The FIFA World Cup is up and running in Russia. The tournament has already seen multiple upsets, last minute winners and refereeing controversies galore. The stadiums have been magnificent, the telecast flawless and all fears of Russia’s ability to host an event of this magnitude, have been allayed. From the looks of it, Russia has done everything right in its efforts. However, the mass perception leading up to the tournament wasn’t unanimously positive. Russia has been at the heart of several sporting scandals in the recent past, including the mass doping and eventual banishing of Russian athletes from the Rio Olympics 2016, the killing of 2 million stray dogs for the Sochi Winter Olympics 2014 and noted acts of hooliganism and racism by Russian football fans against English fans in Euro 2016.
The most noteworthy controversy however, was Russia’s bid to host the World Cup. Ever since Russia won the bid to host the FIFA World Cup in 2018 (along with Qatar’s winning bid for the 2022 edition), their win has been shrouded under a cloud of corruption. After losing out to Russia on the bid, the English FA urged FIFA to investigate the claims of corruption surrounding Russia’s winning bid. FIFA appointed neutral outside parties to investigate these claims. However, the report from the investigation wasn’t published and only a summary of the findings was made accessible to the public. The summary noted that Russia had only provided limited documents for review and due to the lack of any insinuating documents, Russia’s name was cleared. It can thus be assumed that a transparent investigation into the bid wasn’t/couldn’t be conducted and hence those allegations, even though officially put to rest by FIFA, still persist and taint this edition of the FIFA World Cup.
FIFA World Cup bids, like any other international sporting competition of such magnitude, compels a higher level of legal and financial scrutiny. In light of the allegations of corruption surrounding Russia’s bid, we will take a look back at the 2010 edition of the FIFA World Cup held in South Africa, which was also incidentally mired in controversy surrounding the commercial arrangements between the organizing committee and local businesses. M & G Media Ltd. v. 2010 FIFA World Cup Organising Committee South Africa Ltd. (2010) addressed the issues of accessibility to information regarding the activities of the organizing committee and the conditions of disclosure of such information.
It is customary for any nation hosting a major sporting event such as the FIFA World Cup to institute an organizing committee. For the 2010 FIFA World Cup to be held in South Africa, the South African Football Association (“SAFA”), in lieu of instituting a local organizing committee, registered a private company (“LOC”) to perform all the obligations required to host such an event including security, finance, vending, marketing, brand partnerships and every other organizational aspect of the event. One of the responsibilities of the LOC was to release tenders and enter into agreements with local businesses for providing services related to the abovementioned organizational obligations of the company.
A South African newspaper ‘Mail & Guardian’ (“Applicant”) sought access to the transactional documents for these tender-based agreements with local businesses, for a story it was planning to write on organizational corruption in the FIFA World Cup. The South African newspaper requested access to these agreements pursuant to the Promotion of Access to Information Act, 2010 (“PAIA”), whereby the responsible body, the private company in this instance, was constitutionally obligated to furnish copies of these agreements with the Applicant. The LOC denied access to these records and in response to the refusal, the Applicant approached the South Gauteng High Court in South Africa (‘Court”) in order to compel the LOC to make this disclosure.
The Court noted Article 32 of the South African Constitution which holds that all citizens have access to information held by the state and/or by other citizens. In furtherance of this constitutional right of access, PAIA further guarantees the citizens’ right of access to information held by public bodies, unless there is a valid ground for refusal. In order to compel the LOC to make any disclosures, it was imperative to determine the nature of the LOC i.e. whether it was a public body and could it be compelled to disclose.
The Court held that while the LOC was a private incorporated company, the Court noted that even a private company might be considered a public entity under the PAIA. Specifically, it was held that a private company could be considered a public entity, if it performing the functions of a public entity, be significantly controlled by the government, and have exercised public power or performed a public function.
SAFA, a public entity, delegated to LOC the authority for overseeing the planning of the World Cup. Furthermore, LOC was using public money in organizing the World Cup, the details of which the applicant had requested. Additionally, the LOC had 8 government ministers on its board of governors. Moreover, the LOC was performing a largely public function in planning the World Cup, which the Court considered a national event of importance.
However, the Court also noted that these factors in themselves were not enough to determine whether an entity is public or not. The Court then considered whether the entity enjoyed statutory protection. Herein, the Court concluded that the LOC enjoyed the protection of several public measures that provided protection to the LOC while planning the World Cup, especially in pursuing business deals in preparation of the World Cup. Therefore, it was held that due to the composition, functioning and funding of the LOC, it was a public body under the ambit of PAIA.
As a public body, LOC must state a valid ground for refusing disclosure. The LOC’s official reason for refusing disclosure was that the disclosure would adversely affect their business model by making it public. The Court, however, did not consider this as a valid ground for refusal to disclose. The Court opined that as per the South African Constitution and PAIA, the requested records must be disclosed in a transparent and unambiguous manner. Failing to do so, would be “more harmful to democratic discourse than any harm incurred by disclosure”.
The above rationale is a useful tool which can be used to access information – the very same information that Russia did not furnish during the investigation of its bid. This is especially relevant for investigation of corruption claims given the underdeveloped state of anti-corruption laws in Russia.
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Image Credits: Kremlin.ru (Creative Commons)