Extra Local Sports FIFA Ethic Committee’s take on Seedy Kinteh

Wednesday, January 02, 2019

Continuation

F. Conclusion

 95.       In the light of the considerations and findings above, the Adjudicatory Chamber determines that Mr Kinteh accepted several undue pecuniary advantages from Mr Bin Hammam in the time frame from 2008 to 2011. 

96.        However, while the Adjudicatory Chamber considers that all payments and advantages from Mr Bin Hammam to Mr Kinteh were undue, only the ones containing a satisfactory proof of the quid pro quo element (which is most essential element to the characterization of the infringement of bribery) can be sanctioned as acts of bribery as set out in the 2012 FCE. The Adjudicatory Chamber is comfortably satisfied that this (and the other) requirements is fulfilled in relation to the payments that Mr Kinteh received in March / April 2011.

 97.       With the exception of the first payment of USD 26 820, all payments were made directly to Mr Kinteh’s personal account. 

 98.       Concerning the first payment and the payments of other benefits that Mr Kinteh received or solicited (i.e. trips to Canada, Kuala Lumpur and Doha), despite being made through third parties or intermediaries, there is no doubt that Mr Kinteh was the ultimate beneficiary of those payments and benefits. 

 99.       By the same token, the Panel is convinced that although communications and payments were sent by Mr Chirakal (Mr Bin Hamman‘s assistant at the AFC), the AFC (the football Confederation of which Mr Bin Hamman was president), or the QFA (the football association of which Mr Bin Hammam was president), Mr Bin Hammam was the ultimate sender and offeror of the funds and benefits sent to Mr Kinteh, be it directly or through the aforementioned intermediaries. 

 100.     Mr Kinteh is therefore found to have breached art. 21 par. 1 of the 2012 FCE.

 

            2.         Possible violations of art. 20 of the 2012 FCE

A. The relevant facts

101. The relevant facts, together with the position of the Investigatory Chamber and the accused, have been outlined above (cf. par. 18 – 53)

 B. Legal assessment

 102.     The relevant allegations concerning the acceptance of gifts and other benefits cover the period from June 2007 until March 2011. During this period, the FCE 2006 version was in force until 31 August 2009, when it was replaced by the FCE 2009 version for the remaining period. The applicable provision of the FCE 2006 is art. 11 and provides as follows:

 “Officials are not permitted to accept gifts and other benefits that exceed the average relative value of local cultural customs from any third parties. If in doubt, gifts shall be declined. Accepting gifts of cash in any amount or form is prohibited. While performing their duties, officials may give gifts and other benefits in accordance with the average relative value of local cultural customs to third parties, provided no dishonest advantages are gained and there is no conflict of interest. Officials may not be accompanied to official events by family members at the expense of FIFA, the confederations, associations, leagues and clubs or other organizations, unless expressly permitted to do so”. 

103.      The equivalent provision in the FCE 2009 code is art. 10, which stipulates the following:

“1. Officials are not permitted to accept gifts and other benefits that exceed the average relative value of local cultural customs from any third parties. If in doubt, gifts shall be declined. Accepting gifts of cash in any amount or form is prohibited. 2. While performing their duties, officials may give gifts and other benefits in accordance with the average relative value of local cultural customs to third parties, provided no dishonest advantages are gained and there is no conflict of interest. 3. Officials may not be accompanied to official events by family members or associates at the expense of FIFA, the confederations, associations, leagues and clubs or other organizations, unless expressly permitted to do so.” 

104.      The spirit and intent of the FCE eds. 2006 and 2009 is duly reflected in art. 20 of the FCE 2012. The panel of the CAS case 2016/A/4474 Platini c. FIFA (par. 170) has explicitly confirmed this analysis pointing that “L’article 20 CEF (édition 2012) n’est donc pas plus sévère que l’article 10 CEF (edition 2009), de sorte que son application ne cause aucun désavantage à l’Appelant.”. In light of the foregoing, art. 20 par. 1 of the FCE stipulates that persons bound by the Code may only offer or accept gifts or other benefits to and from persons within or outside FIFA, or in conjunction with intermediaries or related parties as defined in the Code, which

a)         have symbolic or trivial value;

b)         exclude any influence for the execution or omission of an act that is related to their official activities or falls within their discretion;

c)         are not contrary to their duties;

d)         do not create any undue pecuniary or other advantage and

e)         do not create a conflict of interest.

