most importantly he is a Nigerian. We must therefore be
interested in the matter and be properly
advised.”
As expected, a lot of reactions has trailed the FIFA ethics
committee decision. Whilst a lot of people have come out to
condemn what many have termed “unwholesome practice”, others have
questioned why the proceedings were kept under wraps until a few
months later. By the statement, it appears that investigations into
the saga had been on-going since February 2019.
This writer hastens to point out that he is not in possession of
the documents forming the background of the decision and would
refrain as much as possible from commenting on the factual issues
which he is not privy to. Suffice to say that this article would be
firmly riveted on an analysis of the FIFA Disciplinary code.
By the facts made available to the public, which it must be
stated are quite sketchy at the moment, the alleged offence was
committed in 2009 even though the exact timeline of the alleged
infraction is unknown. By FIFA’s statement, Siasia breached Article
11 of the FIFA Code of Ethics 2009 revolving around bribery of an
official. It is pertinent to reproduce the provisions of Article
11. The provision states as follows:
- “Officials may not accept bribes; in other words,
any gifts or other advantages that are offered, promised or sent to
them to incite breach of duty or dishonest conduct for the benefit
of a third party shall be refused.
- Officials are forbidden from bribing third parties
or from urging or inciting others to do so in order to gain an
advantage for themselves or third parties”.
It is important to remember that the alleged offence of Siasia
was that he was allegedly found “guilty of having accepted that he
would receive bribes in relation to the manipulation of matches in
violation of the FIFA Code of Ethics” (FCE). It is not the case of
FIFA that he was actually found guilty of receiving bribes. Whilst
the sketchy factual background did not reveal that Siasia actually
collected a specific amount from the offeror, his offence appears
to be grounded in his tacit “acceptance” of the offered
gratification without actually consummating the offence with an
outward act of collecting a bribe. This conjecture is discernible
from the terse statement from FIFA indicting Siasia which fails to
mention the amount offered and the amount accepted by the culprit.
However, it appears that the Ethics Committee had applied the
deterrence theory of punishment in its bid to ensure that the
hard-line stance of the football governing body is not compromised.
This conclusion can be gleaned from an excerpt of the final award
by the Court of Arbitration for Sports (CAS) in the case of
Amos Adamu v FIFA where the panel held as follows:
“Match-fixing, money-laundering, kickbacks,
extortion, bribery and the like are a growing concern in many major
sports. The conduct of economic and business affairs related to
sporting events requires the observance of certain “rules of the
game” for the related activities to proceed in an orderly fashion.
The very essence of sport is that competition is fair. This is also
true for the organization of an event of the importance of the FIFA
World Cup, where dishonesty should have no place. In the Panel’s
view, it is therefore essential for sporting regulators to
demonstrate no tolerance against all kinds of corruption and to
impose sanctions sufficient to serve as an effective deterrent to
people who might otherwise be tempted, because of their greed, to
consider adopting improper conducts for their personal or political
gain. Members of the FIFA Executive Committee are an obvious target
for those who wish to influence the designation of the country
appointed to host the FIFA the World Cup”. [2]
Sometime in January 2018, a Ghanaian referee, Joseph Lamptey was
banned from all football related activities by the world football
governing body for being complicit in the manipulation of a world
cup qualifying match between Senegal and South Africa on November
16, 2016. The CAS in determining the appeal underlined FIFA’s
commitment to protecting the integrity of football and its
zero-tolerance policy on match manipulation. It is difficult
to understand the underlying jurisprudence of the present ban in
view of the existing precedents on the matter, none of which
appears to support the “accepting to receive bribe” principle being
laid down in the present case. Perhaps we can take a look at the
Amos Adamu case and what it establishes to see whether there is
precedent for this decision. It is conceded that the facts of the
two cases are not markedly different from each other. A brief
rehash of the factual background in the Amos Adamu case is
necessary.
