A NEW WORLD ORDER: FIFA FISCAL SCANDAL OPENS THE DOOR FOR THE UNITED STATES DEPARTMENT OF JUSTICE TO PROSECUTE CRIMES COMMITTED ACROSS THE GLOBE THROUGH THE USE OF EXTRATERRITORIAL JURISDICTION.

Author:Slattery, Conor
 
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  1. INTRODUCTION

    The Federation Internationale de Football Association (FIFA) is one of the most well-known and well-funded organizations in the world. (1) Recently, the United States uncovered a massive money laundering scandal inside FIFA after an extensive investigation conducted by the Federal Bureau of Investigations (FBI) of high-ranking FIFA officials. (2) The United States employed extraterritorial jurisdiction over the accused executives because the FIFA executives were not physically present in the United States of America when they committed the crimes they are charged with. (3) After the rumors of bribery and officials selling their votes during the bidding process, behind closed doors, for the rights to host the 2018 and 2022 World Cups, indictments returned in May of 2015 that rocked the footballing world. (4) As a result of the indictments served by the United States Department of Justice (DOJ), extensive investigations have been conducted into many high-ranking FIFA executives, such as former FIFA president Sepp Blatter, Jack Warner, and many other FIFA executives since the first round of arrests of officials in Zurich, Switzerland. (5) All of the arrested FIFA executives were seized in Switzerland, which lead to the United States DOJ petitioning Switzerland, under extraterritorial jurisdiction, to extradite the officials to the United States for prosecution of the crimes regarding their roles. (6)

    The United States had extraterritorial jurisdiction because the operation of both FIFA and the banking institutions inside the physical borders of the United States allowed the United States DOJ to exert extraterritorial jurisdiction over the indicted officials. (7) This Note will explore the present state of the United States extradition relationship with Switzerland, and why Switzerland's Federal Office of Justice (FOJ) should have unanimously granted all of the United States extradition requests in regard to the FIFA officials seized in the May 27, 2015 arrests. (8) Part II will discuss the history of extradition between of United States and Switzerland, the development of extraterritorial extradition in the United States, and the structure and development of FIFA. (9) Part III will recount the events of the FIFA raids conducted in Zurich, Switzerland and the extradition requests made by the United States for multiple FIFA officials based on the theory of extraterritorial jurisdiction. (10) Part IV will analyze the extradition requests made by the United States, and whether Switzerland should have granted them, as well as future steps that may be taken to ensure uniform extradition decisions. (11) Lastly, Part V will conclude the Note by highlighting the appropriate action Switzerland's FOJ should have taken based on precedent and the strength of extraterritorial jurisdiction. (12)

  2. HISTORY

    1. Extradition in the United States

      Before the creation of extradition treaties, fugitives could seek asylum in other countries to avoid facing criminal prosecution. (13) In 1794, the United States of America entered into the Treaty of Amity, Commerce & Navigation between His Britannic Majesty and the United States (Jay Treaty) with the United Kingdom to ensure that individuals who fled to the United States from the United Kingdom, or vice versa, would face prosecution for his or her crimes. (14) Extradition agreements require the United States and the partner government to send promptly the requested individual back to the nation making the request to face the criminal charges, if the charged act is also a crime in the nation the individual is currently hiding in to avoid prosecution. (15) Any extradition agreement entered into force by the United States government becomes binding and mandatory on all courts of the United States. (16) Due to the growth of international crime and international travel, the United States continues to create extradition treaties and is currently a member of over one hundred extradition treaties with various nations around the world. (17)

    2. Extraterritorial Jurisdiction

      Individuals committing large-scale monetary crimes in that involve American businesses, transactions using the dollar, and organizations with a presence in the United States or its territories may be investigated and prosecuted by the courts of the United States. (18) Extraterritorial jurisdiction allows the United States DOJ to pursue fugitives that perpetrate crimes against the United States from physical locations outside of the United States' traditional jurisdiction, established by its international borders. (19) Due to rapidly evolving business practices, created by technological advances in the banking world, the United States DOJ began using extraterritorial jurisdiction to combat criminal actors. (20) The United States DOJ, through extraterritorial jurisdiction, may prosecute foreign individuals that electronically attack or use American businesses even when the illegal act is committed in a foreign country. (21) Today, the United States DOJ employs extraterritorial jurisdiction not only to pursue violent criminal actors, but individuals guilty of financial crimes as well. (22)

