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The recent Judgment 111/2020 of April 23 of the Second Section of the Provincial Court of Navarra condemns for the first time in Spain several former Osasuna managers and two soccer players for a crime of sports corruption in article 286 bis 4 of the Penal Code. This judgment is not final and, therefore, an appeal is pending against the Supreme Court. In any case, and at the expense of its confirmation by this High Court or, in its case, its total or partial revocation, it must be said that it is a historical milestone in the persecution of sports frauds, and in particular, in football. professional, in the highest category of one of the most prestigious competitions in the world such as Laliga.

In it, the former Osasuna executives, among others, are condemned for a continued crime of misappropriation, falsification of a commercial document and sports corruption, various custodial sentences and fines of different lengths. It must be said that they are penalties that, in most cases, would entail the effective entry into prison of those convicted if confirmed by the Supreme Court . And signify, with regard to this consequence, that the procedure (instruction) of which this Judgment brings causes is the first in which provisional prison is decreed in Spain for a sports fraud orchestrated by means of different forms of misappropriation and instrumental falsehoods. , specifically, for the former President of Club Atlético Osasuna. And, for the first time, two soccer players are convicted of sports corruption.

After reading the sentence, and evaluating the solid evidence on which it rests, in the form of legal reasoning supported by incontrovertible factual background, it is concluded that, in fact, in the 2012/2013 season the result was predetermined of several games, among others, at least, Betis-Valladolid and Osasuna-Betis , with incidence in the competition and in third teams involved in the descent of that season. An amount of one million euros was agreed by two former Betis players to win against Valladolid and lose against Osasuna. And so it turned out, although the amounts that were collected did not reach a million euros. Nor did Osasuna finally manage to retain the category.

I do not want to enter into the commissioning dynamics of the events, which is perfectly explained in the judgment (meetings in different hotels in Madrid and Seville, falsehoods in accounting and commercial documents and diversion of funds from Osasuna), and neither in each and every protagonists or secondary actors of this drama. Yes, however, I would like to point out the important irruption in our forensic praxis of this new criminal type that has come to be called sports corruption and that is provided for in article 286 bis 4 of our Penal Code.

The Provincial Court of Navarra imposes prison terms for this type of criminal offense within its lower half (one year, the penalty provided for in the Code being from six months to four years), however, in the twenty-second legal basis it is carried out term, in my opinion, a very exhaustive treatment of the national and international regulations in this matter, which should be valued very positively, since it is the first time that it is accepted as a true operating precept and is applied to the present case with all the consequences.

Cited by the Provincial Court of Navarra, including legislation from neighboring countries and various international instruments related to the prosecution of this type of fraud. The aforementioned provision was introduced in the Penal Code by Organic Law 5/2010 of June 22, within the section dedicated to crimes of corruption in business as a consequence of the transposition of Framework Decision 2003/568 / JHA, which deals with the sports corruption and desirability of criminalizing these behaviors in its explanatory memorandum and in its point 10 fixed as objective the construction of a criminal offense in all Member States, including establishing the basis for criminal liability of legal persons in this type of active or passive corruption.

And the Provincial Court expressly says in the same legal basis that: "This Chamber considers that sport constitutes a fundamental instrument for education, health, the assumption of positive values ​​by a society. However, the presence of important economic interests has fact that sports purity is questioned in the face of the possibility of obtaining important benefits through sport.Traditionally, this problem had been relegated to the administrative sphere, although in recent years the intervention of criminal law has been considered necessary to protect legal assets. in Game". Below is a reference to the European and Spanish regulations on this matter.

Fundamentally, it includes the reforms that in the field of sports integrity have been introduced in the Penal Code in recent years, that is, violence in sport (article 558 of the Penal Code by Organic Law 15/2003 of November 25) , health protection and fight against doping (article 361 bis of the Penal Code by Organic Law 7/2006 of November 21) and in matters of sports corruption (article 286 bis 4 of the Criminal Code by Organic Law 5/2010 of 22 of June).

Also cited, in the twenty-third legal basis, are the conclusions of the Council of the European Union on the fight against match fixing 2011 / C 378/01, the Declaration of Nicosia on the same matter of September 20, 2012 signed by the Presidency of the Council of the European Union that warns that "match-fixing constitutes one of the most serious threats to contemporary sport, undermining the fundamental values ​​of integrity , fair play and respect for others". The Resolution of the European Parliament of March 14, 2013 on match fixing and corruption in sport 2013/2567 (RSP) and, finally, the Council of Europe Convention on Manipulation of Sports Competitions made in Strasbourg on October 6, 2014 and ratified by Spain.

