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WSA October 2017 CORRUPTION The case of Harold Mayne- Nicholls: A relentless pursuit It is no secret that FIFA and FIFA associated football ofcials have been embroiled in a series of scandals over the course of the past several years. From the arrangement of television marketing rights through the International Sport and Leisure Corporation to the more current series of cases involving members of the FIFA Executive Committee allegedly selling their influence, the members of both the Investigatory Chamber of the FIFA Ethics Committee (‘FIFA Ethics Committee IC’) and the Adjudicatory Chamber of the FIFA Ethics Committee (‘FIFA Ethics Committee AC’) have been busy attempting to enforce the application of the FIFA Code of Ethics. This process has touched the highest ofces in the football world; however there is one case, that of Harold Mayne-Nicholls, that appears to be quite diferent. Juan de Dios Crespo Pérez and Paolo Torchetti of Ruiz-Huerta & Crespo Sport Lawyers, analyse the case of Mayne-Nicholls in detail and the legal ramifications of the delays throughout the legal proceedings, which resulted in Mayne-Nicholls serving a longer ban from football than was ultimately handed down by the Court of Arbitration for Sport. Mayne-Nicholls is a Chilean national able to attend the Aspire Academy and if [Football] Legends Dinner” hosted who has spent over 20 years in football he was aware of any opportunities for his by Samson Adamu in Johannesburg administration. He has served as the brother-in-law to work as a tennis coach. before the World Cup in South Africa. president of the Chilean Football After several pieces of correspondence In advance of publication, the Sunday Federation and the Chilean National the matter was not pursued, Mayne- Times forwarded to FIFA certain material Professional Football Association Nicholls’ son and nephew did not attend in their possession, and FIFA in turn and as a FIFA ofcial. Most recently the Aspire Academy and no opportunities forwarded the same information to the Mayne-Nicholls was the Chairman of were explored for his brother-in-law. It is Chair of the Investigatory Chamber. The the 2018 and 2022 FIFA World Cup worth noting that Mayne-Nicholls did not communication from FIFA noted that Bid Evaluation Committee. The Bid request that Bleicher arrange that Aspire the material was being forwarded for Evaluation Committee is the working or any other organisation or person the Chair’s “information and analysis.” group established by FIFA to visit each incur expenses on behalf of his son, This referral to the Investigatory country submitting bids to host the World nephew or brother-in-law. Subsequently Chamber of specific allegations of Cup and is responsible for the review the FIFA Executive Committee met in misconduct by a bid team led to the and evaluation of those bids. The Bid Zurich on 2 December 2010 and voted initiation of a preliminary investigation.’ Evaluation Committee does not select to award the 2022 World Cup to Qatar. which countries will host the World Cup The investigation uncovered a but focuses on determining whether The FIFA proceedings systemic pattern of misconduct and the various bids are as represented Amid the suspicion of corruption FIFA violations of the FIFA Code of Ethics. by the various countries in the ofcial decided to investigate, through the It is worth noting that this investigation bid documents provided to FIFA and FIFA Ethics Committee IC, the selection resulted in the commencement of provides a report summarising the process of the 2018 and 2022 World proceedings against some of the bids to the FIFA Executive Committee, Cups. This investigation resulted in FIFA most powerful football ofcials in the the ultimate deciding body. producing a Report on the Inquiry into world, alleging that members of the the 2018/2022 FIFA World Cup Bidding Executive Committee were selling The Bid Evaluation Committee visited Process, known as the ‘Garcia Report,’ influence and colluding in the World Qatar in September 2010 to conduct named after its principal author, Michael Cup selection process. The relatively a technical inspection with respect Garcia, the then Chairman of the FIFA benign electronic correspondence to Qatar’s bid for the 2022 World Ethics Committee IC. The Garcia Report between Mayne-Nicholls and Bleicher Cup. Included in the Bid Evaluation outlines the genesis of the referral from were included in this investigation. Committee’s review of the Qatari bid FIFA to commence the investigation as Subsequently the FIFA Ethics Committee was a visit to the Aspire Academy for follows1: ‘On November 18, 2012, the IC initiated an investigation where Sports Excellence in Doha where the Sunday Times (of London) published Mayne-Nicholls voluntarily attended Bid Evaluation Committee met with an article alleging that the Qatar bid a deposition in New York where he Andreas Bleicher, Aspire’s Executive team paid $1 million to Samson Adamu, answered