The FIFA Trial: Over By Christmas? 

by | Dec 20, 2017

Watching helplessly, as events overtake your just-submitted 1800-word article, is frustrating. Luckily, I was proof-reading my last “Fifa Trial” piece (NOT “Fifa-Gate” because that…MAKES…NO…SENSE…) when news emerged that defence attorneys in New York’s Brooklyn Federal Courthouse had “declined to submit an affirmative defence of their clients.”

So, I was able to look a fraction less behind-the-times, even if it was disappointing to discover that the attorneys’ statement was NOT legalese for “there’s NO defence for this shower of crooks.” And some of the late testimony illustrated an issue which has concerned some trial observers.

After the trial’s early dramas, the evidence became more technical, if no less important. And media coverage outside the Americas tailed-off. The appropriately-named Oliver Laughland’s reports for the Guardian newspaper expertly covered those dramas and the inevitable appearance of “Qatar” and “2022” in trial testimony. But he only returned to the case with last week’s revelations from court documents that everybody’s favourite scumbag media mogul Rupert Murdoch was indirectly involved.

Buzzfeed news reporter Ken Bensinger has been almost ever-present. And he bemoaned the fact that the case has “drawn so much attention” across South America but “so little attention in other parts of the world” (much of the trial has concerned South American federation Conmebol [“Conme”]) Whatever the jury’s verdict, which they began considering last Friday, the story should be globally newsworthy again.

With no “affirmative” defence on offer, defence attorneys’ closing statements largely echoed their opening statements. For instance, former Conme president Juan Angel Napout’s attorney Silvia Piñera-Vazquez continually insisted that nobody saw him receive a “penny” (“centavo”) in bribes. However, presiding US District Judge Pamela Chen insisted that the prosecution didn’t have to prove that Napout, former Brazilian FA (CBF) chief Jose Maria Marin and Peruvian counterpart Manuel Burga ever received a bribe centavo, merely that they conspired so to do.

All three were charged with racketeering conspiracy, with Marin and Napout additionally charged with wire-fraud and money-laundering conspiracies. And while acknowledging that “the defendants argue there is no direct evidence of any exchange of money from the media companies to the defendants,” Judge Chen was certain that “there has been evidence about conspiracy, an agreement to receive money. And the jury could find that conspiracy was proved.”

This seemed a loaded way to summarise/undermine a fundamental part of the defence case, an influential thought with which to leave the jury, with trial testimony complete, just before the two sides’ closing statements. The prosecution, you suspect, could not have requested better content or timing.

One late throw of the defence dice had outside-world consequences. Trial evidence included multiple examples of close co-operation between Marin and his successor CBF president, Marco Polo Del Nero. One witness called them “Siamese Twins.” Marin was indicted and arrested in May 2015. Del Nero was indicted that December, by which time he’d high-tailed back to the legal sanctuary of Brazil, as there is no Brazil/United States extradition treaty.

Marin was banned from “all football activities at national and international level.” But Del Nero remained CBF president, free to host, and be pictured in friendly conversation with, Fifa’s president, Gianni Infantino in August 2016. And the defence tried to portray these inconsistencies as a suggestion of Marin’s innocence. No…really.

The prosecution had argued that the defendants’ actions were detrimental to their respective football institutions and in breach of their regulations. If this was true, the defence counter-pointed, why was Del Nero unsanctioned by those institutions, when he was charged with the same offences as Marin? However, the question was not asked with the jury present.

One Marin rep, James Mitchell, wanted to ask Internal Revenue Service (IRS) agent Steve “not Perryman but” Berryman, though why he thought Berryman would understand Fifa machinations was never clarified. Law 360 website’s Sindhu Sundhar reported that Mitchell believed “Fifa’s differing treatment of the two men speaks to the potential flexibility in how it interpreted its Code of Ethics,” Mitchell not being from Planet Fifa, where such “potential flexibility” is how Fifa ‘works.’

Mitchell told Judge Chen that Del Nero “was indicted on the same charges as (Marin) but Del Nero is a member in good standing at Fifa” (my word, he really DOESN’T understand how Fifa ‘works’). But the increasingly good judge ruled that introducing the issue would not help the jury with their decisions and mused aloud that “maybe Del Nero has friends in high places.”

This coffee-splutterer grabbed so many and such large headlines that even Fifa couldn’t ignore them. And Fifa’s ethics committee hurriedly announced that they were provisionally banning Del Nero, exactly as they had Marin 31 months previously, for 90 days. They did not reference the trial. But not even Fifa dared suggest a co-incidence of timing, especially after it was reported that the ethics committee received trial-based evidence of Del Nero’s involvement in bribery schemes.

The closing statements contrasted in detail, i.e. the prosecution’s had some. Assistant US attorney Samuel Nitze initially kept it simple: “There are mysteries to be solved and there are whodunits.” However, this case was “not one of them. Some things are just the way they appear.”

Nevertheless, he could, and did, reference what Rebecca R. Ruiz listed in the New York Times as “bank records; hotel records; emails; transcripts of covertly-recorded conversations; photos of men boarding private planes; & four different accounting ledgers detailing what co-operating witnesses described as bribe payments made to each of the defendants.”

