Has FIFA outgrown its international immunity?

Growing up, children around the world receive their first introduction to the sports team to which their parents, or their town, adheres. Overtime, sports not only grew to be representative of various identities and entwined in interpersonal relationships, but also became a billion dollar commercial industry. As United Nations Secretary-General Ban Ki-moon observed, “Sport has a tremendous – and in many ways unique – power to unite. … With planning and vision, mega sport events can advance social development, economic growth, educational opportunity and environmental protection.” However, “ample experience has show that the benefits of mega sport events have not always been long-lasting, sustainable, or widely shared.” International sports governing bodies, therefore, are entrusted with this responsibility: execute and organize the game and simultaneously ensure sustainable and equitable play.

FIFA, the Fédération International de Football Association, was established in 1904 under Swiss law. Since then, the organization ballooned into a worldwide monopoly. However, in the past few decades, many have come to accept the general corrupt culture of the organization. Even more recently, allegations of intense human rights abuses in the building of World Cup stadiums caught international attention. This paper will begin by explaining how the vulnerabilities of FIFA’s unique governance structure encourage its criticized and sometimes illegal behavior. Part II will analyze the global disagreement over how to define conduct standards for the organization and how to legally categorize FIFA. As a global society, we are unable to regulate FIFA because of the pervasive disagreement as to how to both define conduct standards and general expectations as well as legally categorize the organization. Finally, it will touch on the recent reforms undertaken by FIFA. While needed, likely will not be strong enough to combat the behavior produced by FIFA’s governance structures given that the reforms encompass only internal changes and do not address FIFA’s regulatory power.

Figure 1. Andrea Pirlo, a soccer player on Italy’s winning World Cup team in 2006, describes the electric, infectious atmosphere surrounding the World Cup

 

Part I

Structure of FIFA

FIFA operates as a private governance regime, with regulatory structures that parallel those of a government, yet its incorporation defines the organization to be a private non-profit. There are no corporate shareholders, yet the ‘non-profit’ holds billions of US dollars in reserves. As per FIFA’s statutes, the organization is endowed with “powers to govern and regulate world football” in collaboration with continental confederations and national football associations, with authority not only over the rules of the game but also over all the social and economic dimensions of the industry.[1] Headquartered in Geneva, Switzerland – and thus established under Swiss law – FIFA rules over 209 national football associations, all belonging to one of six regional confederations. The following section provides an overview of FIFA’s operating structure, in order to understand the origins of FIFA’s often-criticized behavior:

The FIFA administration ultimately implements the decision passed by the FIFA Congress, the Executive, and standing committees. The highest office belongs to the FIFA president, a notorious position infamously held by Sepp Blatter for almost 20 years and currently occupied by Gianni Infantino. The FIFA Congress acts as one of FIFA’s political and legislative bodies. Representatives from all national member associations make up the Congress, which bears a responsibility for decisions related to FIFA’s governing statutes and method of implementation, including amendments to FIFA statutes (effectively the organization’s constitution). FIFA also operates under the Executive Committee, which determines the organization’s strategy as a whole governing body. Important standing committees include FIFA’s judicial bodies, the Disciplinary Committee, the Ethics Committee, and the Appeals Committee. 

Disputed Behavior

FIFA’s unique governance structure, or business model, leaves the organization to vulnerable to often-criticized and arguably illegal behavior. Western claims of corruption and bribery introduce new human rights risks. Bribery and corruption not only displaces money intended for broad, social gain into private executive pockets. It also enables these involved parties to evade legal and contractual requirements, including those protecting human rights. Lack of financial integrity therefore poses a foundational risk of human rights abuse.

The rapidly increasing financial interests and commercialization of sports over the past 25 years enables extensive bribery and other denounced behavior, from racketeering to money laundering and wire fraud. Allegations (and proof) of bribery have plagued FIFA for years, from the 1998 World Cup in France 2011 FIFA presidential election to the 2020 Men’s World Cup. Most recently, alleged vote buying regarding the location of the 2018 and 2022 World Cup, to be held in Russia and Qatar respectively, led to selecting countries with abusive human rights records.  The award of the 2022 World Cup to Qatar, a country with a damning human rights record and little national soccer history or infrastructure, entangled FIFA in workers rights abuses in related to modern slavery and worker fatalities. Not only does the country have a poor record of workers’ rights and safety, and a ban on same-sex activity, but also the building of the necessary soccer infrastructure in preparation for the World Cup (infrastructure sanctioned and regulated by FIFA yet built by the host country) has employed trapped migrant workers, unable to return home without their passports (held by their employer) and often without access to their wages. In Russia, as with Qatar, reports of serious human rights abuses have surfaced regarding the construction of necessary infrastructure for the World Cup. Like in Qatar, reports reveal poor working conditions, forced labor in unhealthy temperatures, non-payment or delay of wages, failure to provide legal work documentation or contracts, and the death of several stadium workers.

