Observers have generally welcomed the new ‘Lex FIFA’ – a tighter private corruption law to clamp down on cases of bribery at Swiss-based sports federations like FIFA, as well as businesses. But there are concerns over future implementation of the law and accompanying measures like whistleblower protection.This content was published on September 10, 2015 - 18:58
Roland Büchel, a Swiss People’s Party parliamentarian and one of FIFA’s fiercest critics, is delighted with the new legal changes approved by parliament this week to make private corruption a criminal offence.
“This law will undoubtedly be strong enough to sanction corruption in sports federations like FIFA in the future. I am sure that there is a strong preventive aspect to it,” said Büchel, who lodged a motion to fight corruption in FIFA and other sports organisations back in 2010.
After years of dragging its feet and under pressure from outside organisations like the Council of Europe’s Group of States against Corruption (GRECO), Switzerland is introducing legal measures to fight corruption which also affect sports federations.
On Thursday, the Swiss Senate followed the House of Representatives by voting for a proposal to beef up the nation’s corruption laws to make it an automatic criminal offence for anyone to give or accept bribes.
Under the new changes, private corruption could be punished by a maximum three-year jail sentence. Sanctions will apply to firms, private associations and sports federations.
The law would make it possible for federal prosecutors to launch corruption probes against the 60 international sporting federations, including FIFA and the International Olympic Committee, that are based in Switzerland.
Until now, private corruption investigations in Switzerland could only be launched if an organization, individual or group filed a complaint about alleged malpractice within its own ranks.
Parliamentarians, however, introduced an exception into the new legislation. It agreed Swiss prosecutors would only be able to automatically consider serious cases of corruption. So-called “light cases” will still require a complaint.
Justice Minister Simonetta Sommaruga complained that in so doing parliament had watered down the cabinet’s original private corruption proposal.
“There is no reason to make exceptions to the automatic prosecution of private corruption,” she railed.
Critics say this restriction will pose application problems. Who will decide what a ‘serious case’ is? When should one act? If the legislature is not deciding the seriousness of an act, then it will be the job of the prosecutor. This vagueness risks introducing legal uncertainty and complicating corruption cases.
Carlo Sommaruga, a Social Democrat parliamentarian who has been leading the anti-corruption fight against FIFA and other sports federations, said the new law sent an important warning to top sports officials. But he also felt it had been watered down slightly and suffered from vague definitions.
“Currently the government is more progressive than parliament on issues such as tax transparency, the abolition of banking secrecy or fight against corruption or money-laundering,” he declared. “Within parliament, various economic interest groups try to slow down the process or introduce exemptions into laws. We saw this with money-laundering law and it’s the same with this corruption law.
Facing external and internal pressures, the Swiss government has been trying to improve oversight of sports federations for several years. This latest change to the law is part of a set of legal measures, known as “Lex FIFA”, recommended in the Federal Sports Office 2012 Report on Corruption.
As part of the “Lex FIFA” package, in December 2014, Swiss parliament voted to make leaders of sports organisations and top officials based in Switzerland designated as so-called “Politically Exposed Persons” subject to corruption investigations. This law change is part of larger money-laundering legislation.
Carlo Sommaruga said the new legislation sent an important signal. But he wondered whether Switzerland “has the means to properly implement the legislation and if judicial authorities are willing to do this work?”
Jean-Loup Chappelet, professor at the Swiss Graduate School of Public Administration in Lausanne, and an expert on sports federations, agreed it was important to beef up the Federal Prosecutor’s Office for it to be able to properly do its job.
“There is a need to pass a federal law to protect whistleblowers like in the UK or US,” he added.
The current whistleblowing act proposal, initially presented by the cabinet in 2008, is still shuttling back and forth between various parliamentary commissions and cabinet offices.
Further law changes?
Meanwhile, other legal changes have been suggested. Several Swiss parliamentarians would like to see a revision of the status of FIFA and similar organisations, which are treated like non-profits under Swiss law.
But the government doesn’t think such changes are necessary. It recently rejected a motion by the Social Democrat parliamentarian Susanne Leutenegger Oberholzer to create a special Swiss law governing billion-franc sports federations.
In a written reply earlier this month, the cabinet argued that larger sports federations were already obliged to meet strict accounting standards. It added there was no need to separate federations’ commercial activities from their regulatory activities.
State oversight of federations was also not appropriate, as this job is normally assumed by general assemblies and it is not worth reviewing the law of associations, as in general they ‘function well’, it concluded.
Reforming sports federations is never-ending, admit observers. In theory, the responsibility for cleaning up sports federations lies with the organisations themselves, not the authorities, said Jens Sejer Andersen, director of the independent sports watchdog, Play the Game.
“But in practice they do as little as possible and only after huge public pressure. We need to maintain this pressure so that other governments join in and demand for greater transparency and better governance of international sports organisations,” said Andersen.
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