“I’m Not Resigning!” Said Rubiales…

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First things first. Congratulations are in order. On August 20, 2023, Spain won the Women’s Soccer World Cup against England, 1-0. The tournament was filled with spectacular saves, plays, and goals.

Out-of-Place Impulse

The Head of the Royal Spanish Football Federation (the “Federation”), its President, as he then was, Luis Rubiales, as expected, attended the Final in person. He was standing on the podium, cheering, and celebrating with the Soccer Players, while they received their medals.

One-by-one the players went by Rubiales, and either hugged him, or kissed him on the cheek, or patted him on the back. Rubiales was doing the same to each of them. The Spanish team and its Delegation were happy. Euphoric. Clearly so. They had won the Women’s Soccer World Cup for the first time.

But Rubiales did something different to the Spanish Soccer Player, Jennifer Hermoso. While holding her head with both his hands, he planted a kiss on Hermoso’s lips (the “Incident”). Minutes earlier, Rubiales had grabbed his crotch as a traditional victory gesture, while at the exclusive section of seats with Queen Letizia of Spain and 16-year-old Princess Sofía standing nearby.

This was broadcast live. Videos and photographs of the Incident ran through the web, media and social media quickly in multiple languages, and the public reacted. Some supported Hermoso, calling Rubiales to resign. Others supported Rubiales, encouraging him to hold his ground.  

Shortly after, Rubiales (46), and Hermoso (33) publicly disclosed their own opinions about the Incident.

Rubiales said that it was a “consented” kiss. He recalled that Hermoso lifted him up, and then he asked Hermoso: “a little peck?”, to which Hermoso responded, according to him, “Sure”. Rubiales also said that there was no “desire”, and that he treated Hermoso the way he would treat his own daughters.

Rubiales’ mother, Ángeles (72),went on a hunger strike inside a church, claiming that she would continue the strike until the “inhuman, bloodthirsty witch hunt that [her] son is being subjected to” came to an end.  The strike did not last long. She ended it two days later when she felt dizzy.  

Contrary to Rubiales and his mother’s opinions, Hermoso said she felt vulnerable, and a victim of an act motivated by a sexist impulse and conduct that was out-of-place. Hermoso wrote:

“The situation shocked me due to the celebratory context, and with the passage of time and upon deeper reflection of those initial feelings, I feel the need to denounce this incident. I believe that no person, in any professional, sporting, or social sphere, should be a victim of such non-consensual behaviors. I felt vulnerable and victimized by an aggressive, impulsive, and inappropriate act without any consent from my side.
 Simply put, I was not respected.”

It Became a Royal Mess!

Instead of staying quiet and letting their internal Sexual Violence Protocol’s Protection Delegate – the Federation has one – assess the Incident and make findings and recommendations, Rubiales went on the attack.

He called for and held an Extraordinary General Assembly of the Federation (GA),which happened a few days after the Incident. He spoke for approximately 30minutes. Rubiales said: “I’m not Resigning! I’m not Resigning! I’m not Resigning! I’m not Resigning! I’m not Resigning!”. Yes, five times in a row.  

He also claimed he understood the world he was living in. He focused his speech on general politics, justice, truth and lies, a witch hunt, and freedom. He questioned Spanish Feminism and Freedom of the Press. He specifically said:

“To these people who have said this about me, that have accused me, that are trying to kill me publicly … I’m going to defend myself, I’m going to defend myself like every other Spaniard should do in the courts.”

An influential group within the Federation – including a few of the Spanish Team’s owners, who were sitting in the front row during the GA, had already decided to support Rubiales. Immediately after Rubiales took an “I’m standing-my-ground” approach, either Rubiales himself or a group of influentials within the Federation, using the Federation’s name and its website, released a formal position supporting its President, and threatening Hermoso and everyone else who supported her, including her Union, with starting legal proceedings against them – although they did not name anyone specifically. In her release, Hermoso also mentioned:

“I must state that I have been under constant pressure to provide a statement that could justify Mr. Rubiales’ actions. Not only that, but in various ways and through different individuals, the [Federation] has pressured my circle (family, friends, teammates, etc.) to provide a testimony that had little or nothing to do with my feelings.”

