FIFA Gets the Mafia Treatment
Members of the Hells Angels, Latin Kings, and the Gambino crime family were all prosecuted in Federal Court under the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO, enacted in 1970, was drafted with the intention to take down various mafia organizations and crime syndicates located domestically by means of incorporating assorted federal crimes ranging from substance abuse to money laundering. Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 (2012). Additionally, RICO adds new criminal and civil consequences to the predicate offenses incorporated into the statute. Id. § 1963. Recently, the Department of Justice (DOJ) applied RICO to prosecute a different kind of crime syndicate – the Fédération Internationale de Football Association, or as most people know it, FIFA. Grand Jury Indictment, United States v. Webb, et al., 15 CR 0252 (E.D.N.Y. May 20, 2015), http://www.justice.gov/opa/file/450211/download [hereinafter Webb Indictment]. FIFA is the international body governing organized soccer, commonly known outside the United States as football. The organization has long been accused of harboring corrupt members, whose prerogative consist of filling their deep pockets rather than “develop[ing] football everywhere and for all . . . and to build a better future through the power of the game.” Fifa, http://www.FIFA.com/about-fifa/who-we-are/explore-fifa.html (last visited Aug. 27, 2015).
On May 20, 2015 the DOJ indicted fourteen members of FIFA in the United States District Court for the Eastern District of New York. See Webb Indictment, supra. A majority of the accused FIFA officials reside outside the United States and were indicted for various incorporated crimes under RICO. The DOJ’s indictment listed forty-seven counts of various crimes under RICO, including racketeering, wire fraud, and money laundering. Id. at 113–51. The indictment excited soccer fans across the globe and sent FIFA officials scrambling to institute reform within the organization. However, the DOJ relied on a recent, and potentially controversial, decision from the United States Court of Appeals for the Second Circuit (Second Circuit) involving the extraterritorial application of RICO. The Second Circuit’s decision and the charges against the FIFA officials will likely be heavily scrutinized in the future to determine just how far the United States can extend its domestic laws abroad.
“It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 248 (2010) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The Supreme Court made apparent in Morrison that there is a presumption against extraterritorial application of a U.S. statute unless Congress expressly indicated that the statute applies extraterritorially. Id.
In European Cmty. v. RJR Nabisco, Inc., the Second Circuit addressed whether RICO applies to extraterritorial conduct, holding that “RICO applies extraterritorially if, and only if, liability or guilt could attach exterritorial conduct under the relevant RICO predicate.” 764 F.3d 129, 136 (2d Cir. 2014). The Court reasoned that Congress demonstrated an intent for RICO to apply extraterritorially by incorporating certain statutes that expressly apply to extraterritorial conduct. Id. at 136–39. For example, the money laundering statute specifically conveys extraterritorial jurisdiction, whereas the wire fraud statute does not. See 18 U.S.C §§ 1343, 1956(f) (2012). Thus, the Second Circuit’s holding in European Cmty, only allows some of the incorporated statutes under RICO to apply extraterritorially. 764 F.3d at 136.
The DOJ’s indictment relied heavily on the holding in European Cmty v. RJR Nabisco, Inc. The European Cmty decision combined with the FIFA indictment will likely raise extraterritorial issues and potential policy implications. First, the DOJ will likely face extensive pushback from defense counsel regarding the interpretation of the European Cmty decision on the extraterritoriality of RICO. RICO, on its face, shows no intent of Congress to apply outside of the United States. Yet, applying the Second Circuit’s holding, the incorporated statutes in the indictment that do expressly state extraterritorial application are legitimate. The issue becomes whether the enhanced punishment that comes with RICO should be attached to the incorporated extraterritorial statutes; especially since, facially, RICO lacks congressional intent that it applies extraterritorially.
Unfortunately, the case against the fourteen FIFA officials will be a lengthy process considering that the extradition hearings will take over two years and discovery will likely take another two years. UCLA Law Professor Steven Bank on the FIFA Developments, Slashmls.com (June 10, 2015), http://slashmlspod.podbean.com/e/law-professor-steven-bank-on-the-fifa-developments/. Regardless, there will likely be an increase of litigation involving the extraterritorial application of RICO, and the case against the fourteen FIFA officials may broaden or limit its application.
*Christopher Burns grew up in Wilmington, Delaware. He studied business administration at Goldey-Beacom College, graduating in 2011. He is currently interning with Judge Russell of the United States District Court for the District of Maryland and will join Saul Ewing as a summer associate in 2016.