FIFA Ethic Committee’s take on Seedy Kinteh

Monday, December 31, 2018

(Continuation)
e 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.

E. Ratio of equivalence

82.        The core element of art. 21 of the 2012 FCE is the establishment of a so-called ratio of equivalence between the undue advantage given and a specific action by the official obtaining the advantage (“Äquivalenzverhältnis”; see, by way of analogy,

GÜNTER STRATENWERTH and WOLFGANG WOHLERS, op. cit., N 6 on art. 322ter; ANDREAS DONATSCH ET AL., op. cit., N 16 on art. 322ter). This is clearly stated by the term “in order to obtain or retain business or any other improper advantage” in art. 21 par. 1, first sentence, of the 2012 FCE. The advantage must thus be given by the offeror in order to incite another person to a certain conduct, or, in other words, “for the execution or omission of an act that is related to their official activities and is contrary to their duties or falls within their discretion” (art. 21 par. 1, third sentence of the 2012 FCE; cf. par. 54 above). 

83.        Officials are expected that their decision shaping and taking be not under any undue or improper influence. In this respect, it is well established in relevant practice and legal doctrine that any kind of reward — i.e. a payment to the individual carrying out the acts, resulting in an advantage for the person making the payment — renders the relevant acts contrary to the official’s duties, even if the actions per se could be considered in line with the relevant duties. In other words, in cases where an official accepts payments in connection with certain decisions without a legitimate reason, no further proof is required with regard to the occurrence of an improper influence on his decision shaping and taking; rather, such improper influence follows from the very fact that such payments occurred (see MARK PIETH, op. cit.‚ N 45 on art. 322m,

84.        In this respect, the Adjudicatory Chamber further recalls that CAS has held that “corruption is, by nature, concealed, as the parties involved will seek to use evasive means to ensure that they leave no trail of their wrongdoing” (CAS 2014/A/3537, par. 82; CAS 2010/A/2172, par. 21). On the other hand, it must be pointed out that according to the pertinent definition of CAS, a violation must be established to the comfortable satisfaction of the Adjudicatory Chamber “bearing in mind the seriousness of the allegation”.

85.        Mr Bin Hamman publicly announced his candidacy for the FIFA presidential election on 18 March 2011. 

86.        The Adjudicatory Chamber is comfortable to establish that as a football official who used to be active in a wider international context (CAF Interclub Committee, FIFA Congress, WAFU, invitations to Doha and Kuala Lumpur from the then AFC President), Mr Kinteh had certain knowledge of Mr Bin Hammam FIFA candidature as from 18 March 2011 - at the latest.

87.        The Adjudicatory Chamber also notes that just within this time period, Mr Bin Hammam made wire payments to Mr Kinteh in the amount of USD 59,396 (incoming payments of 17 March and 12 April 2011). Both payments were transferred directly to Mr Kinteh’s personal bank account. 

88.        This timely connection between Mr Bin Hammam’s announcement and the payments raises  doubts as to the intent of Mr Bin Hammam’s payment. This applies all the more since the payments were undue (cf. par. 67-81 above).

89.        Overall, the Adjudicatory Chamber is comfortable to conclude that Mr Bin Hammam’s payments were made as an incitement for Mr Kinteh to influence his vote, and to lobby on behalf of Mr Bin Hammam to secure additional votes at the FIFA presidential elections.

90.        In this regard, the Adjudicatory Chamber would like to recall that, as the president of the GFF, Mr Kinteh was entitled to vote - on behalf of GFF - at the 2011 FIFA electoral congress. The act in question was thus related to Mr Kinteh’s official activities as GFF president and his pertinent duties at the FIFA Congress. 

91.        Moreover, it has been established that Mr Kinteh used to be an influential African football official. He was member of the CAF Interclub Committee and member of the interim WAFU Executive Committee. The Adjudicatory Chamber considers that the support expected from Mr Kinteh would thus not be limited to GFF’s vote at the FIFA Congress, but that he also could be an important lobbyist for Mr Bin Hammam’s election. In an email to Mr Chirakal, the personal assistant of Mr Bin Hammam,  dated 28 April 2011, Mr Kinteh stated: “I wish to assure you that I will do everything possible for Mr. Bin Hammam to be elected to this highest world football office Inshallah”. Based on this, the frequency of the payments, the amounts involved and the undue circumstances surrounding the elections, the Adjudicatory Chamber is comfortable that by accepting the payments, Mr Kinteh was expected to support Mr Bin Hammam’s candidature in a wider sense, i.e. through lobbying work. Again, such engagement would be linked (and contrary) to his official duties, and fully discretionary. 

92.        On the other hand, Mr Kinteh was well aware of Mr Bin Hammam’s expectation. He had been receiving various undue gifts and benefits from Mr Bin Hammam in the years before, which he should not have accepted. The fact that he continued accepting Mr Bin Hammam’s payment even after the latter announced his candidature to the FIFA presidency, underlines Mr Kinteh’s disrespect for the rules contained in the FIFA Code of Ethics. He deliberately accepted payments from a FIFA presidency candidate, without declaring, reporting and/or returning them. By way of his conduct, Mr Kinteh agreed to engage in Mr Bin Hammam’s intended scheme, which included to vote in his favour and to engage in the respective lobbying work. Therefore, the Adjudicatory Chamber is comfortably satisfied that Mr Kinteh engaged in such conduct with the sole aim to obtain business and other advantages. His acts were thus based on illegitimate motives and therefore in breach of the relevant requirement of art. 21 pars. 1 and 3 of the FCE. 

93.        With regard to the advantages received from Mr Bin Hammam before (or around) 18 March 2011 – i.e. the trips to Kuala Lumpur and Doha as well as the other payments, the Adjudicatory Chamber is not comfortably satisfied that Mr Kinteh had certain knowledge of Mr Bin Hammam’s aspirations to become the next FIFA President. For this reason, the solicitation and acceptance of such payments must be analyized in a different light: even though these advantages were undue (cf. analysis of art. 20 FCE below), the Adjudicatory Chamber notes that one of the fundamental elements of art. 21 FCE 2012, the quid pro quo, was linked to Mr Kinteh’s awareness of Mr Bin Hammam’s candidacy. Accordingly, the Adjudicatory Chamber considers for these advantages that the temporal and contextual link to the 2011 FIFA presidential election (and consequently any related act to be performed by Mr Kinteh), has not been proven to its comfortable satisfaction.

94.        However, bearing in mind that the Adjudicatory Chamber is free in its legal evaluation of the facts, the relevant advantages shall be analysed in the light of art.