Soccer, International Criminal Law, and Thucydides

What ancient history teaches us about the FIFA indictments.

As everyone now knows, DOJ has indicted a number of soccer officials for taking bribes over several years. This is particularly surprising because (a) the arrests took place in Switzerland and (b) apparently the entire world knew about the FIFA corruption but didn’t care enough to do anything about it. The only nation in the world that’s indifferent about soccer is the only nation that cares that the game is corrupt.

It reminds me of when I took my elementary school-aged daughter to a daddy-daughter dance and they played “Blurred Lines.” Everyone was dancing and grooving to the song (as much as middle aged men and third grade girls can). I tried to point out that it was a creepy and wildly inappropriate selection, but everyone was having to much fun to listen or care.

Perhaps, as the Washington Post has suggested, one reason we can indict is that we aren’t really enjoying that party anyway.

There is another theory on the internet — that the charges are related to the U.S. losing a bid to host the 2022 World Cup to Qatar, and are part of a play to have that decision revisited. I tend to be skeptical of DOJ’s motives, but, even to me, that seems like a pretty big stretch. That said, today was my first day on a soccer fan blog, so what do I know?

The FIFA story is interesting for lots of reasons. One is that the international coverage of our criminal justice system is spectacularly bad. See, e.g., this nugget from the Telegraph:

But, whatever the reason, the upshot is that, if you are found guilty of a white-collar crime in the US, they throw away the key. Federal prosecutors can, for example, count every email a criminal sends in the course of committing their offence as a separate case of wire fraud – and each count will carry a maximum sentence of 20 years.

If the implication is that you get a separate 20-year sentence for each email involved in a case, or that each email is always a separate count, that’s kind of adorably inaccurate.

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The big part of the FIFA story, though, is that we are now the undisputed cops of the world. Our government’s assertion of criminal authority over things that happen abroad is sort of like the growth of the Universe — it’s already big and it keeps expanding.

(Though, but see an opinion by Judge Breyer in San Francisco on extraterritoriality recently, summarized here)

It’s also interesting to note that the arrests happened in Switzerland. Switzerland has been something of a ground zero for how the United States respects foreign law and conduct on foreign soil.

Sure, there’s the Roman Polanski extradition situation over there, but, more relevantly, is the U.S.’s dismantling of Swiss banking secrecy.

Switzerland has famously robust bank secrecy laws. This has not endeared them to U.S. law enforcement, particularly those interested in enforcing our laws against tax evasion.

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After a banker at UBS approached the U.S. government and said that Swiss banks were encouraging folks in the United States who wanted to evade taxes, DOJ got very interested in what was happening at Swiss banks.

At one point, after Swiss bankers were arrested and being prosecuted here in the United States, some of them were asked to cooperate and provide information against other Swiss bankers. The tricky bit is that this cooperation likely was illegal under Swiss law — they take bank secrecy very, very seriously. Some in the Department of Justice took the view that they really didn’t need to concern themselves with Swiss law. If they strong-armed someone into violating the law in Switzerland that wasn’t their problem — international comity be damned — and required information divulged even if it violated the Swiss law. Others were more measured.

The United States strong-armed UBS into giving it a ton of information about U.S. citizens who have accounts at that bank. It was a major blow to Swiss bank secrecy and to Switzerland’s ability to run its country the way it wants.

In a very meaningful sense, this is deeply not new. Countries with power have always imposed their view of what should happen on other countries.

In the History of the Peloponnesian War, Thucydides describes a nation’s power — Melos was an island colony in the Aegean that was neutral in the war between Athens and Sparta (though it was originally colonized by Sparta, but let’s skip over that part for this discussion). The Athenians came to Melos and demanded that Melos become an ally of Athens and join the war.

Melos said that it really didn’t want to — it didn’t want any part of the war and just wanted to remain neutral. The Athenians said they wouldn’t accept neutrality — if you’re not with us, you’re against us. That said, if there’s anything the Athenians prize themselves on, it’s giving rationality a chance to work.

So there was this odd discussion between Athens and Melos set out by Thucydides. The Melians recognized their leverage pretty well: “We see that, although you may reason with us, you mean to be our judges; and that at the end of the discussion, if the Justice of our cause prevail and we therefore refuse to yield, we may expect war; if we are convinced by you, slavery.”

Heads you win, tails we lose indeed.

The Melians do pretty well in the debate, but not so well as to deter the Athenians. War came. As Thucydides summarized the result — “The Athenians thereupon put to death all who were of military age, and made slaves of the women and children. They then colonized the island, sending thither 500 settlers of their own.”

Clearly, the United States is riding high. We’ve got the power of Athens and then some (we can cripple a country’s banking abilities without loading a single rifle). But the lesson of the Melian debate is that when power trumps reason it’s deeply problematic.

We seem to be following the Athenians not just in our accumulation of power, but also in our interest in talking to others about how we use it.

Earlier: Only The American Justice System Could Go After FIFA


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.