Within the reach of U.S. law.

Photographer: Michael Buholzer/AFP/Getty Images

U.S. Treats FIFA Like the Mafia

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It wasn't exactly extraordinary rendition. But when Swiss police arrested seven officials of FIFA, the international football federation, for extradition to the U.S., there were some echoes of the secret terrorism arrests. Soccer is a global game, and it matters more to almost everyone than to Americans. So why is the U.S. acting as the international sheriff and grabbing up non-U.S. citizens to try them domestically for corrupting the sport worldwide? And more to the point, why is this legal?

QuickTake The World Cup

It turns out the legal basis for the FIFA prosecutions isn't all that simple or straightforward -- and therein lies a tale of politics and sports. The prosecutions are being brought under RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970, which was designed to prosecute crime syndicates that had taken over otherwise lawful organizations. Roughly speaking, the law works by allowing the government to prove that a defendant participated in a criminal organization and also committed at least two criminal acts under other specified laws, including bribery and wire fraud. If the government can prove that, the defendant is guilty of racketeering, and qualifies for stiff sentences, the seizure of assets and potential civil-liability lawsuits.

The first and most obvious problem raised by the FIFA arrests is whether the RICO law applies outside the U.S., or “extraterritorially” as lawyers like to say. Generally, as the Supreme Court has recently emphasized, laws passed by Congress don't apply outside the U.S. unless Congress affirmatively says so. RICO on its face says nothing about applying beyond U.S. borders. So you’d think that RICO can’t reach conduct that occurred abroad, and much of the alleged FIFA criminal conduct appears to have done so.

But in 2014, the U.S. Court of Appeals for the Second Circuit held that RICO could apply extraterritorially -- if and only if the separate criminal acts required by the law, known as “predicate acts,” violated statutes that themselves apply outside U.S. borders. The court gave as an example the law that criminalizes killing an American national outside the U.S. That law clearly applies abroad, the court pointed out. And it may function to define one of the predicate offenses under RICO. Thus, RICO can apply abroad.

To convict the FIFA defendants, therefore, the Department of Justice will have to prove either that they committed crimes within the U.S. or that they committed predicate crimes covered by RICO that reach beyond U.S. borders.

Presumably, the department thinks it has the evidence to do this. When the arrests became public, the government also announced that it had guilty pleas from four individuals and two corporate defendants who are part of the same enterprise, as defined by the government's indictment. These defendants almost certainly must've agreed to testify against the others in exchange for lighter sentences.

But what's most remarkable, and even incendiary, about the indictment comes in the fine print. RICO requires the existence of a criminal enterprise. As part of its case, the U.S. Department of Justice is alleging that FIFA, the organizer of the World Cup, became a criminal enterprise as a result of its use for systematic corruption. In effect, the U.S. government is saying that FIFA became the Mafia.

The U.S. government acknowledges that the original purpose of FIFA is the perfectly legitimate goal of regulating international soccer. Its claim is that FIFA -- as well as Concacaf, the North American soccer body that has its headquarters in Miami -- took bribes from sports marketing companies to give them access to the tournaments that are the main source of revenue for the organizations. The sports marketing companies were the intermediaries who sold tournament rights to television and radio broadcasters and to advertisers. In a process going back to 1991, the government alleges, the defendants “corrupted the enterprise,” transforming FIFA into a criminal entity.

How will the rest of the world react to the claim that soccer's international governing body is a criminal enterprise under U.S. law? One possibility is that international observers will be grateful that someone finally stepped in to do something about endemic corruption within FIFA. It's been a more or less open secret over the years that FIFA was corrupt in the ordinary, nontechnical meaning of the word. Perhaps -- just perhaps -- fans will be pleased or relieved that someone has taken on the task of cleaning up the mess.

That interpretation is optimistic, given America's reputation for extraterritorial imperialism. The relative unimportance of soccer in the U.S. compared with every place else on earth makes concerns about imperialism still more pressing. Through creative and aggressive use of a highly unusual American law, the U.S. may well be seen as attempting a takeover of international soccer.

The Department of Justice is entitled to prosecute crimes under its jurisdiction. But that doesn't mean it always should. There's no doubt that FIFA needed to be cleaned up. But it's far from clear that U.S. global interests are served by doing it the American way -- with courts and long prison terms.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net