1 Football in the Dock

FOOTBALL IN THE DOCK: THE GIFT THAT JUST KEEPS GIVING . In the run up to yuletide, its comforting to know that football will yet again be doing its bit for the legal profession by giving us yet another conundrum in the long-running saga concerning the decision to prosecute either under the criminal code or the FA Regulations. The Decision by the CPS to prosecute criminal offences A panoply of offences are available for sporting misconduct both on and off-field ranging from offences contrary to the OAPA 1861 / POA 1986 (as amended to include racially aggravated offences) to tax evasion/fraud/bribery. The Code for Crown Prosecutors [2013] I. Is there sufficient [admissible] evidence to provide a realistic prospect of conviction? AND II. Is it in the public interest to do so? With regard inter alia to the seriousness of the offence, proportionality and whether the matter can be better dealt with by an out of court disposal. By application, how can the following decisions be reconciled? 1.A. Lee Bowyer prosecuted for a sec.5 POA offence punishable only by a £1000 fine - for scuffling with team mate Kieron Dyer in 2005 when neither player made an allegation against the other, none of the 50,000 spectators were distressed, his club fined him £220,000 and the FA imposed a further £30,000 + 3 match ban prior to proceedings being brought; 1.B. Self-styled hard man Roy Keane escapes prosecution for his career-ending and self-admitted pre-meditated „horror tackle‟ (Wounding with Intent) on Alf-Inge Haaland in the Manchester derby 2001 – the FA imposed a £5000 fine + 3 match ban with a further £150,000 fine + 5 match ban following Keane‟s admission of violent intent in his first autobiography; 1.C. Compulsive biter Luis Suarez escapes prosecution for biting (at least Common Assault) Branislav Ivanovic in 2013 despite the incident being clearly captured live on TV and Suarez having “previous” – he was banned for 10 matches. 2.A. John Terry (JT) prosecuted for racially aggravated sec.5 POA insulting behavior toward Anton Ferdinand in 2011 using one racial slur – triumphantly acquitted thanks to GCS QC but subsequently convicted by the FA for misconduct – £220,000 fine + 4 match ban; 1 2.B. Luis Suarez escapes prosecution for his racial abuse of Patrice Evra in 2011 calling him “Negro” repeatedly but convicted of misconduct by the FA - £40,000 fine + 8 match ban; 2.C. Nicholas Anelka escapes prosecution for his use of the infamous Quenelle gesture while celebrating scoring a goal in a live TV game in 2014 even though (arguably) the gesture is not without meaning, unlike JT this was a message to the wider world and not for private consumption and had huge potential for imitation – the FA found him guilty of E 3(2) misconduct [see below] and fined him £80,000 + 5 match ban. The Decision by the FA to Prosecute for Misconduct The FA has the discretion to investigate and act against any participant (player, manager, club, club official, referee) in respect of any Misconduct that is a breach of its rules and regulations. This includes under Rule E 3(1) bringing the game into disrepute (self- evidently very wide), and or using violent conduct (Roy Keane), serious foul play (Suarez bite), threatening, abusive, indecent or insulting words or behaviour (Lee Bowyer). A breach of E 3(1) becomes an “aggravated” offence under E 3(2) when it includes a reference to ethnic origin, colour, race, nationality, religion or belief, gender, sexual orientation or disability. All seemingly straightforward when applied to on-field transgressions with particular regard to the use of aggravated abusive or insulting words or behaviour such as Suarez of Patrice Evra, JT of Anton Ferdinand and Anelka‟s Quenelle. Much less straightforward however when applied to social media and the modern phenomenon of tweeting: Rio Ferdinand fined £45,000 by the FA in 2012 for bringing the game into disrepute by tweeting that Ashley Cole is a “choc- ice” after the latter sprang to the defence of JT in the case concerning the former‟s brother Anton; Rio has just been fined another £25,000 + (extraordinarily for a non-playing transgression) a 3 match ban for referring to a twitter follower‟s mother as a Sket (Caribbean term for promiscuous woman); Yet Premier League CEO Richard Scudamore escapes censure from the FA earlier this year over a series of emails that contained sexist comments; Whereas former footballer, member of the FA Judicial Panel and anti-racism campaigner Paul Elliott CBE (himself mixed-race) was condemned by the FA and forced to resign from his positions in 2 2013 having used the “N-word” towards former black footballer Richard Rufus in a private text message. In trying to reconcile these positions, the FA would likely rely on the distinction between private correspondence and comments made on social media but the law would not recognize such a distinction particularly once private communications are made public. Moreover, the FA‟s stance over Paul Elliott appears to debunk the “private-public” argument. There is an appearance of one law for the players and another for persons in positions of authority. The upcoming conundrum for the FA is what action it takes over a series of racist, sexist, and homophobic texts/emails exchanged between the ex Cardiff City manager Malky Mackay and his head of recruitment Iain Moody, especially as the offending material was obtained by Cardiff City through a High Court search order of Moody‟s house in the club‟s defence of Mackay‟s action for unfair dismissal. Should no action be taken for reasons of „clear work context‟, there will be calls of double standards and if action is taken, it can only bite against Mackay should he land a new managerial position and this will likely face legal challenge. Like all prosecuting authorities, the FA has to come to terms with the digital age. Its misconduct provisions will be effective only when applied equally across the board whether private or public, in a work context or on a social media platform. Happy Christmas and keep off twitter . Simon Pentol November 2014. 3 4 .

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