FIFA should split legal and compliance when it replaces its top lawyer

Key takeaways

• FIFA's vacancy in its combined legal and compliance post is the cheapest moment to redesign the role, because no incumbent has to be moved aside.
• A legal function exists to protect an organisation's position, while a compliance function exists to test whether that position is sound, and these purposes can pull apart.
• FIFA's own governance reforms already rest on the principle that those who act should not be the only ones who check, so a split would extend its existing logic.
• A separate compliance post would only matter if it came with its own reporting line to an independent committee, since a new title alone changes nothing.

The two jobs should be held by two people

ESPN reports that Emilio García Silvero, who has been FIFA's chief legal and compliance officer for the past eight years, is stepping down, and its headline counts this as the second high-profile exit from the organisation. The reasons, the timing and the identity of any successor are not known from that material. This article makes no claim about any of them, or about how the post has been carried out. Its subject is the post itself.

The argument is simple. The title joins two functions that do different things. A chief legal officer advises the organisation, drafts its rules, and defends its decisions when they are challenged. That role is partisan in the proper sense: the organisation is the client, and the lawyer's duty is to advance and protect its interests within the law. A compliance officer asks a different question, which is whether the organisation and those acting for it are following the rules they have set themselves, and what should happen if they are not. That role can require telling the organisation something it does not want to hear, and sometimes telling someone other than the executive who would prefer not to hear it.

When one person holds both, the same office may be asked to defend a decision and to assess whether the decision should have been taken. A capable and honest officeholder can manage that tension, and nothing here suggests otherwise. But institutional design should not depend on the qualities of whoever happens to hold the post. It should make the right outcome likely under an average occupant, and under pressure.

FIFA therefore ought to appoint a general counsel and a separate chief compliance officer. The second post should have direct access to the Audit and Compliance Committee, FIFA's standing body for oversight in this area. A vacancy is the natural time to do this, because it requires no demotion and no internal dispute over who loses territory.

The case has to be made from structure rather than from any known failure, and it should be read that way. Three features of FIFA's position make the structural argument stronger than it would be for an ordinary organisation.

FIFA's legal workload makes the advocate's role larger

FIFA is not simply a company with a legal department. It writes the rules of international football, runs competitions under those rules, sells the commercial rights to those competitions, and operates dispute bodies that decide cases arising from its regulations. The Football Tribunal hears contractual and registration disputes, while appeals can go on to the Court of Arbitration for Sport in Lausanne. Its transfer framework, its agent regulations and its authority over competitions have all drawn scrutiny under European competition and free movement law.

Each of those fronts asks the legal function to act as an advocate. Rules have to be drafted so that they survive challenge. Challenges have to be fought. National courts, European courts and arbitrators all have to be addressed with a consistent institutional position, and a consistent position is hard to reconcile with an open internal review of whether it is right.

This does not make the lawyers wrong to defend FIFA. It is their job, and a regulator that could not defend its rules would not be able to regulate. The point is about emphasis and incentive. The more contested an organisation's legal position becomes, the more of the top lawyer's time, attention and professional reputation is tied up in defending it. Compliance is the function most likely to be crowded out by that pressure, because its work is quiet and preventive, and it seldom has a hearing date attached. An organisation under constant legal challenge is the one that most needs a senior person whose diary is not set by litigation.

FIFA's money flows create a distinct compliance task

The second piece of evidence is the nature of what FIFA has to monitor. The organisation distributes development funding to member associations around the world through programmes such as FIFA Forward, and those associations operate under very different legal systems and with very different administrative capacity. It also operates the Clearing House, which routes training rewards between clubs, and it licenses and regulates football agents.

These are compliance tasks in the ordinary commercial sense. They involve tracing where money went, checking that counterparties are who they say they are, auditing use of funds, and spotting patterns that suggest a control has failed. The skills overlap only partly with those of a sports lawyer. Forensic accounting, data analysis and investigative judgement matter as much as knowledge of the regulations.

