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How can the USA arrest FIFA officials in Switzerland?

Legal expert Keith Ybanez explains how FIFA officials were able to be arrested in Switzerland under U.S. law.

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The following was written by Keith Ybanez, an associate at a Chicago law firm with a certificate in International and Comparative Law.

Soccer has long been considered the global game everywhere in the world except for the United States. However, in recent years, we have seen the popularity of this sport increase beyond just patriotism during a World Cup. One does not have to look very hard to see the popularity of soccer increasing in American culture. But success is oftentimes a double-edged sword as FIFA officials no doubt discovered early Wednesday morning in Zurich. As reported by the New York Times, Swiss law enforcement officials, on charges supported by an FBI investigation, arrested several high ranking FIFA Officials as they gathered for an annual meeting at the Baur au Lac Hotel. The FBI investigation led to an indictment brought by the US Department of Justice (DOJ) against nine FIFA officials and five corporate executives for racketeering conspiracy and corruption.

One of the prevailing questions in the aftermath of these extraordinary arrests is how can the United States exercise authority or jurisdiction to arrest individuals situated outside of its borders? The proliferation of globalization has necessitated the need for legal procedural rules to evolve. Personal jurisdiction rules allow for U.S. Courts to conduct an analysis of the relationship between a foreign defendant (here, the FIFA officials) and a forum state (the U.S.). In assessing whether litigation can be conducted in a U.S. Court based on the DOJ's charges, personal jurisdiction must be established through a "minimum contacts" analysis.

It doesn't take much to establish "minimum contacts," and I suspect the U.S. Attorney's Office (the lawyers for the Justice Department) will try to demonstrate a connection between FIFA and U.S. Banks sufficient to create a personal jurisdiction nexus. Personal jurisdiction can also be established by demonstrating FIFA/FIFA Officials' prior business contacts (broadcasting deals, contracting with American stadiums to host games/tournaments on U.S. soil, etc.) with the United States or through the activity of its domestic subsidiary. FIFA's domestic subsidiary is CONCACAF which is the continental federation that operates under the FIFA umbrella and subject to its directives. Significantly, the current and former presidents of CONCACAF— Jeffrey Webb and Jack Warner—were among those indicted and arrested this morning in Zurich.

Extradition will likely be the trickier issue in order to get the defendants into the U.S. for trial. However, it was not by coincidence that arrests were made in Switzerland as the two countries signed a treaty in 1990 that allows for extradition. Specifically, the treaty allows for extradition if charges are for a criminal offense or if the offense is punishable in both countries by "deprivation of liberty" (i.e. jail time) for more than one year. Additionally, conspiracy or attempt to commit these offenses is also extraditable. Since racketeering is a federal criminal offense, the DOJ has a sufficient basis to request the extradition of the FIFA officials from Switzerland to the U.S.

Something to consider as this plays out will be the impact the charges have on North American Soccer. CONCACAF and FIFA's highest ranking officials have been implicated and this could create reverberations in terms of governance and broadcasting moving forward.

While these charges will not be resolved quickly, it will be interesting to watch this story unfold as the breadth of FIFA's (alleged) corruption will be played out in the court of public opinion long before it makes its way into an actual courtroom.