The shifting legal landscape of bullfighting in Spain
Published 09 October 2018 By: Josep F. Vandellos Alamilla
The spectacle of bullfighting has always been marred by controversy, and it remains a contentious and much debated topic in Spain and around the world.1 On the one hand, it has zealous followers who support and enjoy bullfighting; and on the other, sections of the population who consider it to be a cruel and barbaric event.
Throughout history, there have been various arguments surrounding its legality. Initially, the debate was related to religious considerations.2 Over time, it evolved to protecting animal rights; and, more recently, to the alleged adverse effects of exposing minors to bullfights3 (which were denied by the Spanish Government4 and representative NGOs5).
Despite the controversies, what is evident is that bullfighting is still lawful in Spain and remains an important part of Spanish culture. To help shed further light on the tradition and its regulation, this article explains:
Bullfighting – a sport, or an art?
Before answering this question, it would be interesting to have a quick look at how strongly bull-related events are entrenched in Spanish culture. Public data shows that during 2017, nearly 20,000 events related to bulls were celebrated. Out of these c.18,000 were popular and community festivities with bulls in the streets7 (e.g. San Fermin Feria) and 1,553 were strictly speaking, bullfights8. A 2018 study of Fundacion Toro de Lidia9 reported that the number of people attending bullfighting events outnumbers people demonstrating against it.
The economic scale of the bullfighting industry is probably greater than people expect. The San Isidro feria held in the bullring of Las Ventas in Madrid each year in May had an economic impact of c.73m Euro in 2018 and gathered more than 620,000 spectators (i.e around 20.000 spectators per event). The impact of the San Fermin feria in Pamplona is similar, bringing in c.74M Euro per year10. The estimated yearly impact of the entire industry is of c.1.600 M Euro11.
With these parameters in mind, a technical definition of bullfighting would very much sound like this:
“The bullfight, as it exists today, consists in the ceremonious killing of a number of bulls, generally six, according to a formalized and traditional sequence of manoeuvers designed to display the skill and valor of the torero and the power and bravery of the bull, while at the same time taking advantage of the bull’s fighting instincts to bring it into the position and condition in which it can be perfectly killed according to the rules of the art12”.
The bullfighting season in Spain usually starts in March and ends in October. There are different disciplines or types of bullfighting. Amongst them, the most popular one is foot bullfighting13. A classic corrida de toros will consist of six bulls of minimum 460 kilos between 4 and 6 years of age, that have been never fought before; and three matadores, each of them with their respective squads, formed by two mounted assistants (picadores), three banderilleros and one weapon assistant. These squads will intervene and assist the matador throughout the three different stages of the spectacle that follow traditional customs and are regulated in detail by law. Each matador will have to fight two bulls.
Once the bull has met its fate, it will be, as a general rule, up to the public to decide by acclamation whether or not the bullfighter is deserving of a trophy. The trophy for putting up a memorable performance are quite unique. It could involve the spectators asking the matador to take a lap of victory around the arena in some cases he might be awarded one or two of the bull’s ears, and sometimes the matador is given permission to leave the arena on the shoulders of fans. The President (i.e. public authority) of the bullring may also grant the matador with the bull’s tail14.
Likewise, in exceptional circumstances where the bull has shown great bravery and courage throughout all the stages of the spectacle, the President may grant the pardon so that the animal is kept as a stud, used to preserve the purity of the race. Three conditions must be met in order to grant the pardon. First, the public must ask for it by acclamation; second, the matador must also request it; and finally, the breeder must give his consent.
However, it is impossible through written definition to emphasize the highly emotional component inherent to the spectacle, because when seasoned aficionados attend a corrida, they expect to be deeply touched by it in the same way one experiences a plethora of emotions at an opera or at a music concert. Without that emotional connection, the event is failure. Quoting some foreign authors15, bullfighting is “a tragedy in three acts (…). The essence of tragedy lies in this: a gallant struggle against the inevitable decree of fate”, the real representation of man against the unknown. This is how bullfighters conceive their profession and what the audience expects to see and feel when attending a corrida.
Admittedly, bullfighters must have a strong physical fitness condition in order to adequately master the different techniques required to perform and train as much as professional athletes do16. However, despite the apparent and undeniable athletic features of bullfighting, the artistic component prevails and as opposed to other manifestations like bull riding in America17 or Jallikattu in India18, bullfighters are seen primarily as artists rather than athletes.
How is bullfighting regulated?
Despite its ancient origins, bullfighting was not formally regulated in Spain until the second half of the nineteenth century. Up until then, there have been a good number of laws, in most cases related to the limitation or prohibition of bullfighting, alternating with periods of tolerance and support. Then, in the nineteenth century, specific regulations of bullrings were enacted,19 coinciding with the construction of bullrings in many cities.
At the present time, to have an overview of the regulation on bullfights, one must look towards European Community Law and in Spanish national laws.
Article 13 of the TFEU20 specifies that in the implementation of policies affecting animals,
“the Union and Member States will pay full respect to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage”.
Likewise, Directive 93/11921 on the protection of animals at the time of slaughter or killing explicitly excludes from its scope of application animals which are killed in cultural or sports events.