In short, it almost completes a criminal law program on Integrity in Sport, citing the recent Draft Conclusions of the Council and of the Representatives of the Member States, meeting in the Council on the Fight against corruption in sport carried out in Brussels on November 5, 2019 (13349/19) or the United Nations 2030 Agenda for Sustainable Development.

But I want to underline the correct and clarifying for all, interpretation of our article 286 bis 4, which is the one applicable to ex-directors and convicted players in its twenty-fourth legal basis. And very particularly, and without prejudice to the legal nature of the precept, as a crime of mere activity that does not require the result of having reached the predetermination of the party or parties, being consumed, in the case of active corruption, with the promise, offer or concession of the advantage or economic benefit presided over for the purpose of predetermining the result or, in the case of passive corruption, it would be enough to receive, request or accept the benefit or advantage for the same purpose for the consummation to occur, I want to underline the treatment that this Judgment gives to the so-called "bonuses to third parties for winning".

And it is thus closed, in my opinion it always was, the debate on its legitimacy and legality. It is evident, although the latter was discussed at the University of Navarra, at a conference on this matter to which I was kindly invited by the University, by one of my colleagues present in the Chamber, that the bonuses to third parties for winning remain within the scope of application of this crime, as thus concluded by the Provincial Court of Navarra. And this is inconclusive, simply, by reading the federal and administrative regulations on this matter that prohibit them.

The Judgment completes a correct interpretation of the type and, especially for these purposes, of the typical terms to which the conduct refers when it refers "to the purpose of deliberately and fraudulently predetermining or altering the result of a test, meeting or professional sports competition ". The Resolution of the Court of Arbitration for Sport (TAS) of September 2, 2014 regarding this issue is cited, which speaks of the undue influence on the competition of these premiums, of the advantage they grant to the offeror, of the bankruptcy of the principle of equality between competitors and the breach of essential values ​​of sport.

Indeed, these bonuses are prohibited by article 69.2 i of the Statutes of the National League for Professional Soccer, article 82 of the Disciplinary Code of the Spanish Federation and article 76.1 of Sports Law 10/1990 from which it is derived that The athlete's obligation is not simply to go out to win but to ensure that the sports result is produced in accordance with the previously known and accepted norms, without external conditions not included in the rules. The Judgment expressly affirms, in this sense that "in all competitions there are a series of conditions that can influence the outcome of the match or meeting, such as the different economic budgets that clubs have, television rights, the quality of their templates, but they are all circumstances already known at the time of the confrontation. However, they are not the agreements that can be reached clandestinely and hiddenly and that represent a breakdown of the principle of trust that governs the competition. not to alter that trust and integrity required when a team falls from category because in the last days of the league, third parties encourage their rival to win. "

It is clear that in this case bonuses were received, also to lose, to the detriment of third teams, but a positive criticism of the interpretation that the Provincial Court of Navarre makes of article 286 bis 4 of the Penal Code must be carried out. The arguments in favor of the atypicality of the premiums to third parties for winning are not convincing because this would not jeopardize the legal good protected in the criminal law because it would imply reducing that legal good in a reductive duty No. It is about integrity and honesty in sport, equality and transparency of competitions and in a financial and sports fair game that does not favor anyone. It would involve ignoring the aforementioned international instruments, our federative and administrative regulations, mainly the Sports Law and, ultimately, a legal asset that is integrity in sports competitions.

Needless to say, the multiplier effect with respect to this type of behavior is produced by the concurrence of betting parties with a transnational market that moves an annual volume of between 200 and 500 billion euros, the multiplier effect of the internet (betting on line), tax havens as operation centers for this type of betting, etc. But that is another chapter, of integrity in our sport and, in particular, of soccer. Without a doubt, with a potential corruptor and devastating criminogen.

This comment, I make it very modestly, to a sentence that is still a milestone in our History of Professional Soccer and Sports. Congratulations, therefore, very especially to Laliga who, I know that from the beginning has fought this type of behavior and that it has been a private prosecution in this case and that it monitors the bets on its competitions and effectively prevents any form of manipulation or fraud. Congratulations to the National Police Corps and, in general, to Spanish Sport.

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