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Insight

FIFA – we was robbed!

The circumstances and sums involved in connection with the allegations directed at FIFA officials by the United States law enforcement agencies may be exceptional, the problem of fraud and corruption The circumstances and sums involved in connection with the allegations directed at FIFA officials by the United States law enforcement agencies may be exceptional, the problem of fraud and corruption at FIFA it is alleged being systemic and profound, but FIFA is in some respects no different to any other employer that has been the victim of a dishonest employee, and suffers loss.

There may be criminal sanctions and penalties that fall on FIFA officials and employees who are proved to have acted unlawfully. FIFA will no doubt incur a good deal of cost in lawyers and forensic accountants' fees in seeking to unravel what has transpired, and to recover some of the money that has been improperly taken by any of its employees and officials. The task of recovering its property is made the more difficult by the period of time involved and the multiple legal jurisdictions in which the wrongdoing has occurred.

However, FIFA is in important respects no different to any UK business that wishes to look to those it has employed who have misappropriated the company's money or property, by seeking repayment of the money or property its employees have improperly taken from it.

In England and Wales, where an employer has a corrupt employee it is able to hand the matter to the police. Police involvement may well result in prosecution. Consideration needs to be given to the impact of police involvement in the likely dismissal process. Beyond those considerations, an employer may wish to seek the recovery of any money or other value the employee has improperly taken from the company, and the criminal prosecution far from guarantees that outcome.

Often an employer has to rely on a civil court remedy such as a claim for fraud and misappropriation. Such claims can be expensive to litigate, often requiring much time attention and legal cost to bring them to a satisfactory conclusion, and often the right is simply to damages, where the employee may have already dissipated the proceeds of their crime, leaving the employer without the prospect of recovery and recompense.

However, where the employee is sufficiently senior or charged with the responsibility for dealing with money or property, the employee is likely to owe a fiduciary duty to their employer. This civil claim brings with it the prospect of several advantages to the employer seeking recovery of the money or property that the employee has cheated out of the employer.

As recovery of misappropriated cash or property is often time critical, the ability to obtain summary judgment on a fiduciary duty claim (which isn’t often possible on other types of similar civil claim) can be very helpful in getting to the proceeds of crime before they are dissipated. Where an employee owes a fiduciary duty, it means they must subordinate their personal interests to those of their employer. Demonstrating this failure in a case of misappropriation of company money or property is often easily evidentially achieved. Even better, because it's relatively easy to demonstrate breach of the fiduciary duty in such cases, getting summary judgment can be more readily achieved than in other civil claims, so speeding up recovery of its property and reducing the legal costs of recovering its money or property. Additionally, if the employee's ill-gotten gains have been used to acquire property that property could be taken off the employee, and if it has increased in value, the employer can claim the increase in value also.

So when considering what action to take against a dishonest employee, think about bringing a fiduciary duty claim.

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