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Intention is enough


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The World

José María de Pablo Hermida

Professor of Criminal Law at the University of Navarra

We have learned these days that the Public Prosecutor's Office is preparing to file a complaint against the former referee José María Enríquez Negreira, as well as some directors of FC Barcelona, or the azulgrana club itself as a legal entity, for a crime of sports corruption.

The reform of the Penal Code by LO 5/2010 introduced a new crime of corruption in business (article 286 bis) which punishes with prison sentences of between six months and four years the director, administrator, employee or partner of a business who receives, requests or accepts an unjustified benefit or advantage, or an offer or promise to obtain it, as consideration to unduly favor another in the acquisition or sale of goods, in the contracting of services or in commercial relations.

A fourth paragraph was then added to punish with the same penalties, as perpetrators of the crime of sports corruption, the directors, administrators, employees or collaborators of a sports entity, as well as athletes and referees, with respect to those conducts that have the purpose of deliberately and fraudulently predetermining or altering the result of a test, meeting or sports competition of special economic or sporting relevance.

The Supreme Court has recently ruled on this crime of sports corruption, and in its Ruling 1014/2022 (Osasuna case) it establishes the two elements that must be present in order to be convicted of this crime, which are as follows:

As an element goal, the criminal action consists of "promising", "offering", "granting", "receiving", "apply for" or "accepting" benefits or advantages of any nature, not justified, in breach of their obligations. And as a subjective element, the criminal action must have the purpose of deliberately and fraudulently predetermining or altering the result of a test, meeting or sports competition.

As for the element goal, everything points to it being present in this case, since the contractual relationship between a professional soccer club and the vice-president of the committee Technical Referees' Association (CTA), a body with the power to reward or punish referees by means of promotions, relegations or appointments to attractive matches, cannot be considered justified. Imagine what message the CTA would send out if, for example, it rewarded with its appointment to a Cup semi-final the referee who three days earlier had benefited a particular team.

More problems arise from test of the second element: did the hiring and financial remuneration of Enriquez Negreira by Barcelona have the purpose of altering the result of the competition? That is the question to be answered by whoever judges this case. And do not forget that it is not enough that you are convinced that this was the purpose, or that common sense points in that direction: the presumption of innocence requires proof. Therefore, part of the effort of the defense will probably be aimed at trying to prove that the purpose was different. However, we are dealing with a crime of mere activity, not of result, which means that it is not necessary to prove that the competition was adulterated: it is enough to prove that the intention was that (for example, if a club pays an amount to a referee to benefit him, but still loses the match, there is still a crime). 

Regarding the criminal horizon of the persons involved in this research, some clarifications are in order. The first is that sports corruption has only been a crime since entrance article 286 bis came into force, i.e., since December 23, 2010. This means that payments to Enriquez Negreira prior to that date - regardless of their ethical evaluation - are not criminal. Therefore, the Culés directors whose involvement in the facts is prior to 2010 cannot be investigated, and their status in the procedure will be that of mere witnesses.

The second is that we are dealing with a continuing crime -plurality of actions in execution of the same preconceived plan-, which increases the penalty to be imposed, which in the case of

In the case of the individuals involved - Barcelona executives, Negreira himself, etc. - the range would be from two years and three months (upper half of the penalty) to five years in prison (lower half of the penalty).

Thirdly, that we are dealing with a crime for which a legal entity - such as Futbol Club Barcelona - can be held responsible if it has been committed for its direct or indirect benefit. This poses a further problem, because although we have said that this is a crime of mere activity, to also convict the club it is necessary to prove a direct or indirect benefit, as required by article 31 bis. In this case, the penalty foreseen for the soccer club if convicted is a fine, the amount of which will depend on the benefit obtained. However, by application of article 66 bis, another subject of penalties could be imposed, ranging from judicial intervention, suspension of activities, even dissolution of the club, depending on whether it is considered necessary to prevent criminal continuity, the economic and social consequences of imposing this penalty, and the position in the club of the natural person involved in the facts. With these criteria, it seems unlikely in my opinion that a penalty other than a fine will be imposed on the club.

And the fourth that the perpetrator of a crime is obliged to repair, as civil liability, the damages caused: should Barcelona, for example, be stripped in this way of the last two Leagues won (2018/19 and 2017/18) and Atletico, which finished those two campaigns in second place, be proclaimed champion?