This article was originally published on LawInSport which can be viewed here.
The Spanish women’s national football team’s thrilling victory against England in the 2023 World Cup final should have been a moment of triumph for Spanish football, its women’s national team, and women’s sport. However, this was sadly overshadowed by the president of the Royal Spanish Football Federation (“RFEF”), Luis Rubiales (“Rubiales”), kissing Spanish player, Jennifer Hermoso Fuentes (“Hermoso”), on the lips during the presentation of the trophy.
The row over Rubiales’ actions, which were seen by millions, has spilled well beyond Spain. In a series of remarkable and escalating events, RFEF, UEFA, FIFA, the Spanish Criminal court, the Spanish Players’ Union - FUTPRO, and Hermoso’s fellow players became involved in what has turned into a national row and series of resignations over women’s rights and sexual abuse.
This article considers the incident in brief and examines the actions taken by the various parties in this dispute, the issues involved, and the possible ramifications.
It looks at:
- Background of the incident
- Response in Spain
- Preliminary criminal investigationPotential vote of no-confidence under RFEF constitution
- Women’s national team
- International response
- Possible breaches of FIFA regulations
- England’s women’s national team
Background of the incident
Shortly after the Women’s World Cup final 2023 ended, the Spanish players went forward to collect their medals and the trophy at the awards presentation on the pitch.
Hermoso was on the presentation podium and was being congratulated by various members of FIFA and other dignitaries. Half-way or so along the podium she stopped along-side Rubiales. At this point, he wrapped his arms around her and lifted himself up off the ground such that Hermoso was supporting his weight. He then let go before putting his hands back around Hermoso’s head before pulling her towards him, and subsequently kissed her on the lips.
Rubiales has strenuously denied any wrongdoing and has repeatedly stated that the kiss was consensual. In fact, he said that he is the victim of "social assassination" at an extraordinary general assembly of the RFEF.
Conversely, Hermoso has stated that there was no consent. In an Instagram video during celebrations after the incident, Hermoso said:
"I did not like it, but what could I do?"
However, she later told the AFP news agency:
"It was a totally spontaneous mutual gesture because of the immense joy that winning a World Cup brings. The president and I have a great relationship, his behaviour with all of us has been outstanding and it was a natural gesture of affection and gratitude."
Furthermore, in a passionate speech at an extraordinary general assembly of the RFEF, Rubiales reiterated that he would not be forced out of his role by what he felt was a witch hunt.
“I will not resign,” he repeated five times to widespread applause. “I will fight this to the end.”
Rubiales clearly felt that he has done nothing wrong. While Rubiales held his ground, RFEF vice president, Rafael del Amo, who had overseen women’s football, resigned.
Hermoso also filed a criminal complaint with the Spanish prosecutor’s office, accusing Rubiales of sexual assault over the unsolicited kiss. Under a recently passed sexual consent law in Spain, Rubiales could face a fine or between one and four years in prison if found guilty of sexual assault.
Unsurprisingly, Rubiales’ initial stance was met with a huge backlash, both in Spain and internationally.
Response in Spain
Initially, the RFEF sought to question Hermoso’s claim and threatened legal action against her for lying and defamation. Shortly after the incident, the RFEF issued a statement in which Hermoso purportedly said the kiss was consensual and that she and Rubiales enjoyed a close relationship.
The RFEF went further by threatening to sue the 81 female footballers who refuse to play for Spain until Rubiales is removed.
In a statement, the RFEF said it would take the “necessary legal action” and informed the players that:
“Playing for the national team [Spain] is an obligation on any member of the federation called upon to do so”.
The RFEF clearly had in mind Article 104 of the Spanish Sports Law which sets out that:
“1. For the purposes of this law, the following are considered very serious infractions:
a) The violation of sanctions imposed for serious or very serious infractions.
b) Actions aimed at predetermining, through money, intimidation or simple agreements, the result of a test or competition, whether or not it affects the result, and, in general, actions that involve an attempt to alter the normal development of a competition or sporting activity.
c) The unjustified lack of attendance at the calls of the national sports teams, as well as players who have been designated to be part of the national teams that fail to make themselves available.”
Article 108 prescribes the sanctions which may follow the commission of very serious infractions, ranging from a fine of up to €30,000, to suspension of federal licenses and even prohibition of access to stadiums for up to five years.
