RACISM AND SPORTS IN THE EUROPEAN UNION
THE SPANISH CASE
1. Racial discrimination: definition and profiles:
- Definition
- Kinds
- Positive action
- Citizens / Non-citizens
- Burden of proof
2. Latest initiatives in the European sphere
3. Addressing the problem in Spain
3.1. Instruments to fight against racism
- Legal framework
- Institutional framework
3.2. Racism in figures: 2004 to 2009 analysis
Belgrade, October 20th and
21st
Yolanda Ortiz Mallol,
Fiscalía de la Audiencia Provincial de Sevilla.
1. RACIAL DISCRIMINATION: DEFINITION AND PROFILES:
The International Convention on the elimination of all forms of
Racial Discrimination, signed on New York on March 7th 1966,
defines racial discrimination as “any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of human rights and fundamental freedoms
in the political, economic, social, cultural or any other field of public life”
The term combats both direct and indirect discrimination, being both
defined in Council Directive number 2000/43 of 29 June 2000
implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin. According to it, direct
discrimination shall be taken to occur where one person is treated “… less
favourably than another is, has been or would be treated in a comparable
situation on grounds of racial or ethnic origin”, whereas indirect
discrimination shall be taken to occur where "apparently neutral"
provisions, practices or criterion would put persons of a racial or ethnic
origin at a particular disadvantage compared with other persons (article
number 2.2). In Spain, such protection measures are implemented in the
Law against violence, racism, xenophobia and intolerance in the
field of sport (article number 1,1.e), as well as in various examples of Case
Law (STC 69/2007 of 16 April, 13/2001 of 29 January or 253/04 of 22
December).
Both texts consider that granting privileges in order to attain equality,
otherwise known as "positive action", can be accepted with the only aim of
ensuring real equality and limited exclusively to the period of time
necessary to attain it. In such sense, the New York Convention, states that
“Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination, provided, however, that such measures
do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved” (art. 1.4º); measures
to which the State members commit to, according to article 2.2. Moreover,
article number 5 in Directive number 2000/43 entitles State members to
adopt specific measures to prevent or compensate for disadvantages linked
to a person's racial or ethnic origin.
Has such tool been applied in practice, in order to ensure equality among
races in the field of sport in a more effective and efficient way? We are
unaware of any such case, and the truth is that ethnic minorities are not
sufficiently represented among the different sports practices, except in the
case of elite sports, where figures –referring to the number of athletes or to
their economic1 or social2 condition– give quite a different impression than
that of common situations. European Commission Recommendation
number 12 on combating racism and racial discrimination in the
field of sport, of 19 December 2008 covers such situation and only
excludes some specific individual disciplines from the problem: paragraph 1
ensures that State members are prepared to control equal opportunities in
the access to sport and in its practice, and to this end, gather information on
the situation of minority groups in the access to sport as well as on their
careers.
On top of this, a safeguard regarding the concept of discrimination both in
international as in European rules and regulations, must be highlighted:
that relative to the possibility to establish differences between
citizens/non-citizens or nationals/non-nationals. Such preferences or
restrictions to be granted to citizens are included in article number 1.2 of the
International Convention of New York and in article number 3.2 of Directive
2000/43. Nevertheless, they are examples of legitimate distinction, which
must be eliminated as soon as possible. In the field of sport,
recommendation 1.2.c) of Recommendation number 12 of the European
Commission establishes so, by promoting the elimination of any legal or
administrative barriers applied to non-citizens when taking part in local
and national competitions. As a matter of fact, there are countries in the
European Union –such as Austria, Italy or Spain– where sports federations
exclude foreigners living in the country from their competitions. On the
other hand, it is illustrative, that such impediments are created by team
sports federations and not by individual sports ones3. The aim is to promote
the adoption of effective integration measures, which, according to Durán
and Jiménez, will allow us to move from a “multicultural“ to an
“intercultural“ world.
Finally, another interesting matter considered in the Directive is the one
relative to the burden of proof, or specifically, to the reversal of the
burden of proof. According to article number 8, should discrimination be
presumed, it shall be for the respondent to prove there is no such breach of
the principle of equal treatment. Despite this, article number 5 entitles
State members not to apply such principle in the judicial framework, if this
would be in contradiction with the rules regarding such evidence in the
proceedings.