            a.         Persons involved

105. The first two elements set out in art. 20 par. 1 of the FCE 2012 are that (i) the person acting must be bound by the FCE and (ii) the counterpart must be a person within or outside FIFA, an intermediary or a related party as defined in the Code (see the definitions section of the FCE). As has been shown, both persons, Mr Kinteh and Mr Bin Hammam, are officials bound by the FCE. 

            b.         Gift or other benefit

106. Secondly, according to art. 20 par. 1 of the FCE, a “gift or other benefit” must be at stake.

            c.         Pecuniary or other advantage

107.      With regard to the term “gift or other benefit”, the Adjudicatory Chamber points out that this involves a pecuniary or any other advantage (see also art. 21 par. 1 of the FCE). As such, it includes any kind of betterment or advancement of economic, legal or personal, material or non-material nature (cf., by way of analogy, ANDREAS DONATSCH ET AL. [eds.], StGB Kommentar, 19th ed., 2013, preliminary observations on art. 322ter-322octies, N 8; GÜNTER STRATENWERTH and WOLFGANG WOHLERS, Schweizerisches Strafgesetzbuch, Handkommentar, 3rd ed., 2013, N 4 on art. 322ter).

 108.     In the present case, the following benefits constitute pecuniary or other advantages of Mr Kinteh: 

 - Payment to an intermediary in relation to a trip to Canada (June 2007) - Payment of expenses related to a trip to Kuala Lumpur (June 2008) - Payment of USD 26 820 for a vehicle (August 2008) - Payment of USD 10 000 to host GFF delegates (February 2010) - Payment of expenses related to a trip to Doha (November 2010)

            d.         Criteria of art. 20 par. 1 let. a to e of the FCE

109.      Not every kind of gift or other benefit, however, falls under the scope of art. 20 par. 1 of the FCE. Rather, it is necessary, for a violation of that provision to occur, that the relevant benefit does not meet the criteria set out in art. 20 par. 1 let. a to e of the FCE. In particular, a gift or benefit cannot be accepted if it has more than a mere symbolic or trivial value (let. a). Similarly, the other conditions of art. 20 par. 1 (let. b to e) must also be fulfilled – cumulatively – in order for the gift or benefit to be accepted as such by the beneficiary. In the case at hand, the benefits concerned are clearly not of a merely symbolic or trivial value. 

 110.     In view of the above, the Adjudicatory Chamber notes that a gift or other benefit is prohibited, in particular, if it creates an undue pecuniary or other advantage (art. 20 par. 1 let. d of the FCE; see also the title of Subsection 2: “Undue advantage”). An advantage is to be considered undue if it has no proper basis, leading to the recipient not being entitled to obtain it. If, on the other hand, there is a legal title under which the advantage is given (i.e. a contract or the law), it is, in principle, not undue within the meaning of art. 20 par. 1 let. d of the FCE (TAS 2016/A/4474, par. 233 and par. 284; CAS 2016/A/4501, par. 285 and par. 289).

 Expenses paid in connection with Kuala Lumpur and Doha visit

111.      Primarily, the Adjudicatory Chamber believes with comfortable satisfaction that the visit to Kuala Lumpur was not an AFC official meeting and neither a footballrelated event. The Adjudicatory Chamber considers that there are important objective indicators to reach such understanding, starting with the fact that Mr Bin Hammam had, according to the Freeh report, admitted that it was a personal invitation, which covered spa treatments, massages dining, laundry and room service. More importantly, Mr Bin Hammam also made reference to a series of tours and events. 

 112.     Additionally, the Adjudicatory Chamber notes that (v) there was no significant football matchup nor official football events that, under similar circumstances, could draw CAF delegates to the Asian region; indeed the Kuala Lumpur meetings lacked certain hallmarks of official FIFA or AFC gatherings. 

113.      As set out above, if one looks at those aspects, the only conclusion that can be reached by a high ranked official as Mr Kinteh is that said visit was an informal gathering. 

 114.     In view of all these considerations, after having carefully considered the party’s submissions, the Adjudicatory Chamber concludes that the expenses covered during the Kuala Lumpur visit did not have a proper basis – neither a contractual nor a legal one – and is therefore to be considered undue within the meaning of art. 20 par. 1 let. d of the FCE. Consequently, it amounts to a prohibited benefit pursuant to art. 20 par. 1 of the FCE.

