Article 286 bis paragraph 4 penalises the conduct of any natural person associated with a sports club who promises, offers or grants benefits to athletes, referees or judges in order to wilfully and fraudulently influence the outcome of a sports competition of particular economic or sporting importance (“active corruption”). In the same way, it penalises athletes, referees and judges who receive, request or accept benefits or advantages for the same purpose (“passive corruption”). Notably the article does not only foresee penalties for natural persons, but expressly also provides for the possible criminal liability of the legal entities involved.
The wording of the article has been criticised for its lack of clarity. The references to its paragraph 1 make it particularly difficult to interpret. For example, the wording does not make clear whether active corruption is limited to corruption committed by the persons expressly mentioned in paragraph 4 (“directors, managers or employees of a sports organisation”) or extends to other persons as well, e.g. anyone who bets money on matches.
It should be noted that payments and other benefits are only considered punishable behaviour, if they are intended to wilfully and fraudulently influence the outcome of a sports competition. Accordingly, payments for other purposes do not fall under the offence. Since the decisive element of the office is the act itself, any payment or offer with such intention is sufficient to constitute the offence, regardless of the results of such act. For example, if a referee is paid to influence the result of a match, it is not necessary for him or her to make decisions in favour of the paying team, nor for the match to end positively for this team. The offence is already completed with the payment, provided that its other elements are fulfilled.
It will be interesting to see how the Negreira case develops in the future, particularly in light of the investigating judge looking into potential bribery charges. Bribery is associated with higher penalties and longer limitation period, however, it would require Mr. Negreira’s function to be comparable to the function of a civil servant.