The criminal process opened against FC Barcelona for the million-dollar payments to former referee José María Enríquez Negreira could have sporting consequences regardless of whether bodies such as UEFA or FIFA decide to open files or apply sanctions. The crime of corruption in business of which the Prosecutor’s Office accuses the club provides for prison terms (from six to four years), a fine and disqualification. If there is a conviction, the disqualification can take the form of measures ranging from the dissolution of the entity to the prohibition or temporary suspension of its activities. But its application requires so many requirements that, in practice, the most likely scenario is that Barça will have to pay a fine, according to the judicial sources consulted.
The Prosecutor’s Office filed a complaint on Friday against FC Barcelona, as a legal entity, for a continuous crime of corruption in business, which came into force in 2010. This crime has a specific section that refers to fraud in sport and which punishes to the “directors, administrators, employees or collaborators of a sports entity”, on the one hand, and to the “athletes, referees or judges”, on the other, who intend to “deliberately and fraudulently predetermine or alter the result” of a sports competition. After almost a year of investigation, the brief that the Prosecutor’s Office presented before the Barcelona courts provisionally concludes that the 7.3 million that Barça paid Negreira between 2001 and 2018 sought to rig the competition. The objective of the club, always according to the public accusation, was for Negreira to “favour” it in “the decision-making of the referees in the matches that the club played” and, consequently, “in the results of the competitions”.
Thus, the payments are not due to any service actually provided, according to this hypothesis that the judicial investigation will put to the test and for which the Prosecutor’s Office has asked the judge to summon former Barça coaches Luis Enrique Martínez and Ernesto Valverde to testify as witnesses. . They must explain if, during their time in charge of the first team, they learned of the existence of alleged reports on the behavior of the referees on the pitch.
The complaint is directed, in addition to the club, against the former presidents Sandro Rosell (2010-2014) and Josep Maria Bartomeu (2014-2020), as well as against two executives from the Bartomeu stage for corruption in business, but also for unfair administration (they allegedly used the partners’ money for illegitimate purposes) and false commercial documents. Bartomeu and Rosell could, in case of conviction, go to prison, something that is materially impossible when it comes to legal persons like Barça. For the application of penalties in these cases, the Criminal Code provides a series of rules and requirements.
The most obvious penalty, and the one that the experts consulted see as the most likely to end up being imposed (as long as the facts are proven in a final judgment) is the payment of a fine, which can be three times the “benefit or advantage ” obtained. As the same sources recall, Barça is, in that sense, “a club with a criminal record”, even though this circumstance will not have consequences in the future. Negreira case. In 2016, the Barcelona entity accepted a sentence for two tax crimes in the signing of Neymar and assumed the payment of a fine of 5.5 million euros.
The worst scenario for the club would be to assume a disqualification, a type of penalty that in the case of legal persons, such as Barça, follows special rules and provisions. Its application is not automatic and there are circumstances that exempt the entity on duty from liability; for example, if it has adopted “organizational and management models that include surveillance measures” and if the perpetrators have committed the crime “fraudulently evading” those controls. The most onerous measure envisaged is the dissolution of the entity, although the Penal Code also provides for the suspension of activities or the “closure of premises and establishments” for a period of between one and five years.
These and other scenarios are improbable, according to the sources consulted, because the relevance of the “legal” activity of the legal person must be “weighted”; in this case, the performance of FC Barcelona in the sphere of sport. The criminal law also requires that the “economic and social consequences” of other planned measures (such as judicial intervention) be taken into account, especially for workers, before applying them.
With the intention is enough
He Negreira case it is, in any case, in an embryonic phase. After the presentation of the complaint, a Barcelona judge must now decide if he admits it for processing. From then on, the parade of statements from the investigated and witnesses will begin, as well as the practice of evidence proceedings. Until now, the Prosecutor’s investigation has not been able to prove that the payments have served to buy the will of the arbitrators. Before the Treasury, Negreira said that Barça paid him to ensure “neutral” arbitrations, which would not harm him.
The problem for FC Barcelona is that it may not be necessary to prove this extreme to reach a conviction. Enough with the intention. This has been established by the Supreme Court in the judgment of the Osasuna case sports corruption. The court considers that it is a crime of mere activity; that is, it is not necessary to prove that the competition was adulterated, but only that this was the intention when the payments were made.
In addition to the criminal, there is the administrative route. The sports law establishes that serious infractions prescribe after three years; Since Barça ended the payments in 2018, it would be safe from sanctions. UEFA regulations, however, enable it not to invite to its competitions (Champions and Europa League) teams that have been involved in any activity intended to influence the outcome of a national or international match. Asked about the Prosecutor’s complaint, a UEFA spokesman explained to this newspaper that it is a “domestic matter” in which the body will not intervene unless expressly requested by the Spanish Football Federation.
In the domestic field, both the CSD and Real Madrid have made a move, expressing their intention to appear as an accusation in the case that the judge will eventually open against FC Barcelona.
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