Almost a decade after police officers removed world football officials from a luxury hotel in Zurich (Switzerland) at dawn, revealing a corruption scandal that rocked the world’s most popular sport, the case is at risk of falling apart.
The turnaround occurs due to questions about a possible exaggeration by American prosecutors when applying United States law to a group of people, many of them foreigners, who defrauded international organizations by carrying out bribery schemes around the world — the case became known as Fifagate .
The United States Supreme Court last year limited a fundamental law in the case. Shortly afterwards, in September, a federal judge overturned the convictions of two defendants linked to football corruption, citing this fact.
Now, several former officials, including some who paid millions of dollars in fines and served prison sentences, are arguing that the bribery schemes for which they were convicted are no longer considered a crime in the country. Emboldened by the overturned convictions, they are asking for their court records to be expunged and their money returned.
Hopes are linked to September cases. Those two defendants benefited from two recent Supreme Court decisions that rejected the application of the law at issue in the football cases.
The defendants had been found guilty of involvement in a bribery scheme that deprived organizations outside the United States of the honest services of their employees, which constituted fraud at the time. But the judge ruled that the court’s new guidance meant such actions were no longer prohibited by the law of the land.
Disputed by federal prosecutors in New York, this blow to the case could turn a story about the deep-rooted corruption in world football — detailed in a 236-page indictment and proven by 31 guilty pleas and four convictions at trial — into another story about the long arm of American justice going too far.
“It’s quite significant, as the judge rejected the government’s basic theory [acusação]” said Daniel Richman, a former federal prosecutor and law professor at Columbia University. He called the new interpretation “surprising but well-founded.”
Prosecutors from the U.S. Attorney’s Office for the Eastern District of New York are preparing to fight back. “This office will vigorously defend convictions and will not stand idly by if offenders seek to recover millions of dollars in ill-gotten gains,” spokesman John Marzulli said Thursday.
In a court filing this month, prosecutors argued that federal judge Pamela Chen, who presided over the FIFA cases, misinterpreted the Supreme Court. The foreign defendants, they said, had “substantial U.S. ties and activities” and showed they knew what they did was a crime.
The legal debate comes amid growing concern that global sporting organizations operate in a world of their own, untouchable by authorities. Systemic corruption among global football’s top leaders has been widely documented, but until the Justice Department built its case and brought charges in 2015, no government had risked tackling it in such an ambitious way, with charges spanning three continents.
Once public, the FIFA investigation became one of the largest transnational corruption cases in U.S. history: it required cooperation from officials abroad who helped make arrests and extradite defendants to the country, and revealed decades of bribery, accusations of secret contracts, cash deliveries, court intimidation and the official confirmation that millions of dollars influenced the votes to award the 2018 and 2022 World Cups to Russia and Qatar respectively.
The case was a boon for lawyers and a warning for international sport. It boosted the profile of American prosecutors, praised for creatively enforcing the U.S. honest services bank fraud law, which prohibits people from betraying their employers by engaging in bribery and kickback schemes that divert money into their own pockets. The legal strategy was widely seen as an innovative way to combat bribery in foreign trade.
The accusations led to an overhaul of FIFA’s top brass, including the dismissal of its long-time president, Sepp Blatter, and turned some key figures into celebrities. Loretta Lynch, US Attorney General at the time, was nicknamed Fifa-Jägerin (“the FIFA hunter”) by the German media.
It was far from the first time the Justice Department had brought complicated charges with global angles. But the scope of the case and its disproportionate focus on other parts of the world have raised questions about why federal prosecutors in Brooklyn chose to invest years of resources into the investigation. As justification, they pointed to the defendants’ use of American banks and, more broadly, the “affront to international principles” that, according to Lynch, their schemes represented.
Now, as U.S. prosecutors prepare to defend their work before a federal appeals court, the idea that U.S. law could be applied where others were unable or unwilling to act is in question. That opened the door to a dramatic possibility: that prominent sports officials and businesspeople who were found guilty of soliciting or accepting bribes could have their convictions overturned and their fortunes returned.
In an interview last week, former president of Conmebol and the Paraguayan Football Association Juan Ángel Napout said he was sentenced to serve as an example. “Why me? They needed someone, and it was me,” he declared.
Napout paid more than $4 million to the U.S. government, which has so far passed on more than $120 million in confiscated money to FIFA and pledged to release tens of millions more. Back in Asunción (Paraguay) since his release from prison last year, Napout is asking the US to annul his conviction and return his money.
The Paraguayan leader was imprisoned longer than anyone else implicated in the case, and his luxurious lifestyle was interrupted when he became a cook in a Florida prison. He said he had not considered an appeal until hearing about the acquittals in September and is proceeding only at the request of his family. “So that my record will be clean.”
In recent weeks, former CBF president José Maria Marin, who also served a prison sentence and paid millions in fines, and former Concacaf president Alfredo Hawit, who pleaded guilty and collaborated with the American government, made similar requests.
In their briefs, they are repeating some of the initial arguments they made when they were charged, when lawyers objected to what they called “U.S. prosecutors’ excessive and exaggerated use of a vague law.” At the time, some emphasized that in countries like Brazil, paying bribes in a private commercial transaction to secure an agreement or contract would not be unusual or illegal.
As the legal battle continues, prominent adversaries in the case have moved forward. The football organizations involved have new leaders. In 2019, Lynch joined the American law firm Paul & Weiss and became an advocate for the new FIFA. At least twice in recent years, she has addressed the entity directly, praising the organization’s “renewed commitment to transparency and ethical behavior.” Lynch did not respond to a request for comment for the report.
Recently, FIFA has come under renewed scrutiny for circumventing standard processes, such as when it effectively awarded the valuable rights to host the 2034 World Cup to Saudi Arabia without competitive bidding. FIFA president Gianni Infantino, who took over after Blatter’s departure, explored the possibility of extending the limits of his time in office.
The outcome of the new appeals, to be argued before the 2nd U.S. Circuit Court of Appeals in New York, could have implications not only for convicted defendants like Napout, but also for those who were charged but remained free, beyond the reach of country authorities. Among them are former FIFA vice-president and former Concacaf president Jack Warner, from Trinidad and Tobago; Argentine media executives Hugo and Mariano Jinkis; and former CBF presidents Marco Polo del Nero and Ricardo Teixeira.
At least US$200 million paid by those convicted is also at stake. Some of this was promised to FIFA, considered a victim of corruption in its own home, and earmarked for causes such as football programs for women, young people and people with disabilities. FIFA reported that US$50 million has already been allocated for projects.
Paul Tuchmann, a former prosecutor who now works at the law firm Wiggin & Dana, called the decision to acquit two defendants “a hiccup” but said that regardless of what the appeals court decides, “you can’t turn back the clock and erase the impact” of the case.
Still, Tuchmann added that undoing the government’s work would have wide-ranging consequences, within global sport and beyond. “People with a certain astuteness will understand that the U.S. criminal justice system won’t touch them. I think that’s unfortunate.”