Magogo’s plea bargain with FIFA is invalid

It is coming to five years since I took leave from football matters except for the occasional relapses brought back by the Uganda Cranes exploits on the continent.

Recently, however, my indifference was rudely awakened by the FIFA announcement that it had suspended Moses Magogo, the FUFA President, from all football activities for two months and that he was also fined 10,000 Swiss Francs (Shs37m).

Magogo’s crime, according to FIFA which happens to be the investigator, potential witness, prosecutor and judge in this case, is that he illegally sold World Cup tickets meant for Ugandans during the 2014 edition of the football spectacle which was held in Brazil.

I wonder why FIFA did not notify Ugandans about the ticket allocation before the World Cup event. Maybe, just maybe, the prodding eyes of the Ugandan beneficiaries would have ensured that these tickets or most of them were put to proper use.
I have been driven to comment on Magogo’s suspension by FIFA because of the urge to share what I have come to know about the laws governing football over the last 18 years.

FIFA laws
This urge far outweighed my need to remain silent. I will therefore proceed to weigh in, by interrogating the propriety of Magogo’s suspension, firstly in the context of the FIFA statutes or laws, which were applied to the facts of the case and secondly but to a small extent, in the context of the Sovereign laws of Uganda, to which Magogo is subject as a citizen.

I take issue with the adjudicatory chamber of the Independent Ethics Committee of FIFA, which entered a plea bargain by mutual consent and handed Magogo a paltry fine of 10,000 Swiss Francs and a two-month suspension.

This sanction, for the kind of offence Magogo confessed to have committed, is not supported by the FIFA Code of Ethics (2019 Edition).
I must hasten to add that the chambers mandate to act in this case was governed by this code in the main. The FIFA Disciplinary Code does not appear to come into specific play as it relates to infringements and sanctions on or around the field of play.

Whereas Article 67(1) of the FIFA Code of Ethics (supra) allows the Adjudicatory chamber to entertain and accept plea bargains from accused persons, Article 67(6) of the same code doesn’t permit the said chamber to enter into a plea agreement with accused persons for sanctions related to bribery and corruption.

The said Article 67(6) states: “No plea agreement shall be allowed concerning sanctions related to infringements of bribery and corruption, misappropriation and misuse of funds and manipulation of football matches or competitions” (emphasis supplied).

Corruption
Article 27(1) of the FIFA Code
of Ethics (supra) defines corruption to include, among others, the offering, receiving, requesting or soliciting of any personal or undue pecuniary (financial) advantage or any other improper advantage to or from anyone within or outside FIFA.
By its own account of the facts, FIFA acknowledges that Magogo engaged in a corrupt act of the type defined by Article 27(1) when he diverted and illegally sold the tickets.

It is clear on the face of it that he unlawfully gained a financial or improper advantage in perpetuating a transnational crime which is expressly forbidden and punished by the FIFA code and national laws world over.
It was therefore irregular and fundamentally wrong for the Adjudication chamber to entertain a plea bargain from a person who was not eligible to enter it.

In fact such a plea bargain and the underlying fine and suspension are not only null and void and liable to be revoked but they also put the bonafides and competence of the chamber in question.
Moreover, this surreptitious decision by the chamber tends to take FIFA far away from its much-promised and publicised fight against corruption in football.

Repercussion
FIFA officials should know that they can also be charged for conspiracy if it is shown that they actively aided and abetted the commission of the crime. Under S. 5 Penal Code Act Cap 120, Ugandan courts have jurisdiction to try offences committed partly within and outside Uganda by a Ugandan or non-Ugandan.
In the recent past, the Swiss, French and American Courts have swung into action to apprehend and prosecute FIFA officials who have engaged in acts of corruption and financial impropriety.

I need to stop here and resume my leave from football matters in Uganda. But I counsel that FIFA cannot run away from its own shadow, it must, therefore, act in true and faithful alignment with itself.
FIFA must lead the fight against corruption in football from the front, it has no place in the back seat.

Way forward

Advice. The honorable thing for FIFA to do is to reopen the case and proceed with it to full trial with a public hearing of the complainants. It is against the established principles of a fair hearing for FIFA to conduct proceeding in secrecy and even hide the charges like it has done with Magogo.

Under Article 42(2) FIFA Code of Ethics, the Ethics Committee can rectify any obvious errors in its decision at any time. This means that the adjudicatory chamber should not find any difficulty in revisiting its decision.
If the case is re-opened, Magogo should additionally be charged under Article 25 of the FIFA Code of Ethics for abuse of his position as President of FUFA in the sale of the tickets in issue.

Penalty
On conviction, this charge would carry a minimum fine of 10,000 Swiss Francs and a stiffer ban of at least two years from all local and international football activities.
This, in my view, is a punishment which would be deterrent enough to punish the vice and dissuade the reoccurrence of such misconduct by present or future officials of FUFA.

Option
However, if FIFA chooses to connive in breaching its own laws, then it will be open for Magogo to be charged with corruption, illicit enrichment and embezzlement under the Anti-Corruption Act 2009 of Uganda.

By Fred Muwema
Managing Partner
M/s Muwema & Co Advocates
October 15, 2019