There has been widespread speculation for a number of years about bribery and corruption being endemic within FIFA. America has lead the charge in prosecuting FIFA officials but could the UK follow suit?
The issues surrounding the Bribery Act and compliance are in the forefront of media coverage.
The relevant legislation in the United Kingdom ('UK') is the Bribery Act 2010 (the 'Act'). An offence will be committed under the Act if any act or omission which forms part of the offence takes place in the UK. This includes the transfer of money through banks within UK jurisdiction.
Casting the net - close connection required
The Act has wide territorial application. It will apply if the person committing the offence has a close connection with the UK. Common sense dictates that UK citizens will be caught by the legislation but the Act also applies to those individuals 'ordinarily resident' in the UK i.e. those who have chosen to come to live in the UK for a settled purpose as part of the regular order of their lives for the time being - whether of long or short duration. Nationality is irrelevant.
Those who are 'ordinarily resident' are subject to the criminal law of the United Kingdom and could be prosecuted if the acts or omissions take place abroad because they have a close connection with the United Kingdom.
FIFA officials who are 'ordinarily resident' could be prosecuted for bribery because their close connection to the UK brings them within the ambit of UK bribery legislation.
Bribing public officials
Section 6 of the Act provides that a person who bribes a foreign public official is guilty of an offence if that person's intention is to influence the foreign public official in their capacity as a foreign public official i.e. a person who:
- holds a legislative, administrative or judicial position of any kind within a
country outside the UK
- who exercises a public function for or on behalf of a country or territory outside the UK or for any public agency or public enterprise of that country of territory
- is an official or agent of a public international organisation
Crucially, that person making the bribe must also intend to obtain or retain business or an advantage in the conduct of business. This includes bribery to be awarded a sporting event such as the FIFA World Cup.
Under the Act person will bribe a foreign public official if:
- directly or through a third party the person offers, promises or gives any financial or other advantage either to the public official directly or to another person at the request of the public official or with the public official's assent or acquiescence
Therefore, if during the process to decide where the next FIFA World Cup was to be staged, a person bribed a foreign public official to influence where their vote will be placed, they could commit an offence under the Act and be prosecuted in the United Kingdom.
At the time of writing, there is no indication from the UK authorities that they intend to bring Bribery Act prosecutions connected to the FIFA corruption scandal.
The Serious Fraud Office issued a statement in relation to the allegations against FIFA stating:
'The SFO continues actively to assess material in its possession and has made plain that it stands ready to assist continuing international criminal investigations.'
It is likely that the decision to bring prosecutions in the UK jurisdiction will depend on the outcome of the US investigations. It is not unknown for there to be parallel prosecutions in both jurisdictions.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.