This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.
For those of us lucky enough to enjoy AAA (or perhaps AA) baseball disguised as major league teams, this month brings harbingers of elation. No, the Houston Astros are not moving to a city near you, but the National Football League (NFL) begins its 95th season with a match up of Seattle and Green Bay. I do not care if the Houston Texans are in the toilet again or my beloved Dallas Cowboys will stomp to yet another 8-8 season under the egotistical owner, Jerry Jones. I love watching pro football. So for all you pro football aficionados out there, here’s to us!
With the upcoming season just hours away, I was interested to receive the FCPA Professor’s latest article (as opposed to his latest book The Foreign Corrupt Practices Act In A New Era), entitled “How a Successful Football Organization Can Inform Foreign Corrupt Practices Act Compliance in a Business Organization.” As readers of this blog will know, I often use sports to discuss the nuts and bolts of Foreign Corrupt Practices Act (FCPA) compliance. So it was gratifying to see the FCPA Professor use sports in some of his writings. Further, since he is much better known for his basketball prowess (he went to college on a basketball scholarship), I was particularly gratified when he harkened back to my primary sport of football for his latest paper by stating, “In the spirit of the season, this article highlights four attributes of a successful football organization that can also elevate FCPA compliance in a business organization.” The four attributes are:
Understanding the Playbook
Beginning with the notion that any successful team has a playbook that is effectively communicated, the FCPA Professor noted, “understanding the playbook and effectively communicating its contents are essential first steps in managing and minimizing FCPA risk in a business organization. Yet as simple as this sounds, many business organizations fail to take adequate steps to ensure that everyone is actually on the same page when it comes to FCPA compliance.” From this, he moves into some thoughts on training.
The Professor cautions against over-complicating your FCPA training. I tell the folks that I train on the FCPA that the one thing I want them to take away is that if their stomach tells them something is wrong or the hair on the back of their neck stands up, just raise your hand and ask for help. The Professor phrases it another way by stating, “Toward this end, the goal of FCPA training should not be to make each participant an expert on the FCPA’s specific elements, but rather to provide all participants a pair of FCPA goggles so they can approach their specific job functions able to recognize FCPA risk and report it to the appropriate experts within the business organization.” He concludes this section by stating, “In short, and just as in football, success in the field is best accomplished by an FCPA compliance playbook that engages employees and motivates them to spot risk, which is then effectively communicated to all members of the organization in a language they can actually understand.”
Execution by All Team Members
Here, the Professor makes an interesting observation that is too often overlooked in the compliance arena: in football, there are skilled positions, such as those people who handle the football. Quarterbacks, running backs and receivers generally are the most well known and well paid. However, the Professor notes, “success on the field is more often dependent on execution by the so-called ‘grunt players,’ such as a successful snap by the center, the ability of the offensive line to protect the quarterback and the ability of the defensive line to pressure the quarterback. Indeed, key to building a successful football organization is drafting and cultivating such ‘‘grunt’’ players as evidenced by the frequency in which offensive or defensive linemen are selected in the NFL draft ahead of various ‘skilled positions.'”
In the compliance world, there are skilled players at the top, such as the Chief Compliance Officer (CCO), Chief Financial Officer (CFO), Chief Executive Officer (CEO) and various Board members who may be involved with a company’s compliance function. However, many FCPA violations arise out of what the Professor calls the “grunt work” of doing business. To be sure, there was the KBR $148 million bribe paid through its joint venture for work in Nigeria. But more often, it is the spade work of doing business that can lead to an FCPA violation. As the Professor notes, “tax, import/export and securing licenses, permits, certifications and the like—are actionable under the FCPA’s anti-bribery provisions.”
He further notes that compliance must be viewed as a corporate-wide function. It is not and should not be viewed as strictly a legal function, as “it is also a finance and auditing issue and thus a function that is best achieved holistically throughout a business organization.” I agree with his observations and would urge compliance practitioners to take a look at your compliance program through the eyes of your field team or international business representatives. Moreover, by getting these folks to “raise their hands” and get information in your hands, you may be able to stop a compliance issue before it becomes a full FCPA violation.
A Flexible Playbook
Here, the Professor channels his inner FCPA Guide by noting that a team’s playbook “is uniquely tailored to the strengths and weaknesses of the team based upon its current roster.” In the business world, this means that you need to assess your company’s compliance risks and manage your risks, not those of some other entity. The Professor suggests some basic questions you should start with to make this determination:
- Where does your company do business? What are those countries’ reputations for corruption?
- Who are your potential customers? Are they foreign governments or state-owned enterprises?
- What is your sales model? Do you use third parties in the sales cycle in foreign countries?
- How do get your products into foreign countries? Do you use freight forwarders or customs brokers? How about visa processors for your company personnel?
- How does your company obtain the necessary licenses, permits, certifications and other paperwork to do business in foreign countries?
Your risk level will depend in large part on answers to these questions. The Professor ends this section with the following: “Just like a football playbook that is uniquely tailored to the strengths and weaknesses of the current roster and adjusted throughout the season to incorporate specific opponents, an FCPA compliance playbook that is consistent, yet flexible enough to incorporate specific realities in different countries, can best minimize FCPA scrutiny and enforcement.”
Playing Hard, But Not Too Aggressively
Football players certainly want to play hard, but face penalties for playing too aggressively. I would add that sometimes there are gray areas in the rules that can get players into trouble. Moreover, just as each football team will have its own risk tolerance, businesses will as well. The Professor states, “The same is true for FCPA compliance. Business organizations, particularly those accountable to shareholders to increase value, should aggressively compete in the global marketplace to gain a competitive edge over competitors. Yet the practical reality is that much of what happens in the global marketplace can also fall into a gray area given the FCPA’s provisions, which have frequently been found to be vague and ambiguous when subjected to judicial scrutiny. The potential of a business organization to find itself on the wrong end of enforcement agency discretion is further compounded if employees seek to justify their conduct under the FCPA’s facilitating-payments exception and affirmative defenses.”
I would guess that the FCPA Professor had fun writing this article. I certainly enjoyed reading it. For any fan of football, I would speculate that you would too. Even if you are not a football fan, I believe that you will gain new and additional insights into some of the “nuts and bolts” of FCPA compliance by reading this article.
You can read the full article by the FCPA Professor here.
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