questions put to him by Garcia Director for International Football Afairs. the son of FIFA Executive Committee and subsequently provided written Shortly after the visit to Qatar member Amos Adamu, in the months answers to further questions2. The Mayne-Nicholls sent an electronic prior to the vote for World Cup host. investigation was then referred to the correspondence to Bleicher asking The newspaper stated the money FIFA Ethics Committee AC where Mayne- whether his son and nephew would be was ofered to “sponsor” an “African Nicholls gave oral evidence. The FIFA 4 WORLD SPORTS ADVOCATE Juan de Dios Crespo Pérez Head of Sport [email protected] Paolo Torchetti Associate [email protected] Ruiz-Huerta & Crespo Sport Lawyers, Valencia Ethics Committee AC found that for the proportionate in the circumstances. The timeline described in the CAS award it electronic correspondence with Bleicher, CAS upheld the violations of Articles 13, is clear that the CAS arbitrators and the Mayne-Nicholls violated Articles 13 15 and 19 of the FIFA Code of Ethics. administrators worked quickly in order to (general rules of conduct), 15 (loyalty), 19 Four interesting and important legal resolve the dispute in a timely manner. (conflict of interest) and 20 (ofering and issues were raised during the course accepting gifts and other benefits) of the of this saga: (1) the delay of the FIFA The issue, however, is that the delays FIFA Code of Ethics and that he was to be proceedings and the subsequent appear to have caused Mayne-Nicholls to banned from participating in any football request for a stay of proceedings; (2) serve a sanction that was more than that related activity at national or international the production and publication of the imposed. When initiating proceedings level for a period of seven years3. Garcia Report; (3) the application of before the CAS Mayne-Nicholls filed a the principle of nullla poena sine legge consolidated statement of appeal and It must be noted that the FIFA Ethics praevia as FIFA consistently applied the appeal brief 19 days after the grounds of Committee AC did not find that Mayne- 2012 edition of the FIFA Code of Ethics to the FIFA Appeals Committee decision Nicholls violated Article 18, the duty of events that occurred in 2010; and (4) the was communicated, and at the same disclosure, cooperation and reporting, ultimate proportionality of a two year ban. time requested a stay of the appealed or Article 42, the general obligation to decision further to Article 37 of the collaborate, further to the FIFA Code The delay and request for Code of Sports-related Arbitration10. of Ethics. Subsequently the FIFA Ethics provisional measures Generally speaking the following factors Committee AC took over six months to The FIFA Ethics Committee AC initially must be cumulatively demonstrated in issue the reasons for the decision4. applied the seven year prohibition from deciding to issue a stay of a decision Mayne-Nicholls appealed the decision football related activities via a decision (1) whether the relief is necessary to to the FIFA Appeals Committee which dated 6 July 2015 where Mayne-Nicholls protect the applicant from irreparable reduced the sanction from seven immediately requested the grounds of harm; (2) the likelihood of success on the to three years5. The FIFA Appeals the decision on 8 July 20157. The grounds merits of the claim; and (3) whether the Committee took approximately ten for the decision of the FIFA Ethics interests of the appellant outweigh those months to issue the full grounds of Committee AC were finally delivered to of the respondent11. The President of the the decision after the initial decision the Appellant on the 14 January 2016, Appeals Division of the CAS rejected was originally communicated6. more than six months after they were this request for provisional measures as requested8. After hearing the appeal it was determined that “the Appellant Appeal to the CAS the FIFA Appeals Committee reduced has not evidenced any irreparable harm Mayne-Nicholls appealed the decision the sanction to three years on 22 April and therefore the first of the criteria of the FIFA Appeals Committee to the 2016, however only communicated the for granting a stay of the decision Court of Arbitration for Sport (‘CAS’). The grounds of that decision on 8 February under appeal was not made out12.” CAS further reduced Mayne-Nicholls’ 2017, almost nine and a half months later9. ban from football related activities At that point in time Mayne-Nicholls was Given the circumstances of the case to two years on the basis that there banned from football related activities it appears that the decision to refuse was no violation of Article 20 of the for 36 months, for which he had already the request for a stay of proceedings FIFA Code of Ethics, pertaining to the served almost 20 months when he was may have been made in a manner ofering and accepting of gifts and other able to file an appeal with the CAS.
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