The Undercover Journalists’ Investigations
On 17 October 2010, the British weekly newspaper, Sunday
Times published an article entitled “Foul play threatens
England’s Cup bid; Nations spend vast amounts in an
attempt to be named World Cup host but as insight finds, $
800,000 offered to a FIFA official can be far more
effective”. The newspaper reported strong suspicions of
corruption within FIFA in connection with the selection process to
host the FIFA World Cups. The article suggested that corruption was
widespread within FIFA and came to the conclusion that, in the
current state of affairs, it was more effective and less costly to
obtain the organization of the World Cup by offering bribes rather
than by preparing and filing a thorough and well-documented bid. As
a final point, the article concluded as follows:
“Football has enough trouble maintaining fair play
on the field. FIFA has to ensure that there is fair play off it,
too, by stamping out corruption and cleaning up the World Cup
bidding process. FIFA badly needs to introduce more transparency
into the process and keep its decision makers under tighter
control. That means an end to payments into private bank accounts
or pet projects. It means each committee member judging the merits
of the bids, not the bribes on offer. The Olympics has cleaned up
its act after a series of bribery scandals, culminating in Salt
Lake City in 2002. We have a right to expect no less of the World
Cup”.
The covert inquiry had been conducted by some Sunday
Times journalists who had approached several FIFA executives
and former executives pretending to be lobbyists working for a
private company allegedly named Franklin Jones, hired by a
group of American companies eager to secure deals in order to
unofficially support the official bids presented by the United
States Soccer Federation for the 2018 and the 2022 FIFA World Cups.
With specific regard to Dr Adamu, during the Summer of 2010, he
was contacted via email and telephone by two reporters – a man and
a woman – who did not reveal their true identities and profession
but presented themselves as “David Brewster” and “Claire” of
Franklin Jones. The reporters obtained to organize two
meetings with Dr Adamu, one in London and one in Cairo, in August
and September 2010 respectively. On August 31, 2010, in a
London hotel bar, the Appellant met the two undercover reporters
allegedly working for Franklin Jones. The conversation
lasted about 45 minutes and was video and audio recorded by the two
reporters, without the knowledge of Dr Adamu. On September
15, 2010, in the garden bar of a hotel in Cairo, Dr Adamu had
another meeting with the same two undercover journalists. The
conversation lasted about 30 minutes and was also recorded on video
and audio tape, without the knowledge of Dr Adamu. These two
meetings culminated in an agreement between the parties to the
effect that Dr Adamu would be trading his vote for cash in support
of the United States bid. Expectedly, the sting operation came to
light and Dr. Adamu was duly banned by the FIFA Ethics Committee.
His subsequent appeals to the Appeals committee and the CAS were
unsuccessful.
Amos Adamu v FIFA – The Appeal
Following the decision of the FIFA Appeal Committee upholding
the decision of the ethics committee, Dr Adamu, a member of
the FIFA Executive Committee (hereinafter also the “Appellant”) –
against a decision of the FIFA Appeal Committee, which held him
responsible for breaching various provisions of the FIFA Code of
Ethics (articles 3, 9 and 11). The FIFA Appeal Committee imposed on
him a ban from taking part in any football-related activity at
national and international level for a period of three years as
from 20 October 2010 as well as a fine of CHF 10,000. The
specificity of the case lies in the fact that the Appellant was
filmed and recorded by hidden cameras and recorders, while meeting
twice with undercover Sunday Times journalists posing as
lobbyists purporting to support the United States football
federation’s bid for the 2018 and 2022 FIFA World Cups. The video
and audio recordings of those meetings (hereinafter “the
Recordings”), passed on by the Sunday Times to FIFA, are
the basis of FIFA’s case against Dr Amos Adamu.
Proceedings before the appeal committee
On February 3, 2011, the FIFA Appeal Committee heard the
Appellant. On April 12, 2011, the Appellant was notified of the
reasoned decision issued by the FIFA Appeal Committee (hereinafter
the “Appealed Decision”). The FIFA Appeal Committee, inter alia,
held as follows: 1) the proceedings before the FIFA Ethics
Committee were properly carried out; 2) the FIFA Ethics Committee
correctly applied the law in including the football-related
activity on a international and on a national level in the ban
imposed upon the Appellant; 3) the evidence consisting of written
transcripts and recorded materials such as the audio and video
tapes were admissible; and 4) the Appellant’s right to be heard was
not infringed. The FIFA Appeal Committee found that there was
sufficient evidence to establish that the Appellant accepted
unjustified advantage against his vote in favour of the American
bid and that the requirements of Article 11 para. 1 FCE (Bribery)
were met. In any event, it considered that the Appellant’s
behaviour was too ambiguous with regards to the specific standard
of conduct requested by the said provision. The FIFA Ethics
Committee deemed that the Appellant violated the principles set in
article 9 FCE (Loyalty and Confidentiality) as well as the duty of
disclosure of illicit approaches prescribed by the applicable
regulations in failing immediately to report to FIFA that he had
been in receipt of orders.
