One thing compliance professionals are rarely trained to do is trust your eyes. This may be because it seems too obvious. After all the well-known Howard Sklar maxim of “Water is Wet” is largely based on the fact that if something is so obvious you may not need to train on it. Yet two recent events make clear we all need to ‘trust our eyes’ in a variety of settings. The first is in the National Football League (NFL) and it involves Miami Dolphin quarterback, Tua Tagovailoa. Three weeks ago, he was tackled, thrown to the ground and his head snapped against the tuft. This is clearly a sign a concussion may be coming. After Tua got up, he stumbled and fell and then had to be helped up by a teammate and off the field.
I say all of this with absolute certainty as I was watching the game Dolphins v. Bills and saw it along with some 70,000 in the stadium and millions on television. Unfortunately, those who did not see these actions of Tua after the hit was the Dolphins medical staff who, rather amazingly (or perhaps not), cleared him under the NFL Concussion Protocol and sent him back to play in the second half of the game. Again, finding he was fine under the concussion protocol, he was allowed to play. The Dolphins claimed that he had sustained a “back injury” and that was why he stumbled and fell, not motor impairment. The next week, Tua took another shot to his head and this time he did not get up, stumble and fall. He did not get up at all. According to New York Times (NYT), he left the field on a stretcher and was taken immediately to a local hospital.
It was clear to anyone who saw the first concussion, that it was just that a concussion. However, “because of the incident, the league and union said they were considering changing the protocols, which currently allow a player with “gross motor instability” to return to the game if doctors decide there is an orthopedic reason for his unsteadiness.” Some doctor said the instability was due to Tua’s bad back and that was good enough. The NYT went on to further note, “The expected change will be to instead establish ataxia, a term describing impaired balance or coordination caused by damage to the brain or nerves, as a sign that automatically disqualifies a player from returning to the game.”
All of this informs compliance programs and compliance professionals as sometimes actions do not simply pass the eye test. I thought of this in the context of the recent Oracle Corporation Foreign Corrupt Practices Act (FCPA) enforcement action. In this Oracle matter, the bribery schemes involved distributors, which were used as not only conduits to pay bribes, but as the mechanism to create a pot of money to pay bribes. The Oracle compliance program allowed sales employees at the subsidiaries to request monies meant to reimburse distributors for certain marketing expenses associated with selling Oracle products. There was a multi-pronged approval process in place. For marketing reimbursements “under $5,000, first-level supervisors at the Subsidiaries could approve the purchase order requests without any corroborating documentation indicating that the marketing activity actually took place.” Above this $5,000 threshold, additional approvals were required with additional requirements for business justification and documentation.
You can no doubt see where this is going as this internal control gap allowed for abuse. Indeed the Orderstated, “Oracle Turkey sales employees opened purchase orders totaling approximately $115,200 to [distributors] in 2018 that were ostensibly for marketing purposes and were individually under this $5,000 threshold.” That is at least 23 different expense requests to reimburse for marketing made under the threshold. Of course, there were no marketing efforts by the distributors and no follows up audits, inspections or even questions to confirm that the marketing expenses had actually occurred. The entire business unit was in on the fraud, and it stole money from the corporate office to fund it slush fund to pay bribes.
Clearly compliance was not using its eyes for if it had, it would have seen that there was a large number of marketing reimbursement requests at or below the threshold which required additional oversight and approval. Using your eyes does not mean that it is simply your eyes which catch nefarious conduct, it means that you use your eyes and if it something unusual occurs then additional investigation is warranted.
All of this brings to the second lesson from the NFL’s sordid tale involving Tua Tagovailoa; which is if the protocol does not work, change the protocol. Renee Miller, writing The Athletic, said, “The purpose of the onsite concussion “exam is to determine if any symptoms are apparent in a neurological exam (looking at reflexes, cranial nerve function and limited cognitive skills), and if so, whether they arise from a neurological origin.” It does not take into account what we all saw with our eyes, the stumbling, Tua grabbing his helmet and inability to focus. The NFL will now make a change to consider the other factors Tua exhibited. In other words, they changed the protocol to require and allow for additional information about the injured player in making a determination of that player’s returning to the game.
In the case of Oracle, there was a high risk of business unit employees using the marketing reimbursement requests to create a pot of money to pay bribes. We know this because this same bribery scheme was used by Oracle India to pay bribes and do business corruption, all of which was the subject of a prior FCPA enforcement action. Pretty clearly allowing business unit employees to obtain marketing reimbursements was something that would lead to disaster; which it did just as the Dolphins allowing Tua to come back into the second half of the Bills game where he sustained his first concussion was disastrous for Tua as he was much more seriously injured just the next week.
In compliance never forget to ‘use your eyes’ in testing your compliance program. If something does not look right, do additional investigation. If you do not do so, you may end up like Oracle, now one of 15 FCPA recidivists, a list no company wants to be on.