Barcelona”We cannot give any more information because the company has asked us for confidentiality” is a recurring phrase in the contemporary history of Barça. All recent presidents, at some point, have used it as an argument not to explain details about some operation, despite the fact that the Barcelona club is owned by almost 150,000 members. The last notable cases in which Barça, now under the mandate of Joan Laporta, have expressed the impossibility of revealing aspects of large contracts have been the agreements with the Turkish construction company Limak for the remodeling of the Camp Nou and with the Swedish company Spotify as the main sponsor of the playing and training shirts of the first men’s and women’s football teams and to name the Camp Nou.
“Contracts are becoming more and more private, that’s how it is”, assures ARA a person who has recently participated in negotiations to close commercial agreements for Barça. “Companies don’t like to be ostentatious and no one likes to have their decisions questioned. That’s why they want to avoid that, if the deal goes badly, it’s known how much it cost you,” he argues. Sílvia Gómez and Fernando Barbancho, professors of commercial law and private law at the University of Barcelona, express themselves in the same sense. “This way of acting is quite common in Anglo-Saxon companies. And, in the event that in the negotiation of a contract they want to introduce confidentiality clauses and the club refuses, the most logical thing is that the contract is not sign”, they say. In addition, they state that “the breach of the confidentiality clauses would be a breach of the contract, with the corresponding consequences set out in the contract itself”. What would these consequences be? “They can range from the payment of a set amount to the termination of the contract itself with compensation for damages,” Gómez and Barbancho answer.
“The official discourse is ‘this is imposed on us’, but this is a partial truth”, considers, for his part, Marc Duch, tax consultant and partner of Deventer Consulting, apart from a partner of Barça and one of the promoters of the vote of censorship that caused the resignation of Josep Maria Bartomeu. “Give in to the imposition of a third party is your decision. And, commercially, it makes no sense, because anyway the figures end up being more or less known thanks to the media and the club’s annual report. But the fact that not being specific figures can fuel suspicions,” he adds. Official sources of the club explain to the ARA that “companies and corporations have always asked and ask for confidentiality clauses in the agreements”. And they add: “We respect it as a club, but we always warn them (and agree with the companies) exceptions in those points that require public information as it is a sports entity owned by the partners and that there are decisions that must be ratified by the assembly”.
Nondisclosure clauses are called NDAs (non-disclosure agreement), the acronym in English “non-disclosure agreement”. In this sense, Duch explains “that companies have to know their shit when negotiating important things and originally this was designed for industrial contracts where one company had access to industrial process secrets of another company for the negotiations”. In other words, it was a way to prevent a third party from divulging the Coca-Cola formula after knowing it. “But should this be transferred to the world of football?” asks Duch. “Barça belongs to the partners and has a commitment to a way of doing things, or it should have it. In addition, those who now govern the club made blood in the past, rightly so, because Bartomeu and Rosell were precisely not transparent “, he recalls.
Many unanswered questions
Be that as it may, the reality is that members are regularly deprived of knowing exactly how their club is being run. However, some do not lose their temper and keep trying. For example, the Àgora Blaugrana membership group sent 87 questions to the club about aspects of the Camp Nou redevelopment they wanted to be informed about after Limak won the tender for the works in early 2023 and 1.45 billion in funding was approved of euros backed by Goldman Sachs and JP Morgan. Finally, after months of insistence, they received the answers.
But many were not answered precisely because of the confidentiality clauses. Barça took this excuse, among others, to the questions of what is the breakdown of all the items of the price of the work; what will be the financial amount of the penalty for Limak in the event that it does not finish the works within the stipulated period; of the price differences between Limak’s bid that won the tender and that of the other companies; and what scores the different construction companies received in the technical and economic bids. In addition, the Barcelona entity also mentioned confidentiality to justify the fact that the contract with Limak is not posted on the club’s website.
“When deciding not to respond to questions and issues from partners, based on this principle [el de confidencialitat], the principles of transparency that govern the club’s actions, the right to information of members, the principle of proportionality and the principle of opportunity should be taken into consideration, in addition to the legal nature of our club,” he says the statement later published by Ágora Blaugrana. “For this purpose, it should be a mandatory principle of the club’s operation not to sign contracts with entities that apply principles of confidentiality that are not proportionate or reasonable. It is not admissible that we do not have basic information about the most important projects of the club, with the excuse of this principle, which only shields the position of third parties and not of the club”, he adds.
The case of Spotify
A very similar episode took place in 2022 when Barça announced the agreement with Spotify in exchange for 57.5 million euros per year to put the brand on the front of the men’s and women’s playing and training shirts and the name at Camp Nou. “Confidentiality clauses are very common in these contracts. We have to respect that Spotify does not want to give figures,” said Laporta at the time before the meeting of compromise partners. “They have let us explain the duration. It is the best agreement in the history of the club and we appreciate that this fact could not set back an agreement as important as this. There are other confidential agreements. When we sign a player we do not tell you the salary either.” he continued to argue. This confidentiality meant that Barça’s partners were forced to vote on whether to endorse the sponsorship agreement or not without having all the information.
What do the Barça statutes say?
The Barça statutes set out the members’ rights in article ten. Point 10.7 says that they have the right “to access the documentation necessary for the approval of the agreements of the general meeting, under the same conditions as the partners in arbitration”, and point 10.8 says that they have the right “to access the agreements of the assembly and of the board of directors in the terms that are established, except for those that, due to the nature of their content, could seriously harm the interests of the club or that violate the regulations for the protection of personal data or the criteria and agreements of confidentiality”.
2023-10-07 06:20:03
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