Suspended FIFA president Sepp Blatter is being investigated by the Swiss authorities for criminal mismanagement and criminal misappropriation of funds. It seems the basis for this investigation is evidence that firstly supports Sepp Blatter having mis-sold a TV rights contract to Jack Warner, a FIFA official, on the basis that the sale was for a fraction of the market rate, and secondly, making a disloyal payment to Michel Platini (suspended UEFA President) in 2011. Mr Platini received two million Francs from Mr Blatter in 2011, for work performed between 1999 and 2002. These payments were from FIFA's funds and under the Swiss law, any such outgoings against the best interest of the employer (in this case FIFA) are classified as 'disloyal payments'. It is alleged that this payment was made for reasons other than that given by Mr Blatter, and to the detriment of FIFA.
But what do the terms mismanagement of funds and misappropriation of funds mean?
Misappropriation is the intentional misuse or illegal use of another person's property or funds, for one's own use, or any other unauthorised use. In this case, the mishandling occurs and the crime is committed by a person with a fiduciary duty. A fiduciary duty is a legal duty for Mr Blatter to act in the best interests of FIFA, but clearly if the allegations are proved, then Mr Blatter's actions cannot be said to be in FIFA's best interests since FIFA seems to have lost out on a lot of money. Mr Blatter carries a fiduciary duty because he is a public official. As President of FIFA, he was entrusted with a responsibility to protect FIFA's assets. If he broke this trust by knowingly and willingly committing a fraud and using the funds inappropriately, then this is misappropriation.
Mismanagement of funds is similar in nature. Mismanagement is where Mr Blatter fails to observe laws or guidelines when handling finances for FIFA. The Swiss would have to show some form of negligence or neglect on the part of Mr Blatter. Mismanagement of funds may include violations of Mr Blatter's duties to FIFA.
What would be the position if Mr Blatter had been arrested and charged in England? After all, we have an interest in FIFA and football is one of our national sports. In England the charge would be for 'Misconduct in Public Office' and it is an offence at common law (as opposed to statutory law made by Parliament), which is so serious that it can only be tried in a Crown Court. It carries a maximum sentence of life imprisonment. It is an offence which applies to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that breaches the duties of that office. Here, the office holder would be Mr Blatter because he is a public officer, which although not clearly defined, is assessed on the facts - taking into account the nature of the role, the duties carried out and the level of public trust involved. The President of FIFA is surely a public officer especially as the level of public trust is international.
The offence is committed if Mr Blatter wilfully neglected to perform his duty and/or wilfully misconducted himself to such a degree as to amount to an abuse of the public's trust in him as President, without reasonable excuse or justification. If the allegations are proved to be true, this would show neglect and misconduct which would amount to an abuse of the public's trust, particularly as it appears to concern back-room deals for hosting the world cup. Whether Mr Blatter has an excuse or justification remains to be seen.
The House of Lords has given guidance on enforcing this offence. They state that if there is a statutory offence then that should be applied instead of the common law offence. So for example, if Mr Blatter were accused of taking bribes, then the Bribery Act 2010 would come into play and there would be a bribery offence charged instead of 'Misconduct in Public Office'. 'Misconduct in Public Office' should only be pursued if there is no statutory offence to rely on; or if the statutory offence would be difficult to use. For example where there is not enough evidence to satisfy it; or if the maximum sentence for the statutory offence would be entirely insufficient for the seriousness of the offence. In the last circumstance, 'Misconduct in Public Office' may be applied as an aggravating factor to increase the sentence. The Bribery Act 2010 carries a maximum penalty in the Crown Court of ten years imprisonment, so the common law offence of 'Misconduct in Public Office' could be used instead to apply a harsher penalty on conviction.
Would ten years imprisonment be adequate for someone who has such a responsible position internationally?
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