In Spain, the Constitution makes no reference whatsoever to bullfighting. Legal scholars22 and lawmakers have relied on the artistic and customary component to claim its protection. It is in that context that bullfighting is erected as part of “the right to literary, artistic, scientific and technical production and creation” in section 20 par. 1 lett. b) of the Spanish Constitution23 and other fundamental rights such freedom of enterprise or the right to freely choose a profession.
Indeed, the artistic nature of bullfighting is explicitly acknowledged by Law 18/2013 for the regulation of tauromachy as cultural heritage24.This law represents the implementation of a state policy aimed at protecting and promoting tauromachy after the attempts of some regions in Spain to outlaw or alter the essence of bullfighting.
Sitting below the Constitution is Law 10/199125 on the administrative powers over bullfighting spectacles and the Royal Decree 145/199626 developing the law. These two norms contain all aspects related to the preparation, organization and celebration of bullfights from both -quoting Professor Luis Hurtado Gonzalez- the external and internal perspective27.
The external perspective is basically those administrative requirements for the organization of the event; the policy of the spectacle. They refer to matters that do not touch directly upon bullfighting such as permits; the role of the veterinarians; the transportation and control of the bulls; the registration in the General Registry of Bullfighting Professionals of the different categories of persons intervening in the event; the Official Registry of Breeders to guarantee the purity of the race and origin of the bulls; the technical and infrastructure requirements for the bullrings; the role and prerogatives of the President of the arena; the rights and obligations of the public, etc.
However, it is the internal perspective which makes the regulation of bullfighting unique. The Royal Decree 145/1996 contains also the “regulae artis” of bullfighting, what in sports would be the rules or the laws of the game, as well as the sanctions to be imposed by the public administration in case these are infringed.
In a different order, bullfighters in their consideration as artists, have their own particular employment status enshrined in the Royal Decree 1435/1985 applicable to the special employment relationships of artists in public spectacles, and the so-called national collective bargaining agreement for bullfighting28. This set of rules depart from the general employment law and from professional athletes, introducing elements to make employment contracts with bullring administrators more flexible and secure the payment of the remuneration of bullfighters29.
What does the future hold for bullfighting?
The historically confusing legal status of bullfighting at a national level has led to a somewhat chaotic regulation that is currently trying to be addressed by the Constitutional Court. Spain is a decentralized state with 17 autonomous communities and 2 autonomous cities,30 all having regulatory competences (in some case shared with the State, in some case of exclusive nature) over many matters, such as pubic spectacles, culture or animal welfare and protection.
In short, the fact that Law 10/1991 defines bullfights as being a public spectacle, and that public spectacles are not under the exclusive competence of the State, was used by some regions to regulate it. This risks affecting the integrity and/or purity of the event. Similarly, and although as a general rule, bullfighting, fishing, hunting or scientific investigation, constitute exceptions to most animal protection laws31, some regions decided to use their competences on this area to alter bullfighting or prohibit it altogether.
It is widely known that in 2010, the Catalan Parliament amended the regional law on animal protection explicitly banning bullfighting, while maintaining the right to celebrate other popular festivities like running the bulls32. This last circumstance, was seen by many as an act of political interest addressed against Spanish culture rather than an act aiming at the protection of animals rights. The ban was overturned by the Spanish Constitutional Court on 20 October 201633 ruling that the Catalan Parliament had exceeded its authority by invading the State exclusive competence to regulate the Spanish common cultural heritage, and that it violated the above referred constitutional rights to cultural expression and the principle of freedom of market.
Equally, last year the Balearic Islands, prohibited the use of ornamented barbs and killing the bull during the corrida (bloodless bullfight – known as “toros a la Balear”). This case is currently pending before the Constitutional Court, while the prohibition is in force, leading to what has been the first season without bullfights. However, based on the arguments presented by the Court in the 2016 decision, it seems clear that from a strict regulatory point of view, the competences over what is considered to be the inner essence of bullfighting (and that includes the killing of the bull) belong to the State, whereas only the external or policy aspects (e.g. minimum age to attend the event etc.) can be regulated at a regional level.
Nowadays, Law 18/2013 for the regulation of tauromachy [bullfighting] as cultural heritage, is aware of the diversity of opinions and expressly refers to the different sensibilities around bullfighting, but it also admits that -in this moment in time- there is a majority consensus accepting the cultural, historical and traditional character of tauromachy that must be protected and guaranteed.
It is impossible to predict whether public perception will shift or not in the future. History however, tells us that only popular support for the “sport” has made it possible overcome all political attempts to prohibit it. Whether this will change or not remains to be seen.
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- Tags: Athlete Welfare | Bull Fighting | Governance | Regulation | Spain | Treaty on the Function of the European Union
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Josep is an independent lawyer with extensive experience in international sports law. During the last ten years his practice has entirely focused in representing athletes, clubs, national associations, agents and coaches in front of the different dispute resolution bodies and the Court of Arbitration for Sport in Lausanne (Switzerland). He also advises his clients on a regular basis in contract drafting and negotiations.