The Semedo Case: Does a Players' Arrest Authorize Clubs to Terminate their Employment Contracts with Just Cause? - Ruiz-Huerta & Crespo Abogados
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WORLD IN REVIEW
Spain
The Semedo Case: Does a Players’ Arrest Authorize
Clubs to Terminate their Employment Contracts with
Just Cause?
By Alessandro Mosca
Lawyer, Ruiz-Huerta & Crespo Sports
Lawyers
Valencia - Spain
➔➔ National Law – Criminal Law – Player
contract – Breach of contract – Just cause
On 14 July 2017, Villarreal CF
transferred-in the Portuguese player
Ruben Semedo (Semedo) from Sporting CP
paying EUR 15 million. Afterwards,
Semedo was firstly accused of aggression
in October 2017, was detained for a few
hours for threats in November 2017
and, following a third episode occurred
on 22 February 2018, he was detained,
being accused of attempted murder,
injury, kidnapping, criminal possession
of weapons and robbery.
Ruben Semedo, Aleksandr Kokorin, On the one hand, during the of their pretrial custody. If they
Pavel Mamaev, Arda Turan and players’ pretrial custody the had not done so, the impossibility
Nicklas Bendtner represent the impossibility for the players to to perform their work will be
most recent examples of football perform their work is justified considered as unjustified and clubs
players facing criminal charges. and therefore clubs may impose will have the right to terminate
fines and suspend employment said employment contracts with
Besides the criminal repercussions contracts, which cannot be, in just cause.
connected with these crimes, any case, terminated with just
football players could face cause. In this sense, Article 45.1.g) As a general rule, clubs do not
additional employment-related of the Spanish Workers’ Statutes have the power to terminate
consequences. In this sense, does states that “The employment employment contracts with
a players’ arrest authorize clubs contract could be suspended for just cause as a consequence of
to terminate their employment the following reasons … g) The players’ crimes or misconducts
contracts with just cause? worker’s privation of liberty, while which are not directly related to
no condemn exists […].” the working activity or committed
First of all, it should be noted that during the working time. This is
every national law is different. If/once the pretrial custody without prejudice to those crimes
Therefore, Villarreal CF, Zenit terminates, Article 48.1 of the that indirectly affect the players’
Saint Petersburg, Başakşehir, and Spanish Workers’ Statutes performance or the clubs’ image
Rosenborg BK could come to grants players the right to be (clubs’ internal regulations and
different decisions in accordance reincorporated in their working players’ employment contracts
with the respective national place. At the opposite, in case play an important role in
legislations. clubs decided to terminate players’ determining which the punishable
employment contracts it would conducts are).
With reference to Spanish Law, represent a termination without
a distinction should be made just cause, in accordance with the On the other hand, if and once
between pretrial custody and final above Article 45.1.g). players were sentenced to prison
prison sentence. by a final decision, Article 54.2.a)
As a necessary requisite, players of the Spanish Workers’ Statutes
shall have previously notified clubs regulates the termination of
272 Football Legal
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Spain
employment contracts for therefore in accordance with the windows.5 Therefore, if Villarreal
disciplinary reasons, sanctioning abovementioned Article 45.1.g) of fired Semedo outside the transfer
the “Repeated offences, and the Spanish Workers’ Statutes. windows, it would be prevented
unjustified absences or lack of from registering a substitute.
punctuality at work.” In this sense, Following more than 140 days Moreover, terminating the Semedo’s
the decision dated 24 April 2018 of under pretrial custody and two employment contract would entail
the Spanish Supreme Court, Social rejected requests of release, on 13 economic and financial negative
Chamber1, confirmed that when July 2018, the judge granted Semedo consequences, where Villarreal
workers are sentenced to prison the conditional release on bail. On CF would lose the chance to
by a final decision, the absence the same day, Villarreal CF decided count on or transfer a player
from work allows employers to close the employment-related paid EUR 15 million in July 2017,
to terminate employment internal disciplinary proceedings but having the possibility to file a
contracts for disciplinary reasons. by imposing a fine against the claim requesting compensation for
Furthermore, said absence may also player. Five days later, Semedo was damage, as explained above.