1Sports Illustrated magazine's World's Best Paid athletes ranking, including Tiger Woods, Lebron
James, Ronaldinho or Kobey Bryant, is an example of this.
2In Spain, eight elite athletes have legitimately obtained Spanish nationality in 2008, and up to now,
another four in 2009. This a discretionary power granted to the Government (Civil Code article
number 21) via Royal Decree in exceptional situations. It can only be granted on an individual basis,
never to collectives.
3 “Football and racism: a scientific and social problem”. Durán González and Jiménez Martín.
International Magazine on Sport Sciences, April 2006
In Spain, Law No. 19/2007 specifically declares in its preamble that this
Directive must be applied to the field of sport. The Directive was transposed
in Law No. 62/2003 of 30 December on fiscal measures,
administrative measures and measures of a social nature. Regarding
burden of proof, article number 32 states the following:
Article 32. Burden of proof regarding racial or ethnic origin. When founded
evidence of discrimination linked to a person's racial or ethnic origin can be
deducted from the plaintiff's arguments in any civil and contentious-
administrative judicial proceedings, it shall be for the respondent to
provide objective, reasonable and verified proof of the measures taken and
their proportionality.
Thus, the principle is not considered within the criminal framework, in
accordance with regulations regarding burden of the proof, and its content is
clarified, demanding the plaintiff to provide a reasonable base for the case.
2. LATEST INITIATIVES IN THE EUROPEAN SPHERE
The idea of sport being beyond influence from either violence or
discrimination is as defended as assumed is the fact that discriminating
practices exist, both in it the practice of sports as derived from them. As a
matter of fact, the xenophobia that sprouts at times when the idea was
thought to be eradicated4, proves the need there is to reinforce controls at all
levels – legal, institutional and corporate.
Whilst initially the existence of racism in the field of sport was not fought
against on its own5, but as part of another manifestation of violence, it has
subsequently been dealt with individually. Examples of it are the
European Convention on Spectator Violence and Misbehaviour at
Sport Events and in particular at Football Matches, of 19 August
1985, as well as the subsequent Recommendations on the prevention of
racism and xenophobia in the field of sport: Recommendation no. 6 of the
Committee of Ministers of 18/7/2001 and Recommendation no. 12 of
the European Commission of 19 December 2008.
The Recommendation of 1998, more extensive in its content, gives an
important push towards fighting against racism from all fronts. State
4 Various examples can be given in the last decade in European countries: Portugal (Oporto vs.
Chelsea match, where racist shouts could be heard against Gallas and Drogba), Hungary (humiliating
chants from Ferencvaros supporters against Millwall players), France (PSG followers insulting Lens
players), Italy (three sentences imposed by UEFA against Lazio for its supporters' racist shouts) or
Spain (monkey chants against Samuel Eto).
5 Despite the existence of several initiatives against racism and xenophobia, enacted by the
European Council (Resolution 29/5/90, European Councils at Corfu, 1994 or at Cannes, 1995…),
Parliament (Resolutions 21/4/93, 3/12/93, 27/10/94, 27/4/95 or 27/10/95), as well as by the European
Commission (within the Council and Commission, Resolution 11/6/86 or Communication 13/12/95),
although they didn't make express reference to the mentioned field of sport.
members are to adopt specific legislation against racism and xenophobia in
the field of sport (paragraphs 5 and 6), to promote policy measures to ensure
equal opportunities in the access to sport (paragraph 2) and organise anti-
racism awareness raising campaigns (paragraph 7). It also defines the roles
to be played by the police (paragraph 9) and local authorities (paragraph 8)
as well as by other parties in the files of sport – sports federations and
sports clubs, athletes themselves, media, and supporters’ organisations
(paragraphs 10 to 16).
The Recommendation of 2001 states that both the State and non-
governmental organizations must held co-responsible in the fight against
racism, and insists on the need to adopt legal and institutional measures, in
the latter case, at a national and international cooperation level.
