20 July 2012

Guilty, as not charged (volenti non fit iniuria)

To the chagrin of fans of justice everywhere it seems as if Ricardo Teixeira and João Havelange will shuffle off this mortal coil not having served a single hour in prison. Having read through the Canton of Zug’s judicial findings, I can report that the scandal is almost too scandalous. The 15 shades of details are too juicy not to share, so in what follows I provide some quotes from the document that more or less weave the story together. If you are pressed for time, here’s the summary:

Criminal proceedings against former CBF front man Texeira, ex-FIFA boss Havelange and FIFA itself for mismanagement, embezzlement and institutionalized bribery were dropped. All of these charges were documented vis a vis bank statements and contracts dealing with the marketing rights for the World Cups in 2002 and 2006 (among other things). The good Andrew Jennings has profiled these crimes in detail. The court ruled not to continue with prosecution, but considered the defendants guilty because they made partial repayment of the bribes they had received. The logic here: if they weren’t guilty, why would they have given back some of the money? This money was taken in bribes to award World Cup broadcast rights to ISL, a now defunct marketing company. At the end of the day, these criminals took bribes, made millions and then had to pay back a fraction in order to stop further prosecution, thereby stopping the investigation through a sideways admission of guilt. Along the way, they managed to come up with some defensive gems worthy of Michelle Prudhomme.  

From the Swiss Canton of Zug:

Ricardo Terra Texeira unlawfully used assets entrusted to him for his own personal enrichment several times. These commissions, which Ricardo Terra Texeira received due to his position in FIFA, were pocketed by him (for his own use), and he failed to disclose or hand over the payments to FIFA.

Joao Havelange unlawfully used assets entrusted to him for his own enrichmentseveral times. He acted with intent to enrich himself unlawfully.

 FIFA is accused of having a deficient organization in its enterprise

Blatter escapes responsibility:
The new provisions of the statute of limitations are, in principle, only applicable, with reservations for certain exceptions, if the criminal offence was committed after they came into force.

With  this, current president Blatter gets to wiggle his way out of things. FIFA released the most ridiculous interview I can remember, where Blatter had 5 very difficult questions put to him by the FIFA press office and published the responses on the website. Follow this link for a laugh. Ignorance is profitable bliss, ‘cuz you just ran out of time, biatch!

concerning the question of a possible unlawful enrichment under a legal limitation of time aspect are obsolete. October 1, 2003, and thus FIFA cannot be criminally liable for acts carried out prior to this date.”

This witty riposte dealt with one of the off-side traps pulled by the Texeira-Havelange legal team:
The federal court rejected the argument that the assumption that the requirement to deliver had been waived suggested that corresponding agreements were customary (FCD 132 III 466,consid. 4.3). Customs may play a role in assessing the mental elements of an offence, however not when determining whether a duty to disclose or to surrender possession exists.

The defendants had argued that they did not have to return the bribe payments because in Africa and South America, bribing is a “customary” way of doing business. Not to have accepted bribes as part of the contract would not only have been bad form, it would have unduly cheated them of their rightful income. This is a lesson that has been well learned by Brazil Worker’s Party, that has in turn instructed the rest of us that corruption generates impunity.

A related argument for keeping the money was that there was not need to return the bribes to FIFA because FIFA would have had to surrender them to the Swiss bankruptcy court that dealt with the failure of ISL marketing (which had paid the bribes). Thus, it couldn’t be argued that the president and vice-president of FIFA had harmed the organization by taking money destined for it. Genius.

The news coming out of FIFA these days is that they are hotfooting it to institute some reforms. This week they appointed an independent ethics team to tell the fat vats at FIFA how to behave.

This is the crack team they hand-picked for the task (we’ll try to find out more about the massive experience that Messers. Torres, Jones and Abderrahmane bring to the table from their respective homelands):

Appointment of the following persons as members of the investigatory chamber of the Ethics Committee until the 63rd FIFA Congress in 2013:
Chairman: Michael J Garcia (USA)
Mr Robert Torres (Guam)
Mr Les Murray (Australia)
Mr Ronald Jones (Barbados)
Mr Jorge Iván Palacio (Colombia)
Mr Noël Le Graët (France)
Mr Ahmed Ould Abderrahmane (Mauritania)

One of the reasons is that FIFA promised to do something about the institutional corruption and incompetence, which made them liable for the lunatics creating their own asylum is the Zug court’s finding that:
If a felony or misdemeanor is committed in an enterprise while exercising a business activity
within the scope of the enterprise and if, due to the deficient organization of the enterprise, the
act cannot be attributed to a natural person, then according to Art. 102 para. 1 PC, the act will
be attributed to the enterprise. In such case, the enterprise can be liable for a fine of up to 5
million francs.

5 million Francs to FIFA is bus fare.

With all the evidence mounted against them, we see the cleverness of the slippery, criminal mastermind at work:

Both for FIFA, Ricardo Terra Texeira and Joao Havelange, the fruits of criminal acts have to be discounted if there can never be the subject of a conviction due to the application of the statute of limitations and/or because they cannot be conclusively attributed to one Accused or the other.

This is the same way that the World Cup institutional architecture is constructed. No one has ultimate responsibility for anything, thus everyone is responsible for nothing, so anything at all can happen.

In the end, nothing more is going to happen to these crooks, but their names have been tarnished. Here is the naïve report by the Swiss judge:

It does not seem to be necessary to impose an unsuspended sentence in order to prevent the Accused from committing further felonies or misdemeanors. The current proceedings, the psychological stress connected therewith and ultimately also the surrender of not unconsiderable tangible assets should in future prevent the Accused from undermining the purposes of an association that is so clearly committed to activities that unite different peoples. If this finding applies to Ricardo Terra Texeira, then it is even more so the case with regard to Joao Havelange. This is not least of all due to his status as a retired person, which he has been for quite some time, and his advanced age, which will almost certainly preclude a criminal act.

And finally, the icing that should be written on a cake the size of Pão de Açucar:

It must be noted that none of the accused parties explicitly acknowledged a breach of the law; however, this finding is put in perspective by the fact that reparation has been paid in the amount of millions of francs, which can be considered as an implied confession of criminal conduct.


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