Volume: 11 Issue: 9
FIFA has said that it will fight any attempt at compensation or a re-hearing of bids, should it decide to switch the Qatar 2022 World Cup from summer to winter at its Executive Committee meeting on 3-4 October. It has also confirmed that no formal investigation into the bidding process is underway, despite reports to the contrary.
“As part of the bidding documents all bidders, including the FA Australia, accepted that the final decision regarding the format and dates of the staging of the FIFA World Cup and FIFA Confederations Cup, though initially expected to be in June/July, remains subject to the final decision of the FIFA Organising Committee”, said a FIFA spokesperson.
FIFA said that it was confident this would protect it against claims for bids to be reheard as well as compensation, despite all bids being assessed by FIFA on the basis of the tournament being held in summer. “There is no ground for any speculation”, said the spokesperson.
FIFA also said that no formal investigation is underway into the bidding process for the 2022 World Cup, despite a 17 September statement from the Football Federation of Australia (FFA) suggesting otherwise. A spokesperson said that FIFA’s Ethics Committee had only pledged to investigate media articles suggesting corruption at its Congress in May; media reports suggesting that an ‘investigation’ was about to reveal its results were “erroneous” and that comments from Sepp Blatter suggesting that political influence had affected the vote had been “lost in translation”.
The FFA release said that any final decision on switching the tournament to winter should only be made ‘after the investigative chamber of FIFA’s Ethics Committee…concludes its inquiries into the awarding of the 2022 World Cup to Qatar’. It also urged FIFA’s Executive Committee to agree considering ‘scheduling implications for all leagues and a method…for agreeing appropriate compensation…an in principle decision that just and fair compensation should be paid to those nations that invested many millions…in bidding for a summer event’.
The Football Federation Australia (FFA) said that it was ‘required by FIFA’s own Bidding Agreement documents to bid for the event based on it being staged during the northern summer’ in its release. The 2022 FIFA World Cup Bid Evaluation Report: Qatar, available on FIFA’s internet site, shows that FIFA assessed the tournament on the basis of it being held in June/July.
However, the FFA cannot launch a claim against FIFA, as Article 6.11 of the Bidding Agreement for the 2022 FIFA World Cup requires all disputes in connection to the bidding process to be settled by arbitration. It could also find itself in difficulty over its 17 September statement, as Article 6.4(i) of the Agreement requires the Bid Committee to ‘keep confidential all content of this Bidding Agreement’ and Article 6.8 requires each bid committee to ‘indemnify, defend and hold FIFA…harmless against all liabilities…in connection with the Bidding Process’.
“In most legal systems, the Australian FA would have a valid claim for an award of compensation in an arbitration”, said Stephen Hornsby, a Partner with Goodman Derrick LLP. “However, this arbitration would be under Swiss law with very limited rights of appeal to the ordinary courts. FIFA did not choose to be domiciled in Switzerland for nothing. It is therefore entirely possible that an arbitrator might find that bidders went into the process without any guarantees whatsoever, and therefore that FIFA can do as it pleases.”
Even if Australia is successful, taking on such a fight may not be worth it in the long run, said Hornsby. “Even if it loses, FIFA could stall enforcement for many years – as UEFA did in the case of an award requiring it to admit Gibraltar, and Australia could forget about ever staging a World Cup”.
An update on this article is available on the World Sports Law Report blog by clicking here. A further clarification on the role of the Investigatory Chamber of the FIFA Ethics Committee in investigating the 2018 and 2022 FIFA World Cup bidding process is available by clicking here.