 

Figure 2. John Oliver discusses FIFA’s corruption scandal and workers’ rights abuses, noting no matter how many scandals FIFA becomes entangled in or how egregious FIFA’s human rights violations are, the world still waits with palpable anticipation for the start of the World Cup.

FIFA’s Hegemony

Beyond these behaviors, the lack of any type of accountability of FIFA has given rise to the organization’s “hegemony,” which overpowers even national governments. FIFA commandeered control of market access, which allows FIFA to impose its preferences on national governments, regulating access as a vital club good upon which national soccer industries depend. Based in FIFA statutes and organization regulations, FIFA membership is a necessary pre-condition to participate in any global competitions or revenue streams.[2] In this way, FIFA acquired complete power to include or exclude countries from major worldwide events. Essentially, “it’s a members’ club that’s hit the big time.” The organization’s hegemonic natures excludes almost every national government from pushing back against FIFA to exercise any regulation or accountability.

Part II

Given these non-criminal yet widely criticized behaviors described above, and FIFA’s vulnerable governance structure preceding such behaviors, it would logically follow that an international movement demanding accountability would form. However, the fragmented and conflicted nature of the demands of those clambering for regulatory accountability prevents a unified movement from driving any type of external reform or accountability framework. Standards and expectations vary between national associations and regional confederations, government leaders, civil society, and even among FIFA officials. As a global society, we are unable to regulate FIFA because of the pervasive disagreement as to how to both define conduct standards and general expectations as well as legally categorize the organization.

Conflict over Laws and Values

As mentioned above, there exists a discrepancy between FIFA’s transitional law and statutes and those of national governments hosting prominent global soccer tournaments, contributing to competing standards and legal expectations.  In many cases, this discrepancy exists because of contradictory, fundamental values. As an international organization governing six different regional confederations and over 200 national associations, ample space exists for cultural differences. FIFA’s rules, often more compatible with the legal systems of developed western countries, conflicts with difficult cultural domestic law in countries including South Africa, Brazil and Qatar (all recent past or near future hosts of the World Cup). Even if FIFA’s imposing legal standards contract the country’s core values, countries must still adopt them or forfeit hosting the tournament. FIFA’s suppression of national power in its legal interventions and political suspensions not only grants it a certain degree of immunity from any potential source of accountability, but it also instills, at least temporarily, one singular set of laws and values. These competing cultural values ultimately threaten FIFA’s stability and legitimacy, yet the numerous and differing positions on how to better define standards or regulate FIFA diffuse this threat – the most notable being the divide between the public or private categorization of FIFA.

Public or Private

Arguably the most important yet most disputed definition regarding FIFA centers around its inherent nature as a public corporation or private entity. Standards and regulatory initiatives – both FIFA’s responsibilities and the type of body enforcing them – depend upon this categorization. As a quasi-governmental, quasi-private entity, existing conceptualizations do not capture FIFA’s organizational structure. Ironically, no one seems to insist on FIFA’s categorization as a non-profit (despite its technical definition). Rather, the two opposing sides appear to be debating FIFA’s role as a public governing body or a private corporation.

Several scholars and relevant actors who argue FIFA acts as a private corporation focus on the enormous revenues generated by the organization each year and its corporate attitude. However, event those who agree FIFA more closely resembles a private body do not agree of what type of private body or the reasons why it should be defined as private. Professor Mark Pieth of the Basel Institute of Governance, and chair of FIFA’s internal governance reform effort from 2011 to 2013, defined FIFA as a “potent corporate entity” and called for a “sequence of particular governance measures developed in the corporate world.”[3] Others define soccer as ‘big business’ and argue its increasingly significant implications for big business necessitate its definition and regulation as a private company.[4] Some wish to see the governing bodies of sport look to the governance standards of publicly listed companies as a basis upon which to develop their own governance rules.[5] Others follow that FIFA should be subject transnational private regulation (TPR), which is characterized by the ability of non-state actors to cooperate across borders and establish rules or standards of behavior in a specific domain accepted as legitimate.[6]

Given FIFA’s role as head and orchestrator of the international soccer regime, many conceptualize FIFA now as more similar to a public governance regime. The organization’s autonomy ensures it operates independently, separate from any other governing force. FIFA’s various regulations ensure the continuation and strengthening of this autonomy.[7] In response, rather than counter FIFA’s growing power, the European Council declared that it and the European Commission neither wished nor was in a position to impose any given model of organization on sports federations. In effect, they would continue to enjoy the right to organize themselves.[8] Interestingly, FIFA sees itself as a government more than a private corporation, claiming to be “truly democratic.”[9] Private companies generally have formal accountability to shareholders and board members, however with its various legislative, judicial and executive bodies, FIFA’s structure resembles those of democratic governments. Additionally, most transnational firms respond to some element of market accountability, however, FIFA’s main business partners are corporate sponsors and television companies, with little interest in holding FIFA accountable given their own economic interest.[10]

