Corporate criminal liability and Compliance in the wake of the Women’s World Cup final case

Following the events that took place in the final of the Women’s World Cup in Australia, a profound debate has been opened on the possible criminal transcendence of acts such as kissing another person without consent.

In this regard, the following is a brief analysis of the present situation from the perspective of: (i) the possible criminal relevance and qualification of the conduct of the President (now suspended) of the Royal Spanish Football Federation (hereinafter, RFEF); (ii) the possible criminal liability of the RFEF itself as a legal entity; and, finally, (iii) the role that Compliance should play in this type of situation.

In the first place, it is necessary to study the possible relevance and fit of the conduct of the President of the RFEF in a specific type of crime. In this sense, the different media headlines that have been pronounced regarding this event have tended to qualify it as a situation of “abuse, aggression or sexual harassment“. The qualification of the facts as one type of crime or another is not trivial, and could mean the difference between the RFEF being liable or not as a legal entity.

In this regard, as an introduction, it should be borne in mind that the reform of the Penal Code (CP) by Organic Law 10/2022, of September 6, 2002, on the comprehensive guarantee of sexual freedom  eliminated the difference between the concept of sexual aggression and sexual abuse, encompassing such behaviors under the umbrella of the terminology “sexual aggression”.

Thus, according to its current wording, the crime of sexual aggression of art. 178.1 CP is due to the fact of carrying out any act that violates the sexual freedom of another person without their consent. Among other more serious conducts, the act of kissing another person without his or her consent would be included in this type of crime.

On the other hand, the crime of sexual harassment punishes in art. 184.1 CP the fact of requesting favors of a sexual nature, for oneself or for a third party, within the scope of an employment relationship, among others, causing the victim an objective and seriously intimidating, hostile or humiliating situation.

To the extent that the conduct analyzed consists of an act on a third party (a kiss), without prejudice that the existence or not of consent should be analyzed, and not its request (which for the purposes of this article shall be understood as absorbed or connected to the kiss itself, without prejudice that, in other situations, if manifested separately, it could constitute by itself an act of sexual harassment), it can be concluded that the conduct of the now suspended President of the RFEF fits more comfortably in the crime of sexual aggression, of art. 178 CP, than in the crime of sexual harassment, of art. 184 CP.

Finally, with respect to the possible individual criminal liability of the President of the RFEF, it should be noted that this would still encounter certain procedural obstacles (insofar as the possibly criminal conduct occurred in an international jurisdiction, Australia, and the requirements of art. 23 LOPJ should be observed to enable Spanish bodies to hear the case), among others.

Then, secondly, we will proceed to analyze the possible criminal liability of the RFEF, as a legal entity. For this purpose, the following questions should be studied: (i) can the RFEF as a mixed public-private body be criminally liable, or is such possibility excluded under art. 31 quinquies CP?; (ii) would the conduct of Mr. Luis Rubiales meet the requirements set forth in art. 31 bis CP to attribute criminal liability to the RFEF?

By way of introduction, it should be taken into consideration that, since the reform introduced in the Criminal Code by Organic Law 5/2010legal entities (such as corporations, foundations, associations, etc.) may be criminally liable for certain crimes committed within them when a series of conditions are met.

However, as developed in other publications of our firm (ComplianceKeys#2), criminal liability cannot be demanded to any legal person. Thus, art. 31 quinquies CP establishes the impossibility of demanding criminal liability, in general, to public entities (such as the State, territorial and institutional public administrations, etc.). However, paragraph 2 of the same precept provides that public corporations that execute public policies or provide services of general economic interest may be criminally liable (however, only the penalties of fines or judicial intervention may be applied to them, and not all the penalties that may be applied to a private entity).

In accordance with its statutes, the RFEF is a private associative entity of public utility. Likewise, in accordance with Law 39/2022, of December 30, of Sports, the Spanish sports federations exercise public functions of an administrative nature, acting as collaborating agents of the Public Administrations, in addition to their own functions.

This means that the RFEF enjoys a mixed public-private nature that would place it in the list of entities benefiting from the provisions of art. 31 quinquies CP. However, in view of its configuration as a private associative entity, and not as a fully public entity, it could still be attributed criminal liability in the cases established in art. 31 bis CP, although only the penalties of a fine or judicial intervention could be imposed on it.