Nitze applied the exception-that-proves-the rule…er…’rule’ to prove these ledgers were authentic, because there were no entries for the two South American presidents NOT charged with bribery offences, Chile’s Harold Mayne-Nicholls and Uruguay’s Sebastian Bauza. (Interesting to note Mayne-Nicholls’ innocence, given his bullsh*t ban by Fifa for supposedly seeking personal favours from Qatar’s World Cup bid).

Burga had been centre-stage because of his, ahem, ‘dermatitis’ during the trial’s first week (see 200% passim). But since that, ahem, ‘cleared up,’ he was the least referenced defendant. The prosecution admitted there was little evidence of his receiving an alleged $4.4m in bribes. But only because he was under investigation in Peru for money-laundering and felt it wise in such circumstances not to have another $4.4m in the wash.

Documents frequently placed Paraguayan Napout in Argentine capital Buenos Aires when other documents suggested he was due payments from Argentine sports marketing company (SMC) Full Play, payments often listed in Full Play’s ‘bribe-ledgers’ under the heading “JAN.” This, the prosecution insisted, was Juan Angel Napout, who, they further insisted, back-pocketed $10.5m. The defence insisted “JAN” could have been anybody. Or anything. Well…anybody or anything with the initials JAN.

Marin, meanwhile, was condemned by his own conversations with, and recorded by, fellow-Brazilian SMC chief, Jose Hawilla. “It’s about time to have it coming my way,” Marin told Hawilla in 2014. “Of course. That money had to be given to you,” Hawilla responded, keen/desperate to clarify what was “coming” Marin’s “way.” An alleged $6.55m in total.

Aside from the “no-one ever saw them being paid a centavo” schtick, and an insistence that demonstrated payments were not proven bribes, the defence’s closure relied heavily upon impugning prosecution witnesses’ honesty, integrity and motivation. This was admittedly assisted by so many witnesses having pled guilty to so much of what was alleged against the defendants and facing decades behind bars if they hadn’t BECOME prosecution witnesses.

The prosecution “was too trusting of their co-operators,” claimed Napout attorney John Pappalardo, calling “star” witness, Argentine SMC executive Alejandro Burzaco, a “swindler” who “made a fortune paying off people and cheating them.” Nitze said defence attorneys had “to attack” Burzaco “because his testimony was devastating and “powerfully corroborated,” adding that “It is impossible to spin a lie that detailed and not have it come into contact with hard proof.”

Marin’s attorney, Charles Stillman, varied the theme by impugning his own client’s capabilities, portraying Marin as “on the field but not in the game.” Stillman, wrote the Courthouse News Service website’s Amanda Ottaway, “respectfully” painted Marin as “a somewhat clueless old man.” And Ottaway seemed persuaded, ‘painting’ Marin’s court demeanour as “confused or concentrating hard or both.”

However, Stillman claimed Marin “was a rich man” before becoming CBF president and “didn’t need the money,” as suggested by his house arrest during the trial at his $3.5m apartment in bloody Trump Tower (that man again). This was a logical argument, albeit undermined by the undisputed history of bribes to already-filthy-rich South American soccer chiefs. Stillman also claimed a “complete lack of evidence” that Marin was merely the “king, who made the toasts and speeches,” while “Del Nero, the Prime Minister, ran the show.”

Pappalardo disputed the nature of the oft-cited “Group of Six” soccer chiefs. Group “member,” Colombia’s Luis Bedoya, had testified that a grouping designed to form a voting majority in Conme became a bribe-organising vehicle. The defence said this interpretation was untrue and retrospective, designed to fit the conspiracy charges (Napout and Burga were both “members”).

Pappalardo was perhaps trying to seem reasonable before the jury when acknowledging that US authorities had “exposed widespread corruption in international soccer over a long period of time.” But he suggested that they believed “everyone in soccer is dirty.” And that while trial evidence and their own admissions confirmed many prosecution witnesses as “dirty,” the defendants, somehow, were not.

Judge Chen offered the jury 54 pages of guidance, including what Bensinger called “dense phrases,” which made him question the entire basis of trial-by-jury, wondering “how a jury of our peers can absorb so much information en route to a well-informed verdict.”

As I type, this jury of our peers is still deliberating, having failed to reach Planet Football’s favoured verdict (“guilty as f**k, lock them up!”) at first sight. So, here’s to being overtaken by events again. However, as any guilty or jammy-bastards-got-away-with-it not guilty verdict requires a unanimous verdict, we could be here a while.

Not that there is unanimous support for the “throw-away-the-key” verdict. With every Conme nation represented among the indicted, much interest has been piqued along national lines (Bensinger’s twitter feed has been regularly populated by Chileans eager to see Mayne-Nicholls’ successor Sergio Jadue testify). But media reports of a six-year investigation had cynics counting time back to Fifa’s December 2010 decision to award the 2022 World Cup to NOT the USA and claiming the investigation as nothing more than America’s revenge.

For all the outward economy of effort of defence attorneys and the everything-but-the-kitchen-sink nature of the prosecution’s tales, the case is complex and, from here, tough to call. “Knowing” that football officials were “at it” is way short of “proving it.” Google “Ken Bates” for proof. As previously mentioned, there is an obvious desire for proceedings to be “over by Christmas.” Which means Friday. Hopefully NOT at the expense of whatever the “right” decision may be.