Many advocate FIFA, given elements of both public and private entities, should be treated and governed as such. FIFA should follow practices widely used by both corporations and international bodies, given their proximity to both. Regarding its nature as gatekeeper to professional soccer, it is essentially an organization of public interest and therefore should be treated, fundamentally, as a public body. However, it is not an institution “owned by and answerable to the public” in the same way the public demands accountability from its government.[11]  This has led various organizations and scholars to suggest a combination of private and public sector regulatory measures. Suggestions between those defining FIFA as a public government or private company do not differ significantly– they both demand the separation of powers and a system of checks and balances.[12]

Figure 3. Protests in Brazil erupted after the country sank over US$3.6 billion into building and renovating stadiums alone, most of which have been almost unused since the tournament, and generated billion in revenue for FIFA

This suggests that maybe, FIFA’s legal categorization as public or private does not make much difference. Bertley, a legal scholar, argues an overlap exists between private regulation and national law, where transnational standards have become increasingly intertwined with domestic structures – legal compliance and private compliance are, in some instances, “de facto equivalents.”[13] According to corporate personhood scholar Turkuler Isiksel, not all businesses are corporations. A corporation is, most simply, a collective agent, with its own legal identity.[14] Therefore, we could classify FIFA as a public corporation; a mixture of both its business-like operations and public governance structure.

 

Reform

In 2016, following the eruption of corruption scandals in international media, FIFA enacted much needed reforms to its governance structure. Most importantly, FIFA stressed a clear separation between political and ‘management’ functions. Other objectives include the application of universal good governance principles for confederations and member associations, the enhanced control of money flows and a new commitment to transparency. Additionally, FIFA enshrined a new commitment to human rights glaringly lacking prior to 2016. While wide-ranging and deeply necessary, the 2016 reforms FIFA instituted consist only of internal reforms. FIFA did not engage in an ultimate change of regulatory power invested in the organization and added no external accountability features. While some of the reforms will improve FIFA’s institutional capacity at both the political and administrative levels, continuing to conduct only internal reform will not enact the significant behavioral and accountable many increasingly call for.

Conclusion

Figure 4. Recent reports uncovering human rights violations and threats to worker health and safety at stadium constructions sites in Qatar and Russia sparked protests against FIFA

FIFA’s governance structure, not captured by existing conceptualizations of international organizations and business, operates in an unregulated space with an element of perceived immunity. Globally, FIFA remains unregulated because of the pervasive disagreement as to how to both define conduct standards and general expectations as well as legally categorize the organization. However, those on both sides – public or private entity – suggest similar reforms and interventions, suggesting FIFA’s categorization may never fall into a pre-determined definition. Rather, a new one must be invented. In order to regulate the organization, there must be a consensus on standards on which to hold FIFA accountable.

The European Union (EU) so far appears to be the only governmental organization with the authority to exert power over FIFA. Perhaps then, it is the responsibility of regional bodies like the EU or international bodies such as the UN to address FIFA’s irresponsible behavior, as the UN did with the International Olympic Committee (IOC). Therefore, despite the European Commission’s abdication of political responsibility in stating FIFA’s autonomy from the European body, these organizations may hold the key to instituting a regulatory regime for FIFA. At the very least, the wide array of stakeholders involved presents an opportunity to re-define FIFA’s legal categorization and conduct standards according to a new framework. Despite fans’ continued consumption and clamber over the World Cup, dissatisfaction with FIFA’s governance has never been greater. While FIFA’s rapid financial and social growth contributed to its immunity, its new international status may finally have caught up with it.

 


[1] FIFA 20151, articles 1-13 (cited by Meier and Garcia, 890)

[2] Henk Erik Meier and Borja Garcia, “Protecting Private Transnational Authority against Public Intervention: Fifa’s Power over National Govenrments,” Public Administration 93, no. 4 (2015)., 890, 894.

[3] Pielke Jr., “Obstacles to Accountability in International Sports Governance.”

[4]Jerabek, Andrade, and Figueroa., 420.

[5] Chris Baird, “A Legal Analysis of Fifa’s Governance Reforms: Do They Meet the Standards of Best Global Practice?,” Law in Sport.

[6]Meier and Garcia., 891.

[7] Meier and Garcia., 895.

[8] Simon Lee, “Moving the Goalposts: The Governance and Political Economy of World Football,” in Sport and International Relations: An Emerging Relationship, ed. Roger Levermore and Adrian Budd (New York: Routledge 2004)., 114

[9] Ibid., 118.

[10]Pielke Jr., “Obstacles to Accountability in International Sports Governance.”

[11] Jerabek, Andrade, and Figueroa., 437.

[12] Ibid.; Ruggie.

[13] Tim Bartley, “Transnational Governane as the Layering of Rules: Intersections of Public and Private Standards,” Theoretical Inquiries in Law 112, no. 2 (2011).

[14] Turkuler Isiksel, “A Corporate Right to Have Rights? Personhood and Corporate Agency in a Global Age,”  (2017).