Aside from the Incident, the Federation and Rubiales seemed to have been under scrutiny for a while now. The head of the Spanish National Training Center of Football Managers, Miguel Ángel Galán, said about the Incident: “It was a sexist and intolerable act. A chauvinist act, by a president [Luis Rubiales]who is already plagued by corruption scandals and sexism”. And he added “Those are the two structural problems of the Federation in Spain: corruption and sexism.”

Andin a wider context related to prevention of sexual misconduct, the Spanish Public seems to be struggling with a particular act of the legislature, the All-Encompassing Guarantee of Sexual Freedom Act, 2022 (the Act). The Act addresses consent in sexual interactions.

The Public’s opinion is divided as to whether this Act is fair or not. Some think that the Act makes it impossible for respondents to prove consent. This group seems to consider that the Act lays an unreasonable burden of proof on the respondents, who need to demonstrate that there was some sort of verbal and unequivocal consent throughout the behaviour. I’m not sure this is the case.      

The Act’s article 178, 1. says: “… Consent shall be deemed to exist only if it has been freely expressed through acts which, in the circumstances of the case, clearly express the person’s will.”, which suggests to me that consent can be proven by any act(s) assessed within the circumstances.  

Unfortunately for Rubiales and his supporters, they grouped the Incident’s aftermath with part of these more general issues, namely, general allegations of corruption and sexism under his watch, fear of criminal charges against him, and the public opinion about and struggles with understanding the Act.

Bad or Very Bad?

It appears that Rubiales seemed to think that everyone else was out to get him and proceeded based on that gut reaction. But was Rubiales concerned about corporate politics or politics? Was he concerned about losing his job in disgrace? Was he concerned about going to jail? Is he a misogynist pig or the best human being on earth? Does it matter?

It does not matter at all. The Incident triggered a reasonable expectation that the Federation would quickly make legally sound decisions about the Incident, namely, imposing temporary measures to protect the dignity of the participants, to protect evidence, and to commence an investigation. Instead, they did not make those decisions and the narrative was controlled by FIFA, Spanish Politicians, the media, and social media.    

And it is not that the Federation lacked the right tools, systems, and people to deal with this high-profile matter. It had everything they needed.

Spain has a Sports Law (1990) and the Royal Decree about Disciplining in Sports (1992). Spain also has the Superior Sports Council (CSD), and within it, an independent decision-maker, the Administrative Tribunal of Sports (TAD),which eventually and formally dealt with the Incident.

And internally, the Federation had the Sexual Violence Protocol’s Protection Delegate, María Dolores Martínez Madrona, who had to release a statement distancing herself and her office from the opinion released a few days earlier by Rubiales or a group of the Federation’s influentials, supporting Rubiales with comments such as: “The evidence is conclusive. The President has not lied”.

Canada and Spain have similar structures to process allegations of sexual misconduct in sport.

Canada also has a general law, the Physical Activity and Sport Act (2003), and it has a dedicated office, the Dispute Resolution Centre of Canada (SDRCC).Within the SDRCC, there is a specific body dealing with specific complaints, the Office of the Sport Integrity Commissioner (“OSIC”). It also has an expectations roadmap for participants’ behaviours in sport, the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS). Decision-makers can also take temporary measures, and independent investigators are appointed to assess and make findings about allegations of misconduct in sport, including allegations of sexual misconduct. If this had happened in Canada, the Incident would have been dealt with by this structure.

The fact that the peck on the lips happened the way it happened did not mean that Rubiales was going to be terminated or disciplined, at that time. After Rubiales went on the attack, it became something different.

But the real technical issue is what Spanish authorities, the TAD in particular, was struggling with: is the Incident “bad” or is the Incident “very bad”? Is it something that warranted a suspension? A termination? Or did it warrant a slap on the wrist? Clearly, this would have been an assessment completed within the circumstances – including a consideration of others within the Federation coming forward with allegations of sexual harassment or harassment, if any.    