be considered as tacit dismissal2, transferred on a yearly loan to
in accordance with Article 49.1.d) SD Huesca, where he is regularly In view of the foregoing,
of the Spanish Workers’ Statutes, performing his duty while waiting Villarreal CF could terminate
which justifies the employers’ for the sentence. In case Semedo Semedo’s employment contract if/
absence of compensation. At were sentenced to prison by a once he is sentenced to prison by a
the opposite, clubs can request final decision, Villarreal CF would final decision and said employment
compensation for damage due have the option of terminating contract will still be in force at
to the termination of the working his employment contract with that time. However, Villarreal CF
relationship attributable to players, just cause, in accordance with the should take into consideration
in accordance with Article 15.2 of the abovementioned Article 54.2.a) of also the sporting and financial
Spanish Royal Decree 1006/1985. the Spanish Workers’ Statutes. consequences of such termination.
Analyzing a concrete case, Nevertheless, when the final
on 14 July 2017, Villarreal CF decision will be rendered, Semedo’s
transferred-in the Portuguese employment contract with
player Ruben Semedo from Villarreal CF could be naturally
Sporting CP paying EUR 15 million. expired4, or he could be definitely
Afterwards, Semedo was firstly transferred to another club,
accused of aggression in October which both options rendering
2017, was detained for a few hours Villarreal CF’s termination with
for threats in November 2017 just cause impossible (which
and, following a third episode would be valid for the purchasing
occurred on 22 February 2018, club). At the opposite, if the final
he was detained, being accused decision imposed Semedo to serve
of attempted murder, injury, a period in jail and at that time he
kidnapping, criminal possession of will still be contractually bound to
weapons and robbery. Villarreal CF, the latter would have
the opportunity of terminating
On 23 February 2018, Villarreal CF said working relationship with just
“decided to suspend the player's cause.
employment and salary until a
definitive resolution has been However, Villarreal CF should take
reached for the disciplinary several factors into consideration
inquiry that is in process”3, if/when terminating said
employment contract. Indeed,
such decision should consider
1 www.poderjudicial.es that the rules of the Spanish
2 It is considered as a tacit dismissal also Football Association do not allow 5 The only two exceptions are represented
when workers had simply notified the final by free agent players (Article 124.2 of the
decision and his arrest because, as the the possibility of registering General Regulations of the Spanish Football
Spanish Supreme Court established, the new players out of the transfer Association) and substitutes of players
working relationship cannot be based on a injured for more than five months, when
mere notification, which does not justify the an ITC shall not be requested (Article 124.3
workers’ absence. of the General Regulations of the Spanish
3 www.villarrealcf.es 4 It will naturally expire on 30 June 2022. Football Association).
Football Legal 273
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Spain
Did the IOC lie about the denial of Kosovan athletes’ that country competed under the
visas in Spain? flag and the anthem of the Kosovar
Olympic Committee, almost equal
to those of the country.
By Agustín Amoros Martínez
Lawyer, Ruiz-Huerta & Crespo
Sports Lawyers It was Pere Miró, Deputy Director
Valencia – Spain of the International Olympic
Committee, who stated that in the
Karate World Championships, the
➔➔ Foreign players – Nationality – Visas Kosovar karateka had to ask for
a visa to France, a country that
does recognize its independence,
because Spain did not grant it.
Pere Miró (picture), Deputy Director of the International Olympic Committee,
declared that “Spain is the only country with which there is no solution on Pere Miró, also declared that “Spain
Kosovo. We have two years and two different governments with this. (…) If is the only country with which
the Spanish Government is not in the conditions to guarantee the access not there is no solution on Kosovo. We
only to Kosovo but to every athlete to compete, we should warn all IFs that, have two years and two different
until this is solved, they should not hold international competitions there.” governments with this. But the
World Karate the truth that is the
straw that broke the camel’s back.
