FIFA elections fall short of international standards

Q&A with elections expert Jeff Fischer

By Jillian Slutzker

August 14, 2015

Mired in corruption allegations – including accusations ranging from vote-buying to bribe-taking – FIFA (Fédération Internationale de Football Association) is at a crossroads.

In February 2016, FIFA will hold its much-anticipated presidential elections, which could usher in new leadership for the governing body of the world’s most popular sport. Like any election—whether it is a national campaign in a democracy or an internal one for a sport governing body—how they are conducted, and whether the best practices of free and fair elections are observed, matters for FIFA’s future.

Creative Associates International’s Senior Electoral Advisor Jeff Fischer, who has observed and evaluated electoral processes from Afghanistan to Zambia, shared his analysis of four key elements of the FIFA regulatory electoral framework and how the organization could better conform to international norms for the conduct of elections.

Q.     Several of FIFA’s top leaders have recently been implicated in corruption scandals, giving the governing body a bad record on ethics. Will a democratic election mean a democratic, corruption-free FIFA?

Regardless of the type of election, it is axiomatic that a well-conducted election could produce either a good or poor government. However, a poorly conducted election will most often result in poor governance.

Let me put elections in the proper context with respect to the “democratic” governance of FIFA with these two definitions:

  • “While there are many views on what democracy is —or ought to be—a common denominator among modern democracies is elections… Elections alone are not sufficient to make a democracy, yet no other institution precedes participatory, competitive and legitimate elections in instrumental import for self-government,” says Staffan Lindberg.
  • “Elections are not sufficient by themselves for representative democracy, by any means, but they are a necessary minimal condition,” says Pippa Norris.

As a result, if FIFA reforms are going to be realized through a new administration, the legitimacy of their reform effort will be framed, in part, by the quality of the election conducted to put them in office.

Q.     How do the FIFA presidential elections work?

The election is conducted by a three-member Ad-Hoc Election Committee (the electoral management body), appointed by the FIFA Executive Committee and comprised of the Chairs of the FIFA Disciplinary Committee, Appeals Committee, and Audit and Compliance Committee. The Executive Committee is headed by the FIFA President. As a result, the President has a role in the appointment of the electoral management body, which may supervise his or her re-election. Such an arrangement can also be said to contravene the regulatory principle of “separation of powers.”

While the Ad-Hoc Election Committee is the supervisory body, the management of the election process is conducted by FIFA Administration. Members of the FIFA Congress cast votes for the presidential candidates.

Q.     Members of the FIFA Ad Hoc Electoral Committee are appointed by the FIFA Executive Committee, which is led by FIFA’s president. Why does this pose a problem for the independence and impartiality of the electoral management body?

In the public sphere, there are three models of electoral management bodies: 1) an independent body; 2) government-administered: and 3) government-administered under the supervision of an independent body. The Ad-Hoc Election Committee follows the model of the government-administered approach.

While some democracies follow the government-administered model, the concern with this approach involves the structural and behavioral independence of the electoral management body from the incumbent government contesting for election.

Q.     How could FIFA fix this to ensure an impartial electoral committee?

In order to provide for structural and behavioral independence of the electoral management body from FIFA organs, the Ad-Hoc Election Committee can consist of three members who are international electoral experts and not affiliated with FIFA Administration.

However, FIFA Administration can remain as the implementing body for the Ad-Hoc Election Committee policy decision and election operations. Such as arrangement would follow the public sphere model of a government-administered election under the supervision of an independent body.

Q.     In the course of elections, disputes inevitably arise over process, ballots and more. But according to FIFA rules, electoral dispute resolution is split between two bodies. What are some of the risks associated with having two different channels through which to file complaints?

Electoral dispute resolution is bifurcated between the FIFA Ethics Committee/FIFA Disciplinary Committee and the Court of Arbitration for Sports. Complaints concerning candidates and campaigning are referred to the Ethics “or” Disciplinary Committee although the statute is not clear which committee has jurisdiction over what kind of complaint.

The Chair of the Disciplinary Committee is a member of the Ad-Hoc Election Committee. And, decisions of the Ad-Hoc Election Committee may be appealed directly to the Court of Arbitration for Sports. The Court of Arbitration for Sports is a body independent of FIFA which has “the task of resolving legal disputes in the field of sport through arbitration. It does this pronouncing arbitral awards that have the same enforceability as judgments of ordinary courts”.   The Court of Arbitration for Sports has over 300 arbiters from 87 countries who are specialists in arbitration and sports law. The Court of Arbitration for Sports also has the authority to establish non-permanent tribunals for special events such as the Olympics and the Commonwealth games.

With respect to the FIFA organs, the regulations do not describe what constitutes a complaint (although violations of the Codes of Ethics are cited), who can file a complaint and the penalties associated with some of the rulings. Additionally, it is unclear from the regulation when a complaint is filed with the Ethics Committee compared with that of the Disciplinary Committee. The Court of Arbitration for Sports mandate includes rendering decisions on commercial and ethical matters, but electoral dispute resolution is not specifically cited in its realm of authority.

The electoral dispute resolution process can be consolidated into a single mechanism under the Court of Arbitration for Sports. Exercising its power to appoint non-permanent tribunals, the Court of Arbitration for Sports can establish a FIFA Election Tribunal and appoint international experts in electoral justice to its membership.

Q.     We’ve seen campaign tactics get out of hand in many elections globally; and campaign finance reform is a hot topic as we head into an American presidential election season. FIFA’s campaign rules only explicitly ban campaigning before the official campaign period has begun. Why is it important to spell out campaign regulations, including on campaign finance?

The regulation states that campaigns must be carried out in a “fair and reputable manner” and with “dignity and moderation.” However, prohibited campaign practices are not cited, except for campaigning before the official campaign period has started, and there is no provision requiring the disclosure of campaign contributions and expenditures.

Given that illicit money was the catalyst for this reform narrative, political finance transparency must be guaranteed. The Ad-Hoc Election Committee should establish campaign finance disclosure requirements for candidates to submit a listing of their contributors and their expenses five days prior to the voting and five days after the voting. These disclosure reports would be public documents filed with the Election Committee.

Q.     Having impartial election observers can help ensure that an election is free and fair. Countries from Afghanistan to Haiti to Peru have hosted international electoral observer missions. How could FIFA benefit from this, and is there a role for traditional observers like multinational and nongovernmental organizations?

The regulations do not reference a role for independent election observers. While the regulations do cite a role for “scrutineers” to assist with the ballot distribution and ballot counting, these individuals perform roles supporting electoral administration and not the observation and validation of results.

The Ad-Hoc Election Committee should issue a call for Expressions of Interest to international nongovernmental organizations known in the election observation field to apply for monitoring credentials for the campaign, voting and tabulation of ballots. The Election Committee should establish eligibility criteria for organizations to be accredited. Observation reports would be made public by the monitoring organizations.

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