The TAD – not without any criticism– decided under the legal and compliance tools they had, and the evidence presented, that Rubiales was found to have committed two “bad” behaviours. Under these laws the next level after “bad”, was “very bad” – which seemed to be what people supporting Hermoso wanted the TAD to find.

“Very bad” is based on a power imbalance. And the TAD turned its mind towards this power imbalance, which required “malicious intent” to be proven. The TAD did not find that level of intention in this case. Instead, they characterized it as “conduct unbecoming” – Rubiales’ conduct that is – and equated the Incident with “bad” behaviour. This proceeding continues.  

Itis obvious that under its own framework, the Federation had enough tools and options to process the Incident, and more importantly, to own the process – if only Rubiales had stayed quiet.

But, firstly, unfortunately, Rubiales planted a kiss on Hermoso’s lips. Secondly, and equally unfortunately, Rubiales thought that the Incident’s aftermath was “business as usual”. He, and his supporters, did not stop to think that in the 21stCentury, sophisticated workplaces have the legal tools to remove sexual misconduct,if any, from interactions as quickly as possible. And, the media and social media are ready to hold everyone accountable with reasonable and unreasonable opinions and questions.

Everyone seemed to be focused on the intent – perhaps because of the criminal consequences based on the Act. But, for workplaces and for finding or not finding sexual misconduct within those workplaces, intent is mostly irrelevant. Rubiales could be a misogynistic pig or a very honourable and innocent male. This has nothing to do with the Incident, but with what would happen after a misconduct is found.

The Federation did not invoke the Spanish structure right away, and in consequence pushed FIFA to jump in and suspend Rubiales and launch its own investigation. FIFA also ordered The Federation and Rubiales not to contact Hermoso during the investigation – which is what the Federation should have done in the first place. And Rubiales and his team of influentials, by their actions and inactions, invited the Spanish bureaucracy and its Politicians to give their opinions and step in against them. For example, Spanish Prosecutors opened a preliminary inquiry because they felt there was enough evidence, on its face, to suggest that Rubiales might have committed a criminal offence. They invited Hermoso to press charges, and she did. Consequently, Prosecutors filed the suit in court and the investigation will move forward. Rubiales is now facing this criminal level of scrutiny.

Rubiales’ attack approach sunk him. The Incident was bigger than him, and it would outlive his politics, corporate politics, and legal concerns. Twenty days later, on Sunday, September 10, 2023, Rubiales posted on X: “I will defend my honour. I will defend my innocence. I have faith in the future. I have faith in the truth. Thank you all. [Spanish flag]”. And he linked to this post a GoogleDrive document where he said: “Today, I notified the interim president at 930pm, […] that I have resigned as President of [the Federation],” and “I have also let him know that I have also resigned my position in UEFA so that my Vice-presidency position can be filled.”

For organizations facing something like the Incident, make certain that the investigations must be unbiased. If you issue a statement supporting the respondent, the complainant or a witness, you may be showing bias, and the integrity of the investigation would be at risk. In the Rubiales case, the Federation did not release a statement saying that they were on top of the Incident, that they would investigate it, and in the meantime, they would have temporary measures to protect the dignity of the complainant(s), the respondent(s), witnesses, and to protect the evidence. Instead, the Federation defended the “honour” of the potential investigation’s respondent, Rubiales.

For workplace leaders out there, I trust you will not hold your employees’ heads with your two hands and plant kisses on their lips. If you do, you will likely face some allegations against you related to harassment or sexual harassment. Don’t react. Instead, pause. Seek support. And more importantly collaborate with the process set up to manage these allegations. If you take Rubiales’ approach, you’ll likely end up like him, stepping down from your role 20 days after your own incident.

Antonio F. Urdaneta is a workplace lawyer and investigator in Ontario. You can contact him through this website.