    3. Priority Extradition

      If multiple countries petition to extradite an individual from another nation, the requested nation must first decide if each extradition petition is valid, and if so, which country shall have the right to prosecute the sought individual first. (23) The United Nations has established guidelines to aid a requested nation in the decision making process. (24) Some factors the United Nations believes should determine which petitioner is awarded priority extradition are: the dates the requests are received; the ability of each petitioner to prosecute all of the alleged crimes; the location of the witnesses; availability of evidence; the individuals nationality; and the ability to conduct a speedy trial. (25) Through its recommendations for efficient extradition between countries, the United Nations makes it clear that the petitioner with the best ability to conduct an encompassing, efficient, effective and just trial should be awarded priority jurisdiction, as long as that petitioner followed proper procedure. (26) The criteria, however, set forth by the United Nations is not an absolute test of which petitioner checks off the most boxes, but a guide to help requested nations make decisions. (27) The ultimate decision to award priority falls to the requested nation based on their best judgment of the facts and a review of the interests of each petitioner. (28)

    4. United States Requesting Extradition From Switzerland

      Switzerland and the United States agreed to the Switzerland International Extradition Treaty with the United States, an extradition treaty in 1990 that was ratified and went into force in 1997. (29) The Swiss FOJ have denied extradition requests from the United States if they have been able to on multiple occasions, if the extradition treaty between the United States and Switzerland did not clearly require the grant of the extradition request. (30) Most of the difficulties between the United States and Switzerland in extradition matters revolve around tax evasion due to a lack of dual criminality. (31) Government officials in the United States believe that the treaty entitles the United States to the extradition of accomplices that aid in the crime, as well as the chief criminal actor committing the crime. (32) The Swiss FOJ has not always agreed with this position. (33)

    5. FIFA

      1. Structure and Role of FIFA

        FIFA is the head governing body of world football activities, and it has a specific organizational structure to facilitate its many duties to its member Associations. (34) Along with its responsibilities to govern the game of football, FIFA uses its influence as the global face of the sport to promote social equality, education, youth groups, and more through its Football for Hope initiative. (35) FIFA is made up of five Football Confederations, which in turn are made up of numerous Football Associations arranged by geographical location. (36)

      2. Evolution of the FIFA World Cup

        In 1904, FIFA was founded to bring the Football Associations of Europe together to promote the global game of football. (37) FIFA expanded rapidly and held its first international football tournament, the World Cup, in 1930. (38) Many companies and nations bid for the rights to be associated with FIFA and its tournaments as either host countries or advertisers for an event. (39) The enormous quantities of money advertisers and television companies are willing to pay for these rights presents FIFA with much of the funds it requires to run the tournament every four years, as well as the cash reserves of FIFA. (40) FIFA officials are in charge of voting and assigning these rights within FIFA's ethical standards. (41) Today the FIFA World Cup is the largest tournament in the world, and it generates billions of dollars of revenue for FIFA as well as its corporate sponsors and advertisers. (42)

      3. Warning Signs of Corruption Spreading Through FIFA a. International Sports and Leisure

        Prior to International Sport and Leisure's (ISL) bankruptcy in 2001, the company enjoyed a lucrative marketing and media relationship with FIFA where ISL negotiated broadcasting contracts for the World Cup on FIFA's behalf. (43) ISL paid over sixty six million pounds to sports executives to obtain the rights to various television and marketing deals. (44) One of the officials that received bribes from ISL was Nicolas Leoz, who was a member of FIFA's executive committee. (45) Two other South American FIFA officials, Joao Havelange and Ricardo Teixiera of Brazil, also resigned from their positions in FIFA after it became public that ISL bribed both Havelange and Teixiera (46) Amid allegations of bribery and corruption, FIFA paid in excess of GBP 1.6 million to ISL's creditors (47)

        1. Possible Bribery in the World Cup Bidding Process

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