Since yesterday FIFA is back in turmoil (see here
and here)
after the FIFA Council decided
to dismiss the heads of the investigatory (Cornel Borbély) and adjudicatory
(Hans-Joachim Eckert) chambers of the Independent
Ethics Committee, as well as the Head (Miguel Maduro) of the Governance
and Review Committee. It is a disturbing twist to a long reform process (on
the early years see our blogs here
and here)
that was only starting to produce some tangible results.
This journey to a new FIFA started in 2015 after the events
that eventually pushed Sepp Blatter and Michel Platini out, and Gianni
Infantino in. As noted by the FIFA Reform Committee in its final report,
it became clear FIFA needed to undertake “significant modification to its
institutional structure and operational processes […] to prevent corruption,
fraud, self-dealing and to make the organisation more transparent and
accountable”.[1] The
Reform Committee put forward a series of recommendations,
which later culminated in a set of reforms approved
during the Extraordinary FIFA Congress held in Zurich the 26 February 2016.
Greater transparency and accountability were the leading mantras of the reform,
which – broadly speaking – hinged on (i) generating a cultural change at FIFA,
(ii) fostering greater participation of member associations and stakeholders in
FIFA and, most importantly, (iii) reforming the principles of governance at
FIFA. The essence of the reform process was about changing the governance
structures and ethos at FIFA. This was to be done mainly by:
- Separating the political and management functions
- Financial Transparency and Transparency of
Compensation
- Term Limits and Eligibility Checks
- Promotion of the role of women in football
And, to be fair to FIFA, on paper at least, things
changed quite dramatically over last year, here is how.
1. The new FIFA Council
First, the reform changed the political and
administrative structure of FIFA. The Executive Committee being replaced by the
Council,
a new body with a different composition and set of competences. The Council’s larger
size is aimed at ensuring broader participation and representativeness. While
the Executive Committee comprised 24 members plus the FIFA President, the
Council is composed of 36 members plus the FIFA President. The Congress elects
the President, whereas the other members of the Council represent the
confederations. Each Confederation president is ex officio a vice-president of the Council. UEFA has three vice-presidents
at the Council and the other Confederations one each, for a total of eight
vice-presidents. The rest of the members are divided as follows: four from
CONMEBOL and CONCACAF, six from AFC, UEFA and CAF, and two from OFC.
One of the main objectives of the governance reform was
to reduce the possibility of conflicts of interests. To this end, a firm
separation between political decision-making and management was considered
crucial. Even though the Council’s role is supposed to be confined within the
boundaries of supervising FIFA’s administration and defining strategic
directions, it retains strong steering powers through its competence, enshrined
in Article 34 FIFA
Statutes, to nominate and dismiss the members of FIFA’s Committees as well
as FIFA’s Secretary General. Nevertheless, the executive functions are delegated
to the Secretary General, who has the duty to carry out the day-to-day business
and implement the strategies outlined by the Council. While, the Chief
Compliance Officer, oversees this activity and reports to the independent Audit and
Compliance Committee.
2. The introduction of eligibility
checks
The FIFA reform committee recognized that a
trustworthy governance of FIFA requires that the executives be, as much as
possible, free of conflicts of interest. Hence, all the members of the Council
are now subject to eligibility checks carried out by the Review Committee, a special
commission within the newly created Governance Committee, formed by its
chairperson, its deputy chairperson and one independent member. The members of
the Governance Committee are in turn subject to eligibility checks carried out
by the investigative chamber of the Ethics Committee. According to Art. 27(8)
FIFA Statutes: “candidates for the positions of chairperson, deputy chairperson
and members of each of the Audit and Compliance Committee and the judicial
bodies must pass an eligibility check carried out by the Review Committee”.[2]
The Secretary General is required to fulfil an eligibility check as well[3]
and so do the candidates for standing committees.[4]
This new check is the cornerstone of FIFA’s governance reform. In the absence
of truly open and fair democratic elections to determine who exercises power
inside FIFA, the eligibility checks are a fundamental brake to control the pool
of potential executives and ensure a modicum of ethical virtue amongst them.
3. The strive for financial transparency
The FIFA Reform Committee Report proposed to make
public the compensation packages of FIFA’s executives. Thus, the new Art.
51(10) FIFA Statues imposes a duty to disclose the individual compensation of
the FIFA President, the members of the Council and the Secretary General. The compensation
of the said members and the Compensation Rules are determined by the
Compensation Sub-Committee within the Audit and Compliance Committee.[5]
Indeed, in its 2016 Governance
Report, published in April 2017, FIFA disclosed the compensation packages
of its executives. This was a much-needed development in light of the way
Blatter, Platini and co were playing with FIFA’s finances, sometimes/often to
their own benefits.