In a joint statement on 14 November always in accordance with the If the Spanish Government is not
20186, the International Olympic Olympic chart and allowing the in the conditions to guarantee
Committee (IOC) and the use of its symbols, flags and the access not only to Kosovo but
Spanish Olympic Committee hymns according to the Olympic to every athlete to compete, we
“publicly expressed their deepest protocol.” should warn all IFs that, until this
satisfaction” with a commitment is solved, they should not hold
from Spain’s foreign affairs It also ensures that, in the future, international competitions there.”
minister Josep Borrell to allow they will continue with this
athletes from Kosovo to use their “without prejudice” scheme for Mr Miró’s reaction, who put himself
national symbols, anthem, and flag their political position not to forward for Convergència i Unió
while participating in international recognize “the independence of (the Puigdemont’s Catalan party) at
sporting events being held in the Kosovo.” the local elections in 1987, seems
country. a bit histrionic. An IOC General
The point that most annoys the Director should be more prudent
However, hours later through a Foreign Ministry is that of granting and less passionate about politics.
press release, the Spanish Minister visas: “We deny the reiterated
of Foreign Affairs, Josep Borrell, statements by a senior official Kosovo, which declared its
said that the Spanish Government of the International Olympic independence from Serbia in 2008,
will raise a formal complaint to Committee, according to which was recognized as a member of the
the IOC to denounce what he Spain would have denied the International Olympic Committee
considers “false information granting of visas to the Kosovars (IOC) in 2014, receiving the right to
coming from a high-level IOC who participated in the World participate in international sports
position”, which is groundless, “and Karate, given that they did not events as an independent state,
will transfer them” the profound request visas from the Spanish but is not yet a member of the
malaise that these statements authorities.” United Nations.
have caused to the Spanish
executive. In its statement, the The problem emerged at the The present situation will not be
Spanish government states that World Karate Championships in rectified until Kosovo and Serbia,
“Spain has allowed and facilitated Madrid, held at the beginning of the core republic of former
the participation of Kosovar November 2018, a competition Yugoslavia, defy apparently
athletes in these competitions, in which the Kosovo team insurmountable differences and
granting visas when requested, participated in under the banner come to a settlement aided
of the International Federation, by the United Nations Interim
6 Joint statement of the IOC and the Spanish unlike the Mediterranean Games in Administration Mission in Kosovo
Olympic Committee, 14 November 2018 Tarragona, where the athletes of (UNMIK).
www.olympic.org
274 Football LegalWORLD IN REVIEW
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To date, 110 countries of the The IOC has its own skeletons in Brundage remained IOC President
193 United Nations members the closet, as discussed below. until 11 September 1972 and was
recognize Kosovo as an appointed Life Honorary President
independent country. However, of By the time the Olympics kicked until his death in 1975.
the ten most populous countries in off in October 1968 in Mexico City,
the world, seven did not recognize Dr Martin Luther King Jr. had been An official document about
the unilateral declaration of gunned down in April, setting off Brundage at the IOC website
independence of the southern riots and halting the Civil Rights (Historical Archives-Olympic
Serbian province, including powers Movement in its tracks. On the Studies Centre) only says about the
such as China, India, Indonesia, morning of 16 October, US athlete above-mentioned facts: “Several
Brazil, Nigeria, Russia, and Mexico. Tommie Smith won the 200-meter people criticised Brundage for
race with a world-record time of being somewhat intransigent
On 18 February 2008, Spanish 19.83 seconds and the US’s John in his positions and in his way
Foreign Minister Miguel Ángel Carlos won third place with a time of leading the IOC during these
Moratinos said that Spain would of 20.10 seconds. They took their crises. However, everyone agrees
not recognize Kosovo because the first and third-placed podiums that he was always faithful to his
declaration of independence did barefoot and, during the playing convictions and to defending
not respect international law. He of the US national anthem, raised the two major Olympic ideals,
also said that the independence a single black glove while bowing i.e. amateurism and the non-
of Kosovo would only be legal if their heads. politicisation of sport.”
