Negreira Case: The crime of corruption between individuals

The Barcelona Public Prosecutor’s Office has launched an investigation into FC Barcelona for alleged corruption related to a private company. The Spanish Tax Agency was investigating Dasnil 95, SL, a company owned by José María Enríquez Negreira, vice president of the Technical Committee of Referees (CTA) between 1994 and 2018, for alleged irregularities in its accounts, specifically for receiving payments of dubious origin from the club.

Specifically, there were total revenues of €1.4 million during the fiscal years 2016, 2017, and 2018, the year in which the last payment was made and in which Negreira ceased to be part of the Technical Committee of Referees. The Tax Agency requested the company to provide the corresponding justifications for the services rendered with invoices issued during the aforementioned period, but Negreira was unable to provide documentary evidence of the reason for the services invoiced to the Barcelona club, claiming that the technical advisory services were provided “verbally.”

Could a crime have been committed?

After the Spanish Tax Agency detected a suspected tax offense, the Barcelona Prosecutor’s Office launched an investigation into a suspected case of corruption between private individuals related to these payments. This common crime is defined in Article 286 bis of the Spanish Penal Code and “punishes any person or company that receives, requests, or accepts an unjustified benefit or advantage as consideration for unduly favoring another.”

Section 4 of the same provision makes express reference to the application of the article to “directors, administrators, employees or collaborators of a sports entity, whatever its legal form, as well as to athletes, referees or judges, with respect to those conducts that have the purpose of predetermining or altering in a deliberate and fraudulent manner the result of a test, meeting or sports competition of special economic or sporting relevance”, also known as sports corruption.

The crime of corruption between private individuals is punished in the Penal Code with a prison sentence of 6 months to 4 years, with special disqualification of 1 to 6 years and a fine of three times the value of the benefit or advantage for the directors of the football club and the former referee.

If the commission of the crime of corruption between private individuals is not proven, a possible crime of breach of trust, as defined in Article 252 of the Spanish Penal Code, could be considered if the payments corresponded to services that were never rendered. In this case, the penalty could be up to three years in prison for those who exceed their authority in managing another’s assets, causing financial harm to them—in this case, to the members of the FC Barcelona club.

For criminal proceedings to be initiated, the Public Prosecutor’s Office or any affected individual must file a complaint or lawsuit against FC Barcelona, ​​provided there is sufficient evidence of a crime. It should be noted that the alleged corruption offense between private individuals being investigated by the Barcelona Public Prosecutor’s Office will be subject to the statute of limitations in June 2023, given that there is a five-year statute of limitations from the date the offenses were committed, the penalty does not exceed five years, and FC Barcelona made its last payment to the Negreira company in June 2018.

What happens to the Compliance program?

FC Barcelona’s Compliance program failed to detect the payments to Negreira, and the Club states that it has initiated an audit, outsourcing the investigation of the facts of the case in order to ensure maximum efficiency during the course of the audit.

In this regard, it should be noted that continuous monitoring is essential to verify the suitability, effectiveness, and efficiency of internal controls within compliance programs. Even so, compliance programs can be sufficient if they are properly implemented by company management.

FC Barcelona has a Criminal Compliance program, whose mission is to ensure regulatory compliance within the Club, which involves not only knowing and respecting the Code of Ethics, but also other internal regulations that FC Barcelona has adopted to comply with the various applicable laws in force.

The FC Barcelona Code of Ethics prevents sports fraud and the manipulation of competitions, stipulating that members “will refrain from carrying out, directly or indirectly, conduct likely to manipulate sports competitions, whether through the payment or receipt of a fee, with the aim of premeditating or deliberately and fraudulently altering the outcome of a test, match, or sporting competition.” It also prohibits “inappropriate conduct that could be considered bribery of other sports professionals.”

It is important to highlight the need to implement effective measures to prevent and detect irregularities. In this regard, in Spain, sports compliance has become an essential requirement within sports-related institutions for several years.

At Nieto Enríquez Criminal Lawyers, a criminal defense firm in Barcelona , ​​we analyze the legal implications of the Negreira case and its potential classification as corruption between private individuals. If you have questions about how this type of situation may affect you or require criminal law advice, please do not hesitate to contact us.