Also on 2001, the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance was held at
South Africa, convened by the United Nations and sponsored by
International Olympic Committee, and the FIFA held an Extraordinary
Congress of FIFA, meeting in Buenos Aires on 7 July 2001, calling
upon all parties involved with sport to fight against racism. All such actions
in line with Declaration against racism adopted by the FIFA Executive
Committee in March 2000 and the FIFA Conference Against Racism in
Football on July 6 2001
3. RACISM AND SPORTS IN SPAIN
3.1. Instruments to fight against racism:
In the last years Spain has developed a global policy against racism in the
field of sport, from a legal and an institutional point of view, as well as by
means of the implied organizations.
A. Legal framework
As for rules and regulations, Law No. 19/2007, against violence, racism
and xenophobia and intolerance in sport must be highlighted.
Previous to this law, despite there had been specific regulations against
violence6, racism was only punctually considered as part of other regulations
of more global content. The Law of Sport, Law No 10/90 of 15 October
1990, only included one article7 related to it, and was subsequently
amended by Law No. 53/2002 of 30 December, which, despite increasing
6RD No. 769/1993 of May 21, approving the Regulation on prevention of violence at sport events, can
be considered as an example of this.
7 Art. No. 76. 1g). Participation in competitions organized by countries promoting racial
discrimination or with athletes representing such countries is to be considered as a very serious
infringement.
the number of infringements related to acts of racist nature, did not include
anything more. Such legal vacuum is admitted in Law No. 19/07 itself,
which in article number 4 of its preamble promotes the intention to apply
the existing knowledge on fighting against violence in the field of sport to
fight against racism and xenophobia, two defacto situations that are only a
reflection of a permissive society in relation to this problem. In all, the
intention is for the law to become a tool for all parties involved in the field of
sport to respect the principles of ethics in sports and to acknowledge the
right to difference and diversity among persons. Sport must therefore
become a “factor towards intercultural integration”.
In order to do so, a complete regime of penalties applicable on infringements
is set as a matter for administrative and disciplinary action, independently
that such conducts may be considered as crime8.
a-1) BREACHES OF ADMINISTRATIVE LAW can be classified
according to the nature of the infringer:
1. Organizers of sports competitions and events
2. Spectators
3. Others
1. Organizers
Article number 3 imposes a series of obligations in order to prevent racist
acts in sport premises, adopt the security measures defined by the law,
help the authorities to identify groups with xenophobic attitude and
offenders, as well as to deny any assistance or benefit to racist groups.
As for offences, there can be either active –promoting racist acts or
providing assistance for them, selling forbidden goods…– or passive
behaviours, not limited to not preventing such actions taking place, but
also to lacking prevention of such actions (article number 21).
2. Spectators
Covenants when entering the sport premises –no forbidden goods such as
drinks, banners, violent symbols are allowed…– as well as during the
sports practice itself –not making use of them, no racist chanting–.
Moreover, spectators must commit to any control necessary for the
compliance of the regulation, whether it implies being registered or being
taped in CCTV.
8 As for racist or xenophobic conducts:
Art. 312 Cp: serious discrimination at work, either public or private, due to … race, ethnics or nation
… Art 510, 511 Cp: Provoking discrimination, hate or violence against groups or associations for
racist reasons… and other similar conducts. Moreover, committing the offence due to racist,
antisemite or other discriminatory reasons … related to ethnics, race or nation …is considered as a
generic aggravating circumstance (art. 22.4 Cp) applicable to any common offence (homicide,
injuries, damages, threats, defamation…).
As for violent conducts: art. 558 Cp, “seriously disturbing the order … in sports events” and art. 633
Cp relating to minor disturbances.
Any non-compliance of such covenants is considered as an infringement
of the rule.
3. Other parties
Violations of the rule refer both to public acts or declarations of racist or
xenophobic nature made in the surroundings of the sports premises as
well as their diffusion in any media.
In all cases, infringements are classified according to their level of
seriousness –very serious, serious and minor– and scale of responsibility
is defined according to a series of criteria, either decreasing it –
spontaneous repent, helping to reduce consequences– or increasing it –
intentionality, repeated behaviour or repetition of offences (articles
numbers 21 to 23 and number 27).