it was the result of an agreement
by all sides involved or if there The then IOC President Avery Let’s go further in time. In its press
had been a UNSC resolution. Brundage had supported the release of 28 February 2017, the
This position seems to be quite inclusion of apartheid-era South IOC communicated that, as part
respectful to international law and Africa in the Olympics and had of the implementation of Olympic
UN resolutions. fought against proposed boycotts Agenda 2020, it is making specific
of Hitler’s 1936 Games. But after changes to the 2024 Host City
The argument that “the creation Carlos and Smith raised their fists, Contract with regard to human
of States is a matter in principle it was the black American athletes, rights, anti-corruption and
governed by international law not the IOC President, who faced sustainable development. On this
and not left to the discretion of serious consequences. occasion, IOC President Thomas
individual States” may be widely Bach stated that “this latest step
accepted in international legal They were banned from further is another reflection of the IOC’s
circles. The radical divergence Olympic activities by the IOC commitment to embedding the
of third States in terms of and the U.S. Olympic Committee. fundamental values of Olympism
their reactions to the Kosovo Brundage ordered Smith and Carlos in all aspects of the Olympic
Declaration would be explained as be suspended from the US team Games”.
the result of a deliberate decision and banned from the Olympic
of a considerable number of States Village. When the US Olympic For the moment, the IOC has made
to simply ignore its principles and Committee refused, Brundage no objections regarding 2022
rules, without suffering any kind of threatened to ban the entire US World Cup in Qatar.
sanction as a result. track team. This threat led to the
expulsion of the two athletes from The abuses in Qatar amount
Politics and political banishment the Games. to modern-day slavery, with
in the Olympics date back to its almost one Nepalese immigrant
ancient Greek version. The city- Brundage, who was president of the dying each day during the
state of Elis, which controlled the United States Olympic Committee summer of 2018 constructing the
ancient games, remained neutral in in 1936, had made no objections infrastructure for the 2022 World
disputes and wars. But during the against Nazi salutes during the Cup. The International Trade Union
Peloponnesian War in 424 B.C., Berlin Olympics. He argued that Confederation (ITUC) has claimed
Elis sided with Athens and banned the Nazi salute, being a national that Qatar’s construction frenzy
Athens’s rival, Sparta, from salute at the time, was acceptable ahead of the 2022 World Cup is on
competing in the 89th Olympiad. in a competition of nations, while course to cost the lives of at least
Given that history, it may be the athletes’ salute was not of a 4,000 migrant workers before a
that there never was hope of an nation and therefore unacceptable. ball is kicked.
Olympic Games devoid of politics.
Football Legal 275WORLD IN REVIEW
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FIFA is “taking the matter Former Real Madrid President Sentenced to 3 years
seriously” but has yet to reveal its in Prison over Tax Fraud
own plans to monitor the issue. So
far it seems its biggest concern
By Alejandro Pascual
has been the logistical nightmare Lawyer, Ruiz-Huerta & Crespo
of shifting to a winter schedule Sports Lawyers
to avoid Qatar’s searing summer Valencia - Spain
temperatures, a trivial matter in
comparison to the human lives
exploited in the preparation for ➔➔ National Law – Tax Law – Tax Fraud
– Criminal Law – National courts
the event.
This matter seems a little more Audiencia Provincial de Madrid, section 5, 29 October 2018
serious than the controversial
recognition of a country unilaterally
separated from another; Mr Miró, Mr Lorenzo Sanz (9 August 1943, the damage caused towards the
you have the floor… Madrid), Real Madrid’s former Spanish tax authorities.” However,
president from 1995 to 2000 the magistrates in question
after losing the elections against recognized that, although Mr Sanz
Mr Florentino Perez, has been admitted the facts and his fault,
sentenced to three years in prison such fact could not be taken as
and the payment of a fine of a mitigating circumstance since
EUR 1,250,000 for deceiving the “a late confession used as a
Spanish Tax Agency (Agencia strategical argument of defense in
Estatal de la Administración order to mitigate a judgment, shall
Tributaria - AEAT) by failing not be taken into consideration.”