Whilst it is usually seen (by players) as a great honour to represent your country, there is nonetheless a precedent for players refusing to play. Indeed in 2022, 15 players refused to play for the Spanish women’s team amid allegations of bullying over Jorge Vilda. 12 of those players were subsequently not selected for the 2022 World Cup. That is of course not to say that players do not come under intense political pressure, one need only look at the Iranian team at the 2022 Men’s World Cup for a vivid example of an authoritarian regime seeking to exercise its power over the national team.
Sensibly, the RFEF’s position then changed. It came as no surprise that the RFEF asked Rubiales to resign on 28 August 2023. The heads of the regional bodies that make up the RFEF made the request in a collective statement:
“After the latest developments and the unacceptable behavior[sic] that has caused great damage to the image of Spanish soccer, the presidents request that Luis Rubiales resign immediately as president of the RFEF,”
Rubiales was first elected president of the RFEF in 2017, succeeding Angel Villar, who had resigned following charges of corruption, collusion, embezzlement and falsifying documents.
As a consequence of the non-consensual kiss by Rubiales, an internal investigation has been launched by RFEF after its sexual violence protocol was activated. An RFEF spokesperson said on 27 August 2023.
“Our protocol is currently activated and in the midst of investigating the events, thus we demand the utmost respect for the right to privacy and dignity of all individuals involved,”
Moreover, the about-turn at the RFEF followed the opening of a preliminary probe by the Spanish High Court prosecutor on whether Rubiales might have committed an act of sexual aggression and piled further pressure on Rubiales.
In another sudden about-turn, the RFEF terminated the employment contract of the Spanish Women’s national team head coach, Jorge Vilda (“Vilda”), on 5 August 2023, some two weeks after his team had won the World Cup in Sydney. This news is not surprising however, as his position had become untenable as fallout from Rubiales’s actions continued, with 81 Spanish footballers refusing to play under Vilda’s leadership and nearly all his coaching staff resigning.
In perhaps the most predictable volte-face of all, Rubiales then resigned from the presidency of RFEF and as a vice-president of UEFA on 10/09/23. In a related development, a majority of the Spanish players then publicly boycotted the national team until structural change was achieved. The boycotting players were nonetheless called up to play under muted threat of sanction, pursuant to article 104 and 108 of the Spanish Sports Law as set out above. Happily no such sanctions were necessary and the vast majority of the boycotting players were happy to return to national duty, after the government mediated an agreement behind closed doors.
Preliminary criminal investigation
Spain's top criminal court has launched a preliminary investigation into whether Rubiales’ actions amounted to a crime of sexual assault. Rubiales is now also subject to a restraining order prohibiting him from approaching Hermoso.
The findings will be given to Spain’s Sexual Violence Advisory Committee in due course. Acting Labour Minister Yolanda Diaz demanded the dismissal of the head coaches of both the men’s and women’s national teams.
Potential vote of no-confidence under RFEF constitution
The RFEF is not a public body, and its presidency is elected for four-year teams. There are several ways in which a RFEF president could be forced out of elected office. A vote of no confidence presented to the RFEF's general assembly would typically be the swiftest measure, but that became unrealistic when the general assembly applauded Rubiales' dramatic statement refusing to resign. The assembly is constituted of 140 members including 19 presidents of Spain's regional federations, elected representatives of clubs, players, coaches and referees. Of those, 46 members would need to propose the no-confidence motion, and an absolute majority would be required for it to pass.
After his initial refusal to resign, the Spanish government, via its Supreme Sports Council filed a complaint with the country's Administrative Sports Court under Articles 4 and 5 of Spain’s “Sports Law”, which promote equality in sport, and protect against discrimination, sexual abuse and harassment based on gender or from positions of authority. This route would have been akin to an impeachment had Rubiales not resigned before the matter was properly litigated.
Women’s national team
Following Rubiales’ initial refusal to resign, all 23 players of Spain’s World Cup-winning squad said they would not play for their country again as long as RFEF president Luis Rubiales remained in charge. The squad signed a letter stating their intent not to play for the country until he is removed from his role and, further, the coaching staff – excepting manager, Jorge Vilda– have also walked out.
Hermoso also released a joint statement via her union FUTPRO on 25 August 2023 in which she denied Rubiales' claim that she consented to his kiss during Spain's World Cup final celebrations.
There was some disturbing discussion in the media coverage that the players might be mandated to play, but neither author can see on what legal or regulatory basis such an edict might have been made.
