. Pecuniary or other advantage
68. With regard to the term “pecuniary or
other advantage”, the Adjudicatory Chamber points out, first, that this
includes any kind of betterment or advancement of economic, legal or personal,
material or non-material interest (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.
69. Mr Kinteh admitted having received the
amount of USD 69,396 from Mr Bin Hammam on his personal bank account and
confirmed that costs regarding travel and accommodation for the 2008 event in
Kuala Lumpur, as well as the 2010 trip to Doha were fully borne by the AFC
and/or the Qatar Football Association. In addition Mr Kinteh did request and is
deemed to have received a Nissan Pick-Up, or a payment equivalent to it,
amounting to USD 26,820. The advantages received from Mr Bin Hammam constituted
a substantial financial betterment, from which Mr Kinteh profited either
directly (e.g. payments to his bank account) or via intermediaries (e.g.
payments to the car dealer).
70. The benefits therefore gave the Official
a pecuniary advantage within the meaning of art. 21 par. 1 of the 2012 FCE.
or undue advantage
71. Not every kind of pecuniary or other
advantage, however, falls under the scope of art. 21 par. 1 of the 2012 FCE.
Rather, the relevant advantage has to be an “undue” one. This clearly derives
from the wording of art. 21 par. 1 of the 2012 FCE as well as from the title
under which art. 21 of the 2012 FCE is placed (“Subsection 2: Undue
advantage”). Needless to state, the advantage must be “undue” in the light of
the provisions of FIFA regulations or universally accepted legal norms. In
particular, 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.
21 par. 1 of the 2012 FCE (see, by way of analogy, ANDREAS DONATSCH ET AL., op.
cit., loc. cit.; MARK PIETH, Basler Kommentar, StGB II, 3rd ed., 2013, N 29 on
art. 322ter). As far as the term “personal advantage” is concerned, the
Adjudicatory Chamber holds that it is comprised in the term “undue advantage”,
leading to a distinction becoming obsolete.
72. In casu, Mr Kinteh, in his position as
football official, obtained several direct and indirect monetary and other
advantages from Mr Bin Hammam, without any legal basis.
73. As a preliminary remark, it is difficult
to understand why a president of an African federation affiliated to the CAF
would accept and receive substantial payments and attend events organised by
the president of another confederation (i.e., the AFC). This applies also since
the relevant conduct took place in the
period preceding the 2011 FIFA presidential election, and partially even
after the public announcement of Mr Bin Hammam that he would run as a candidate.
In that context, Mr Kinteh’s claim according to which the several advantages he
received were part of his personal relationship with Mr Bin Hammam lacks
74. The first payment of USD 26,820 and
dated 11 August 2008 for a Nissan Pick-Up vehicle is undue in the sense that is
has not been supported by a legitimate expense and/or any other legal basis. Mr
Kinteh’s justifications appear contradictory. First, Mr Kinteh stated that he
had asked Mr Bin Hammam explicitly for money to buy a vehicle, and that he had
sent him a respective reminder on 4 August 2008. Then, Mr Kinteh said that the
money was used for other GFF expenses without specifying or providing evidence
in that respect, while the evidence at hand indicates that the payment had been
made to the car dealer directly. Subsequently, in his position to the
Adjudicatory Chamber the Official simply claimed that he had never received a
car, without clarifying the ultimate use and prior acceptance of the payment.
In any case, no evidence whatsoever have been provided by Mr Kinteh to support
his claims that the funds were reallocated to the federation or that its
members had knowledge of the intended purchase of the car. On the contrary, the
fact (acknowledged by Mr Kinteh) that the funds did not appear in the
federation’s records raises serious doubts about the use of such. In view of
the Adjudicatory Chamber, this instance demonstrates Mr Kinteh’s intention to
conceal the payment received from Mr Bin Hammam, which underlines the undue nature
of the payment. Further, regardless of the ultimate use of the funds or
vehicle, Mr Kinteh’s original request to Mr Bin Hammam constitutes per se a
solicitation and a fortiori an acceptance of an undue advantage. Thus, the
Adjudicatory Chamber is comfortably satisfied that Mr Kinteh indeed accepted to
receive and is likely to have received either the vehicle or the funds, which
lacks any legal basis and is a benefit that Mr Kinteh has tried to conceal.
Lastly, the Adjudicatory Chamber is not convinced of the explanations given by
Mr Kinteh, that the funds were later used by the federation and that its
officials were aware of the transaction since both statements are not supported
by any evidence.