Penalties (article number 24) are in economic form –from 150 to 650,000
euro–, affirmative covenants –disqualification from organizing sports
events, temporal suspensions, prohibition on entering sports premises–
and negative covenants – provide for technical media or materials
promoting tolerance, up to a maximum of 5 years.
a.2.) DISCIPLINARY OFFENCES are related to the people linked to a
sports federation and to those working in incorporated companies in the
field of sport or in sports clubs, as well as to these themselves.
Classification according to their level of seriousness follows the same
methodology as in the case of breaches of administrative law, despite
there are no minor infringements. Penalties are different: economic fines
can only be applied to clubs, athletes, judges, referees and directors,
going from 500 to 90,000 euro, and other additional penalties may also
be of application: points being taken away, relegation to a lower division,
playing behind closed doors or volunteering in organizations dedicated to
fight against racism or xenophobia.
Compatibility between criminal, administrative and disciplinary
procedures (article number 38) must also be taken into account:
1/ Primacy of Criminal Law
Once a criminal proceeding is initiated, it will not be impediment for
the further conduct of administrative or disciplinary proceedings, despite no
penalty shall be established in the latter cases until the sentence is
delivered. There is a double reasoning for this: on the one hand, the Finding
of Facts of the criminal sentence/order is binding on the other two
proceedings, and on the other, cumulative penalties can only be imposed to a
single person in relation to the same acts if there is no identity9 on the
judicial grounds for the decision. Should it be the opposite case –identity in
the person, fact and judicial grounds for the decision–, criminal law will
always be prior10.
2/ Preference of Administrative versus Disciplinary Law
Once an administrative proceeding is initiated, there will be a stay of
disciplinary proceedings. Once the administrative sanction is imposed,
the possibility to continue with the disciplinary case can be analysed, in
any of the two following cases:
- When there is no identity in the person, fact and judicial grounds for
the decision
- Should there be it, when the administrative penalty is lower than the
disciplinary one
a.3.) Moreover, article number 87 in the Law of Sport states the
possibility of dispute resolution through EXTRA-JUDICIAL
CONCILIATION: applying arbitration and conciliation mechanisms
regulated in national legislation to the proceedings. This situation can
only be applied to disputes arising from the application of sports rules
and regulations not expressly included in the Law or in its implementing
provisions.
B. Institutional framework
There have been several institutional initiatives aimed to fight racism
and xenophobia in the field of sports, although some parties still criticise
that efforts are aimed at fighting racism in sports and not at fighting
racism derived from sport11.
We would highlight the following main public institutions:
- State Commission against violence, racism and intolerance in the
field of sport:
Created under Royal Decree 748/2008 of 9 May, expanding article 20
of Law 19/2007, despite its configuration and functions are defined by
the late National Commission against violence in sports events, defined
9 In this sense, see STC 234/91. of December 20
10 As an example of compatibility: Should a spectator attack another one by throwing him a heavy
object: from the criminal point of view, a punishment will be imposed on the damage caused. On top of
this, from the administrative point of view, an additional sanction –either very serious or serious, art.
22– may be imposed, regarding the violation of the prohibition on “throwing any kind of object“ stated
in art. 7. Finally, the club//organizer of the event may also be sanctioned for not having kept the entry
of forbidden objects under control - art. 5.1.
11 Durán González and Jiménez Martín.
in article 60 of Law number 10/1990, of Sport, and created under RD
75/1992 of 31 January, now derogated.
Thus, the new Commission includes racism and any such behaviour
under its scope. Its mission is to define and develop active policies
against violence, racism and intolerance in sport, and is structured as a
bench with 33 members for a 4-year time period. State representatives,
autonomous communities, local entities, fiscal ministry and personalities
of known prestige belonging to the Press Association, referee associations
or non-governmental associations are included amongst its members.
Moreover, this is an example of how the fight against racism is finding
its own voice much later than the fight against violence.
- Observatory of Violence, Racism, Xenophobia and Intolerance in
the field of sport:
Created in 22 December 2004 as part of the late National Commission
against Violence, currently the Commission against violence and racism.