A joint post tends to be filled by a lawyer, since the legal side is the more visible and the more senior in most organisations. That in itself is no fault. But it does shape what gets priority and how problems are framed. A lawyer's first instinct on discovering an irregularity is often to ask about exposure and privilege, which is entirely proper advice. A compliance professional's first question is more likely to be how the control failed and where else it might be failing. An organisation that hands out money at FIFA's scale needs both questions asked with equal seniority, and a division of posts is the most direct way to ensure that.

FIFA's own reforms already accept the principle

The third piece of evidence is FIFA's existing architecture. After the corruption crisis that engulfed the organisation in the last decade, its reforms separated the political role of the Council from the management role of the General Secretariat. The Ethics Committee is split into an investigatory chamber and an adjudicatory chamber, so that those who build a case are not those who decide it. Members of the judicial bodies and of the Audit and Compliance Committee are subject to independence requirements.

Each of those choices reflects the same idea: a function that checks should stand apart from the function being checked. Combining legal and compliance at executive level sits awkwardly with that idea. It does not contradict it outright, because the independent committees remain above the executive. But those committees meet periodically and depend on what reaches them. The executive who controls the day-to-day compliance work has much influence over what they see.

Other sectors have reached a similar view. The three lines model promoted by the Institute of Internal Auditors distinguishes those who run activities from those who oversee risk and those who provide independent assurance. In some heavily supervised sectors, such as banking and healthcare, guidance has pushed organisations to give compliance its own standing, apart from the legal department. FIFA is neither a bank nor a hospital, but it handles large sums across many jurisdictions, and its reputation depends on public trust in its controls.

The strongest objection is that a split may change little

The best case against this argument is serious. Plenty of well-run organisations combine legal and compliance, and they do so for good reasons. Compliance is, to a large degree, the application of legal rules, and a compliance officer cut off from the lawyers may lack the information and the authority to act. In a regulatory body such as FIFA, the two functions are also unusually entangled, because much of what must be complied with is law that FIFA itself writes. A single senior figure can see the whole picture, resolve disagreements quickly, and speak to the president and the secretary general with one voice.

Splitting the post also has costs. It adds a senior salary and a new reporting line, and it invites turf disputes at a moment when the organisation has already lost senior people. If ESPN's description of a second high-profile exit signals wider turnover, stability and continuity may be worth more than redesign. Eight years in one post represents accumulated institutional knowledge, and a new structure on top of a new appointment makes it harder to retain.

The objection also carries a harder point. Independence comes from power, not from organisation charts. A chief compliance officer who reports to the same executive, depends on the same budget and can be dismissed by the same people is not independent, whatever the title says. In that case the split would be cosmetic, and it might do harm by creating the appearance of a safeguard. FIFA's real checks, on this view, are its elected committees and external scrutiny, and those are where reform effort should go.

That last point should be conceded in part. A split without a protected reporting line and a protected budget would not be worth doing. The objection sets a condition on the proposal, though it does not defeat it.

Specific evidence would change this conclusion

Several findings would weaken or overturn the argument. The most direct would be a clear account of FIFA's current reporting lines. If compliance staff already have a protected route to the Audit and Compliance Committee, with the committee rather than the executive controlling their appointment and removal, then much of the benefit of a split already exists and the case for a new post falls away.

Comparative evidence would also matter. If studies of comparable international bodies showed that separated functions produced no better detection of irregularities than combined ones, the structural argument would look like theory without results. So would evidence that separation in similar organisations mainly generated delay and internal conflict.

Finally, the reasons for this departure, which are not known, could shift the emphasis. If they turned out to bear on the design of the role, the case would become stronger or need rethinking, and if they are entirely unrelated, the argument stands as it does now, on structure alone. FIFA's choice of successor will be informative either way. A published mandate setting out to whom compliance answers would tell observers more about the organisation's intentions than the appointment itself.

Sources and further reading

• ESPN: report on the departure of FIFA's chief legal and compliance officer, the source for the facts about the post and its length of tenure.
• FIFA Statutes and governance regulations: the institutional documents setting out the roles of the Council, General Secretariat and independent committees.
• FIFA Code of Ethics and Football Tribunal procedural rules: reference texts on how the investigatory, adjudicatory and dispute functions are organised.
• Institute of Internal Auditors: guidance on the three lines model for separating operations, oversight and assurance.