Platini faces long shot on appeal: how bin Hamman case doesn't help him

• by Paul Kennedy  @pkedit, Dec 22, 2015

Michel Platini's last chance to rescue his FIFA presidential bid will depend on whether he can convince the Court of Arbitration for Sport (CAS) to overturn the decision of FIFA's ethics committee to ban him for eight years for multiple violations of the FIFA ethics code related to a $2 million payment he received from FIFA in 2011. Platini not only has to win the case, he has to do so before Jan. 26, the final date for candidates to be confirmed for the FIFA president election a month later.

CAS has upheld only one appeal from the FIFA ethics committee, but that was a big case, coincidentally linked to the origins of the case against Sepp Blatter and Platini.

Qatari Mohamed bin Hamman, the former Asian Football Confederation president, appealed and got overturned his lifetime ban on bribery charges related to the distribution of cash envelopes containing $40,000 to members of the Caribbean Football Union in May 2011 at a meeting organized by then-Concacaf president Jack Warner in his native Trinidad & Tobago.

bin Hamman v. FIFA: CAS decision

Warner had organized the meeting so bin Hamman could speak about his bid to unseat Blatter as FIFA president. (Months earlier, Platini had ruled out a bid to run against Blatter and backed him for a fourth term.) The ethics committee's case centered on whether bin Hamman was the source of the money and whether it was offered to buy the votes of the CFU officials in the FIFA president election.

After the handouts first leaked, U.S. attorney John Collins compiled a report based on statements and sworn affidavits from seven CFU officials from four countries. An independent investigation was later led by former FBI director Louis Freeh under the direction of the FIFA ethics committee.

Bin Hamman appealed his life ban on numerous bases, among them:

-- the ethics committee was not independent;
-- the wrong burden of proof was used in the case;
-- it depended on the testimony of an unreliable witness; and
-- his rights in the case were prejudiced by leaks.

In reviewing the case, CAS's panel of three judges honed in on the briefcase containing the $1 million in cash and the banknotes themselves and could not trace either back to Bin Hamman, who arrived by private plane into Trinidad & Tobago. (Warner was then conveniently minister of transport, allowing bin Hamman to be whisked into the country.)

Much of the case depended on statements by Warner -- he first told CFU members the money came from the CFU itself but the next day said Bin Hamman came bearing cash because it was more convenient than gifts of silver trays or silver trinkets or Qatari sand -- but in a classic case of understatement, the CAS panel stated, "Mr. Warner appears to be prone to an economy with the truth." Without Warner's statements, the case relied on circumstantial evidence and fell apart.

In a 2-1 decision, the CAS panel ruled in bin Hamman's favor but noted that finding that the FIFA ethics committee had not proven its case against bin Hamman did not mean he was innocent. (Bin Hamman didn't stay free to work in soccer for long. He was subsequently banned for life for corruption within the Asian Football Confederation.)

Bin Hamman argued the FIFA case against him was part of a dirty tricks campaign to derail his FIFA presidential bid. Sound familiar? Platini's lawyers are arguing "procedural sabotage." In bin Hamman's case, the CAS panel "cured" any procedural issues by not just hearing his appeal but in effect retrying the case, hearing witnesses, among the Blatter himself. In terms of Platini's presidential bid, a new hearing of the case before CAS won't likely help.

The case involving Blatter and Platini is not as complex as that of bin Hamman's, which involved dozens of witnesses, but it dragged on for 11 months from the time of the decision of the FIFA ethics committee in August 2011 to the decision by the three-man CAS panel in July 2012. Platini has basically one month to resolve his case.

Any argument bin Hamman might have had about the lack of independence of the ethics committee -- it operated at the discretion of the FIFA executive committee -- won't be available to Platter (or Blatter). As the bin Hamman case made its way through the CAS system, FIFA was creating a new ethics committee with two chambers (investigatory and adjudicatory) that is independent of the executive committee.

"I don't take any orders at all from FIFA -- none whatsoever," says chief investigator (or prosecutor) Cornel Borbely. "I alone decide whether to open, conduct and conclude an investigation and on its result. I am completely independent of any FIFA officials."

What is also different about the Platini and bin Hamman cases is that it was never established Platini (or Blatter) committed bribery -- the $2 million payment was so he would not run against Blatter (or support bin Hamman) in 2011. While the evidence FIFA investigators had against Platini and Blatter has not been published -- one of the biggest complaints about the current ethics process at FIFA is that little is ever said about what happened -- the argument that Platini and Blatter had an oral agreement to pay Platini $2 million on top of his salary he received for his work for FIFA, beginning in 1999, was rejected as "not convincing."

Platini later joined the FIFA executive committee in 2002 and received the $2 million in February 2011. Any basis to have pressed for the $2 million would have put him at odds with his fiduciary duties to place FIFA’s interests first and disclose the agreement that was unenforceable and he was otherwise hiding in order that FIFA's financial statements accurately reflect an accounts payable of $2 million. In perhaps the harshest rebuke to Platini's actions, the FIFA ethics committee found that he "failed to act with complete credibility and integrity, showing unawareness of the importance of his duties and concomitant obligations and responsibilities."

To apply bin Hamman's case, CAS might find -- to use its evidentiary standard -- "comfortable satisfaction" of an oral agreement between Blatter and Platini -- Blatter called it a "gentleman's agreement" -- but that still might not get Blatter and Platini off the hook. Platini's best shot might be that CAS reduces his ban.

Pyrrhic victory perhaps. But not enough to get him back on the electoral track or restore his name, which he said was dragged through the mud.