[cf. Final Report, p. 6; Position statement to the Adjudicatory Chamber received on 4 May 2018, p. 4]
75. The second payment dated 24 February
2010 for an amount of USD 10,000 for alleged hosting of delegates lacks a
proper legal and/or contractual basis. Mr Kinteh did not justify why he had
solicited and accepted funds from Mr Bin Hammam to organise an event that Mr
Kinteh argues was strictly related to GFF. In this regard, note is taken of the
nature of the event, which was a multiday event in a hotel lodge and included
New Year’s Eve (from 29 December 2009 to 2 January 2010). This scope seems to
go far beyond the usual scope of such congress. In any case, if it was an
official GFF event, related funding would unlikely be paid to Mr Kinteh’s
personal bank account. The Adjudicatory Chamber also notes that according to Mr
Kinteh, the GFF was not aware of this funding request to Mr Bin Hammam, which
shows his aim to conceal this payment.
76. Mr Kinteh’s argument that this payment
(as others) was part of his personal relationship with Mr Bin Hammam is not
convincing, since both individuals were acting and communicating as football
officials. Mr Kinteh’s explanation that since he had been elected unopposed as
GFF president, any amount received from Mr Bin Hamman could not be seen as a
bribe, falls short of a necessary explanation. On the contrary, note shall be
taken that in his communication to Mr Bin Hammam, Mr Kinteh asked for funding
mentioning that he needed the votes for his re-election (cf.
email of 12 February 2010).
77. In the light of all the above, the
Adjudicatory Chamber considers that the payment of USD 10,000 to Mr Kinteh’s
personal account was undue.
78. The third payment of USD 50,000 for
alleged personal construction works was sent on 16 March 2011, and received on
Mr Kinteh’s personal account on 17 March 2011. Mr Kinteh submitted that said
payment had been made to him due to his friendship with Mr Bin Hamman. Mr
Kinteh’s statement lacks both credibility and supporting documents. Similarly,
the argument – not supported by any evidence – that the WAFU meeting had been
planned in Khartoum prior to the payment cannot reasonably lead to the
conclusion that such payment was not used to finance said meeting. Conversely,
the evidence at hand (letter from Mr Kinteh to Mr Bin Hammam dated 12 April
2011 inter alia) suggests that the payment was made in the context of the WAFU
meeting (association of which Mr Kinteh was the President) and Mr Kinteh’s
apparent commitment to lobby for Mr Bin Hammam in the WAFU region. Remarkably,
all of this (including Mr Bin Hammam’s payment) took place right at the moment
when the Mr Bin Hammam publicly announced his presidential ambitions. In their
subsequent email correspondence regarding the payment, Mr Kinteh made clear
references to the WAFU meeting and to his support for Mr Bin Hammam’s
candidacy. From a timely perspective, the connection between the payment and
the candidature is imminent. Overall, particularly in view of the contradicting
arguments, the improper timing, and the clear lack of a legal basis, the
Adjudicatory Chamber considers that this payment was undue.
[cf. Final Report, pp. 8 and 10]
79. The fourth payment of USD 9,396 for
airline tickets was wired to Mr Kinteh’s personal bank account on 27 April
2011, once more, without a legitimate legal basis. Mr Kinteh claimed that he
did not use the airfares to the WAFU countries for which Mr Bin Hammam had made
a payment to his personal bank account. The Adjudicatory Chamber however notes
that this statement does not address the acceptance of the funds nor their
ultimate use. It is further noted that Mr Kinteh, who admits that the flights
were ultimately not needed, did not provide any proof that he had cancelled or
that the amount was reimbursed to Mr Bin Hammam. From a timing perspective, it
is also remarkable that the payment had been wired to Mr Kinteh only a few
weeks before FIFA’s presidential elections, in which Mr Bin Hammam would
participate as a candidate. In view of the foregoing, the Adjudicatory Chamber
holds that Mr Kinteh did receive and accept an undue advantage in the form of
[cf. Final Report, p. 8 and Position statement to the Adjudicatory Chamber received on 4 May 2018, p. 4]
80. Lastly, concerning the payments to Mr
Kinteh for the trips to Kuala Lumpur in 2008 and Doha in 2010, the Adjudicatory
Chamber concludes that they lack a proper basis and are therefore to be
considered undue within the meaning of art. 21 of the FCE.
81. Following the above considerations, it
can be concluded that Mr Kinteh repeatedly solicited accepted and received
payments and other advantages from Mr Bin Hammam which are to be interpreted as
undue pecuniary advantages within the meaning of art. 21 par. 1 of the 2012