By Tom Fox
tfox@tfoxlaw.com
What is risk? In the world of the Foreign Corrupt Practices Act (FCPA) we view it around violation of the law. Compliance programs are constructs to help manage that risk, taking into account the need for any company to actually do business so that it could stay in business and indeed even fund a Chief Compliance Officer (CCO) position. Early in my in-house legal career an oilfield service worker told me that was less risk involved if he did not go offshore to work on a rig than if he did helicopter out and do a two week rotation on a platform. His point was that there is always risk and risk management is simply that; managing as many risks as you can identify.
I thought about this in light of some of the statements made by NFL Commissioner Roger Goodell last week before the Super Bowl. As you might guess many of the questions dealt with the well-documented health risks from playing the game. When asked about having his children play the game he was quoted in the New York Times as saying, ““If I had a son, I’d love to have him play the game of football. There’s risk in life. There’s risk in sitting on the couch.”
As the article noted, these statements came with the knowledge that with “the N.F.L.’s own account, the number of diagnosed concussions rose by 31.6 percent this season over last season.” Moreover, “Several former players have posthumously been found to have had the degenerative brain disease chronic traumatic encephalopathy, or C.T.E., including Stabler, Morrall and Tyler Sash, a former Giant who died at 27.” It would appear that catastrophic injury is a fait compli for the life of anyone playing football at the professional level.
The risk in not having a robust and effective anti-corruption compliance program to manage the risk of a FCPA violation is to go to jail or pay a large fine. The risk in the NFL is of a very different order of magnitude. While there has not been a death at the professional level in several years, there were seven deaths of high school players announced last season.
Goodell’s seemingly flippant answer that there is risk in sitting on the couch seems to me to demonstrate a clear reluctance to appreciate both the severity of the risk and how to manage that risk going forward. In the FCPA world, that would be seen as a tone from the top that basically says it is up to you to manage the risk and certainly would not be tolerated by any seasoned compliance professional or government lawyer reviewing a compliance program. Moreover, Goodell’s remarks clearly show why a company must put an effective compliance program in place. For if the company does not do so, it simply will not get done.
All of this points to a strong reason for continued robust enforcement of FCPA violations against companies. For if a company’s attitude is basically stuff happens; employees will understand they not only can, but indeed must, do anything to effect sales.
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