Reforming FIFA Inside-Out : Fit-for-Purpose Governance Structure for the Global Soccer Governing Body

Soccer and sports have developed into a commercial venture and the self-governing nature of Global Sports Organizations (GSOs), especially that of FIFA, is not fit for purpose in the 21st century. The work examines whether the doctrine of “specificity of sport” justifies the unaccountable nature of FIFA (the global football body). The work questions the complicity of sovereign states and corporate bodies in FIFA’s unaccountable nature as football has become a “legitimate” means of exploiting taxpayers all over the world whenever FIFA’s premier event (the world cup) is hosted perennially.The reforms in FIFA due to the enactment of the FIFA Governance Regulations in February, 2016 and other amendments to FIFA’s regulations are not sufficient to ensure probity and transparency in FIFA (an organization with a complete monopoly over the administration of football globally). The most effective means of achieving transparency in GSOs especially FIFA requires sovereign states and corporate bodies to exercise some degree of indirect supervision of FIFA. This argument is predicated on the fact that no single self-governing organization has managed to be accountable without some form of supervision. These measures include the removal of all jurisdictional limitations that may prevent FIFA officials from being held accountable in the performance of their fiduciary duties. It also includes various enforcement mechanisms and a sui-generis FIFA treaty which allow stakeholders in FIFA to sue FIFA and any of its officials and executives in any part of the world for breach of their fiduciary duties.This essay is divided into four sections. The first section reviews existing literature on the nature of sport governance and the doctrine of ‘specificity of sport’ which preserves the autonomy of Global Sport Organizations (GSOs) especially FIFA. Most importantly, it examines adverse effects FIFA’s independence requirement has played in ensuring the unaccountability of its Member-Associations (MAs) to relevant governments when the latter provides its funding.The second section adopts a functional approach in analyzing the adequacy of corporate governance reforms reflected in the relevant laws of FIFA especially the FIFA Governance Regulations 2016 (FGR), FIFA Statutes 2016 (FS) and the FIFA Code of Ethics 2016 (FCE- abbreviations required for reference purpose in the course of the work). The recent FGR 2016 is central to this discourse. Necessary recommendations will thereafter be suggested. The major provisions in this new law which attempt to introduce acceptable corporate governance principles to FIFA include the introduction of eligibility and independence criteria, for which specific recommendations are needed to strengthen these provisions. The section emphasizes the necessity of neutrality among FIFA officials to enhance the proper discharge of their’ respective duties. Most importantly, FIFA has introduced a number of provisions especially term limitation for all its principal officers which hitherto never existed. Again, the FGR 2016 introduces clear provisions which prohibits solicitation for bribes, offering and accepting gifts, conflict of interests and related party checks provision to deal with perennial abuse of fiduciary position which has engulfed FIFA in over two decades. All these provisions were introduced to ensure FIFA adopts best practice in corporate governance. However, the section will conclude that FIFA’s reforms can be appropriately described as selective and do not address the fundamental challenges of FIFA. Section two proposes appropriate reforms.The third section argues that since sovereign states and corporate sponsors are the greatest allies of FIFA, the only practical means of ensuring transparency and accountability in FIFA largely depends on the willingness of both parties to assert their influence in ensuring FIFA does not exploit its dominant position. It recommends the expansion of the powers of the Court of Arbitration for Sports (CAS) to award adequate remedies for affected sovereign states. It also proposes criminal and civil prosecution of principal FIFA officials under a sui-generis treaty applicable to FIFA as well as prosecution under relevant domestic laws.The fourth section concludes that the doctrine of specificity of sport does not exempt FIFA and other GSOs from being regulated by appropriate state agencies indirectly. Once any of the decisions of FIFA or any GSOs have economic significance, sovereign states may apply appropriate sanctions under their relevant domestic laws to investigate and prosecute any alleged wrongdoing. At this juncture, it is important to note that Prof. Bruce W. Bean of the Michigan State University College of Law has done extensive legal research on the applicability of the Foreign Corrupt Practices Act in the United States to FIFA Officials in a bid to hold them accountable within the US jurisdiction. Consequently, this will not be the focus of this work