Confidentiality soccer-punch: getting to the goal of open contracting

Photo: Estádio Nacional Mané Garrincha, photo by Kelly Sato

It’s not just government contracting where the call for transparency is getting louder. In soccer, alleged transfer amounts, buyback deals, and sponsorships break new records every year. But the speculation in the media is just that: speculation. No-one had ever seen an actual copy of players’ contracts… Until last year.

With the FIFA corruption scandal fresh in mind, at the end of 2015 an organization called ‘Football Leaks’, organized by soccer fans who believe secrecy about contracts is killing their favorite sport, started publicly releasing contracts of soccer players in Europe, WikiLeaks style.

It caused quite a stir. Their website was one of WordPress’s top 10 most visited in 2015, as newspaper headlines revealed the true transfer amounts and salaries players receive.

First of all, the released information was used by fans to help voice concerns and, sometimes, their disapproval of ever-increasing salaries, while they struggle to pay for tickets.  

Secondly, the soccer contracts exposed illegal clauses with some players in Portugal. A Dutch soccer club had its license temporarily revoked and got suspended from playing European-level competitions for 3 years after illegal agreements between the club and an investment company came to light.

Even though government contracting is not nearly as popular as the world’s most beloved sport, the trend towards publicly releasing bidding information and contracts has lead to similar positive impacts.

For example, the public becomes more engaged in the oversight process. Illegalities and corruption have been exposed, as well as government’s lack of capacity regarding contract management. There’s evidence of lower prices for products and services and an increase in competition under proactive information publication regimes across the board.

In conclusion: customers, fans, taxpayers, governments, and companies alike make better choices when information is made public.

So what’s not to like?!

Well, the release of soccer contracts gave rise to questions we’re all too familiar with when it comes to government contracting: should this information be made public? On what grounds does the public have a right to know? What are the benefits of publishing information, and do they outweigh the negative impacts?

Different rules apply to contracts between a soccer player and his club, and contracts between a government and a company providing public services. The former is a contract between two private parties, while the latter, in a growing number of jurisdictions, gives the public the right to request information about how their tax money is spent under Freedom of Information legislation.

It’s important to emphasize that Football Leaks obtained and published the soccer contracts illegally. Neither soccer players nor their teams gave permission for the release of the information. This stands in sharp contrast to government contracting, in which the trend towards increased transparency has lead governments to reactively (via Freedom of Information requests) or proactively (by using the Open Contracting Data Standard, for example) disclosing contracting information to the public. Rules about which information to disclose and which information to redact exist, and each case is carefully looked at before any information is released.

Pushback from players and clubs is mainly based on arguments related to the violation of privacy of the player: besides information about salary, bonuses and buyback clauses, some contracts also state where the player lives or where his kids go to school. Under most Freedom of Information legislation, these would be considered valid exemptions for disclosure and such information would likely be redacted.

In government contracting, pushback on disclosure can relate to information about company finances, products, employees, third parties, or national security. The argument being that, in some cases, if such information were to become public it could cause significant harm. Principles for exemptions are legislated, but in most jurisdictions, whether or not information will be disclosed depends on the circumstances of every individual case.

Interestingly though, in North America, salaries, bonuses, and performance-related information of soccer players has been in the public domain for decades. Anyone can go online and browse through the information.

Even though the integral contracts aren’t available, key information is summarized. In government contracting, summaries or redaction of information is sometimes used as a practical way to approach confidentiality issues as well.

There’s significant differences in transparency in government contracting between countries, too. Some don’t release any information whatsoever, while others pride themselves on making all information as accessible as possible.

The question, for both soccer and government contracting, then arises: how can there be such differences? How is it possible that in some parts of the world information is publicly available, while in other parts there’s lawsuits to fight publication of the same data? Are there legitimate arguments to keep certain information confidential anyway? What are those arguments and in which situations do they apply?

While it remains unclear how this is going to be dealt with in soccer, the Open Contracting Partnership’s new ‘Confidentiality Project’ will look into these confidentiality issues with regards to government contracting over the coming months.

What are the main concerns about confidentiality in public contracting? What arguments are used against making information public? How does that compare across jurisdictions and stakeholder groups? What information should and should not be published and why? How is confidentiality best dealt with at a practical level in order to benefit society?

To answer these questions, we’ll go through existing documents, literature, and case studies. We’ll conduct interviews with public, private, and civil society sectors, and organize roundtables and workshops to collectively bust the myths that exist around confidentiality in public contracting. If you know of helpful resources or case studies, if you’d like to talk to us about your experience in dealing with confidentiality issues, or if there’s anything else you’d like to share, please do get in touch. In any case, we’ll regularly update you on our progress and discuss the main issues we’ve encountered.

Because ultimately, while public contracting is far from the most popular topic in the world, governments around the world spend over $9,500,000,000,000 each year on contracts to provide goods and services to their citizens. That dwarfs the $28,000,000,000 of annual global revenues that go around in soccer.