Ifor Public Ministry’s decision to denounce FC Barcelona for continued corruption by the ‘Negreira case‘ opens another drawer full of questions. What does this complaint mean? Could it have sporting consequences for the club? Can Bartomeu end up in jail?
Criminal lawyer José María de Pablo explains in a Twitter thread the possible consequences this could have for the Barça club this decision of the Public Prosecutor’s Office and points to the specific articles of the penal code to which we will have to pay attention in the coming dates.
What does the Public Ministry accuse Barcelona of as a club?
the promoter accuse the Barça club of ongoing corruption in businesscrime that came into force with the penal reform of 2010 and that includes sports cheat. This crime is contemplated in article 286.º and includes in n.º 4 what refers to sports entities.
1. The director, administrator, employee or collaborator of a commercial company or who, through receive, solicit or accept an unjustified benefit or advantage of any kind, or offer or promise to obtain itfor itself or for a third party, by way of consideration unduly favoring others in the acquisition or sale of goods, or in the contracting of services or in commercial relationsshall be punished with a prison sentence of six months to four years, special disqualification for the exercise of industry or commerce for a period of one to six years and a fine of three times the value of the benefit or advantage.
2. With the same penalties will be punished who, through an intermediary, promises, offers or concessions to directors, officers, employees or collaborators of a commercial enterprise or a company, benefit or unjustified advantageof any nature, for himself or for third parties, in return for undue favoring of a third party to the detriment of others in the acquisition or sale of goods, contracting services or in commercial relations.
3. The judges and courts, considering the amount of the benefit or the value of the advantage, and the transcendence of the functions of the defendant, may impose a lower sentence and reduce the fine at their prudent discretion.
4. The provisions of this article shall apply, in their respective cases, to directors, administrators, employees or collaborators of a sports entitywhatever its legal form, as well as athletes, referees or judgeswith regard to those conducts whose purpose is to predetermine or Deliberately and fraudulently altering the result of an event, meeting or sporting competition of particular economic or sporting relevance.
For these purposes, it is considered sports competition of special economic relevance, one in which the majority of its participants receive any type of remuneration, compensation or economic income for their participation in the activity; and sporting competition of particular sporting importance, which fits into the annual sporting calendar approved by the respective sports federation as official competition of a higher category of the modality, specialty or discipline in question.
Which natural persons will also be reported?
According to the first information, the complaint will be presented both against Josep Mara Bartomeu against Jos Mara Enrquez Negreira, that is, who decides to pay and who accepts payment. It should be remembered that Enrquez Negreira’s association with FC Barcelona not limited to the Bartomeu years as president of the club and, according to El País, The Public Ministry requested that Joan Laporta testify before the judge for the payments to Negreiralike this Joan Gaspart and Sandro RosellTwo other former presidents.
Can Barcelona be condemned if it is not proven that there was a ‘purchase’ of referees?
Explain criminal lawyer José María de Pablo that “the Federal Supreme Court, in the recent and important Judgment 1014/2022 (about victory bonuses and the ‘Osasuna case’) indicates that for there to be a crime of sports corruption, two elements must be present: First, an objective element: the action consists of “promising”, “offering”, “granting”, “receiving”, “requesting” or “accepting” unjustified benefits or advantages of any nature, in breach of its obligations. Secondly, a subjective element: that “are intended to deliberately and fraudulently predetermine or alter the outcome of a test, match or sports competition“.
Furthermore, It will not be necessary to demonstrate that a purchase of referees was made and that it was compensated with referees favorable to Barcelona, as explained by José María de Pablo, referring to the sentence in the ‘Osasuna case’. “The Supreme Court adds that it is a matter of crime of mere activityyou mean that is consummated with the performance of any of these actions without it being necessary for the desired result to be produced. That is, for there to be a crime, it is enough that the benefit is received with the intention of altering the outcome of a sporting event, without it being necessary to change this result“.
What must be proved at trial?
As it is not necessary to prove that the results were in fact manipulated, it would suffice to demonstrate that Barcelona’s payments to Negreira were undue and that the purpose of those payments was to fraudulently change the result of the competition.. Negreira, in his first statement, acknowledged that the club “wanted to ensure that arbitration decisions were not taken against him”.
What penalties does Barcelona face?
If found guilty, the possible condemnation of the club can range from a fine a, as the lawyer José María de Pablo explains, “the suspension of activities for up to five years, the closure of facilities for the same period, the ban on carrying out the activities in which the crime was committed… and until the dissolution of the club”.
In the case of the crimes provided for in articles 277, 278, 279, 280, 281, 282, 282 bis, 284, 285, 285 bis, 285 quater and 286 bis (what is in question) to 286 quater:
a) Fine of two to five years, or of three to five times the benefit obtained or that could have been obtained if the resulting amount was higher, when the crime committed by the natural person carries a sentence of more than two years in prison. of freedom.
b) Fine of six months to two years, or up to twice the benefit obtained or that could be obtained if the resulting amount was higher, in other cases.
3. In accordance with the rules established in article 66 bis, judges and courts may also apply the penalties provided for in paragraphs b) to g) of paragraph 7 of article 33.
And those penalties collected in article 33 say the following:
B) Dissolution of the legal entity. The dissolution will produce the definitive loss of its legal personality, as well as its capacity to act in any way in legal transactions, or to carry out any type of activity, even if lawful.
w) Suspension of your activities for a period not to exceed five years.
d) Closure of your facilities and establishments for a period not exceeding five years.
It is) Prohibition from exercising in the future the activities in which the crime was committed, favored or covered up. This ban can be temporary or permanent. If it is temporary, the term may not exceed fifteen years.
f) Inability to obtain public subsidies and aid, to contract with the public sector and to enjoy tax or Social Security benefits and incentives, for a period not exceeding fifteen years.
g) judicial intervention to safeguard the rights of workers or creditors for the time deemed necessary, which may not exceed five years.
What penalties do the denounced legal entities incur?
The prison sentence for participants in corruption (those responsible for making payments and those who accept them) would be six months to four years in prisonbut the addition of “continued corruption” that is imposed in the complaint, can make the penalty greater, explains the Pablo’s lawyer:”The penalty is applied in its upper half, and can reach the lower half of the upper half: they vary between 2 years and 3 months and 5 years in prison.“.