How Spain mitigates the risks of contact sports for children and young adults
Published 10 May 2017 By: Alfonso León Lleó
Legislators consider minors as vulnerable subjects in any field, and sport is no exception. There are several sports that, due to their very nature, may entail physical contact with other participants; therefore their practice could involve a risk to the minor’s physical safety.
Article 43.3 of the Spanish Constitution states that public authorities shall foster education and sport as well as provide adequate leisure facilities and conditions for its practice. A clear guideline has been established at a national level by means of Article 2.1 of Law 1/1996, which states that whenever any public or private institution, tribunals or legislator adopts any measure affecting minors, the latter interest will prevail over any other legitimate interest. However, the Spanish legislator has not enacted an applicable piece of legislation which would specifically protect minors participating in contact sports.
This article gives an overview of Spain’s legal landscape as it currently relates to the protection of minors partaking in contact sports. Specifically, it looks at:
- National level legislation – and in particular the lack of detailed and specific legislation relating to child safety;
- The regional legal framework – examples of how the autonomous regions of Spain legislate for child safety in sport;
- Regulations issued by sports federations – examples of the specific rules of sports federations relating to child safety (in particular, boxing);
National level legislation
The Spanish Law on Sports 10/1990 and the subsequent royal decrees that can regulate the matter (i.e. Royal Decree 6769/1993, as amended by the Royal Decree 1247/1998) have failed to do address child safety in detail, and contented themselves by merely establishing some uncomprehensive requirements and guidelines.
For example, the Spanish Law on Sports 10/1990 provides for the implementation of a specific qualification: “sports technicians”. These individuals are meant to be present while minors practice any sport that could eventually entail a potential risk. The presence of professionals with a specific educational background monitoring the practice of sports by minors and ensuring that any and all required safeguards are respected is crucial. Otherwise, it may be easier for minors to get injured or hurt due to malpractice.
When it comes to extra-contractual civil liability in contact sports, no guidance is given, and accordingly practitioners are referred to general provisions on the issue provided within article 1902 of the Spanish Civil Code.
Give the lack of specific legislation, jurisprudence on this matter would be of the utmost interest. However, in the field of sports, litigation between competitors is rather rare except for a few anomaly such as the landmark case decided by the Spanish Supreme Court on the 22nd of October 1992.
The absence of large case law is due to several factors:
- an unwritten rule pursuant to which such disputes are resolved through intra-association proceedings within its corresponding federation, rather than the domestic courts;
- the obligation for licensed athletes to have insurance that generally covers such risks;
- sportspersons’ reluctance to acknowledge that they could be subject to a claim of this kind in the future for any incident in which they may be the accused party instead of the aggrieved one;
- a well-established principle in sports that the athlete by participating in a competition tolerates and consents to its inherent risks.
This last aspect is of the utmost relevance. Consent is even more important when it comes to minors. Due to their limited legal capacity to act, this acknowledgement of, and consent to, the risks arising out of participation in sports will likely be granted by the minors’ parents.
Nevertheless, under Spanish legislation, such consent would not exempt participants from criminal liability in accordance with Articles 155 and 156 of the Spanish criminal code. However, as certain authors have noted, it is very tricky to frame criminal liability arising out of sporting practice, notably when it affects minors who have given their consent in advance through their parents or legal guardians.
As noted above, the legislation enacted nationwide in Spain for sports involving potentially dangerous forms of contact for minors needs further development. Due to the judicial and administrative structure in Spain, the interplay between administrative regions or communities and the judiciary is a complex one. Accordingly, at a regional level, there are additional sources of legislation that apply and may differ from one autonomous community to others.
Spain’s regional legal framework
In accordance with its administrative organization, the Spanish state is divided into seventeen autonomous communities. By means of Article 148.1 of the Spanish Constitution, each autonomous community is given the ability to take jurisdiction over the regulation of sports.
Accordingly, each autonomous community has enacted its own law to govern sports within its territory. However, unfortunately autonomous communities have not approved a piece of legislation meant to specifically protect minors practicing sports which can occasionally entail dangerous physical contact.
There are some exceptions though. For instance, in the Canary Islands, Article 13 of the Law 1/1997 (dated 7th of February), de Atención Integral a los Menores prohibits minors from practicing any sport whose rules and regulations entail causing physical harm to any of the participants, no matter whether the minor’s parents or legal guardians had expressly consented to the minor’s participation. However, this legislative initiative was repealed shortly after, as regional sports federations including kickboxing and boxing strongly opposed it for obvious reasons.
Quite conversely, in Navarra, a specific insurance regime was implemented by the regional law on sports. The administration monitors medical insurances schemes for minors involved in youth sports training programs. For instance, medical services provided to sportspersons participating in promotional programs in schools will be determined by the public administration of Navarra.