Having confirmed that the RFEF could be a subject of criminal liability, in accordance with the provisions of articles 31 bis and quinquies CP, we will now proceed to analyze the specific requirements that should be observed so that criminal liability can be attributed to the RFEF for the acts carried out by its President during the awarding of medals to the Spanish national team. This analysis will be divided into two (2) parts: (i) are we dealing with a criminal conduct that may generate criminal liability for the legal person? (ii) are the different requirements established in art. 31 bis 1. a) CP fulfilled in order to hold the RFEF criminally liable?

As regards the first question, as has been observed in previous publications (ComplianceKeys#3), legal entities may not be criminally liable for any crime, but only for those in which this possibility is expressly provided for.

Therefore, the legal qualification given to the conduct of the President of the RFEF is of utmost relevance. In this sense, as has been introduced at the beginning of this article, the possible criminal qualifications that are currently being considered are: (i) the crime of sexual aggression, art. 178 CP; (ii) the crime of sexual harassmentart. 184 CP.

On this basis, it can be established that the criminal liability of the RFEF as a legal entity could only be based on the assumption that the conduct under analysis would be considered as a crime of sexual harassment, of art. 184 CP, to the extent that, unlike the crimes of sexual aggression, of art. 178 CP, it is included in the numerus clausus of criminal conduct susceptible of being based on corporate criminal liability (this, since the reform of the Penal Code by the Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom).

Next, continuing with the second part of this analysis, and on the basis of an improbable classification of the conduct as sexual harassment instead of sexual aggression, we will analyze compliance with the different requirements established in art. 31 bis 1. a) CP to hold legal entities criminally liable for crimes committed by their legal representatives or managers (ComplianceKeys#4).

The requirements established in the aforementioned precept are the following: (i) that whoever has committed the offense has committed it in the name or on behalf of the legal person or in the exercise of its corporate activities; and (ii) that the offense has been committed for the direct or indirect benefit of the legal person.

Although it could be understood that the possibly criminal acts were carried out in the exercise of social activities, to the extent that they were carried out within the framework of an institutional act in which the President of the RFEF participated as its representative; it would be difficult to argue that the analyzed conducts were committed for the direct or indirect benefit of the Federation.

Consequently, since the crime of sexual aggression is not a crime that can be the basis for the criminal liability of the legal person; and, secondly, in the event that the conduct is classified as sexual harassment, it would be difficult to meet the requirements of art. 31 bis 1. a) CP for the attribution of criminal liability to legal persons for crimes committed by their managers; the conviction of the RFEF as a legal person is highly unlikely.

Finally, entering the third and last block of this article, we will proceed to comment on the role that Compliance should play in these situations. By way of introduction, it should be noted that the purpose of adopting a Compliance System is not only to obtain an exemption from criminal liability (in fact it should be a consequence and not an objective or purpose), but to create a true corporate ethical culture that ensures that an entity and the people who make it up act at all times in accordance with the principles and values by which it intends to be defined (these may be related to matters such as equality, regulatory compliance, respect for people and the environment, interdiction of corruption, among many others). In this sense, among other relevant actions, the entities must develop certain internal regulations to express their willingness to comply with ethical and regulatory requirements.

Thus, among other internal regulations, the RFEF itself has a Protocol of action against sexual violence that expressly considers “forcible kissing” as a prohibited behavior related to sexual violence. In addition, the Protocol states that it is common, especially in high-level sports environments, to generate strong relationships of power and dependence that blur the boundaries of what is acceptable and that athletes are not able to recognize themselves as victims of sexual violence.

Noting the RFEF’s strong position in relation to the prevention of sexual violence, this should be a clear example of how Compliance should be applied regardless of the position or function held by the specific person who infringes the internal regulations, even when this person is the President of the Federation, who should be the maximum standard bearer of the internal regulations developed and subscribed to by the entity.

Thus, even if the conduct of the President of the RFEF finally had no criminal transcendence, it is a conduct expressly prohibited by the internal regulations of the Federation itself and contrary to its values, reflecting a clear leadership problem in the entity (tone from the top), so it would be absolutely necessary for the RFEF to act accordingly in accordance with its internal protocols of action.

By way of conclusion, throughout this article we have analyzed, on the one hand, the possible individual criminal liability that could arise for the President of the RFEF due to his conduct during the presentation of awards to the victorious Spanish Women’s Football team, which could be considered a crime of sexual aggression under its current regulations; and, on the other hand, the improbable attribution of criminal liability to the RFEF for said facts has been dealt with, not excluding, however, its duty to act in order to enforce its internal compliance regulations, thus ensuring respect for the values that the Federation considers as its own, especially by those persons who, precisely, represent the entity.

Compliance Department of Molins Criminal Defense.

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