Fernando Torres demands that his gyms be compensated for covid restrictions

Fernando Torres's chain of gyms has resorted to the courts to claim compensation for “the damages suffered” during the pandemic. New Fitness demanded 808,100.58 euros from the Community of Madrid for the “serious losses” caused by the restrictions between March 2020 and May 2021, but after the regional government refused to pay them this amount, the case has ended up coming to the Supreme Court, inform legal sources.

The former striker for Atlético de Madrid and the Spanish team broke into the fitness business together with the brothers Javier and Óscar Meléndez in 2013. Its chain of gyms achieved a profit of 101,940.37 euros in 2019 with the three centers it managed —one in the capital Madrid, one in Aranjuez and another in Pinto—, but after the impact of the covid, it went into the red: revenue fell 43% and in 2020 ended with losses of 207,100 euros.

In the claim that they filed with the Madrid Ministry of Health, the company then denounced the “intense and disproportionate” measures that were adopted to stop the covid. In the gym sector, these ranged from “opening restrictions” to “capacity limitations”, but, indirectly, they also pointed to the effects of “perimeter confinements of municipalities” and the promotion and establishment of “work from distance”.

After calculating the alleged damages caused by these measures in an expert report, the company claimed compensation of 808,573.72 euros in May 2021: 269,573.72 for the company New Fitness Aranjuez and another 598,922.65 for New Fitness Group, in addition to “legal interest” that would have to be added up to its effective payment. This figure included “both the consequential damage actually produced and the lost profit not received”.

The refusal of the Community of Madrid

On February 8, 2022, the Legal Advisory Commission of the Community of Madrid refused to address the claim of New Fitness. His opinion, to which El Confidencial has had access, argues that “the sanitary measures were necessary” and affects situating the pandemic as a “force majeure that breaks the causal link between the administrative action and the evidentiary damage”. As he warns, it is not possible to appreciate “unlawfulness of the damage” and the patrimonial responsibility must be rejected.

“The Community of Madrid has at no time completely and generally suspended the activity of the claimant's economic sector (unlike what happened in other autonomous communities), in such a way that, since the state of alarm was lifted, it has been able to carry out its activity at all times, respecting and adjusting to the preventive measures of a sanitary nature”, adds.

Regarding the decisions of the Constitutional Court that declared part of the restrictions illegal, the report highlights that the magistrates did not extend this decision to the limitation and restriction measures in gyms. The court itself also indicated that its declaration of nullity regarding the second state of alarm did not affect by itself “the acts and provisions issued on the basis of such rules during their validity”, which allows ruling out their application to this case. concrete.

From the National Court to the Supreme Court

The gym chain appealed this ruling and, last April, the case was left in the hands of the Contentious Chamber of the National Court. In a resolution dated April 24 to which this newspaper has had access, the magistrates once again collect their claim for “the damage suffered as a result of the declaration of the state of alarm”, but this time it is not only directed against the Community of Madrid, but also against the Ministry of the Presidency of the Government of Spain.

“He raises his claim, in a very clear way, in request for compensation for the damages that he says he has suffered as a result of the closure of his business activity as a consequence of Royal Decree 463/2020 [which declared the state of alarm] and the successive derived regulations of the same, dictated by the Council of Ministers or by the delegated authorities of the Council of Ministers”, summarize the magistrates. Taking this fact into account, the National Court concludes that “the competence to hear this appeal corresponds to the Third Chamber of the Supreme Court” and not to them.

According to legal sources, New Fitness Aranjuez, New Fitness Group and the Community of Madrid have already appeared before the Supreme Court, but now it remains to be seen if it declares itself competent to resolve the dispute. After more than two years of comings and goings, “the damages suffered” by Fernando Torres's gyms now depend on the high court.