Insurance cover for minors holding a federative license or participating in shows or public sporting activities are governed by Article 67. For minors holding a federative license, their corresponding regional federation is obliged by law to arrange an insurance policy covering the athlete in cases of death or any functional loss derived from the sporting practice. The same provision also entrusts the regional administration with the task of funding medical assistance granted out of sporting practice to underage athletes.
The greater or lesser intervention of the regional administrations depends on the age of the sportsperson participating, the social interest triggered by the sporting activity, and other relevant factors. Regarding public shows or sporting activities, the regional legislator forces its organizers to, subject to the risks derived from the activity to be performed, hold a civil insurance policy that covers all eventual risks derived therefrom, including the one covering underage athletes individually. The regional administration could eventually fund (partially or entirely) the policy (if financial hardship requires) in conjunction with the event organizer.
Regulations issued by sports federations
Furthermore, in relation to youth sport, each federation has passed different sets of regulations meant to protect minors from sports risks.
In particular, different categories have been established according to the minor’s age range and the type of sport. These categories may be mandatory depending on the category. For example, boxing poses more direct risks than football and basketball, and thus has more compulsory requirements.
However, in football, no limitation is established further than the ones mentioned above. The same applies for rugby, where although participants below the age of eight years old are not allowed to tackle, this measure is - in the words of the Spanish Rugby Federation - not applied in order to protect the physical integrity of minors, but rather to enhance participation in the game. In any case, as noted above, minors participating in sports under a federative licence are required to file an authorization from their parents or legal guardians consenting to any and all implications - notably risks to their physical integrity - related to their respective sport.
The presence of mandatory requirements are even more relevant in boxing. For young women to be licensed by the federation, they are required to file a written consent and statement signed by their parents or legal guardians indicating that they are not pregnant. Moreover, the Spanish Boxing Federation limits fights to three rounds of two minutes each, whereas minors under the age of fifteen are limited to two rounds of one minute. In sum, according to the competition regulations of the Spanish Boxing Federation, fights involving minors are shorter than the ones involving adults. In these categories, technique is rewarded over blunt striking. Additionally, it is compulsory for minors to use helmets and gloves with an airbag.
Moreover, the Spanish Boxing Federation has promoted the practice of no-contact boxing between children. In fact, boxing, which entails contact, is absolutely prohibited between participants below the age of twelve.
Furthermore, children below the age of fifteen cannot participate in tournaments or shows where spectators pay an entrance fee. Moreover, their participation cannot either be framed within the context of “a boxing event”, no matter whether amateur, professional or mix. If such competitions are public, entrance must be free, and corresponding authorization should be asked from the competent administrative or judicial body in accordance with the Spanish law regulating minors’ criminal liability: LO 5/2000.
A good example of that kind is a boxing tournament was meant to be held in May 2016 in Spain. News spread that apparently children would participate in the tournament and practice “contact” boxing. Following this, the Spanish Boxing Federation immediately issued a public statement informing the organizers of the tournament and potential participants, that the tournament would not be held under its auspices, nor be its responsibility. Importantly, this was a reminder to the organizers that boxing entailing contact between children of such age is prohibited.
In the author’s view, the legislative path initially pursued by the Canary Islands was not the most appropriate one - an absolute prohibition to practice certain sports such as boxing or Muay thai seems disproportionate. According to the author, public authorities should carefully monitor the conditions under which private entities, be it federations, clubs, or competitions’ organizers, have minors practicing the corresponding sport.
A complete ban is the easiest way forward for a legislator, as it means there is no need to develop an exhaustive and comprehensive legislation foreseeing any and all possible scenarios, as well as the complicated oversight and enforcement processes that it would necessitate.
The truth is that sports such as football, basketball or handball would not be affected by a prohibition of that kind, as its competition regulations do not expressly foresee the possibility of causing physical harm to another competitor. However, traditional combat sports should also be respected. It is not the sport itself that should be banned for minors, but the participation of certain individuals or organizations who through their constant malpractice have created a bad reputation. The values taught by combat sports deserve the same protection as other sports such as football or handball, (or even more under certain circumstances!). This is even more the case in the Canary Islands with its own combat discipline called Lucha Canaria, which has been ongoing for decades and has deep traditional and cultural roots.
In the author’s view, the “way to go” is definitely the one adopted by the autonomous region of Navarra, which drafted a bill, as briefly explained above, that aims to effectively regulate the participation of minors in public sporting activities within their territory, in contrast to the outright ban that the Canary Islands’ legislator attempted to impose.
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- Tags: Athlete Welfare | Basketball | Boxing | Canary Island | Child Safety | Football | Rugby | Spain | Spanish Boxing Federation | Spanish Civil Code | Spanish Constitution
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