By: Angela Gamalski
In 2015, the United Nations announced its world goals for the year 2030. These goals included the advancement of sport as a means of improving both individual and social well-being. The most popular sports across the globe are the simplest, involving kicking a ball without the use of one’s hands or rapidly placing one foot in front of the other. Over the last century, global sporting associations have been formed to facilitate sporting interest and competitions.
Many of these sporting associations, including The International Olympic Committee (IOC) and The Fédération Internationale de Football Association (FIFA), have established legal personage in Switzerland. The rise of professional sports management has made what were simple leisure activities a big business opportunity and has thus created big opportunities for corruption and bribery. While these allegations appear legally significant, Swiss authorities have traditionally had limited abilities to hold an association or corporation organized as a Swiss legal person legally accountable for bribery or corrupt acts committed by natural persons.
In 2015, the Swiss Criminal Code was amended through a bill colloquially known as “Lex FIFA.” This new law became effective as of July 1, 2016. Following this enactment, it is now a Swiss crime to offer bribes to a public official anywhere, to offer bribes to a private individual acting in an official capacity, or for such a person to accept a bribe.
Two additional Swiss statutes related to this law may give sufficient authority to that nation’s prosecutors to bring charges against a professional sports association under “Lex FIFA.” These statutes are the Swiss corporate criminal liability and agency statutes. The Swiss agency statute establishes a new joint and several liability standard for violations committed by a legal entity’s governing officers. Thus, any “Lex FIFA” crime committed by a sporting agency’s executive board member can be imputed to the organization as a whole. Historically, sporting entities such as FIFA or the IOC have been able to avoid liability for their organizations as a whole for the actions committed by (alleged) agents. Can “Lex FIFA” be a vehicle by which these organizations be held liable?
The “Lex FIFA” amendments to the Swiss corporate criminal liability statute established penalties for a legal entity that “has failed to take all the reasonable organizational measures that are required in order to prevent such an offen[s]e.” Therefore, a sporting association which would like to avoid “Lex FIFA” penalties must demonstrate that the association has implemented systematic organizational measures to prevent criminal actions by “rogue” individuals in leadership roles. It is unclear what level of systematic organizational measures would be acceptable. One could argue that whatever measures have been in place were clearly not systematic enough to prevent criminals and criminal activities thus far.
Switzerland is rather delayed, in comparison to most other nations, in its establishment of legal prohibitions against corporate racketeering, bribery, and other corrupt behaviors. For example, Switzerland’s neighbor to the north, Germany, has also established anti-bribery laws which state that such acts are criminal offenses. Under German law, the criminality of the offense is established both when the acts occur within Germany by a person of any nationality, and also when a German citizen commits such an act anywhere in the world. By contrast, the Swiss law does not speak directly as to whether it is limited in any geographic sense.
The IOC and FIFA are two prominent sporting associations based in Switzerland which have gained notoriety in recent years for ongoing corruption and bribery issues. The IOC controls the Olympic Games and leads the Olympic Movement. In recent years, the Olympic Games have faced repeated scandals, including bidding corruption, systematic doping schemes, and sex trafficking, among others. These scandals can be attributed at some level to the executive leadership of the IOC, which has yet to accept responsibility for any systematic failures or abuses.
FIFA has previously been the subject of both U.S. and Swiss criminal investigations for alleged bribery, corruption, money laundering, and racketeering activities. On May 27, 2015, U.S. authorities filed a 47-count indictment against 14 individuals associated with FIFA. Simultaneously, Swiss authorities took seven individuals into custody at the request of U.S. authorities. These indictments were the result of a multi-year U.S. investigation into the actions of FIFA officials, and the manner in which FIFA sponsorship and event hosting contracts were awarded. The majority of those who have pled guilty are still awaiting sentencing, while other FIFA officials are expected to be tried for these charges in U.S. courts sometime in 2018.
These indictments and the eventual guilty pleas were the trigger for Switzerland’s “Lex FIFA” amendments. It remains to be seen if these laws will actually empower Swiss authorities to take legal action in the future. For example, allegations have arisen that members of the IOC’s executive board engaged in bribery and extortion acts as part of the 2016 Summer Olympics bidding process which led to Rio de Janeiro’s selection as the Olympic host city. However, as of this writing, no charges have been publicly filed in Switzerland regarding these alleged crimes.
Additionally, it may be difficult for Swiss authorities to establish that the IOC lacked “systematic organizational measures” to prevent corruption and bribery on the part of rogue individuals. Legal authorities elsewhere have established relatively lenient standards for corporations. As a result, “corporate responsibility” is largely a misnomer around the world. Corporations are far more likely to be held accountable by the financial markets or shareholders than the legal system. It is unclear that corporate responsibility could be treated any differently in Switzerland. Additionally, the professional sports associations operate as non-governmental organizations without shareholders to demand accountability.
In conclusion, Switzerland is no longer a legal safe haven for associations and other corporate entities to avoid vicarious liability for the actions of that entity’s leadership. It remains to be seen what case law will develop under these laws, and if this legal development will truly change the manner in which professional sports associations conduct business.
 G.A. Res. 70/1 (Sept. 25, 2015).
 Id. at ¶ 37.
 Bruce W. Bean, An Interim Essay on FIFA’s World Cup Of Corruption: The Desperate Need For International Corporate Governance Standards At FIFA, 22 ILSA J. Int'l & Comp. L. 367, 371-72 (Winter 2016).
 See, e.g., Olympic Charter, 2/15/1 (2015).
 SwissInfo, Swiss MPs pass ‘Lex Fifa’ anti-corruption law (Sept. 10, 2015) https://www.swissinfo.ch/eng/politics/clamping-down_swiss-mps-pass--u2018lex-fifa-u2019-anti-corruption-law/41652890.
 Schweizerisches Strafgesetzbuch [StGB] Criminal Code [CP] Sept. 25, 2015, AS 2016 1287, Art. 322, 322octies, 322septies, 322novies (Switz.). “Any person who as an employee, partner, agent or any other auxiliary of a third party in the private sector demands, secures the promise of, or accepts an undue advantage for himself or for a third party in order that the person carries out or fails to carry out an act in connection with his official activities which is contrary to his duties or dependent on his discretion is liable to a custodial sentence not exceeding three years or to a monetary penalty.” Id.
 Schweizerisches Strafgesetzbuch [StGB] Criminal Code [CP] Sept. 27, 2013 SR 812.121, Art. 29-7 (Switz.).
 Elfarnawani v. International Olympic Committee & Ethics Commission,  ONSC 6784 (Can. O.N.S.C.).
 Schweizerisches Strafgesetzbuch [StGB] Criminal Code [CP] Sept. 25, 2015, AS 2016 1287, Art. 102 (Liability under the criminal law) (Switz.).
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