Zane Shihab, a Partner in our Sport team, was interviewed by Sky news on 9^th June regarding the recent claims published by the Sunday Times alleging, amongst other things, that Mohammed Bin Hammam (the now disgraced Qatari former Vice President of Fifa) used secret slush funds to make dozens of payments totalling more than $5 million to senior football officials to create a groundswell of support of Qatar’s World Cup bid. Zane sets out his views on the subject below.

Michael Garcia, Fifa’s in-house investigator, is currently concluding an investigation into the bidding process that led to Qatar being awarded the 2022 World Cup.

It is fair to say that Fifa may be regretting awarding the World Cup to Qatar. Ever since the vote in 2010 the decision has been dogged by controversy. First there was the outcry over Fifa’s plans to move the 2022 World Cup to the winter months due to the searing temperature in Qatar during the summer months (which can reach a sweltering 50°C). Then there was the understandable outcry over Qatar’s human rights record and the conditions imposed on migrant workers who are being engaged in the building of the infrastructure and stadia for the World Cup. Nevertheless, it is difficult to see how these two factors could justify Fifa stripping the country of host nation status due to the simple fact that no Fifa rules appear to have been broken.

However, in light of the Sunday Times contentions, we may be on the verge of a game changer.

The Allegations

The Sunday Times allege, amongst other things, that they have obtained millions of emails and other documents via a Fifa whistle-blower that show that Bin Hammam used secret slush funds to make dozens of payments totalling more that $5 million to senior football officials to create a groundswell of support of Qatar’s World Cup bid. They contend that Bin Hammam used ten funds controlled by his private company and cash handouts to make dozens of payments into accounts controlled by the presidents of thirty African football associations who held sway over how the continent’s four Executive Committee (“ExCo”) members would vote.

On 8^th June 2014, the paper followed up its initial release with new revelations claiming that Bin Hammam arranged meetings and favours for key voters in the months leading up to the World Cup ballot on behalf of the Qatari bidding committee.

The Qatari’s Position

Unsurprisingly, the Qataris have maintained the following line:

“The Qatar 2022 bid committee always upheld the highest standard of ethics and integrity in its successful bid to host the 2022 FIFA World Cup. In regard to the latest allegations from The Sunday Times, we say again that Mohamed Bin Hammam played no official or unofficial role in Qatar’s 2022 bid committee. As was the case with every other member of FIFA’s executive committee, our bid team had to convince Mr Bin Hammam of the merits of our bid. We are co-operating fully with Mr Garcia’s ongoing investigation and remain totally confident that any objective enquiry will conclude we won the bid to host the 2022 FIFA World Cup fairly.”

It is worth noting that the Qatari bid committee was also quick to publicly renounce Bin Hammam when he was banned from world football in 2011 after being caught bribing voters in his attempt to be elected Fifa president.

The Fifa Bidding Rules

Of relevance to these allegations is the Fifa rule that bans bid committees, or any of their associates, from “providing to Fifa or any representative of Fifa … any monetary gifts [or] any kind of personal advantage that could give even the impression of exerting influence, or conflict of interest, either directly or indirectly, in connection with the bidding process … and any benefit, opportunity, promise, remuneration or service to any such individuals, in connection with the bidding process”.

In addition, Fifa rules also state that “the member association agrees to refrain from collaborating or colluding with any other member association or any third party with a view to unfairly influencing the outcome of the bidding process”.

The Key Question

Hence, in my opinion, the crucial question is: Will Garcia be able to prove beyond reasonable doubt (as with all serious offences of corruption or fraud, this higher standard of proof will apply) that Bin Hammam:

• Was acting as an agent of the Qatari bidding committee; and
• Offered bribes on behalf of the Qatari bidding committee

with the aim of securing votes for the Qatari’s World Cup 2022 bid. I believe, therefore, that this is a two-limbed test.

Money Talks

A factor that cannot be ignored is the position of Fifa’s partners and sponsors. Japanese electrical giant Sony was the first of Fifa’s six partners to break rank and express concern at the allegations surrounding the bidding process and Adidas, the sportswear manufacturer, followed suit shortly thereafter.

