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Laporta, the courage of intelligence

Laporta is a good lawyer and knows, beyond the substantive material issues, that it is absolutely defensible to consider that the Monitoring Committee of the Coordination Agreement between the Football Federation and LaLiga is not competent to decide on the prior visa, as well as the licence requested by Barcelona in the Olmo-Víctor case. The Consejo Superior de Deportes agrees with the criteria of the president of Barcelona in stating that the aforementioned Commission, not that it executed agreements adopted by LaLiga or the Federation, but that it expressly agreed not to grant the prior visa or the definitive licence requested by FC Barcelona for Dani Olmo and Pau Víctor. Therefore, the CSD declares the decision of the aforementioned Commission null and void and maintains the licences of Olmo and his teammate Pau in force.

It is one thing to execute what a competent body agreed and another to agree directly without competence.

Moreover, Laporta knows that since 8 January last Dani Olmo and Pau Víctor have been protected by the urgent precautionary measure granted by the CSD with the sole interest of avoiding irreparable damage until the resolution of the procedure.

Barcelona's defence recalls the importance of form. It is not for nothing that it is commonly accepted that in a state governed by the rule of law, substance is as important as form. If form is violated, the legal guarantees of natural or legal persons are violated. Likewise, the need, in certain cases, such as the one dealt with in this article, for the adoption of precautionary measures, whose main purpose is to avoid irreparable damage until the proceedings are resolved, is also indisputable.

Of course, Javier Tebas, who is also a great lawyer, counter-argues that the ruling is excessively formalistic, which is more in line with the literal wording of the phrase ‘agrees not to grant’ in the Commission's ruling, when in reality the Commission, with this phrase, was stating a previous reality that it had not adopted.

This case will continue and will end up in the ordinary courts with a ruling that will surely contribute to clarifying and improving the interpretation of the current sporting regulations. And if this is not possible, it will encourage the legislator to rectify the law in order to improve it.

The final result will be positive for Spanish football, which, apart from being a great spectacle, is an industry that generates wealth for thousands of people and is admired all over the world.

It is all right to say that the leaders of Spanish football, with their lights and shadows, are also responsible for the success of our football and for that we should congratulate them without any complexes.

They say that bravery belongs to intelligent people, those who know how to measure the risk and avoid recklessness.

Competence is not presumed; it is proven.

The principle of legality requires that all administrative acts emanate from a competent body. As the Supreme Court has pointed out in its STS of 25 October 2011 (rec.1764/2010): ‘Lack of competence is an infringement that causes the administrative act to be null and void, in accordance with article 62.1.b) of Law 30/1992 (current art. 47.1.b) of Law 39/2015)’.

Form matters: principle of legality and guarantees

Form is not a secondary issue. As reiterated by the STS of 3 May 2010 (rec.1789/2006): ‘Form in the administrative procedure is not a mere formality empty of content, but a guarantee of the right of defence and the principle of legality’.

If the essential forms of the procedure are violated, the legal guarantees of the persons concerned, be they clubs or athletes, are compromised. In this context, F.C. Barcelona's defence is based on a consolidated doctrine: form is the channel of legality that protects substantive rights.

Precautionary measures: a barrier against irreparable damage

Since 8 January, Dani Olmo and Pau Víctor have been protected by a precautionary measure of the CSD, which suspended the effects of the contested resolution. This preventive action is protected by article 130 of Law 39/2015 and by reiterated case law, such as the Supreme Court Order of 13 March 2019 (rec. 78/2019): ‘The precautionary measure must be granted when the maintenance of the contested act may cause irreparable damage that would not be adequately compensated with the subsequent estimation of the appeal’.

In this case, the sporting and reputational damage to the players and the club was evident and difficult to reverse.