On June 20, 2011, FIFA submitted an answer and respectfully
requests the CAS to issue an award 1) rejecting Dr. Adamu’s prayers
for relief; 2) confirming the Appealed Decision; and 3) ordering
Dr. Adamu to pay in full or pay a contribution of no less than CHF
40,000 towards the legal fees and other expensed incurred by FIFA
in connection with these proceedings.
In its decision, the CAS three-man arbitral panel led by Prof
Massimo Coccia held that there was no mitigating factor in the
appellant’s case. Indeed, the appellant did express regrets for the
bad publicity and damage caused to FIFA’s image by the coverage of
his meeting with the journalists. At the same time, he has
constantly denied any wrongdoing, let alone the violation of any
provision of the FCE. The Appellant submits that given his clean
record and the fact that he was not the instigator of the bribery,
the sanction imposed is by far too severe. The Panel accepts that,
until the recent events under scrutiny in this appeal, the
Appellant’s reputation was untarnished. Accordingly, the Panel
found that, pursuant to Articles 22 and 10.c FDC in connection with
Article 17, a ban from taking part in any football-related
activity at national and international level (administrative,
sports or any other) for a period of three years as from
October 20, 2010 as well as a fine of CHF 10,000 is not a
disproportionate sanction and might even be deemed a relatively
mild sanction given the seriousness of the offence. Therefore, the
Panel held that the Appealed Decision must be upheld in its
entirety, without any modification. In sum, the Court of
Arbitration for Sports held as follows:
- The appeal filed by Dr Amos Adamu against the decision issued
by the FIFA Appeal Committee on 3 February 2011 is dismissed; - The decision issued by the FIFA Appeal Committee on 3 February
2011 is confirmed; - Dr Amos Adamu shall pay the amount of CHF 10,000 (ten thousand
Swiss Francs) to FIFA as contribution towards its costs; and - All other motions or prayers for relief are dismissed.
A comparism between Siasia’s and Adamu’s
cases
Thus, what is discernible from the factual background of both
cases is at best, an attempt by both men to compromise the
integrity of football as there was no evidence of an actual receipt
of financial gratification by both men. Indeed, both men were
charged under Article 11 which with the greatest respect, contains
no reference to attempts. This is unlike Article 18 of the 2019
FIFA Code of Ethics which is the equivalent of Article 11 of the
2009 FIFA Code of Ethics. In drawing this distinction, it is
important to cite the relevant provisions of Article18 of the 2019
FCE which provides as follows:
“Anyone who directly or indirectly, by an act or an
omission, unlawfully influences or manipulates the course, result
or any other aspect of a match and/or competition or conspires or
attempts to do so by any means shall be sanctioned with a minimum
five-year ban on taking part in any football-related activity as
well as a fine of at least CHF 100,000. In serious cases, a longer
ban period, including a potential lifetime ban on taking part in
any football-related activity, shall be imposed.”
By the ipssisima verba of this provision, a conspiracy
or an attempt to influence the outcome of a match would be
punishable by the disciplinary body. This provision clearly
“covers’ the field in respect of what the CAS decided in the Adamu
case and what the Ethics Committee decided in the Siasia case. The
old code (2009) under which both men were charged contain no such
provisions. While conceding that the damning video and audio
evidence submitted by FIFA might have tilted the case against him
slightly, the writer struggles to understand the jurisprudential
basis of the Ethics Committee’s decision. As the football world
awaits further details of this decision, certain posers agitate
informed minds as we strive to unravel this legal mystery to
wit:
- Was the Ethics Committee trying to make a statement with its
decision to serve as a deterrence to would-be offenders? - What quantum of evidence was made available to the Ethics
Committee?
