Criminal Liability of Sports Clubs and Entities (Art. 31 bis CP)
Criminal defence of clubs, public limited sports companies, federations and sports entities for offences committed by their directors or employees, and design of prevention models (criminal compliance) under Art. 31 bis CP.
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The criminal liability of legal persons introduced by Article 31 bis of the Spanish Criminal Code fully reaches sports clubs, public limited sports companies, federations, foundations and other sports entities. Since the reform by Organic Law 5/2010, consolidated by Organic Law 1/2015, a sports entity can be criminally convicted for offences committed by those who represent it or work for it, with penalties that may even lead to its dissolution.
The two routes of attribution under Art. 31 bis CP
Art. 31 bis(1) CP establishes two heads of attribution. The first (point a) holds the club liable for offences committed in its name or on its behalf, and to its direct or indirect benefit, by its legal representatives or by those who, acting individually or as members of a body, are authorised to take decisions or have powers of organisation and control: presidents, board members, sporting directors or managers. The second (point b) holds the entity liable for offences committed by employees subject to the authority of the above where the act was made possible by a serious breach of the duties of supervision, monitoring and control.
Common offences in the sports sector
The club is not liable for any offence, but only for the closed list set out in the Special Part of the Criminal Code. In the sports sector the most relevant are: offences against the Public Treasury (Arts. 305 ff. CP) and against Social Security; corruption in business and between private parties (Arts. 286 bis to 286 quater CP), the key route against match-fixing; money laundering (Arts. 301 to 304 CP); fraud (Arts. 248 and 249 CP) and misappropriation (Art. 253 CP); offences against workers' rights; offences against privacy and disclosure of secrets (Arts. 197 ff. CP); and hate or discrimination offences (Art. 510 CP). In addition, fraud in sporting competitions (Art. 286 bis(4) CP) is a specific form of corruption between private parties.
Penalties for sports clubs and entities
Art. 33.7 CP sets out the catalogue of penalties, all serious: a fine by quotas or proportional; dissolution of the legal person; suspension of activities for a term not exceeding five years; closure of premises and establishments for a term not exceeding five years; prohibition from carrying out in future the activities in the exercise of which the offence was committed (temporary, up to fifteen years, or definitive); disqualification from obtaining public subsidies and aid, contracting with the public sector and enjoying tax or Social Security benefits and incentives, for a term not exceeding fifteen years; and judicial intervention to safeguard the rights of workers or creditors for the time deemed necessary, not exceeding five years. Their imposition is calibrated under the rules of Art. 66 bis CP.
Sports criminal compliance and the exemption
The principal preventive defence tool is the organisation and management model (criminal compliance). Art. 31 bis(2) CP exempts the club from liability where, before the offence was committed, the management body adopted and effectively implemented a model suitable to prevent offences of that nature, supervision was entrusted to a compliance body with autonomous powers (compliance officer), the perpetrator fraudulently evaded the model, and there was no omission or insufficient exercise of the control functions. Art. 31 bis(5) CP sets the six requirements of the model: identification of risks, decision-making protocols, management of financial resources, a duty to report to the compliance body (whistleblowing channel), a disciplinary system and periodic verification. For small entities, the functions may be assumed by the management body itself (Art. 31 bis(3) CP).
Mitigating circumstances and defence
Art. 31 quater CP provides mitigating circumstances: confession before becoming aware of the proceedings, cooperation by providing evidence, repair of the damage, and the establishment of effective measures to prevent and detect offences before the trial. The club's liability is autonomous and independent of that of the natural person (Art. 31 ter CP), so the entity may be convicted even if the specific perpetrator is not identified. It should be noted that Art. 31 quinquies CP excludes the State and certain public entities from this liability. Our firm designs, reviews and certifies prevention models and assumes the criminal defence of the entity and its directors once proceedings are already open.
Penalties & Consequences: Criminal Liability of Sports Clubs and Entities (Art. 31 bis CP)
| Type / Scenario | Criminal Penalty |
|---|---|
| Fine and suspension of activities | A fine by quotas or proportional and suspension of activities for a term not exceeding five years (Art. 33.7 CP). |
| Disqualification and prohibition of activity | Disqualification from subsidies, public contracting and tax benefits up to fifteen years, and prohibition of activities, whether temporary or definitive. |
| Dissolution and judicial intervention | Dissolution of the legal person and judicial intervention for a term not exceeding five years, as the most serious penalties under Art. 33.7 CP. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Defense Strategy: Criminal Liability of Sports Clubs and Entities (Art. 31 bis CP)
Prove the effectiveness of the prevention model
Demonstrate that the club adopted and effectively implemented a suitable model (Art. 31 bis(2) and (5) CP) with an autonomous compliance body, to trigger the exemption or, failing that, the mitigation.
Challenge the benefit and the head of attribution
Dispute that the offence was committed to the entity's direct or indirect benefit or that there was a serious breach of the duties of supervision (Art. 31 bis(1)(b) CP).
Separate the natural person's liability
Use the autonomy of Art. 31 ter CP to distinguish the club's position from that of the director or employee and avoid automatic attribution.
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