Mastercard wins a big legal (and soccer) victory

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Unlike my friend and fellow CNNMoney blogger Roger Parloff, I don’t spend a lot of time reading legal documents. But I’m still pretty sure that the “Findings of Fact and Conclusions of Law” issued last night by U.S. District Judge Loretta A. Preska (and passed on to me this morning by a friend) in the case of Mastercard (MA) v. FIFA were a heckuva lot more incendiary than your average legal ruling.

Mastercard is suing FIFA, the global governing body of soccer, for reneging on a World Cup sponsorship deal. The company (with its ubiquitous spokesman Pele) has been a key sponsor of the world’s biggest sporting event for 16 years, and had right of first refusal for future sponsorships. FIFA, however, went and signed an eight-year deal with Mastercard archrival Visa that was due to start in January. Chicago’s IEG estimates that such sponsorships cost $35 million a year (far more than similar Olympics deals), but the card issuers presumably see all the publicity as worth it.

Anyway, the judge found last night in Mastercard’s favor, and ordered FIFA to cancel its deal with Visa and put Mastercard back in the saddle. With Mastercard now publicly traded and Visa planning an IPO soon, this is a big deal–although it’s hard to put a dollar value on it since Mastercard was suing for the privilege to pay FIFA money.There will be much more informed coverage of this to come from journalists who have actually been following the case (here’s a brief month-old summary from the Times of London and here’s one from the WSJ by way of the Kansas City Star). But no one seems to have noticed yet that the ruling is out, so I figured I’d let the judge’s somewhat incredulous words speak for themselves. You can get the entire 125-page ruling here, but this is my favorite part:

FIFA’s negotiators lied repeatedly to MasterCard, including when they assured MasterCard that, consistently with MasterCard’s first right to acquire, FIFA would not sign a deal for the post-2006 sponsorship rights with anyone else unless it could not reach agreement with MasterCard.

FIFA’s negotiators lied to VISA when they repeatedly responded to the direct question of whether MasterCard had any incumbency rights by assuring VISA that MasterCard did not.

FIFA’s negotiators provided VISA with blow-by-blow descriptions of the status of the FIFA-MasterCard negotiations while concealing from its long-time partner MasterCard both the fact of the FIFA-VISA negotiations as well as the status of those negotiations – an action VISA’s president admitted would not be “fair play.”

FIFA’s marketing director lied to both MasterCard, FIFA’s long-time partner, and to VISA, its negotiating counterparty, to both of which FIFA, under Swiss law, owed a duty of good faith. When, pursuant to his engineering, VISA raised its bid to the same level as MasterCard’s, he declined his subordinates’ suggestion to give MasterCard the opportunity to submit a higher bid based on his concern for his own reputation with the FIFA Board. He also declined his subordinates’ recommendation that he recommend to the FIFA Board that it continue with its prior approval of MasterCard as the post-2006 sponsor. Instead, he told the board it was difficult for him to make a recommendation and never mentioned MasterCard’s first right to acquire the post-2006 sponsorship.

On the morning of the first of March 2006 FIFA board meetings and after all three FIFA boards had previously approved MasterCard as the post-2006 sponsor, FIFA’s marketing director called VISA to say that if VISA increased its cash bid by $30 million to the level of MasterCard’s bid, VISA “would be the partner.”

Even after MasterCard had signed the “FINAL version” of the post-2006 sponsorship agreement and returned it to FIFA, FIFA’s negotiators delayed telling MasterCard that the FIFA Board had chosen VISA; instead they waited for the VISA board to ratify the VISA agreement.

After the FIFA boards had approved MasterCard as post-2006 sponsor and after MasterCard had agreed to FIFA’s asking price and agreement had been reached on all other terms and after FIFA’s in-house counsel had solicited FIFA members for items that might be used to claim that MasterCard breached the Agreement, FIFA pointed to a trademark issue that had been present since 2000 or 2001 to justify granting the post-2006 sponsorship to VISA and sent a letter to MasterCard–after the commencement of this lawsuit–purporting to terminate the Agreement and thus MasterCard’s first right to acquire.

After MasterCard and FIFA waived, under Swiss law, both the 90-day time periods set out in section 9.2 by their “conclusive conduct,” FIFA now seeks retroactively to revive one of the 90-day periods, but not the other, to justify its choice of VISA for the post-2006 sponsorship.

While the FIFA witnesses at trial boldly characterized their breaches as “white lies,” “commercial lies,” “bluffs,” and, ironically, “the game,” their internal emails discuss the “different excuses to give to MasterCard as to why the deal wasn’t done with them,” “how we (as FIFA) can still be seen as having at least some business ethics” and how to “make the whole f***-up look better for FIFA.” They ultimately confessed, however, that “[I]t’s clear somebody has it in for MC.”

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