offpitch | 2016-11-10
Here's what you need to know about the reopening of the Neymar Case
The controversy will continue as the judge reopens the case and wants to bring it to trial
National Court judge José Maria de la Mata has reopened the case against Barcelona player Neymar and the current club president Josep Maria Bartomeu for alleged fraud and private corruption related to the forward’s transfer to the Catalan club in 2013. The judge has made this ruling after the Fourth Section of the Criminal Court of the National Court had overturned his previous ruling to archive the case and ordered him to resume the case. His ruling moves the case to a summary procedure, which is equivalent to the indictment phase of a trial, and will be followed by the trial phase.
This case stems from a complaint filed by the investment fund DIS in June 2015. They owned 40% of the Brazilian player’s rights when he was playing for Santos FC and claimed that they had been cheated out of their rightful compensation by the various contracts signed between the two clubs and the player during his transfer.
Monday’s ruling means that the investigation part of the case is over and that prosecutors and other accusation parties will have 10 days to formalize their request for a trial.
De la Mata bases his ruling on the decision made by the Fourth Section in September and explains that the 2011 contract through which Neymar received €40 million for his future transfer to Barça “altered the free market of players’ transfers.” According to the judge, this agreement “impeded the player from entering the market according to the rules of free competition, so that his transfer would yield a bigger economic quantity.” This is the basis of the first alleged crime, private corruption, of which Neymar, his parents, Sandro Rosell, Josep Maria Bartomeu, FC Barcelona and the company N&N are accused.
“If the objective and finality of this contract was to directly alter the free market of players’ transfer, as the Court (referring to the ruling of the Fourth Section) says (…) then it is reasonable to think that the two executives that signed it were responsible for this decision, for the signing of the contract and were aware of its illicit purpose,” the ruling says, alluding to Rosell and Bartomeu, then president and vice president of FC Barcelona. As an example of this alteration the judge refers to a €36 million offer made by Real Madrid to Santos for the player in 2013, “more than double of what Barcelona paid” that the player didn’t even listen to, supposedly because of his previous deal with the Catalan club.
According to the judge, the actions of both executives were made without informing the Executive Board of the club, or Santos or DIS who owned 40% of the player’s rights and they were made while the player was under contract with the Brazilian club. “Both executives were obviously fully aware of all these circumstances when they decided to sign this contract. Circumstances that, in the Court’s understanding, are the main indications of the crime of private corruption” and “make both executives responsible for the events.”
Regarding the prosecution’s request that the case against Bartomeu be dropped, De la Mata insists that he was “perfectly aware and participated in all the elements that the Court considers support the existence of a crime: he participated in the decision to sign this illicit contract knowing that it was against FIFA regulations and contributed to keeping Santos and DIS completely unaware of this contractual operations.”
Regarding FC Barcelona and the company N&N, the judge says that these legal entities are also responsible because the criminal actions were made by their legal representatives. He says that the Catalan club and the Brazilian company have not adopted “mechanisms or models of organization and control that would prevent this type of crime.”
The fraud accusation is based on the three contracts signed between FC Barcelona and Santos FC in 2013 when the player’s transfer was made, which the judge recalls were considered by the superior court as being “a conscious simulation made with the purpose of committing fraud.” The accused are Josep Maria Bartomeu, Sandro Rosell, Odilio Rodrigues (former Santos president), Barça and Santos.
The contracts that DIS was left out of and constitute the basis of this accusation were the preferential right over three Santos academy players (Victor Andrade, Giva and Gabigol) for which Barça paid €7.9 million and the agreement for two friendly games to be played between the two teams during the first five years of Neymar’s stay at Barça, the Catalan club having to pay €4.5 million if the second game won’t be played (the first one was the Gamper Trophy of 2013).
Assuming this premise established by the Fourth Section, the judge considers “it’s clear that the executives who made these decisions and articulated them in this package of simulated contracts that had no other purpose than to hide the real figure of the transfer, who did not inform the Executive Board of this, who did not tell the General Members’ Assembly of this and who signed the contracts which required the club to make these payments, can be held responsible for these actions and proceedings against them must be opened.”
Equally, the two clubs are held responsible as legal entities because the actions were made by their legal representatives.
“Stupefied” is the word that the club’s spokesperson, Josep Vives, used to describe the feelings of the blaugrana board after being notified of judge De la Mata’s ruling. “The board expresses its surprise and complete disagreement with this decision and its argumentation, especially because this same judge ruled that the case should be archived in July and because, in the case of president Bartomeu, the prosecution wasn’t asking for him to be indicted,” signals a statement released by the club.
“There was no fraud or corruption committed here. There was no ill intent or criminal infraction,” Vives said before the press.
Regarding the accusation of corruption, the club’s main argument for defense will be the idea that those €40 million were salary for the player, as established by the settlement made with the prosecution in the tax case.
Regarding the other contracts that are involved in the fraud accusation, the club feels that they can justify that those contracts have served real purposes and were not just simulated in order to hide the real cost of the transfer. The club has already entered litigation with Santos over the transfer of Gabigol to Inter because it considered that the conditions that they had agreed to in 2013 had not been respected by the Brazilian club.
When it comes to the friendly that the two clubs have pending, Barça claims they have tried to settle on a date for it, but that they haven’t been able to do that yet.