 115.     Similarly, the expenses for the Doha trip in November 2010 (whose main purpose seemed to be the attendance of a football match) amounts to a prohibited benefit as well. In particular, the Adjudicatory Chamber takes note that all expenses were covered by the QFA, of which Mr Bin Hammam was the president at that time. In view of the circumstances surrounding such invitation, the Adjudicatory Chamber is comfortable to consider this invitation as undue pecuniary or other advantages. 

 116.     After having carefully considered  Mr Kinteh’s submissions, the Adjudicatory Chamber concludes that the expenses covered during the Kuala Lumpur and Doha trips did not have a proper basis – neither a contractual nor a legal one – and is therefore to be considered undue within the meaning of art. 20 par. 1 let. d of the FCE 2012. As a consequence, it amounts to a prohibited benefit pursuant to art. 20 par. 1 of the FCE 2012. 

 Payments to Mr Kinteh

117.      As outlined above, Mr Kinteh received from Mr Bin Hammam several payments either directly (personal bank account) or via intermediaries (cf. par. 73 – 76). 

 

118.      With regard to the undue nature of these payments, reference shall be made to the analysis of art. 21 of the FCE (cf. par. 109 – 110 above). 

            e.         Soliciting, offering or accepting

119.      According to art. 20 par. 1 of the FCE, the prohibited gift or other benefit must be offered or accepted. 

 120.     The Adjudicatory Chamber is comfortably satisfied that all of the abovementioned gifts and benefits (in total USD 36,820 plus expenses) were solicited and accepted by Mr Kinteh and offered by Mr Bin Hammam. Therefore, this requirement is also met in the mentioned instances.

 C. Conclusion

 121.     In the light of the foregoing, the Adjudicatory Chamber finds that Mr Kinteh, on the different occasions as outlined above, accepted substantial benefits which did not meet the criteria set out in art. 20 par. 1 let. a to e of the FCE and were therefore prohibited. 

 122.     Mr Kinteh is therefore found to have breached art. 20 par. 1 of the 2012 FCE.

            3.         Possible violations of art. 13, 15 and 19 of the 2012 FCE

 123.     With regard to the obligations set forth in art. 13 and 15 of the 2012 FCE, the Adjudicatory Chamber is of the opinion that Mr Kinteh’s conduct presently relevant clearly falls short of the ethical standards provided for by art. 13 of the 2012 FCE. Similarly, Mr Kinteh failed to put GFF’s interests first as determined by art. 15 of the 2012 FCE and therefore did not respect its fiduciary duties towards the respective institution. However, the Adjudicatory Chamber considers the relevant conduct under art. 13 and art. 15 of the 2012 FCE to be sufficiently covered by the provision of art. 21, violation for which Mr Kinteh has already been found guilty. 

 124.     In addition, it is also clear that Mr Kinteh failed to avoid situations that could lead to a conflict of interest and performed his duties despite existing or potential conflicts of interest within the meaning of art. 19 of the 2012 FCE. However, as referred in the previous paragraph, the Adjudicatory Chamber considers the relevant conduct to be already covered by the provision of art. 21 of the 2012 FCE, for which Mr Kinteh has already been found guilty.

 125.     In this light, bearing in mind the gravity of the violation of arts. 20 and 21 of the 2012 FCE, the Adjudicatory Chamber finds there is no necessity to consider further the violations of arts. 13, 15, and 19 of the 2012 FCE by the Official (see in this sense CAS 2014/A/3537, Vernon Manilal Fernando v. FIFA, par. 105). Rather, the Adjudicatory Chamber considers these violations to be materially absorbed by the breaches of arts. 20 and 21 of the 2012 FCE, leading to the conclusion that arts. 13, 15, 19 of the 2012 FCE cannot serve as an additional basis upon which to sanction Mr Kinteh.

            4.         Overall conclusion

 126.     Taking the above considerations into account in their entirety, Mr Kinteh has, by his conduct presently relevant, violated the following provisions of the FCE:

 

-           Art. 13 of the 2012 FCE (General duties)

-           Art. 15 of the 2012 FCE (Loyalty) 

-           Art. 19 of the 2012 FCE (Conflicts of interest);

-           Art. 20 of the 2012 FCE (Offering and accepting gifts and other benefits). -         Art. 21 of the 2012 FCE (Bribery and corruption);