Can a football club’s training sessions be interrupted?

The case

The ITSS(*), within the framework of a service order, carried out inspections at a football club, with the aim of examining the recruitment of the technical staff. Despite the fact that the inspectors identified themselves as such, first the club’s security guard and then various club officials prevented the ITSS officials from entering the sports facilities. They claimed that the football players’ training sessions could not be interrupted. Despite offering various possibilities, the refusal of access was maintained. A few days later, the club’s manager sent the ITSS the documentation relating to the object of the inspection. A few days later, when the ITSS went to the sports facilities again, the club allowed the ITSS to enter.

The ITSS issued an infringement report for obstructing the inspection, a very serious infringement, and, taking into account the circumstances (number of people affected, turnover, etc.), imposed a fine.

The NA(*) recalls that the facts established by the ITSS officials are presumed to be certain, without prejudice to any evidence that may be provided by the interested parties. It also points out that the SC(*) has established that the presumption of veracity is perfectly compatible with the fundamental right to the presumption of innocence, since the abovementioned precepts merely attribute to those reports the character of evidence for the prosecution, leaving open the possibility of evidence to the contrary. Moreover, this is limited exclusively to the facts which, due to their objectivity, are susceptible to direct perception by the Inspector, or to those immediately deducible from them or accredited by means of evidence included in the report itself, such as documents or statements incorporated therein.

In the case in question, the testimonies provided by the company do not undermine the presumption of certainty, as they are testimonies provided by persons interested in the company, in the facts being disproved and which, furthermore, are not contradictory to the facts contained in the report, as they coincide in substance.

On the other hand, it is recalled that all actions or omissions that disturb, delay or impede the exercise of the functions entrusted to the ITSS in order to monitor compliance with the legal provisions, regulations and collective agreements constitute an infringement for obstructing the work of the inspectorate. Actions or omissions by the employer, its representatives or persons within its organisational sphere, which are intended to prevent the ITSS from entering or remaining in the workplace, are classified as a very serious infringement. In the case in question, it is clear that several persons prevented the ITSS officials from accessing the club’s facilities, thereby impeding the performance of their duties.

With regard to the proportionality of the sanction imposed, it recalls that it must be graduated according to negligence or intentionality, the turnover, the number of persons affected, the damage caused or the amount defrauded. The NA considers that in this case the company’s turnover means that the sanction should be quantified at the medium level, because if the minimum level were imposed, given the economic resources of the sanctioned company, the fine would be deprived of any dissuasive effect.

Furthermore, given that the number of workers affected is not a considerable percentage of the workers employed, that there is no fraudulent intent in the conduct and that the purpose of the company’s actions was not to conceal breaches, but rather that the facts were due to an excess of zeal on the part of those involved in preserving the privacy of the team’s training, with the collaborating entity showing itself to be an inspector after the fact, the sanction should be quantified at the medium level.

If you have any questions regarding this subject, please do not hesitate to contact us by telephone, Isabel Torre Carazo or by email at itc@btsasociados.com, we will be delighted to help you.

ITSS(*) Labour and Social Security Inspectorate

AN(*) National Courts

SC(*) Supreme Court