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Alex Kirkland, ESPN FC
The latest development in the fallout from Spanish football federation president (RFEF) Luis Rubiales’ unsolicited kiss of forward Jenni Hermoso after Spain’s World Cup final win came on Wednesday, when it emerged that Hermoso had filed a legal complaint with Spanish prosecutors.
Hermoso’s decision to participate in the criminal investigation — accusing Rubiales of sexual assault during the medal ceremony in Sydney on Aug. 20 — means a significant increase in the potential consequences faced by Rubiales, who has already seen attempts on multiple fronts to have him removed from office.
FIFA opened disciplinary proceedings against Rubiales last month, after he refused to resign over his behaviour, and temporarily suspended him from all football-related activities for 90 days while their inquiry is underway. The Spanish government has also sought to have Rubiales ejected from the RFEF presidency permanently. Spain’s Supreme Sports Council (CSD) took a case to the country’s Administrative Sports Court (TAD), although TAD’s decision to classify Rubiales’ conduct as “serious” rather than “very serious” limits the potential measures that can be taken.
Now, Rubiales faces the prospect of a lengthy criminal inquiry. Prosecutors began a preliminary investigation on Aug. 28, offering Hermoso the chance to file a complaint, which she did in person this week. On Friday, those prosecutors filed a lawsuit in court, accusing Rubiales of sexual assault and coercion. When the court accepts that suit, Rubiales will have been formally charged.
ESPN explores the legal consequences of Hermoso’s decision, the likely scope of the criminal case and its impact on other efforts to remove Rubiales from his post.
Why did criminal prosecutors begin investigating Rubiales’ behaviour?
Prosecutors opened a preliminary inquiry because they felt there was enough evidence, on its face, to suggest that Rubiales might have committed a criminal offence.
Hermoso’s statement, released on Aug. 25, in which she said that “at no time was his kiss ever consensual” and that she felt “vulnerable and a victim of an impulse-driven, sexist act,” would have been taken into account. Now that Hermoso has opted to press charges, prosecutors have filed the suit in court and the investigation will move forward.
The fact that the kiss took place in Australia is no obstacle to charges being brought in Spain, as the two parties involved are Spanish nationals. There is one further requirement in such cases: that the act would also constitute a criminal offence in the country where it occurred. The news agency Europa Press reported on Thursday that prosecutors would ask the judge presiding over the case to seek confirmation that the kiss would also be considered an offence in Australia, which would allow prosecution under Spanish law.
Which crime is Rubiales accused of? Could he go to prison?
“The crime being investigated is sexual assault, under article 178 of Spain’s Criminal Code,” criminal lawyer Marta Soto, of the Barcelona-based law firm Auris Advocats, told ESPN. “Article 178 establishes that [the offence] should be punished by between one and four years in prison.” In some cases, that punishment might even be increased.
“If it’s considered that there was violence, intimidation or abuse of authority, the penalty could be between one and five years,” criminal law professor Emilio Cortes told COPE radio on Thursday.
In the event of a guilty verdict, the judge would determine whether the sentence should fall towards the upper or lower end of that spectrum, or even be reduced to a fine.
“In the Rubiales case, if found guilty, I believe that a prison sentence in the lower half of the range, or a fine, would be handed down,” Soto told ESPN. “Given that a ‘kiss’ like this might be considered of lesser importance, and as far as we know, this would be Rubiales’ first offence… In my view it would be improbable that he ends up serving time in prison.”
How long might the criminal investigation last?
The Spanish criminal justice system is notoriously slow, and even with the significant political and social pressure involved in the Rubiales case, there is no guarantee that a resolution will come in the near future.
“In general, the average time in Spain for this kind of proceedings, from charges being brought until the first sentencing, after trial — without considering subsequent appeals — could be between two and three years,” Soto told ESPN. “Perhaps with all the media attention, [this case] would be prioritised and the proceedings would end sooner.”
Other legal experts have suggested that the Rubiales case could be dealt with more quickly, given that the act itself took place in public, limiting the amount of investigation required.
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Will Rubiales be suspended until the criminal case is resolved, or could he return to the presidency once his FIFA suspension ends?
FIFA suspended Rubiales for 90 days while its disciplinary case against him is ongoing. However, criminal proceedings are likely to take much longer.
In Spain, the court’s ability to issue a temporary injunction restricting the freedoms of the accused while a criminal case is ongoing is limited, given the importance of the presumption of innocence. “In criminal proceedings, I don’t see any way that they can suspend [Rubiales] temporarily,” Soto told ESPN.
“Precautionary measures in criminal law are focused on guaranteeing [the accused’s] presence at court, to avoid them fleeing the country — which is why Dani Alves [the former Barcelona player who has been accused of sexual assault] is in prison, for example — to guarantee the security of the victim … or to stop them from impeding the proceedings. So criminal justice can’t suspend him from the presidency.”
That raises the prospect that if FIFA’s suspension is not extended beyond 90 days, Rubiales would then be free to return to the RFEF, even as he faces an ongoing criminal prosecution.
Will the other proceedings against Rubiales continue alongside the criminal case?
Rubiales was already facing FIFA’s disciplinary action and the case brought by the Spanish government to Spain’s top sports court TAD. However, TAD’s will now be put on hold until the criminal case is resolved.
“The principle non bis in idem states that nobody can be judged twice for the same offence,” Soto told ESPN. “In these cases, administrative or civil proceedings — such as TAD, which is an administrative court — must be paralysed until the criminal court issues a final ruling.
“If [Rubiales] is found guilty of the criminal offence of sexual assault, he wouldn’t receive any further sanction from TAD. If he were found innocent, TAD could continue its investigation… The normal thing here would be that once the criminal court begins its proceedings, TAD would suspend theirs.”
Essentially, the focus of the action taken against Rubiales — at least within Spain — is now the criminal case. Spanish football’s ability to move on from this scandal will depend on how long that case lasts and which verdict is reached. But with the possibility of appeal, even that might not be the end of the story.
Additional reporting by Moises Llorens