Its functions include studying, analysing, submitting and monitoring
proposals towards preventing violence, racism and xenophobia (article
16.1. d) of Law 19/2007). In order to do so, one of the Commission's duties
is to inform the Observatory of any penalties imposed in such area
(article 3.1.f) RD 748/08).
Notwithstanding this, various absences and shortfalls exist, even
criticised within the institution itself, such as the fact that there is no
legal text regulating these functions –despite this is considered by the
Law of 2007.
Moreover we must highlight the fact that it is attached to the National
Sports Council, and such binding to the State is considered as an
obstacle to guarantee its effective independence, either in the election of
members, its operation or economic terms –as it has no budget of its own.
Defender of Athletes
Article 16.1h) of Law 19/2007 calls for the development of Rules and
Regulations to define the figure of a Defender of Athletes, to whom
athletes should address to, should there be any kind of abuse or
discrimination, and to whom claims should be forwarded.
Senate's Special Commission on racism and xenophobia in
Spanish sports:
Created in 2005, with the intention to promote fight against racism and
xenophobia by the Spanish Parliament.
Other instruments have also been developed –by means of both laws and
action protocols– to guarantee and prevent any such conducts, to monitor
and register violent groups and violent or racist behaviours. We would
highlight the following:
Protocol of procedures against racism, xenophobia and
intolerance in football, of 18 March 2005
Summoned by the National Sports Council, it calls for all parties in
Spanish football –National League, Spanish Football Federation, clubs
and federations, Referees Technical Committee…
Its aim is to prevent violence and racism in sport by means of the
following measures:
- Prevention and protection of the integrity of the victims: different
responsibilities are assigned to different parties; referees by
presenting minutes on possible incidents and by enforcing their power
to interrupt matches should there be violent or racist acts; Public
Bodies by financing prevention campaigns and by eliminating any
barriers towards non-citizen athletes that may exist in Rules and
Regulations from them; Federation and National League by
implementing action plans against racism…
- Localization and monitoring participants in racist and violent acts:
technical means shall be implemented in order to identify
perpetrators. Moreover, quarterly reports on existing incidents shall
be prepared.
- Repression and penalties: by effectively applying the Law' penalties
regime.
Finally, it considers monitoring the covenants imposed to the
Observatory.
Registers
Law 19/2007 states the creation of two kinds of registers:
- Registry Book on Supporters' activities (article 9) – of private
nature
Whenever the State Commission establishes so, sports clubs and
organizers of sports competitions will have to prepare a book
registering the activity of all sports groups supporting them. Such
Book will be made available for the Commission's control,
notwithstanding the Data Protection Act.
On top of this, it is forbidden to provide any grant or subsidy to club
supporters' organizations not included in the Registry Book.
- Central Registry Book on Penalties related to violence or
racism – of public nature
Attached to the Ministry of the Interior. All people with a public and
manifest interest, as well as sports entities, will have access to it,
with a view to collaborating with national security.
Incentives
Such as Resolution 30/1/08 of the Presidency of National Sports
Council, calling for grants for help in actions against violence and
racism, may these be campaigns, conferences, opinion forums or studies
carried out along the year.
2. Racism in figures: years 2004 to 2009
Any incident that has led to penalties being proposed has been included in
the National Commission against Violence's annual reports. We would
highlight the following penalty proposals12 regarding “racist and/or
xenophobic acts” in years 2004 to 2009:
2004/05 2005/06 2006/07 2007/08
Season Season Season Season
Professional 8 16 11 22
area (out of a (out of a (out of a (out of a total
total of total of 1.305) total of 1.349 ) of 1.202 )
1.059)
Non- 0 3 2 2
Professional (out of a (out of a total (out of a total (out of a total
area total of 574 ) of 581 ) of 457 ) of 309)
12“Promoting the adoption of sanctioning measures to those violating the rules, among public
authorities” is one the competences assigned to the Commission (art. 20.3C Law 19/2007)
What most seasons have in common is the kind of actions that lead to the
highest number of proposals being made: promoting or participating in
arguments, consumption or possession of drugs, attacking or insulting
agents or watchmen –averaging a total between 100 and 400 proposals
depending on the activity and the year.
