18 November 2014
Pressure on FIFA to Publish Garcia Report, But What Next?
Pressure continues to mount on FIFA to reveal the full contents of the report made by US attorney Michael Garcia following his 2 year investigation into the bidding processes for the 2018 and 2022 FIFA World Cups.
FIFA has come under considerable criticism over its lack of transparency over the findings of the investigation into the bidding processes. In 2012 FIFA instructed Mr Garcia to carry out an investigation into the bidding processes that awarded the 2018 and 2022 World Cup’s to Russia and Qatar respectively. Michael Garcia is a former US prosecutor with a history of launching corruption probes.
After a 2 year investigation Mr Garcia’s findings were provided to FIFA who in turn instructed German Judge Hans-Joachim Eckert to prepare a report based on his findings. Mr Eckert’s report was published on the 13 November 2014. The report noted that the Russian bid team made "only a limited amount of documents available for review". According to the report, the Russian team hired computers that were subsequently destroyed. This denied the inquiry access to relevant email accounts. The report, however, cleared Qatar and Russia of any wrongdoing and even went as far as to criticise the English Football Association of not abiding by the bidding rules.
Four hours after its publication Mr Garcia, stated that the report itself "contains numerous materially incomplete and erroneous representations". British MP Clive Efford, Labour's Shadow Minister for Sport, and FA Chairman Greg Dyke have called for FIFA to make public the original report produced by Mr Garcia.
It is concerning that criminal wrongdoings in the form of bribery and corruption are being alleged on such a huge scale and yet FIFA seem to refuse to allow for full transparency into the investigation. Speaking on the 13 October 2014, Mr Garcia stated that this is the “kind of system which might be appropriate for an intelligence agency but not for an ethics compliance process in an international sports institution that serves the public and is the subject of intense public scrutiny”.
What, if anything, the authorities will do about this is unclear at this time. There have been calls by MP Damian Collins for the SFO to exercise its powers to investigate FIFA. Collins asked the SFO to consider whether evidence of any additional wrongdoing, which might fall under its jurisdiction, could be revealed by obtaining access to Garcia's report.
In response to this SFO director David Green told Collins: "The allegations that have occurred so far are against non-UK nationals and the alleged conduct took place outside of the UK. I can assure you that the SFO will continue to keep the jurisdictional position under review."
Mr Garcia has already confirmed his intention to appeal FIFA’s decision to clear Qatar and Russia of any wrong doing. But if Mr Garcia does suspect any criminal wrongdoing within FIFA, does he have any power to report his findings to the authorities? Mr Garica was instructed by FIFA to prepare the report and as such he is bound by a duty of confidentiality owed to his client.
The Solicitors Code of Conduct issued by the Solicitors Regulation Authority who regulate solicitors in England and Wales, state that a solicitor (or a firm) must keep the affairs of clients and former clients confidential except where disclosure is required by law or your client. There are certain circumstances when this duty can be overridden for example if they are required to do so by law. For instance this could be if a criminal investigation is being brought by an authority such as the SFO and as part of the investigation the investigating authority has obtained a warrant to seize confidential information.
Mr Garcia applies his trade in the US and is bound by similar rules of confidentiality, the attorney client confidentiality and lawyer confidentiality. Exceptions to attorney-client privilege may arise when there is an overriding public policy, as pronounced by the court. A “crime-fraud” exception to the privilege allows disclosure of information communicated by the client if there is an attempt by the client to use the lawyer’s services to commit or cover up a crime or fraud.
The exceptions to the confidentiality rule vary somewhat from state to state. The majority of jurisdictions make a specific exception in their ethics rules to permit disclosure that will prevent death or substantial bodily injury. In addition, the ethics rules in most jurisdictions permit and sometimes require a lawyer to disclose information in order to prevent and/or rectify the consequences of a crime or fraud that injures the financial or property interests of another.
Depending on what Mr Garcia discovered, it could be argued that the report produced by FIFA, and their lack of transparency, could be seen as an attempt to use Mr Garcia’s services to cover up a crime. Simon Johnson, who led England’s bid for the 2018 World Cup described the report as a “politically motivated whitewash”. British MP, Damien Collins stated the report is a “whitewash as it is an attempt to con people that there has been a full and independent investigation when there has not been. The result is that allegations of bribery and serious wrongdoing remain unanswered and they are still suppressing the full report."
Mr Garcia came into this “with no history or experience of what might have happened," and he said. "I will look at the facts and my jurisdiction and make decisions on whether the ethics code was violated”.
On the 13 October 2014 in a keynote speech aimed at the American Bar in London, Mr Garcia reiterated the need for "greater transparency". He added "The investigation and adjudication process operates in most parts unseen and unheard". He stated that FIFA needs a "leadership that sends a message that the rules apply to everyone".
FIFA have today lodged a criminal complaint regarding possible misconduct in connection with the hosting rights of the 2018 and 2022 World Cups. The complaint has been lodged with the Office of the Attorney General of Switzerland in Berne following the recommendations of Judge Hans-Joachim Eckert. It is unclear as to why Mr Eckert has made these recommendations now, as opposed to stating this within his initial report. Perhaps this is as a result of showdown talks with Mr Garcia.
What is clear is that Mr Garcia is disturbed by the report produced by FIFA, hence his intention to appeal its findings. FIFA have stated that the original statement of Mr Garcia has been provided to the Office of the Attorney General in Switzerland, via Judge Eckert. If the Swiss investigation is fruitless and Mr Garcia does not obtain the transparency he believes is necessary, then he may contemplate his next steps.
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