Yes, the U.S. prosecution of FIFA is legal

By Anthony J. Colangelo

Anthony J. Colangelo

As most of the world now knows, a number of high-profile FIFA officers have been indicted in the Eastern District of New York for various corruption-related offenses under U.S. law. While the specter of corruption in world soccer might not be entirely surprising to observers of the beautiful game, it is still probably safe to say that the indictment has sent some significant shockwaves around the globe.

Perhaps also not surprising, President Vladimir Putin of Russia — which is scheduled to host the next FIFA World Cup in 2018 — has argued that this U.S. claim of jurisdiction over non-U.S. citizens is exorbitant. Similarly, Russia’s Foreign Ministry has called the arrests of FIFA officials “illegal.”

All of which raises the question: Is U.S. prosecution of these foreign defendants illegal? The short answer is no.

There are two potentially applicable bodies of law that govern the legality of these prosecutions. The first, of course, is international law — and is likely what the Russian government had in mind when it criticized the legality of U.S. action. While international law might have a nice cachet when governments publicly criticize each other, it does not have much bite for actual defendants unless it is in some way incorporated into U.S. domestic law.

The way international law filters into U.S. law in this context is through what’s called a “canon of statutory construction.” Courts will look at the U.S. statute and construe it in line with international law. Here, the relevant international law is the law of jurisdiction, which governs where and to whom a nation may extend its domestic criminal laws. Unless a U.S. statute unambiguously overrides international law (something Congress can do if it wants), U.S. courts will construe that statute so as not to violate international law.

Because the U.S. statutes under which the FIFA defendants are being prosecuted do not explicitly override international law, the question then becomes: Does international law prohibit the projection of U.S. law to transnational corruption by non-U.S. citizens, some portion of which was perpetrated or facilitated in the United States? And the answer is no, it does not. Under international law, a nation may regulate a multijurisdictional event or transaction if either a portion of the conduct leading to the harm occurs in that nation’s territory or a portion of the harm occurs in that nation’s territory.

Based on the indictments, those criteria appear to be met in this case.

The second body of law is the U.S. Constitution.

If Congress wants to reach out and regulate transnational corruption, it must find something in the Constitution to authorize that regulation. Here the relevant power resides in what’s typically called the Constitution’s Foreign Commerce Clause, or Article I, Section 8, Clause 3, which contains the power “To regulate Commerce with foreign Nations.”

While it’s true that this power would not reach corruption between two foreign nationals unconnected “with” the United States, or, for that matter, corruption entirely within a foreign nation unconnected “with” the United States, once again the indictment in this case seems perfectly legal. The alleged use of U.S. banks, commercial wires, and other channels and instrumentalities of U.S. commerce satisfies the text of the Foreign Commerce Clause. These features qualify the corruption alleged as both “with” foreign nations and “with” the United States.

In sum, there are no legal impediments to the United States seeking to defend the integrity of the beautiful game. 

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