Sony released a statement saying that “As a Fifa partner, we expect these allegations to be investigated appropriately. We continue to expect Fifa to adhere to its principles of integrity, ethics and fair play across all aspects of its operations.” Adidas said: “We are confident that the matter is being dealt with as a priority. Adidas enjoys a long-term and successful partnership with Fifa that we are looking forward to continue. Having said that, the negative tenor of the public debate around Fifa at the moment is neither good for football nor for Fifa and its partners.”

Each partner pays Fifa between $24 and $44 million annually for the right to be associated with Fifa and the World Cup. Fifa earned almost $1.4 billion last year, including more than $600 million from broadcasting rights and more than $400 million from sponsors and other partners. Around $180 million came from the six Fifa partners.

Adidas has a long-term sponsorship with Fifa that runs until 2030, but, as Sony’s sponsorship agreement expires this year, the release of their statement may be viewed as a leverage tactic in its renegotiations concerning a new deal.

Usually sponsorship agreements of this type include a provision which states that it is a breach of the agreement if either party brings the other into disrepute or does anything to adversely effect the reputation of the other party.

Clearly then, keeping these sponsors happy is of paramount importance to Fifa and they will be keen to show that the investigation has been thorough, transparent and impartial.

Has the Sunday Times Uncovered the “Smoking Gun”?

There is no questioning the appeal of the detailed allegations in the Sunday Times and, judging by worldwide reaction over the last week or two, this story is certainly not going to go away any time soon. It is also worth remembering that previous revelations from the same publication have resulted in half a dozen of former ExCo members losing their positions at Fifa.

The Qataris assertion that Bin Hammam, who at the relevant time was the most influential figure in Asian football, played no “official or unofficial” would look tenuous should the latest allegations (that he brokered meetings between senior Fifa officials and the Qatari bidding committee) be proven. However, arranging meetings on behalf of a bidding committee is not a breach of the Fifa rules in itself and, whilst it may go someway to establishing the first limb of the test detailed above, I feel that it falls short of satisfying the second part – namely that he offered bribes to individuals as an agent for the Qataris in order to secure votes for their bid.

The Qataris would argue that, even if the allegations about Bin Hammam (offering inducements to senior officials) were proven to be true, the Qataris were unaware of this and should therefore not be penalised.

In addition, it could be argued that Bin Hammam’s motives were not to secure votes for Qatar but instead formed part of his broader strategy to overthrow Sepp Blatter as FIFA president (a bid for power which ultimately led to his downfall as a result of the infamous cash-for-votes scandal). Indeed, as Britain’s Fifa vice-president Jim Boyce correctly pointed out, both campaigns were taking place at exactly the same time.

Furthermore, there are a number of essential supplementary factors that will influence any decision that Fifa makes:

• Firstly, Garcia is not interviewing Bin Hammam as part of his remit and he has been banned from football for life and therefore does not fall within the jurisdiction of Fifa. Similarly, it has been reported that, controversially, Garcia is not even going to examine the evidence uncovered by the Sunday Times (due, it has been said, to time constraints imposed (perhaps conveniently) by Fifa).
• Secondly, it is understood Fifa’s ethics committee can only recommend sanctions against individuals so it is therefore up to the ExCo to take the ultimate, far more risky, decision to relocate the World Cup.
• Thirdly, Fifa were overturned by the Court of Arbitration of Sport (“CAS”) in their original case against Bin Hammam and will be wary of taking any action which could again be successfully appealed.

As a result of the various factors discussed above, I believe that Fifa would be on shaky legal grounds if it were to require a re-run and would be laying itself open to billions of dollars of compensation from the Qataris if they got it wrong (including damages for loss of reputation, loss of revenues that the Qataris could have expected to receive from hosting the World Cup and the loss of the wasted revenues already outlaid on bid and the infrastructure and stadia building works).

The Sunday Times has intimated that it has more to come. If they can establish a link between Bin Hammam’s alleged bribes and the Qataris or if the finger is pointed directly at any known Qatari bid officials, then I believe that that may well constitute the, so far elusive, “Smoking Gun”.

Until that time, based on the evidence that we have seen so far, I am far from convinced that Qatar will be stripped of the right to host the 2022 World Cup.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.