FIFA corruption scandal raises unique issues in extradition law

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With the unveiling of a ninety-two-count indictment against top officials in world soccer,[1] U.S. Attorney General Loretta Lynch and the U.S. Attorney’s Office in Brooklyn have revealed the astonishing breadth of the long-suspected corruption schemes permeating Fédération Internationale de Football Association ("FIFA”), FIFA’s continental governing bodies, and prominent international sports-marketing firms.[2] The allegations describe a twenty-four-year, multi-generational conspiracy of bribes and other illicit transactions, totaling more than $200 million,[3] in exchange for votes on proposed sponsorship and marketing deals.[4] One of the more appalling allegations suggests FIFA officials received $10 million for their votes for South Africa to host the 2010 World Cup, money which otherwise might have funded South Africa’s World Cup preparations.[5] The complaint names forty-one defendants,[6] including former executives of The Confederation of North, Central American and Caribbean Association Football (“CONCACAF”),[7] The South American Football Confederation (“CONMEBOL”),[8] Traffic Sports USA, Inc.,[9] and Full Play Group S.A.[10] Eight have pleaded guilty.[11]

The scandal has touched on several elements of international law that merit attention. First, seven defendants were detained in Switzerland in May 2015 following the dramatic pre-dawn raid of two luxury hotels in Zurich just days before FIFA’s presidential election.[12] Two, Aaron Davidson and Eugenio Figueredo, are U.S. nationals who must be extradited back to the United States for prosecution,[13] while the others are citizens of various other countries.[14] Second, FIFA, CONCACAF, CONMEBOL, and some of the sports marketing companies are organizations based outside the United States. FIFA is headquartered in Switzerland,[15] CONCACAF in the Bahamas,[16] CONMEBOL in Paraguay,[17] and Full Play Group S.A. in Argentina.[18] For their conduct to be subject to U.S. law, there must be identifiable acts within U.S. jurisdiction. In FIFA’s case, prosecutors have cited the U.S. banking system as the crucial link between the defendants’ alleged crimes and the jurisdictional reach of the United States’ criminal-justice system.[19]

Warner in Oval Office
Defendant Jack Warner (R) with FIFA Pres. Joseph "Sepp" Blatter (C)
and U.S. Pres. Barack Obama (L)

The alleged corruption scheme operated as a classic money laundering operation.[20] One particular allegation contends that FIFA wired three installments totaling $10 million “from a FIFA account in Switzerland to a Bank of America correspondent account in New York City for credit to accounts held in the names of CFU and CONCACAF, but controlled by the defendant Jack Warner, at Republic Bank in Trinidad and Tobago.”[21] Warner then allegedly diverted a percentage of these funds into his personal account by laundering the money through a Trinidadian supermarket chain and a real estate investment firm.[22] This use of the U.S. financial system to channel bribery payments is the cornerstone of the prosecution’s allegations against international soccer officials.

The defendants have been charged with crimes under The Racketeer Influenced and Corruption Organizations Act of 1970 (“RICO”).[23] RICO was adopted with the intent of eliminating “the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.”[24] Originally employed to charge members of the Mafia in prosecution-friendly federal courts with mandatory minimum sentences, RICO has evolved to be used in cases ranging from insider trading, tax evasion and stock parking[25] to political back scratching. [26] A successful RICO conviction requires proof of at least two predicate offenses.[27] These include gambling, extortion, bribery, counterfeiting, embezzlement, fraud, money laundering, and racketeering.[28]

The present defendants are charged with racketeering, money laundering, wire fraud, and conspiracy those offenses.[29] As previously stated,[30] the prosecutors carefully limited the allegations to conduct specifically occurring on U.S. soil. The rationale for this specificity arises from a case awaiting examination by the U.S. Supreme Court, RJR Nabisco v. European Community.[31] The Second Circuit Court of Appeals reversed dismissal of the European Community’s claims as to a number of alleged RICO predicates, because “Congress has clearly manifested an intent that they apply extraterritorially.”[32] To support its position, the court cited numerous examples of predicate acts that could only be satisfied by conduct occurring outside U.S. borders.[33] The Supreme Court may now decide whether RICO predicates can be satisfied through extraterritorial conduct. Because of this ambiguity, the Department of Justice (“DOJ”) carefully structured its complaint so as to avoid risking a dismissal on the basis of satisfying RICO predicates through extraterritorial acts.

