The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We now know how Sepp Blatter doled out pork by the barrelful to small island nations. His reelection to the FIFA presidency amid a typhoon of indictments proved how effective his largesse in the Caribbean and South Pacific had been. But we learned this week that small islands in the North Atlantic also were beneficiaries: In 2010, my own homeland, Ireland, accepted €5 million ($7.1 million) in what appears to be hush money.
At long last, one jot of this sprawling FIFA implosion involves a little soccer. To qualify for the 2010 World Cup in South Africa, Ireland and France played each other in a two-game playoff. France prevailed very narrowly on a goal scored late in extra time of the second match thanks to a very obvious handball by French star, Thierry Henry. Henry confessed to the crime, and Irish people everywhere bewailed another famine of World Cup football.
But at least one Irish person, we have just learned, also confronted FIFA about this crime against sport. John Delaney, head of the Football Association of Ireland, claims that he marched up to Blatter, dropped a few pungent expletives and threatened litigation. FIFA then delivered the €5 million to keep those pugnacious, loquacious Irish folk quiet. In a casual, bantering interview this week, Delaney admitted to this previously hidden arrangement, and outrage promptly erupted.
Is this, too, a scandal?
Accepting compensation for legal forbearance is not a novel concept—plaintiffs settle their lawsuits every day of the week. It's not even new to the FIFA story: The United States forbore from seeking jail time for Chuck Blazer in exchange for his testimony against other FIFA officials. So why the indignation here?
First, some may think Delaney deprived his players the chance of a lifetime to play at the World Cup for a handful of euro. Then-manager of France, Raymond Domenech, remarked: "If I was an Irish player and I had known that, I would have revolted against my directors. It's not possible that they might have sacrificed the possibility of a solution to go and play a World Cup for €5m." We must note, however, that (a) French players revolt against their directors at the drop of a beret and did so at that very World Cup, and (b) Delaney didn't give up a trip to the World Cup, he gave up the chance to bring a highly improbable lawsuit to schedule another game that Ireland would have had to win to go to the World Cup. Delaney's job is to act in the best interests of Irish soccer, and perhaps he concluded that €5m was worth a lot more than a futile lawsuit.
Still, does Delaney's decision reek of something more distasteful than ordinary business judgment? For one, he represents the citizens of Ireland, not corporate shareholders, and so perhaps he bears a different responsibility. His constituents might believe his duty is to consider national honor or competitive integrity above simple wealth maximization. If the Irish people disagree with the judgment he made and think it unworthy of his $400,000 salary, they could certainly fire him, regardless of his decision's legal or ethical propriety.
But of course there are questions of legal and ethical impropriety in this arrangement. For one, the payment was kept confidential, and Delaney claims he had to abide by a confidentiality provision. On the other hand, his spontaneous public confession suggests otherwise, and he didn't have to agree to the confidentiality provision in the first place. Why would a nonprofit sporting organization and one of its member nations think that keeping this payment secret was a proper way to conduct business? Losing teams are always unhappy, and lawsuits almost never provide satisfaction, so FIFA had very little to fear in a courtroom. Yet this secret deal—with both the amount and the entire arrangement kept clandestine—still struck both parties as perfectly reasonable. If further investigation determines that these private parties agreed to commit public wrongs, the deal might not be a shrewd bargain so much as an illegal conspiracy.
More troublingly, why was the payment characterized as a "loan" to build a stadium? If that description turns out to be inaccurate, then the creative bookkeeping might have been an effort to hide the hush money. So even if Delaney was right to accept the money and to stay quiet about it, football fans of Ireland might still consider this accounting ingenuity a firing offense. If not for Delaney, then perhaps for the auditors.
This FIFA debacle is too good a crisis to waste. If it can't inspire a change in FIFA's way of doing business, nothing will.