to declare part of his earnings
in his Personal Income Tax Ms Durán was also considered
corresponding to the years 2008 as directly responsible for the
and 2009. fraud committed by her husband,
which is why the court ordered
The national courts in Madrid her to bear in equal shares the
recently issued, on 29 October compensation of EUR 1,250,000
2018, a decision considering that that Mr Sanz must pay to the
Mr Sanz “intentionally” failed Spanish Tax Agency. The court
to declare an income of almost concluded that Ms Durán, being
EUR 6,000,000 in his declaration married to Mr Sanz under a profit
on the Personal Income Tax in the regime, was directly benefitted
said two years "to obtain an illicit from her husband’s fraud, although
tax benefit." she was only condemned to the
payment of the economic penalty
The criminal acts proven by the without imprisonment, since the
Spanish Court reveal that Sanz magistrates discarded her being
and his wife, Ms María Luz Durán unaware of the defrauding attitude
Muñoz, hid more than EUR 465,000 of her husband as well as her
in labor income, EUR 5,300,000 not having any decision-making
in profits obtained from its capacity in the tax declarations of
assets and over EUR 250,000 that the years 2008 and 2009.
entered into his bank accounts and
was never justified. Mr Sanz and his wife have been facing
a tough process, which began on
The Spanish courts mitigated the 20 June 2014 and where the State’s
sentence due the fact that Mr Sanz, Attorney and the Prosecutor where
by establishing mortgages over the requesting sentences of four and
assets of his sons and daughters, over five years of imprisonment,
“tried its best efforts to repair respectively.
276 Football LegalWORLD IN REVIEW
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As a final remark, it is worth of the referees in the context to consider the referees as the
recalling that another procedure of their relationship with the employees is not controversial and
has been opened against Mr Sanz correspondent sports association is answered without doubts.
for an alleged crime of insolvency but rather from the point of view
punishable as well under the of the application of the law on the
Spanish courts. It appears that income tax to their remuneration
the Unit of Economic and Fiscal and benefits in kind.
Crime of the National Police
(Udef) is investigating Mr Sanz Thus, the Tax Authorities state
for an alleged crime of money that the Article 17.1 of the
laundering, after detecting Law no. 35/2006, of 28 November
deviations of money to tax havens 2006, on the Income Tax of
of more than EUR 13,000,000. natural persons defines the
income from employment as
"all remuneration or income,
whatever its denomination or
nature is, monetary or in kind, that
The Spanish Tax derives, directly or indirectly, from
authorities consider the personal work or from the labour
or statutory relationship and does
referees as employees
not have the nature of the income
By Iván Bykovskyi from economic activities."
Lawyer, Ruiz-Huerta & Crespo
Sports Lawyers
Valencia - Spain The Tax Authorities note that, on
the other hand, the Article 27.1 of
➔➔ National Law – Tax Law – Referee
the same Law conceptualizes the
income from economic activities
as "the income that comes from
combined personal work and
capital, or from only one of these
factors, and supposes from the
taxpayer the correspondent orders
on his own account of means of
production and human resources
or any of them, with the purpose
of intervening in the production or
distribution of goods or services."
According to both legal definitions,
The Spanish Tax Authorities have the Tax Authorities qualify, again
recently issued a document in the only for the purposes of the
form of a consultation7 where it Personal Income Tax, as income
responded to whether the football from employment the remuneration
referees should be considered earned by the referees of the
as employees or self-employed corresponding sports federations
persons. The debates over this for the realization of their
issue are ongoing in the Spanish functions, since the organization
legal society, however, the answer on their own account does not
was given only for the purposes of exist. The same applies for the
the income tax of the referees. means of production and human
resources, or one of both, as the
It should be noted that the Tax factor creating the income based
Authorities did not consider the on the economic activities.
question of the employment
Thus, at least in the eyes of the Tax
authorities of Spain, the question
7 https://petete.minhafp.gob.es
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