FIFA Ethic Committee’s take on Seedy Kinteh

Monday, December 24, 2018

a

.           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. 322ter).

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.

            b.         Personal 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 credibility.

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 flight tickets.  

[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 FCE.