IN THE MATTER OF THE REGULATORY COMMISSION OF THE FOOTBALL ASSOCIATION Before: William Norris QC Francis Duku Alan Hardy B E T W E E N:- THE FOOTBALL ASSOCIATION -and- WAYNE HENNESSEY DECISION OF THE REGULATORY COMMISSION Introduction and Summary 1. On 4th April 2019, the Regulatory Commission met to consider a charge against Wayne Hennessey, a first team goalkeeper and Welsh International who plays for Crystal Palace Football Club. The misconduct alleged was breaches of FA Rule E3 (1) and (2) arising out of a gesture made at the Bagatelle (London) Restaurant in Mayfair on Saturday, 5th January 2019. 2. The FA’s case was that the gesture (which was captured in a photograph posted on the Instagram account of another Crystal Palace player, Max Meyer, who was also present that evening) was abusive and/or insulting and/or improper and/or brought the game into disrepute, contrary to Rule E3(1) and, further, that it constituted what is known as a 1 “aggravated breach” of that Rule (as defined in Rule E3(2)) because it included a reference to ethnic origin and/or race and/or religion and/or belief. 3. Reduced to its simplest terms, the FA’s case was that the photograph posted on Mr Meyer’s Instagram account showed Mr Hennessey giving a “Sieg Heil” / “Heil Hitler” (hereafter ‘Nazi’) salute. At the risk of stating the obvious, if that was the meaning of the gesture and if that is the only way in which the image shown in the photograph can reasonably be understood, then we would find that it was offensive even if done only in jest. In short, we would find the charge proved. 4. However, how far proof of Mr Hennessey’s subjective intention as to what he meant by the gesture and whether that is a necessary (or even material) ingredient of the charge he faced was a major issue in the case. We shall consider it in further detail below. 5. The factual issue as regards Mr Hennessey’s possible intention depends on deciding between only two possible explanations for the gesture in question. The first is that this was intended as a Nazi salute. To understand the basis for that, one should look at the photograph on page 44 of our bundle and the blow-up of it at page 15: it is easy to see how anyone might think it shows Mr Hennessey with right arm raised at an angle of 45 degrees or so, hand outstretched, and with left hand held across his mouth as a ‘mock’ moustache: that is, might see it as a Nazi salute. 6. Mr Hennessey denies absolutely that was what he intended or meant by the gesture. From the very beginning, he has said that he was simply raising his right arm to attract the attention of the waiter taking the photograph whilst at the same time cupping his left 2 hand around his mouth to make his voice carry as he shouted to the photographer to get on with it. 7. We shall say a little more about some of the other photographs taken that evening and the surrounding circumstances in due course. At this stage, however, it is sufficient to record that Mr Hennessey was able to corroborate his explanation by reference to a series of photographs or screen-shots from footage of matches which show him on the pitch with right or left arm raised at a similar angle (presumably to attract the attention of the defence in front of him). These were found by the Club, we are told, after Mr Hennessey had explained that the sort of gesture which had been captured in the image posted by Mr Meyer was similar to gestures he often makes on the field of play. 8. In one such picture in particular (at page 47 of our bundle, with a blow up at page 9, taken from a match earlier this season) he does indeed appear to have both his right arm raised and his (gloved) left hand across his mouth cupped (or practically cupped) in a similar way to the ‘offending’ photograph (as we shall term it) which was taken at the dinner. He told us this was so as to make his voice carry in just the same – or a very similar – way to the reason he gave for what we can see in the offending photograph taken on the night. 9. Without studying those two photographs and recognising the similarities between them, no reader of this decision or other commentator will properly understand why the FA investigated and brought this case and why a majority of this Commission reached the decision we did, after a full day’s hearing, which was to dismiss the charge. 3 10. Save where it is indicated otherwise, all references to our findings hereafter reflect that majority view. Preliminary Matters 11. The Charge Letter was sent on 23rd January 2019. By then, the incident had been widely discussed in the media and Mr Hennessey’s club, Crystal Palace, had already concluded an internal inquiry into the matter, the upshot of which was (as recorded in a letter of 18th January 2019) that they accepted his “explanation that [he was] making an innocent gesture to attract the attention of the photographer”. 12. Consistently with that finding, Mr Hennessey’s legal representatives filed a Reply Form on 13th February 2019. 13. Apart from that document and various written submissions on behalf of the player (and responses thereto from the FA), the player’s legal representatives served witness statements from several other people present at the dinner, as well as from Jordan Bussolini, who was the waiter who actually took the photograph in question. 14. There was a series of exchanges between Mr Hennessey’s representatives and the FA about various preliminary matters, none of which need be recorded here since it became and remains common ground that the hearing on 4th April 2019 should proceed to determine the issue of “liability” only. We think that was sensible. It meant that we would first decide what the gesture was (taking account of the fact that the parties disagree whether it would be material to decide Mr Hennessey’s intention when making 4 the gesture). In the light of that finding, we would go on to consider whether Mr Hennessey was in breach of the provisions alleged. 15. At one stage it seemed there might be an issue as to whether a gesture made in private might be treated differently from one made in public and, if so, whether that evening should be regarded as a private or a public occasion. 16. In the event, no such alternative defence was pursued by Mr De Marco QC, acting for the player – a sensible course, in our view, since this was clearly a public restaurant (albeit where the group was sitting was regarded as a ‘private’ area). Further, members of the public had been present in the same area during the earlier part of the evening, there was ready access to the bar area (which was not closed off) and, in any case, the waiter was not one of the ‘private party’ (if such it was); in addition, it must have been foreseeable by all present that any photograph taken might find its way into public view via social media. 17. It follows that in this hearing we did not have to decide whether the incident in question happened in public or in private and, if so, whether that matters. Nor did we have to decide a further issue canvassed in advance of the hearing which was whether for the FA to bring a charge in these circumstances would constitute a departure from the FA’s previous practice with regard to prosecuting comparable breaches of these particular rules. 18. A related matter concerns what is referred to as the ‘social media’ exception (relevant because an aggravated breach may depend on it being witnessed by more than one person). Here it might be that it was only seen because it was posted on social media 5 but, in the light of our findings as summarised above, that issue does not need to be determined. 19. The parties also agreed that the present hearing would not determine any issue of sanction in the event that we found that Mr Hennessey’s gesture constituted a breach of the Rules and that such breach (if proved) was one that the FA could properly have brought in the circumstances. The composition of the Commission 20. A further, discrete, issue which arose concerned the composition of the Commission. In an email of 27th March 2019, Mr Fletcher, the player’s solicitor, suggested that the Chairman nominated (William Norris QC) should recuse himself from this hearing because he, like the FA’s Leading Counsel, Kate Gallafent QC, are “both specialist legal members of the Sport Resolution’s National Anti-Doping Panel”. 21. Various exchanges followed between Ms Gallafent QC and Mr De Marco QC, Leading Counsel for the Player. The upshot was that Mr Norris QC, as nominated Chairman of this Panel, advised the parties that he could “see no good reason to recuse myself from chairing this hearing. Nevertheless, I recognise that so far I have only considered summaries of the parties’ respective positions”, noting also that “Mr Fletcher’s email cited no authority in support of his submission, notwithstanding the wealth of recent case law in this field”. As a consequence, it was indicated that the Chairman’s “provisional view” was that there was no good reason to recuse himself and invited the Player, if wishing to pursue that application, to do so at the beginning of this hearing as 6 a preliminary issue, providing “a written submission to that effect with citation of appropriate authority no later than 12 noon on Tuesday, 2nd April”.