Given the way the voting system is set up, many commentators claim not to be surprised by the latest allegations of bribery surrounding the bidding process for the awarding of the 2018 and 2022 FIFA World Cups.

At present, the allegations are just that, but if substantiated are clearly serious and would almost certainly attract the interest of law enforcement agencies in relevant jurisdictions.

FIFA, like other leading sports organisations, has its own Code of Ethics (The Code). The Code, last published in 2009, applies to all FIFA officials, including members of its Executive Committee (EXCO) who voted on the 2018 and 2022 bids. It is strikingly short in its treatment of bribery, the relevant clause providing:

• Officials may not accept bribes; in other words, any gifts or other advantages that are offered, promised or sent to them to incite breach of duty or dishonest conduct for the benefit of a third party shall be refused
• Officials are forbidden from bribing third parties or from urging or inciting others to do so in order to gain an advantage for themselves or third parties.

The Code therefore lacks teeth, and fails to define the terms ‘bribe’ and ‘bribing’. Furthermore, there is no standalone prohibition specifically preventing EXCO members seeking an advantage – the problem which is at the centre of the current allegations.

In addition to The Code, FIFA published Rules of Conduct regarding the submissions of bids for both the 2018 and 2022 tournaments. Given the profile and importance of the competition, it is remarkable that this document runs only to two pages and places ethical obligations on the bidding nations but not on EXCO members.

As is well known, two EXCO members were previously suspended during the bidding process in relation to separate allegations of bribery. Those suspensions remain current, yet FIFA has to date appeared unwilling to take significant action either to investigate, if only to disprove, the all-too-frequent stream of allegations or to discipline those who have breached The Code. It now remains to be seen whether the wider criminal justice system will seek to venture where FIFA has, so far, been unwilling to go.

So what could be done in legal terms? As FIFA is based in Zurich, any investigation might most immediately be conducted by Swiss authorities. If there was interest from UK criminal enforcement agencies, the government’s much heralded anti-corruption flagship, the Bribery Act 2010, would not be applicable, as it comes into force on July 1, 2011, and is not retrospective. Investigators would instead have to look at an offence under The Prevention of Corruption Act 1906, and they would almost certainly need to establish that some part of the illegal conduct had occurred in the UK. In an age of electronic messaging and bank transfers, offenders might however find themselves more readily subject to UK jurisdiction than they had perhaps anticipated.

The holy grail of transparency has of course long since been sought, and sadly this is not the first time that allegations of this kind been made. Concerns have been raised relating to previous world sporting events. The bidding process for the Salt Lake City Winter Olympics of 2002 is the starkest example to date, although even there no prosecution ultimately resulted. There have also been allegations in respect of previous FIFA World Cup bids and questions were asked about the voting process through which New Zealand was awarded the 2011 Rugby World Cup.

In March the UK government issued guidance to accompany the Bribery Act and provide further clarification on the corporate offence of failing to prevent bribery. The guidance sets out six principles, one of which is the need for a top-level commitment to stamp out corrupt and unethical practises. FIFA now has an opportunity to take a similar stance. A tone from the top in the context of one of the great global sporting events should start with imposing a mandatory requirement that the voting process for all future World Cup bids should be completely transparent.

If EXCO members were forced to disclose their votes, potential irregularities might be plain to see. The prospect of detection, and the increasing risk of criminal sanction, is a proven means of deterring unethical conduct.