Is America the Right Jurisdiction for the FIFA Corruption Charges?

While the United States’ decision to file criminal charges against FIFA officials and to conduct a further criminal investigation of FIFA has met with wide spread support in the English speaking world, its actions are less popular in other places.  Some have suggested that the indictment was an attempt to get revenge for FIFA’s failure to award the 2022 World Cup to the United States or an attempt to take the World Cup from Qatar.

This is nonsense.  I suspect it is impossible for the rest of the world to understand just how little the average American cares about soccer.  Sure having the 2022 World Cup in the United States might be nice, but it might also cause traffic problems or attract terrorists.  Besides it is seven years away and that is beyond the “what I care about” horizon of most Americans.  (Hence, our can do nothing attitude about global warming.)

Nevertheless, there have been claims that the United States Justice department had no business initiating these criminal charges.  Russia, in particular, was unhappy claiming that "[t]his is clearly another case of illegal exterritorial use of U.S. law."  Further, "[w]e hope that this will not in any way be used to cast a shadow on the international football organization as a whole and its decisions."  (See here and here.)  Russian's fears that this is a plot to take away their World Cup are not completely farfetched.  At least one American politician, Senator Robert Mendez, has called upon FIFA to take the World Cup from Russia.  However, Mendez is hardly a paragon of virtue since he is also currently under indictment by the Justice Department.  (See here.)

 

Others have expressed more legitimate concerns.  After all, the idea that the United States might try to exert its power beyond its border for illegitimate reasons is not inherently implausible.  Jon Sopol, the North America editor for BBC.com expressed a nuanced combination of support and concern here.  However, his concerns are currently unwarranted because this is not yet a case where the United States is overreaching.  Of course, that might change as the investigation expands and continues.

The United States did not assert jurisdiction over these offenses because it was politically expedient or because we are power mad.  The United States did not even assert jurisdiction because the crimes were committed with American dollars.  The United States asserted jurisdiction because the crimes were committed in the United States often by American citizens or residents.  In fact, given the central position the US financial system played in the crimes, it is unlikely another other nation could have investigated and filed these charges.

My first several drafts of this article included a detailed description of the various defendants and the charges.  Given that I was summarizing a 164 pages indictment, no one should be surprised that the length of the article quickly got out of hand.  I may still produce that summary as a separate article.

For now, I will simply point out that many of the charges involved CONCACAF as a victim.  Since CONCACAF is headquartered in the United States, jurisdiction here is proper.  Many of the charges also involved the sale of media rights to show football games in the United States which is also a legitimate basis for asserting jurisdiction.  Two of the 15 defendants were American citizens.  Four others were US residents.

The indictment alleges 46 separate criminal offenses.  Six of the charges clearly belong to the United States since they involved US citizens obstructing justice, filing fraudulent tax returns, or fraudulently obtaining US citizenship.

39 of the remaining 40 charges relate to nine individual criminal conspiracies each of which involved the illegal transfer of substantial funds to and/or from a branch of an American bank that was actually located inside the United States.  Surely every nation must have the authority to prosecute illegal transfers of money into or out of their territory.

The remaining charge is a general “Racketeering Conspiracy” charge against of the defendants for their involvement in the general corruption that extended back 25 years.  Given the extent and interrelationship of the alleged offenses, this charge was inevitable.

 

Whether future phases of the investigation should or will result in American criminal charges is another question.  If, indeed, bribery can be shown to have played a part in the selection of the 2014, 2018, and 2022 World Cups those charges should be prosecuted in the appropriate location.  Switzerland, being the nation where FIFA is headquartered, is an appropriate location.  On the other hand, if the bribes were paid through the American financial system then the United States would also be an appropriate forum.  Given the ubiquity of the American financial system this is likely (but not certain) to be the case.  The one option that is not acceptable is the one that has been followed for so many years—simply ignoring the corruption.  There are reasons to complain about the United States Department of Justice and its policies in filing criminal charges concerning financial crimes that involve the entire world.  However, the complaint should not be that the US filed these well-deserved charges involving international football, but that the American government basically gave a free pass to the rich folks who crashed the world economy in 2008.