In bizarre developments, the RFEF made a request to UEFA on 28 August 2023 to exclude their national and club teams from all European competitions for breaking UEFA’s own statutes (Art 9, 1bis), on state interference in the functioning of the RFEF because of Spanish government intervention in the crisis. However, this request has since been denied by UEFA. In any event, it is suggested in the media that the Spanish government’s involvement in this issue does not meet the criteria for state interference.
Nevertheless, representatives of RFEF urged interim RFEF president, Pedro Rocha, to immediately withdraw the RFEF’s request to UEFA suspending it from international competitions.
FIFA went further and suspended Rubiales on 26 August 2023 from all football-related activity for 90 days, pursuant to Art 51 of its Disciplinary Code (“FDC”), over his conduct and, furthermore, have launched an investigation into his behaviour.
At the same time, FIFA also issued two additional directives (Art 7 FDC) by which Rubiales is refrained from contacting or attempting to contact Hermoso. Likewise, the RFEF and its officials or employees, directly or through third parties, were ordered to refrain from contacting Hermoso.
Possible breaches of FIFA regulations
The conclusions that RFEF and FIFA have come to in time are not surprising. Rubiales’ actions may well be said to constitute violations of Article 13 of the FIFA Disciplinary Code. Article 13 concerns 'offensive behaviour and violations of the principles of fair play'. It provides that:
“1. Associations and clubs, as well as their players, officials and any other member and/or person carrying out a function on their behalf, must respect the Laws of the Game, as well as the FIFA Statutes and FIFA’s regulations, directives, guidelines, circulars and decisions, and comply with the principles of fair play, loyalty and integrity.
2. For example, anyone who acts in any of the following ways may be subject to disciplinary measures:
a) violating the basic rules of decent conduct;
b) insulting a natural or legal person in any way, especially by using offensive gestures, signs or language;
c) using a sports event for demonstrations of a non-sporting nature;
d) behaving in a way that brings the sport of football and/or FIFA into disrepute;
e) actively altering the age of players shown on the identity cards they produce at competitions that are subject to age limits.”
Prima facie (on the face of it), Rubiales actions appear to offend paragraphs 1, 2(a)(b)(c) and (d). Whilst Rubiales may have resigned, there is nothing preventing a disciplinary action still being brought against Rubiales. The sanctions available to a disciplinary panel are set out at Article 6 of the FIFA Disciplinary Code which holds:
“The following disciplinary measures may be imposed on natural and legal persons:
c) fine or any other pecuniary measure;
d) return of awards;
e) withdrawal of a title;
f) order to fulfil a financial obligation arising or existing in the context of a trial.
2. The following disciplinary measures may be imposed on natural persons only:
a) suspension for a specific number of matches or for a specific period;
b) ban from dressing rooms and/or team bench;
c) ban on taking part in any football-related activity;
d) community football service;
e) suspension or withdrawal of a football agent licence;
f) suspension or withdrawal of a match agent licence.”
To that end, Rubiales could be subject to considerable sanction with lasting impact on his ability to continue pursuing a career in football.
England’s women’s national team
The England women’s football team, who lost to Spain in the World Cup final, also offered their support with a message on social media that read:
“The behaviour of those who think they are invincible must not be tolerated and people shouldn’t need convincing to take action against any form of harassment. We all stand with you, @jennihermoso and all players of the Spanish team.”
The England women’s coach Sarina Wiegman has since gone on to dedicate her award of UEFA Women’s Coach of the Year to Spain.
This dispute appears to have exposed a fault line between an entrenched, entitled male hierarchy and a modern, progressive Spain. Many in Spain think that this episode has taken the country back to an image of machista in which women’s rights are not respected.
Spain is now experiencing a movement akin to #metoo, with #Seacabó” (in Spanish, “it’s over”) taking on a similar cachet. Chants for Rubiales to resign were reported around Spanish stadiums, and political figures from across the political spectrum denounced him.
The significance of this story should not be underestimated. The authors consider that this is likely to go down as a significant and poignant moment in women’s sport, and one of the most significant ever actions by a group of players.
There are parallels between this dispute and the action taken Jean-Marc Bosman, some 30 years ago, which destroyed the old transfer system. Both disputes involved athletes fighting to displace an entrenched hierarchy. Bosman's fight was that of a mistreated individual using the law to win a painful and costly victory. But unlike the Hermoso case, neither individual players nor football unions supported him during most of his rebellion. The Hermoso dispute has become a galvanising force around the globe, but may serve in time to empower and protect athletes in a fundamental way.
This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact David Winnie or write to us using the contact form below.