FC Barcelona has presented an appeal against the decision of the Investigative Court number 1 of Barcelona to charge the Barça club with the crime of bribery as well as its former presidents Sandro Rosell and Josep Maria Bartomeu, two former directors and the former vice president of the Committee Referees Technician (CTA) José María Enríquez Negreira and his son Javier. Barça considers that “the investigated Enriquez Negreira does not have the status of civil servant, nor an official for criminal purposes, nor does his activity in the CTA bear the nature of exercising a public function, which leads to affirming possible insubsumability of his conduct, nor in those who could have made payments to him, in the typical nature of bribery”.
In this way, the lawyers representing FC Barcelona, ??Cristóbal Martell and Marc Molins, emphasize that since Enríquez Negreira cannot be considered an official, the crime of bribery cannot be applied in any of its variants. In this sense, the court highlights that, presumably, the Negreiras are responsible for passive bribery, in the case of Javier as a cooperator, for receiving money, while the former Barça directors of an active crime for payments over 18 years that “were increasing since the initial 70,000 euros up to 700,000 euros annually” through intermediary companies of the former referee.
The judge equates the Royal Spanish Football Federation (RFEF), on which the Technical Committee of Referees (CTA) depends, with the administration, considering that it has this public function for regulating sports competitions, despite being a “private entity” and That is why he believes that the investigated former vice president can be classified as an official. In this way, he introduces the crime of bribery for the payments received, together with his son, from Barça. Despite this, the Barça club maintains that at no time can this analogy be made and urges the court to continue the investigation for a crime of corruption in sport, as has happened until now.
“The invocation of bribery places a rear-view mirror that looks back to the year 2001, when the payments linked to José Enríquez Negreira and his companies began, and correspondingly produces a kind of procedural elephantiasis by projecting the eventual status of accused to other Boards and other management teams of the Futbol Club Barcelona, ??regardless of the game that the institute may give the prescription, different depending on the different modalities of bribery,” says the Barça appeal.
Furthermore, they point out that “however much the concept of public official can be stretched for criminal purposes” as due to “ontological link to the general interest, the truth is that the subject, in addition to performing that predicated public function, must perform it for reasons of a” incorporation title” or “enabling title” (law, election or appointment of authority) that does not occur in the Vice President of the Technical Arbitration Committee whose appointment” is by “direct appointment of the president of the RFEF, who is not an authority, not even an official “. They add that the RFEF “even though it is an associative entity under private law, it exercises by delegation some public functions, these are those exhaustively described in the Law and none of them are carried out by the Technical Arbitration Committee or its vice president.”
For this reason, Barça remembers that “the title of incorporation or appointment mechanism of the members of the Technical Arbitration Committee (hereinafter CTA) must be clarified, the legal nature of the RFEF must be conceptualized, and what public functions it performs by delegation must be focused and distinguished. the Administration and focus the functions of the CTA and warn if it performs those public functions attributed to the RFEF” and adds that “in short, it is clear that he is neither appointed by express and immediate provision of the law, nor has he accessed a public function through an election understood by such in accordance with doctrine and jurisprudence to electoral processes that incorporate positions in public office, by direct or indirect election such as mayors, councilors or provincial deputies, nor has it been appointed by a competent authority, a normative provision that converts officials for criminal purposes to temporary, interim and labor and administrative contracts who participate in public functions, being thus, for greater completeness, that the President of the RFEF who appoints him is not an authority for criminal purposes since he lacks command, that is, capacity and coercion to enforce what is ordered, nor jurisdiction in its understanding as the capacity to resolve conflicts”.
The legal representatives of FC Barcelona detail that the Sports Law grants, by delegation, some public functions of an administrative nature to the sports federations but they rule out that a president of this body can be “included in the concept of public official” since the same regulations add that “it is ruled out that the President of the sports federation has the status of official or similar.” For this reason, they argue that “a Vice President of the Technical Arbitration Committee of the Royal Spanish Football Federation can be affirmed as an official for criminal purposes” and ask that the bribery case be filed.