Long arm jurisdiction - are you subject to the law? - Written by Barry & Richard on Thursday, June 2, 2011 11:39 - 2 Comments
Could the SFO intervene in the unfolding FIFA story under the Bribery Act? It’s a game of two halves
However, it’s been suggested by legal commentators that the SFO would remain powerless to intervene in the allegations swirling around FIFA today if they related to activities after July 1 in a post Bribery Act world.
While three out of the four offences under the Bribery Act require the offender to be a British citizen or similar, someone ordinarily resident here, a UK company or a Scottish partnership, the fourth offence of failing to prevent bribery requires no such ‘close connection’.
Putting to one side that individuals who are British overseas territories citizens (which could include certain members of CONCACAF) do have a close connection importantly the new failure to prevent bribery offence applies to any relevant commercial organisation anywhere in the world.
Is FIFA a relevant commercial organisation? Yes, without doubt key elements of it are and the association itself may well be.
A cursory review of FIFA’s accounts signed in March this year reveal it has a number of active consolidated subsidiary companies. On any view a company meets the relevant commercial organisation test under the Bribery Act. So FIFA would be caught under the Bribery Act.
It is also likely that the Swiss association that is FIFA would fulfil the criteria. According to its accounts for the period 2007-2010 its results were USD 631 million and it increased its reserves to USD 1,280 million.
The average football fan would probably consider that to be a fairly successful commercial organisation. Arguing the Swiss legal entity is not a relevant commercial organisation test would require a technical legal argument. It’s far from clear it would be a successful one.
Does FIFA conduct or carry on part of a business in the UK? – the other key test under the Bribery Act for the failure to prevent bribery offence. Last weekend’s final between Barcelona and Manchester United at Wembley watched by thousands of witnesses fans suggest that it does. [Ed: OK that was UEFA but we're allowed some artistic licence I think we all get the point...]
There may well be other factors.
There has been talk of some form of “immunity” from prosecution in Switzerland. If (and it is a big if) that extended to corruption then the fact of an immunity would not satisfy the legality requirements under the Bribery Act.
While we agree with the analysis that there is little that can be done under the law as it stands today, in a month’s time the position would be different.
As in football, this is a game of two halves.