The first thing that calls the attention of the resolution approved by the Administrative Tribunal of Sport initiating disciplinary proceedings against Luis Rubiales is that it has not been published despite the notoriety of the case. It does not appear on the agency’s website, but, yes, do not miss the Protocol for action against sexual violence that appears on it. The second is something that I imagine many citizens ask themselves. What is it and why does this so-called “Tribunal” whose members are not judges exist and which, regulated by a decree from the time of Wert, imparts “administrative justice” in sports matters?
But let’s get to the bottom. After an extensive dissertation on the applicable legislation and its own competence, the TAD enters to assess the facts in an incorrect way, in our opinion. On the public and notorious fact of the “kiss” the resolution starts from a partial factual account; “Rubiales, when the player Jennifer Hermoso approached him, she took his head with both hands and kissed him on the mouth.” What we have all seen in the different recordings is that the player did not approach Rubiales, but that she had to greet him in the parade of the trophy delivery ceremony. That Rubiales, before kissing her, lifted her off the ground, squeezed her with her arms, brought her body close to hers, and what, according to her vulgar description, is a simple “beak”, is far from being an act socially accepted reflex. The TAD says nothing about the fact that the president of the federation now suspended by FIFA carried another player from the national team across the pitch as an object or a trophy or about the improper familiarity that was allowed with Queen Letizia present there.
That particular “kiss” only has, according to the TAD, a possible criminal significance. The situation of superiority, he says, must be appreciated by the criminal jurisdiction. The TAD also rules out any disciplinary consequences for the denounced “use of federal media to disseminate false statements in order to launder his actions.” The statement issued by the RFEF attributes to the player some statements that were immediately denied by the union that represents her and by herself. However, the TAD questions that that statement was prompted by the president of the federation in a knowingly fraudulent manner. Rubiales, not yet suspended at that time, did not know the statement? The abuse of authority, says the TAD, must consist of “a gross, arbitrary, conscious and voluntary excess of limits in the exercise of the functions of the president and for his personal benefit.” However, the old Sports Law does not include any such alleged infringing elements -which we also do not find in the old jurisprudence that the resolution cites- but rather simply states that “they will be considered, in any case, as very serious infringements of the rules of the game or competition or general sports rules (…) abuses of authority”.
But the TAD considers that we are only in the presence of a serious infraction for an act contrary to sporting decorum. As if the improper conduct had been that of an assistant referee, that of a lower category player or that of a simple fan, and not that of a president of the most important sports federation in the country and a senior UEFA official, with remuneration – now it is revealed – consisting in part in percentages of federative income from sponsorships and other concepts. Can you imagine the CEO of a large company with the right to receive commissions from clients or sponsors? It was very easy for the TAD to attend to the singularity of the case by applying article 14.h) of the current Royal Decree 1591/1992, of December 23, on sports discipline, which considers as a very serious offense “notorious and public acts that violate sporting dignity or decorum, when they are particularly serious”. Not all improper behaviors are of the same caliber. It depends on the person in charge. The TAD applies the 1990 Law, but rules out applying its Regulations through a convoluted exercise of “flexibility” (sic) in the interpretation of the principle of legality.
Is it necessary to go to a court of last resort such as the criminal one, to a minimum Law such as the criminal one, so that the non-consensual kiss that from his position of superiority is given by an entire president of the RFEF to a player of the national team be penalized with the seriousness it deserves? Or so that some crooked statements by the Federation itself go unpunished precisely in administrative proceedings?
There is a new legislation in our country on the matter. Law 39/2022, of December 30, on Sports – which is surprising that the TAD does not even mention it – has expressly repealed the old Sports Law of 1990, which covers the disciplinary file timidly initiated by the TAD. It is true that the third transitory provision of the new Law establishes that the sanctioning and disciplinary regime prior to its entry into force will continue to apply until the new common system of an extrajudicial nature for conflict resolution mentioned in article 119 is developed according to the regulations. . A development that not only depends on the Higher Sports Council, but also on the Spanish sports federations and professional leagues that have to assume it in their statutes on a voluntary basis. But it is also true that art. 104 of the Law of 2022 classifies as very serious infractions notorious and public acts that violate sporting dignity or decorum, along with and even ahead of abuses of authority.
The TAD has shown zero sensitivity to this case that continues to raise a storm of protests throughout the Western world. Let’s say that it has ignored the wise mandate of the Civil Code by establishing that the rules will be interpreted according to and in relation to the social reality of the time in which they are to be applied, fundamentally attending to its spirit and purpose. Only a forceful reaction from the public powers and civil society -the sponsors of the federation and the star players of the great men’s and women’s teams and the group of athletes in general would not hurt either- could restore the battered image that our country has offered as a reserve of European machismo. The Government and the CSD -and the President of the TAD himself with his particular vote- have acted quickly, firmly and perceptibly. TAD no. The resolution is not a mere act of procedure. It contains determining legal qualifications and, in some way, prejudges the final result, predictably soft, of the procedure. You have already seen with what superlative degree within his usual euphoria Rubiales has reacted. Finally, it could be considered that this resolution violates fundamental rights and that it is therefore challengeable – and the suspension of the charge as a precautionary measure – without the need for any criminal judge to intervene.
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