The other international law-issue in the FIFA scandal concerns extradition of accused criminals.[34] Extradition is at least partly based on a “mutual complementary dut[y] to combat international and transnational forms of criminality on the grounds that world order rests in part on a level of international and national order[.]”[35] As international crime has become more prominent, nations have adopted treaties to standardize the process for transferring criminal suspects.[36] A state requesting extradition normally contacts the asylum country[37] through diplomatic channels to request that the alleged criminal be detained.[38] When the requesting state is the United States, a judicial official is appointed to certify that the extradition request satisfies the substantive doctrine of “specialty” and that “sufficient evidence” exists to sustain the charge.[39] The legal standard for “sufficient evidence” is whether a “reasonable belief of guilt of the crime charged” exists.[40] Upon U.S. certification, the asylum state will appoint a judicial officer of its own to determine whether the offense falls within the parameters of the extradition treaty.[41] This conclusion is premised on the substantive requirement of dual criminality.[42]

“Dual criminality” means that the crime charged in the requested state is also a crime in the requesting state.[43] The crimes do not have to be codified similarly; the requirement is merely that the conduct be criminalized in both countries.[44] This principle of dual criminality has largely replaced the previous doctrine of “extraditable offenses”, wherein an asylum country[45] could deny extradition if the alleged crime was not mentioned in the relevant extradition treaty.[46]

The rule of “specialty” also functions as a limiting principle to extradition. Specialty “stands for the proposition that “[a] person who has been extradited shall not be detained, proceeded against, or sentenced for any offense committed prior to surrender other than that for which extradition has been granted,” absent a couple of exceptions.[47] This doctrine’s purpose is to protect surrendered persons from indiscriminate prosecution and persecution by a receiving country.[48] The relevant inquiry in determining whether the requirement of specialty is satisfied is whether the surrendering country would find the “prosecution in question to be a breach of the extradition order.”[49] A judicial officer from the requesting country makes this determination.[50]

In the case of the FIFA scandal, world soccer executives were detained in Zurich, Switzerland on May 27, 2015, at the request of the U.S. Department of Justice, which filed an indictment with RICO charges against the fourteen defendants earlier that day.[51] The United States then requested extradition of those defendants pursuant to its bilateral extradition treaty with Switzerland.[52] Some defendants consented to the extradition,[53] while other vowed to contest it.[54] Most of the extradition requests have been approved.[55]

The United States was originally granted extradition over Eugenio Figueredo, a former vice-president of CONMEBOL and dual U.S.-Uruguayan citizen.[56] However, after receiving an extradition request from Uruguay, Switzerland changed its mind and instead sent Figueredo to Uruguay for prosecution.[57] In contrast, Switzerland granted a U.S. extradition request for Julio Rocha, former president of the Nicaraguan soccer federation, over a competing request from Nicaragua.[58]

These contested petitions raise an interesting issue within the context of international criminal extraditions. Article 17 of the U.S.-Switzerland bilateral extradition treaty provides that the “requested state shall consider all factors, including but not limited to the relative seriousness and place of commission of the offenses, the respective dates of receipt of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another state,” when deciding between competing claims for extradition.[59] However, the treaty does not address whether the losing country has redress to appeal the requested state’s decision, and if so, which court would have jurisdiction over the appeal. This gap within the international extradition law does not seem likely to be tested in the FIFA scandal, but the question remains open for future proceedings. One such example might be a drug dealer accused of distributing illegal drugs in multiple countries, each with a comparable interest in prosecution. Should this situation arise, an international procedure must be created to sort out the competing requests. One good solution would be for the United Nations to add a provision in the Rome Statute that would allow the International Criminal Court to have jurisdiction over such an appeal. One major caveat to this proposal is that the United States is not party to the Rome Statute.[60] Therefore, an all-encompassing proposal will provide a means for the United States and other countries abstaining from the International Criminal Court to seek redress. Nevertheless, this oversight represents a significant international law issue that merits further study.

[1] In countries besides the United States, the terms “football” or “fútbol” are used to describe “a game played on a field between two teams of eleven players each with the object to propel a round ball into the opponent’s goal by kicking or by hitting it with any part of the body except the hands and arms.” See Merriam-Webster’s Collegiate Dictionary (11th ed.).

[2] Superseding Indictment at 149–224, United States v. Hawit, et. al., (E.D.N.Y. Nov. 25, 2015) (No. 1:15-cr-00252-RJD), available at [hereinafter Indictment]. See also Sixteen Additional FIFA Officials Indicted for Racketeering Conspiracy and Corruption, U.S. Dep’t of Justice (Dec. 3, 2015), [] [hereinafter DOJ Press Release].

[3] See DOJ Press Release, supra note 2, at para. 2.

[4] See Indictment, supra note 2, at 124–131.

[5] See Indictment, supra note 2, at 91–92.

[6] See DOJ Press Release, supra note 2, at para. 5.

[7] The former representatives of CONCACAF charged in the criminal complaint include: Alfredo Hawit, Ariel Alvarado, Rafael Callejas, Brayan Jiménez, Eduardo Li, Julio Rocha, Rafael Salguero, Costas Takkas, Héctor Trujillo, Reynaldo Vasquez, and Jack Warner. Indictment, supra note 2, at 15–20.

[8] The former CONMEBOL representatives charged in the criminal complaint include: Juan Ángel Napout, Manuel Burga, Carlos Chávez, Luís Chiriboga, Marco Polo Del Nero, Eduardo Deluca, Rafael Esquivel, Eugenio Figueredo, Nicolás Leoz, José Maria Marin, José Luís Meiszner, Romer Osuna, and Ricardo Teixeira. Indictment, supra note 2, at 20–25.

