Islj 2009 3-4 - TMC Asser Instituut

Legal Regulation of Sports Betting
in Spain and its History
by Yago Vázquez, Jordi López and José Juan Pintó*
I.- Introduction
Anyone who knows about the messy and confusing regulation in
force in Spain regarding sports betting could think that this is not the
best moment for drawing up an introductory article regarding the
legal regime for sports betting in Spain. And this is logical considering
the fact that we are currently in a period of transition, in which
an out of date, messy and dysfunctional legal regime is still in force
although we can reasonably expect the introduction of a new set of
regulations that we hope will face the real legal problems that arise
these days with regard to sports betting 1 .
However, from an European perspective, perhaps it is a good
moment to face it if we take into account the fact that this regulatory
provisional status also applies to the European framework as a consequence
of the recent and continuous pre-legislative work within the
European Community (not yet moulded into a specific Directive or
into a European Regulation regarding this aspect of European Law),
in part due to the important and conclusive case law of the Court of
Justice of the European Communities (hereinafter “ECJ”) in this area
(in particular, the Decisions regarding the cases of “Gambelli 2 ” and
“Placanica 3 ”). This Case Law results from a long series of decisions
regarding the regulation of gambling, in which the ECJ adopted its
current doctrine with a view to achieving better harmonisation of
national law with European regulations.
It is true that the European High Court has restricted the application
of the initial doctrine which, for example in the case of sports
betting, we can find in case C-67/98 (Questore di Verona/Diego
Zenatti). In the decision that resolved this matter, the ECJ declared
that the provisions of the EU Treaty regarding the free provision of
services did not conflict with national legislation (Italian in this case)
allowing certain bodies to reserve the right to collect bets on sporting
events, when this legislation is properly justified by social policy
objectives designed to limit the negative effects of these activities and
as long as the restrictions imposed are not disproportionate with
regard to these objectives.
However, this doctrine was modified soon afterwards by the ECJ in
the aforementioned Gambelli Decision, according to which the
moral, religious or cultural characteristics of states as well as the negative
consequences for individuals and society that, from a moral and
financial point of view, could result from gambling and betting, may
justify the retention by the national authorities of the power to restrict
this type of activities 4 , but that in all cases these restrictions must be
fully justified and must be proportionate.
* Pintó Ruiz and Del Valle Law Firm,
Madrid, Spain.
1 It should be taken into account that,
despite the obvious relevance to this subject,
this work’s scope does not include
an analysis of the implications of sports
betting with regard to (i) problems related
to sport-related fraud, (ii) regulations
regarding money laundering, (iii) Data
Protection regulations, (iv) regulations
for the protection of consumers and
users, (v) regulations regarding intellectual
property, image rights and competition
law, etc... Please note that this
work is focussed exclusively on the
analysis of administrative regulation of
sports betting in Spain.
2 Decision of the ECJ on 6th November
2003, resolving case C-243/01.
3 Decision of the ECJ on 6th March 2007,
resolving cases C-388/04 and C-360/04.
4 As stated by the ECJ in section 60 of the
Schindler decision, the ECJ stressed that
these moral, cultural or religious considerations,
together with the fact that
these activities move large amounts of
money that could be linked to crime and
fraud, justify the national authorities
having the power to determine the
requirements that must be fulfilled by
this activity.
5 According to the data provided in this
article, the first ticket kept dates from
22nd November 1931.
Therefore, regarding the frequent monopolistic regulation of gambling
by European states (which, it should not be forgotten, is due to
both historic and social policy causes), the ECJ has declared that, as
in other areas of Law, the gambling rights of each State (and consequently,
rights related to sports betting) must respect the principles of
free circulation of people and services that the EC Treaty proclaims in
its articles 43 and 49 and that any restriction of these principles must
be fully justified.
This is why perhaps, lege ferenda, it is the best time to analyse the
legal regime for sports betting in Spain in order to look at where we
have come from, where we are and where we are going.
II.- History of Sports Betting in Spain
Apart from games of chance, the history of sports betting in Spain
is linked to the appearance of a game known as “La Quiniela” (The
Pools), which has been played in this country since the second decade
of the 20th Century and which can be defined (currently) as a mutual
bet in which the betters make predictions about the results of 15
football games that appear in competitions authorised by the Royal
Spanish Football Federation or other national or international institutions
(normally 10 teams from the 1st Division and 5 from the 2nd
Division), these 15 predictions forming a single bet (combinations of
bets can also be made).
Although La Quiniela started officially on 22nd September 1946
(soon after, as described later, the “Patronato de Apuestas Mutuas
Deportivas Benéficas” - Charitable Sports Pari-Mutuel Betting Board
- was created), the truth is that Spaniards had been playing La
Quiniela since long before then. According to an article written by the
journalist Tomás González-Martín entitled “La Quiniela is sixty years
old, but it was born at the age of fifteen,” which was published in the
newspaper ABC on 28th September 2006, people have been playing
La Quiniela since 1929 and there is documentary evidence dating
from the League championship in 1931-1932 5 .
According to the records kept, on this first day of La Quiniela in
1946 a total of 38,530 tickets were purchased generating an income of
77,060 pesetas, of which 34,677 pesetas were used for prizes (45% of
the income, as shall be explained later) distributed amongst the holders
of 62 winning tickets.
Those that have studied the history of La Quiniela agree that the
game was invented by Manuel González Lavín, who had the idea in
1929 following the launch of the Spanish Football League. In fact, the
first place in which his invention was exploited or marketed was “Bar
la Callealtera, Casa Sota” that he managed, at number 22 in Calle Alta
in the city of Santander.
La Quiniela was so successful that it crossed borders, expanding to
cover not only the rest of Spain but also America, through the sailors
that left the port of Santander for the American continent. The game
also now had a printed set of rules that determined the distribution of
prize money and even envisaged incidents such as, for example, what
happened in the event of suspension of a League game.
Initially, 95% of the income was used for prizes and the Tax
Department only taxed the remaining 5%, which was used for the
administration of La Quiniela. Later, this percentage was increased to
10%, as can be seen on a ticket from 1931 that still exists today and
that has the seal of the Spanish Tax Department showing the application
of this rate of tax. This shows, undoubtedly, the normality with
which the game was played then, even before the existence of specific
regulation regarding sports betting, obviously apart from the general
regulations applicable to gambling, which the Civil Code regulates in
articles 1,789 to 1,801. Similarly, it is clear that the State immediately
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