Figures are different if we consult other sources: Javier Durán González and
Rodrigo Pardo García carried out a statistical study13 on racist acts in the
field of sport from seasons 2004 to 2006, in the professional area and on first
and second division. The study itself is based on various sources: the State
Commission against violence, the National Office for Sports,
attached to Police Headquarters, and referees' minutes.
The analysis –taking into account the scope is limited to first and second
division only– shows that numbers are increasing:
2004/05 2005/06
Season Season
Number of 23 24
racist
incidents
Increase 4’3%
Among these, the following distinction can be made:
2004/05 2005/06
Season Season
Racist
symbols 7 (30%) 3 (12’5%)
(flags, t-
shirts...)
Conducts
and insults 16 (70%) 21 (87’5%)
(aggressions,
chants…)
13 Revista Internacional de Ciencias del Deporte, no. 12, published in July 2008.
Thus, the higher the number of sources consulted, the higher the figures
shown, despite the total number of infractions is never taken into account,
as the Observatory points out. Providing enough technical means to identify
such conducts and perpetrators is vital, as can be seen.
On the other hand, figures in the aforementioned tables show a general
increasing trend from 2004 to 2009, which may imply an increase in the
number of racist/xenophobic behaviours –something that must be kept
under close control in situations of economic instability– or an increase in
the number of controls of any such actions, or both at the same time.
Critics do agree in the need there is to impose higher penalties and, as far
as possible, to substitute economic fines by bans on entry/temporary
suspensions to sports premises.
Samuel Eto's critics in relation to the racist monkey chants he was subjected
to at the Zaragoza football club stadium, can be considered as an example of
this new trend. According to him, the penalty should have been closing the
Romareda stadium instead of the 9,000 euro fine which was imposed.
Other examples can be given: TSJ Islas Canarias, Santa Criz de
Tenerife (Chamber for Contentious-Administrative Proceedings),
sentence number 401/2001 of 25 April, where sports club Tenerife SAD
was imposed a fine of approximately 5,000 euro due to deficient measures to
control the access to the football stadium, based on the lack of repeated
behaviour or repetition of offences and the lack of danger situations or third-
party damages. Also, the St Tribunal Superior de Justicia de Madrid,
Chamber for Contentious-Administrative Proceedings, number
769/2000 of 29 June, confirming the 3,000 euro fine imposed to Real
Madrid football club for not stopping members of the “Ultra Sur” group from
displaying a banner for 27 minutes as well as a dummy in the shape of a
radio commentator hanging from a rope, at whom all kind of objects where
thrown.
In other cases, criticisms are aimed at the severity of the penalty, not at the
penalty itself. In the disciplinary framework, an example of this is the
reduction in the penalty imposed to six players of the Monteagudo team due
to the incidents with the referee in a match, where even aggression took
place. In the first place, the Competition Committee imposed a three-year
suspension sanction to each of the players, whilst on September 2009 the
penalty has been reduced to a twelve-match suspension by the Comité de
Justicia Deportiva de Navarra. The St del Juzgado Central for
Contentious-Administrative Proceedings, number 5 of 2 January
2007, acquitting the National Football team’s coach Luis Aragonés for his
remarks to a player during a training session, “Reyes, tell that nigger shit
that he isn't better than you”, has been also criticised. Such words were not
publicly said, though they were captured by television crew. The sentence
considered there was no racist intention in the coach's speech, and that is
colloquial and non-decorous language, and its impact should be trivial in a
democratic society. In other jurisdictions, he had been imposed a 3,000 euro
fine.
In conclusion, whilst the number of penalties imposed has increased along
the years –due to an increase in awareness in all related parties–, it still
hasn't reached its optimal level. Moreover, according to experts, penalties
continue to be lower than they should be, and still the number of sanctions
imposed to individuals is higher than those imposed to clubs and federations
in charge of the stadiums/shows where the events take place.
In spite of this, the creation of protocols, documents and Organisms aimed
at fighting racism and xenophobia in the field of sport can be considered as a
good indicator of a future decreasing trend in the number of such incidents –
or, as is happening in a first place, in the number of incidents without an
adequate penalty–.
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