4. The limited role of the FIFA President
The reformed Statutes reduced the role and
discretionary power of the FIFA President, who is now depositary of a more
ambassadorial than executive role. Pursuant to Art. 35 FIFA Statutes, the
President has no right to vote at the Congress and has one ordinary vote in the
Council. The new provision repealed the possibility for the President to have a
casting vote whenever votes are split equally inside the FIFA Council.[6]
And yet, due to his capacity to set the agenda of the FIFA Council and to steer
the Council’s appraisal of the Secretary General, his influence inside the
constitutional structure of FIFA should not be underestimated.
5. The introduction
of term limits
The need to answer to transparency and accountability
demands also resulted in the provision of term ceilings for the most prominent
figures within the Organisation. The President, the members of the Council and
the members of the independent committees can serve their office for no more
than three terms, whether consecutive or not, of 4 years each.[7]
6. The representation
of women
FIFA recognised that “football governance at all
levels needs to include more women in order to create a more diverse
decision-making environment and culture”.[8]
It has aimed to achieve this goal in two ways. First, FIFA adopted gender
equality as an explicit statutory objective.[9]
Second, and more visibly, each Confederation has to reserve for women at least
one seat at the FIFA Council.[10]
7. The reform of the standing committees
In order to improve efficiency the number of standing
committees was reduced from 26 to 9. The current standing committees, which “advise
and assist the Council in their respective fields of function”[11]
are: the Governance Committee, the Finance Committee, the Development
Committee, the Organising Committee for FIFA Competitions, the Member
Associations Committee, the Player’s Status Committee, the Referees Committee,
the Medical Committee and the Football Stakeholder Committee. The latter was freshly
created to foster greater engagement with the football stakeholders.
Some specific requirements to be fulfilled by the
members of the committees are laid out in Art. 39 FIFA Statutes. Paragraph 3 of
that provision states that, while the general rule is that members of the
committees can be at the same time members of the Council, the members of the
Governance Committee, the independent members of the Finance Committee and the
independent members of the Development Committee cannot simultaneously belong
to the Council.[12]
Furthermore, at least 50% of the members of the
Governance Committee, Development Committee and Finance Committee need to fulfil
the independence criteria as defined in the FIFA Regulations.[13]
These independence criteria need to be fulfilled also by the chairpersons,
deputy chairpersons and members of the FIFA judicial bodies, i.e. the
Disciplinary Committee, the Ethics Committee (both its investigatory and the
adjudicatory chambers) and the Appeal Committee.[14]
Furthermore, the members of the Audit and Compliance Committee must not belong
to any other FIFA body.[15]
The same applies to all the members of the FIFA judicial bodies.[16]
Conclusion: Plus ça change, moins ça change?
To sum up, on paper FIFA did change. It is undeniably a
bit more transparent (but we are still waiting for the publication of the
Garcia Report or of the decisions of the Ethics Committee) and its executives
are a bit more likely to face independent counter-powers (e.g. Ethics Committee
or the Governance Committee). FIFA’s reforms rely on a double strategy:
·
independent ex ante control on who is to exercise
power inside the organization and;
·
independent ex post review of how this power is
exercised.
And yet, with Blatter becoming a phantom of an almost
forgotten past, the urge to reform is quickly receding. In fact, reform at FIFA
is a bit like the ebb and flow. Its urgency, rises with the tide of public
outrage at corruption scandals, and diminishes with public indifference in the
face of a new business as usual.
Yesterday, 9 May 2017, we ebbed anew. It seems that
the FIFA Council has decided that the time for reforms has past. New sponsors
are lining up for the next world cups, the old guard is gone and the time seems
ripe to turn the page. However, the institutional changes introduce over the
last year made sense only if they are being monitored by strong independent
institutions (the Ethics Committee and the Governance Committee), whose members
do not feel that they are at the mercy of the power of the FIFA Council. Their
role is to be disagreeable and to act as counter-powers, if they are dismissed
at will when they do their job then the whole house of cards of FIFA reforms falls
apart and we are back to square one. The dismissal and departure of independent
and highly qualified academics like Miguel Maduro (with whom I had the pleasure to
work with at the European University Institute during my PhD) and Joseph Weiler
are a sign that the Governance Committee and its capacity to control access to
FIFA’s most powerful positions is being curtailed. Maybe it’s due, as some seem to
think, to the Committee’s decision to bar access to the FIFA Council to
Russia’s infamous former sports minister Mutko. In any event, it’s seems that FIFA’s
strong (mostly) men are unimpressed by the benefits of “good governance”.
The tide will certainly turn again. Scandals will
arise and force through new changes. Nonetheless, one is left to wonder whether
the Swiss State and/or the European Union should not forcefully intervene to
impose once and for all certain basic “constitutional” requirements (e.g. independence, transparency, separation
of powers) to a global body that exercises a strange form of public-private
authority.