The Argentine player Gianluca Prestianni, 20, accused of making racist insults against the Brazilian Vinicius Junior, 25, can be tried and punished based on the testimonies of other players, without the need to present an audio or video confirming the infamy. This can occur both in the sporting sphere and in common justice, if the Brazilian decides to sue Prestianni in the Portuguese courts.
According to lawyer Leonor Caldeira, a reference on the subject, the principle of free assessment of evidence applies in Portugal. “The law does not determine which evidence is worth more, whether testimonies or documents”, says Caldeira. “The judge has the prerogative to use what he deems most relevant. The testimony of a player like Kylian Mbappé, full of clarity, has a lot of credibility. This added to Vinicius’ complaint may be enough for the judge to form the conviction that the event really happened.”
In an interview after the match in which Real Madrid defeated Benfica 1-0, at the Estádio da Luz, in Lisbon, in the Champions League, Mbappé said that Prestianni used the word “mono” five times [“macaco”, em espanhol] to refer to Vinicius Junior. On its social networks, Benfica defended Prestianni saying that Mbappé was far from the Argentine when the offense occurred – something that television images deny.
The biggest difficulty in a case against Prestianni would be the fact that in Portugal, unlike what happens in Brazil, there is no crime of racism. “There is the crime of insult, and the judge can, at his discretion, give a greater penalty within the criminal framework when there is a racial offense, but it is the judge’s choice. The word ‘racism’ is a taboo in Portugal, it rarely appears in any judicial decision”, says Leonor Caldeira.
The Portuguese lawyer worked in a famous case involving racially motivated insults. In 2021, deputy André Ventura was a candidate for President of the Republic for Chega, a party that represents the ultra-right in Portugal. In a debate against Marcelo Rebelo de Sousa, who would later be elected to the position, Ventura showed a photo of his opponent together with a family of gypsies, whom he classified as bandits.
The family went to court, represented by Caldeira, and Ventura was ordered to publicly recant and pay compensation. The word racism, however, did not appear in the sentence – just “social segregation based on skin color”.
Also unlike what happens in Brazil, in Portugal the Public Ministry cannot report cases of racism. “Crimes of insult and defamation are of a private nature and require a complaint from the victim”, says Caldeira.
If Vinicius Junior chooses this path, he will have to pay a lawyer to file the private accusation.
In a similar case that occurred in Brazil in 2014, in which goalkeeper Aranha, then at Santos, was the victim of racial abuse by Grêmio fans, it was up to the Public Ministry to file the complaint. Four fans accepted an agreement proposed by the Public Prosecutor’s Office to suspend the criminal action, fulfilling requirements such as attending police stations at the time of the Gaucho club’s matches.
In the sporting sphere, the existence of audio or videos is also not a prerequisite for a punishment. UEFA (Union of European Football Associations, organizer of the Champions League) appointed an ethics and discipline inspector to investigate the case. In the investigation, according to the rules of the highest European football entity, the referee’s summary, match reports, statements and testimonies from other players, as well as audiovisual evidence, will be taken into account.
So far, no audio or video images have appeared proving Prestianni’s racial offense. In at least one recent case, however, UEFA punished a player by taking testimony as key evidence.
In 2021, after a match between Slavia Prague, from the Czech Republic, and Rangers, from Scotland, Finnish Glen Kamara accused Czech Ondrej Kudela of racial insults. In the moment of infamy, Kudela brought her face close to Kamara’s ear and covered her mouth with her hand. At the time, both Kudela and his club, Slavia Prague, denied the accusations.
After an investigation that lasted 26 days, UEFA decided to punish the Czech player for “racist behavior”. The entity took into account the testimony of Bongani Zungu, a midfielder for the South African football team who at the time played for Rangers and said he had heard the offense. Kudela was punished with a ten-game suspension, the minimum penalty for cases of racism. After the conviction, the club and player changed the initial version and apologized.
In an official statement released this Thursday (19), Real Madrid said it had gathered all “available evidence” about the episode and forwarded it to the entity that governs European football. “Our club actively collaborates with the investigation opened by UEFA following unacceptable episodes of racism,” says the statement.
On his social networks, Prestianni defended himself. “I want to clarify that at no time did I direct racist insults at the player Vinicius Junior, who regrettably misinterpreted what he believed he heard. I was never racist and I regret the threats I received from Real Madrid players.”
In an official note, Benfica stated that it “fully supports and believes in the version presented” by its player, in a similar stance to that initially adopted by Slavia Praga in relation to Kudela. He added: “The club regrets the defamation campaign of which the player has been a victim.”
If Vinicius Junior decides to sue Prestianni in Portuguese justice, the Argentinian will be able -similar to the Brazilian– to present testimonies from club colleagues in his defense, according to Leonor Caldeira. “To date, however, no Benfica players have appeared to confirm Prestianni’s version.”