[9] Aaron Davidson, a U.S. citizen, was at one point the president of Traffic Sports USA, Inc. Indictment, supra note 2, at 25–26. 

[10] Hugo and Mariano Jinkis were the controlling principles of Full Play Group S.A. Indictment, supra note 2, at 26.

[11] See DOJ Press Release, supra note 1, at para. 1.

[12] Rodgers & Hjelmgaard, USA Today para. 3 (May 27, 2015), [].

[13] Figueredo is a dual U.S.-Uruguayan citizen. Indictment, supra note 2, at 23.

[14] Nationalities of other defendants include: Argentina, Brazil, the Cayman Islands, Costa Rica, Nicaragua, Paraguay, Trinidad and Tobago, the United Kingdom, and Venezuela. Indictment, supra note 2, at 15–26.

[15] Indictment, supra note 2, at 2.

[16] Id. at 9–10.

[17] Id. at 10.

[18] Id. at 26.

[19] See id. at 50–52.

[20] See Indictment, supra note 2, at 87–90 (discussing the Trinidad and Tobago Football Federation); Indictment at 93 – 95 (alleging that defendants used banks in the Bahamas and Trinidad and Tobago to conceal a transaction’s true nature).

[21] Indictment, supra note 2, at 93.

[22] Id. at 94.

[23] See id. at 149–224.

[24] S. Rep. No. 617-91, at 76 (1969).

[25] Michael Milken, the so-called “Junk Bond King,” was threatened with RICO charges when it was discovered he used an intricate web of contacts in the financial world to manipulate the prices of securities for tremendous personal profits. Michael Buchanan, Reasonable Doubt paras. 1–2 (Nov. 20, 2011), [].

[26] Louisiana Commissioner of Agriculture and Forestry Gil Dozier was found guilty of the RICO predicate offenses of extortion and racketeering for taking bribes and using his department to fleece legitimate Louisiana businesses for campaign donations. U.S. v. Dozier, 672 F. 2d 531, 535–37 (2nd Cir. 1982).

[27] 18 U.S.C. § 1961(1)(A)–(G) (Racketeer Influenced and Corrupt Organizations Act of 1970) (2014).

[28] Id.

[29] See Indictment, supra note

[30] Supra ¶ 3.

[31] RJR Nabisco, Inc., v. European Cmty., 136 S. Ct. 28 (No. 15-138) (granting petition for writ of certiorari to the Supreme Court of the United States).

[32] RJR Nabisco, Inc. v. European Cmty., 764 F. 3d 129, 133 (2nd Cir. 2014).

[33] The Second Circuit cited 18 U.S.C. §§ 2332(a) and 2423(c) as evidence of RICO predicates that can only be satisfied through extraterritorial conduct. Id. at 136.

[34] M. Cherif Bassiouni, International Extradition: United States Law and Practice 29 (2001); see also La Forest, The Balance between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings, 28 Queen’s L.J. 95, 96, n. 1 (2002) (arguing that the admissibility and sufficiency elements of the evidentiary requirements at an extradition hearing “should be seen purposively as part of an integrated scheme that seeks to balance the liberty of the fugitive with the objectives of international cooperation in criminal matters and respect for [a nation’s] treaty partners”) [hereinafter La Forest].

[35] See BASSIOUNI, supra note 34, at 58–60

[36] See id. at 46–47.

[37] The country in which the defendant is captured.

[38] See BASSIOUNI, supra note 34, at 58–60.

[39] Understanding American Extradition Laws, HG Legal Resources paras. 4–7.

[40] See id.

[41] See id.

[42] See id.

[43] B ASSIOUNI, supra note 34, at 465–66.

[44] Id. at 466–67.

[45] The country in which the defendant is captured. See supra note 37.

[46] See BASSIOUNI, supra note 34, at 466–68.

[47] The exceptions can be found under Article 16. U.S. Extradition Treaty with Switzerland, U.S.-Switz., Nov. 14, 1990, 1990 U.S.T. Lexis 221 [hereinafter U.S.-Switz Extradition Treaty].

[48] See BASSIOUNI, supra note 34, at 511–18.

[49] See id.

[50] See id.

[51] Rodgers, supra note 12, at paras. 1–4.

[52] See DOJ Press Release, supra note 2.

[53] See DOJ Press Release, supra note2, at paras. 1–7.

[54] See id.

[55] See id.

[56] Swiss Agree to Extradite FIFA Official to Uruguay, SwissInfo paras. 1–4 (Nov. 11, 2015), [].

[57] Id.

[58] Jeff Zalesin, Swiss pick US over Nicaragua for latest FIFA Extradition, Law 360 paras. 1–3 (Oct. 15, 2015), [].

[59] U.S.-Switz. Extradition Treaty, supra note 47, at Art. 17.

[60] Rome Statute of the Int’l Criminal Court, July 17, 1998, 2187 U.N.T.S. 3.

Posted by Joseph A. Fleishman on Sun. January 24, 2016 7:56 AM
Categories: Conflict of Laws, Corruption, Criminal Law, Extradition, Reports (longer, analytical blog posts), United States

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