NEGREIRA CASE: The crime of corruption between private individuals

The Físcalía de Barcelona has initiated an investigation to F.C Barcelona for an alleged corruption offense in relation to a private company. The Tax Agency investigated the company Dasnil 95, S.L, 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, by receiving income of dubious justification from the azulgrana club.

Specifically, there was income for a total amount of 1.4 million euros during the fiscal years of 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 required the company to provide the corresponding justifications for the services provided with invoices issued during the aforementioned period of time, without Negreira being able to documentally accredit the rationale for the services invoiced to the azulgrana club, alleging that the technical advisory services were provided “verbally”.

Could a crime have been committed?

After the Tax Agency detected an alleged tax crime, the Prosecutor’s Office of Barcelona initiated an investigation for an alleged crime of corruption between private individuals for such payments. This common crime is typified in article 286 bis CP and “punishes any person or company that receives, requests or accepts an unjustified benefit or advantage as consideration to unduly favor another”.

Section 4 of the same precept expressly refers 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 whose purpose is to deliberately and fraudulently predetermine or alter the result of an event, meeting or sports competition of special economic or sporting relevance”, also known as sports corruption.

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

If the commission of the crime of corruption between individuals is not proven, a possible crime of disloyal administration, provided for in article 252 PC, could be appreciated if the payment of the amounts corresponds to non-existent services. In this case, the penalty could be up to 3 years imprisonment for those who exceed their functions in the administration of another’s assets, causing a financial loss to the latter, in this case, to the members of the azulgrana club.

In order for criminal proceedings to be initiated, the Public Prosecutor’s Office or any aggrieved individual must file a complaint against F.C Barcelona, provided that there is sufficient evidence of a crime. It should be noted that the alleged crime of corruption between private individuals that the Barcelona Prosecutor’s Office is investigating will be subject to a criminal statute of limitations in June 2023, given that there is a statute of limitations of 5 years from the commission of the criminal acts, as the penalty does not exceed 5 years and given that F.C Barcelona made the last payment to Negreira’s company in June 2018.

What happens with the Compliance program?

F.C Barcelona’s Compliance program did not 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 investigation.

In this regard, it should be noted that continuous monitoring is essential to verify the adequacy, effectiveness and efficiency of the internal controls of compliance programs. Even so, Compliance programs can be sufficient if they are properly implemented by the companies’ managers.

FC Barcelona has a Criminal Compliance program, whose mission is to ensure regulatory compliance in 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 different applicable laws in force.

The Code of Ethics of the Club azulgrana prevents sports fraud and the manipulation of competitions, stating that “they shall refrain from carrying out, directly or indirectly, conduct likely to manipulate sports competitions, either through payment or collection of a price, in order to premeditate or deliberately and fraudulently alter the result of a test, match or sports competition”. Likewise, it also prohibits “inappropriate conduct that could be qualified as bribery of other sports professionals”.

It is important to highlight the importance of implementing effective measures to prevent and detect irregularities. In this regard, in Spain, sports compliance has been an indispensable requirement for several years in sports-related institutions.