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Foul—any act that is unfair, dangerous, or against the game rules.  This is a violation of Law 12 enumerated in FIFA’s rule book.  Ironically, FIFA leaders have recently come under heat for actions that are against the game rules, that is, against the law.  On May 20, 2015, U.S. prosecutors indicted nine FIFA officials for corruption.

Back in October of 2014, a former U.S. attorney announced that he had investigated the World Cup bidding process…

FIFA—Fédération Internationale de Football Association—is the world’s largest international governing body of association football (American soccer); it is most known for its involvement with the World Cup.  The World Cup occurs every four years, with the last one occurring in 2014 in Brazil.  FIFA has a bidding process for the selection of where the World Cup will take place every four years.  To simplify, request are sent out by FIFA, member associations bid, FIFA evaluates those bids, then selects the candidate for approval.

Back in October of 2014, a former U.S. attorney announced that he had investigated the World Cup bidding process. Specifically, he questioned the 2018 World Cup awarded to Russia and the 2022 World Cup awarded to Qatar.  Apparently, FIFA officials were being paid off and participating in backdoor deals to select a candidate instead of following the bidding process.  It was even suggested that President Putin personally helped with the persuasion of Russia 2018 World Cup vote, including giving a Picasso to one FIFA official.

Now FIFA officials are facing U.S. federal criminal charges for their racketeering…

Michael Garcia, now the Independent Chair of the Investigatory Chamber of the FIFA Ethics Committee, urged that his report be published.  Well, Garcia’s wishes were granted.  Now FIFA officials are facing U.S. federal criminal charges for their racketeering—obtaining money illegally and carrying on illegal business activities.

United States prosecutors allege that the nine FIFA officials collected almost $150 million in illegal profits.   The officials engaged in bribery, with one FIFA official receiving $10 million in bribes. U.S. Attorney General Loretta Lynch stated that “[t]hese individuals and organizations engaged in bribery to decide who would televise games, where the games would be held, and who would run the organization overseeing organized soccer worldwide.”

So how will U.S. prosecutors be able to go after these international criminals—RICO

There is only one problem—FIFA is an association governed by Swiss law, not United States laws.  So how will U.S. prosecutors be able to go after these international criminals—RICO.  The Racketeer Influenced and Corrupt Organizations Act (RICO) was passed by Congress in 1970 in an effort to combat Mafia groups.  This was the legislation that “Rudy Giuliani used to shut down the heads of the Five Families in the 1980s.”

Essentially, a RICO claim arises when there is a pattern of racketeering activities by a member of a criminal enterprise.  Title 18, Section 1961 of the United States Code identifies several different racketeering offenses including the financial crimes FIFA officials are alleged to have committed—money laundering conspiracy and wire fraud.  Notably, these offenses are in and of themselves separate crimes; however, it is the repeated commission of these activities that gives rise to a RICO Act claim.

Under RICO, the individual charged could face criminal and civil penalties.  The FIFA officials are, of course, facing criminal charges.  The specific elements of a RICO claim include a person (1) involved in an enterprise (2) operates through a pattern of (3) racketeering activity.

Enterprise

Title 18, Section 1961 defines enterprise to include a partnership, corporation, association, and even informal groups that are not legal entities, such as mafia groups.  Luckily of U.S. Attorney General Loretta Lynch, FIFA easily meets this element as legal association.  Although FIFA is a legitimate association used for a purpose other than any criminal activity, the fact that these individuals used FIFA as an association to conduct their bribery schemes makes FIFA a criminal enterprise.

Pattern

Additionally, for the activity engaged in by the charged individual, there must be a pattern.  The United States Supreme Court explained in its 1985 decision, Sedima v. Imrex Co., that in order to qualify as a pattern, the activity must be related and continuous.  Relatedness is determined by similar characteristics such as same victims and methods of commission.  To meet continuity, the criminal activity must occur over a substantial period of time.  According to the federal indictment, FIFA is accused of engaging in criminal activity, all related to the same method of commission by using the enterprise for their corruption, and for a period of 24 years.

Racketeering Activity

As mentioned above, racketeering activity includes financial crimes of bribery and fraud.  FIFA officials allegedly used their positions within the association to “engage in schemes involving the solicitation, offer, acceptance, payment, and receipt of undisclosed and illegal payments, bribes, and kickbacks.”  Their corruption includes fraud, bribery, and money laundering, all with the end goal of personal and commercial gain.  The corruption doesn’t stop there, according to the indictment; these officials also went through great heights to protect each other from being discovered by concealing foreign bank accounts and structuring financial transactions.

The FIFA officials will likely challenge the application of RICO extraterritorially

It seems the United States has a solid case against the FIFA officials.  If the U.S. prosecutors succeed, the individuals charged could face up to 20 years in prison, a fine of at least $250,000, and automatic forfeiture of all of the individual’s interest in the organization.  The obvious problem the U.S. prosecutors could face is the application of RICO outside of U.S. territory.

The FIFA officials will likely challenge the application of RICO extraterritorially.  As a general rule, Kiobel v. Royal Dutch Petroleum held that U.S. legislation does not apply outside of the United States unless Congress specifically says so.  RICO on its face does not specifically state that its laws apply extraterritorially, and therefore cannot apply to a FIFA official’s criminal activity because it appears that their corruption occurred abroad.

However, just last year the United States Court of Appeals for the Second Circuit held in European Community v. RJR Nabisco, Inc. that RICO does apply outside of the United States.  In order for RICO to apply extraterritorially, FIFA officials must have “committed predicate crimes covered by RICO that reach beyond U.S. borders.”  This means the FIFA officials must have committed separate criminal acts that violate statutes that specifically apply outside of the United States.  In European Community, that criminal act was killing an American national outside of the United States.  Perhaps the underlying financial crimes committed by the FIFA individuals will be sufficient. For example, the money laundering charge in violation of 18 U.S.C. § 1956, an act that suggest some type of authority of foreign persons, may be sufficient for RICO to apply to the charge FIFA officials.

It appears the U.S. prosecutors have a strong case, either way, because several FIFA officials have already taken plea deals.  Since most of the accused FIFA officials are in their late 50s at least, it seems staring down a possible 20 years prison sentence is enough to get some FIFA officials to share the secrets behind the biggest sports scandal in history.