- Did the Committee misapply the provisions of art.11 in its
evaluation of evidence even without an actual receipt of
gratification?
- Given the timing of the proceedings, did the Committee
unwittingly, apply the wrong Code in arriving at its decision?
As we labour to get answers to these posers, it is clear that
the Committee wanted to make a statement with its decision given
the rampant cases of match fixing in football. What is however not
clear is how it arrived at its conclusion. As for the quantum of
the evidence available to it, the statement alluded to its
“extensive investigation”. What is available to the mainstream
media is the statement credited to Mr. Wilson Raj Perumal, the
Singaporean dubbed “the world’s most notorious match-fixer”
indicting Mr. Siasia. It is unclear whether there is a
corroborative evidence of his statement and the extent to which
this corroborative evidence established his claims.
On the (mis)application of Article 11 of the 2009 edition of the
FCE, a literal interpretation of the provisions shows that attempt
and or conspiracy to receive gratification are not covered by the
provisions. This lacuna as highlighted above, has been addressed in
the 2019 edition with a broader definition of the misconduct
envisaged under the Code. If these offences have not been captured,
on what basis then did the Committee arrive at its decision in this
regard? if we can rationalize the decision on the basis of the
earlier decision of the CAS in Adamu v FIFA, how come the
Committee imposed the maximum punishment of a life-ban on
Siasia and not the temporal one imposed by the CAS? It is
important to remember that the CAS was very scathing in its remarks
in condemning the actions of Dr. Adamu who at the material point in
time was an Executive Member of FIFA. Siasia as at March, 2009 was
the coach of the Flying Eagles of Nigeria. It is therefore
surprising that whilst an Executive member of FIFA received what
could be described a “slap on the wrist”, the Ethics Committee
decided to go the opposite way with Siasia. Such seeming
inconsistencies in decisions can be avoided if a fact-intensive
analysis is undertaken by the Committee before releasing its
decision. Had the Committee embarked on this arduous but important
task, it would have discovered the factual divergencies in both
cases. The decision is also not on all fours with the Lamptey
decision since Article 11 was not considered. Lamptey was charged
with breach of Article 69(1) i.e. unlawfully influencing match
results. In sum, the writer holds the humble view that art.11
has been misapplied by the Ethics Committee.
The FIFA code of Ethics for 2019 was released sometime in June
2019 with far reaching amendments to the 2017 edition. By the
sketchy facts made available to the football loving public, the
proceedings commenced in February 2019 and ended on or before
August 16 2019. This seeming coincidence pales into
insignificance when Article 18 is read in the context of the
decision particularly the strong language used by the draftsman. At
first blush, it would appear as if Article 18 was considered. There
are however, two reasons why this is impossible. In the first
place, by the principle of retroactivity, Siasia cannot be charged
under a law that was non-existent as at the time the alleged
offence was committed. Secondly, by Article 10(c) of the FCE,
offences relating to match-fixing can only be prosecuted not later
than five years after they were committed. The alleged offence here
was however, allegedly committed in 2009. Interestingly though,
there appears to be a willingness by the Committee to use this as a
test case for setting an example to would-be offenders, if this is
the intention, the jurisprudential basis appears rather blurred.
For the moment, we can only wait patiently for the decision of the
FIFA Appeals Committee and the Court of Arbitration for sports
should Siasia decide to initiate an appeal as expected.
Disclaimer: The present article reflects only
some personal views and general remarks drawn from a legal analysis
of the decision of the FIFA Ethics Committee and why same should be
set aside on appeal. The author confirms he has no professional
involvement in this particular matter, whether past or present.
Steve Austin Nwabueze is a lawyer and team lead of the dispute
resolution and sports law department of Perchstone & Graeys LP,
Lagos Nigeria.
[1]
https://courses.lumenlearning.com/atd-bmcc-criminaljustice/chapter/section-2-5-theories-of-punishment/
[2] See paragraph 153 of the Award.