By Paul Edwards
I’ve read hundreds of tweets and blogs about the Suarez verdict and just as many about the 115 pages of reasons published by the Football Association on New Years eve. Really great timing that by the FA it seemed, though it transpires Suarez and Liverpool had received the paperwork the day before.
There are lots of people with good intentions skimming through the verdict, desperate to pick holes in it, trying to find that loophole either in the legal argument or simply in the quality of the English in the hope it opens a loophole that Liverpool can use to blow the whole case open and assist a successful appeal. I am sure that Liverpool’s lawyers are doing the same – let’s hope they find something!
Sadly my view is that in the same way some of the language in these thoughts will be clumsy it will not make a bit of difference to the probable outcome here.
Before I make lots of enemies, let us get my position clear. I despised Patrice Evra before these events and that hasn’t changed. He has been involved in too much controversy over his career to come to this issue with clean hands, what with being called an unreliable witness by the FA (strangely not here though) and with leading an unforgivable mutiny at the world cup.
I love Luis Suarez, I did before and I still do. He is one of the most exciting players we have had in the number 7 shirt since Kenny. He is one of us and we will stick by him because we have to. Despite that it is clear to me that he is a wind up merchant, a trouble maker and acted like a complete idiot in saying what he did to Evra, regardless of the exact wording he used.
My view is that on the basis of what evidence was before the FA the verdict is sound and the best any appeal could achieve would be to reduce the length of the ban, though with a risk of it being extended. It is therefore likely that whatever happens Suarez will miss between 6 and 10 matches.
I am not a solicitor, nor a specialist sports lawyer, but I have attended and prepared submissions to numerous tribunals ranging from $40m salvage hearings at Lloyds of London to small commercial disputes. I have also worked on a variety of sports cases, including football tribunals, and have seen the way they work. These views are however purely my opinion based on my reading of the 115 pages and my gut instincts! (In case you aren’t sure that sentence is my legal disclaimer!)
I am also experienced at having conducted a hearing, been confident (no, certain) of success and then had my hopes dashed with a judgment that no matter how much I wish was not the case I cannot appeal, or if I did it would not be with much hope of success.
That is what has happened here. I think Liverpool felt the hearing went well, hence the rumours Suarez would be found not guilty and the relaxed attitude of the likes of Dalglish. I suspect their immediate reaction and “that” statement and the t-shirt parade (both of which I applauded then and still do) was caused by their horror and surprise at the outcome.
Many people’s reaction to the reasons is that this is a stitch up, and that there remains no evidence upon which to convict Suarez. Short of having microphones or cameras definitively picking up what was said the Tribunal had to work with what it had.
We sometimes see in the news people convicted in the news of murder, despite the lack of a body or other forensic material, with circumstantial evidence and the disappearance of the victim being enough.
The criminal standard of proof is far higher than it is here in a civil tribunal and this goes some way to explain why John Terry faces a criminal trial and then potentially an FA charge whilst Suarez was only dealt with by the FA.
The format of the decision is pretty standard and it is well written. It sets out in detail the charge, the applicable regulations, the standards of proof that apply and a chronology of the whole process. This is usual.
It is interesting that Kenny Dalglish made some glib comments about the process nearing its testimonial when the chronology sets out a day by day summary of progress, and I can’t really see the delay complained about.
In fact it was Liverpool who asked for extra time, partly due to extra video evidence becoming available, and in view of the pressure upon FA officials, the panel (one of whom is a practising QC and accordingly very busy) and of course the demands on the footballers I think they may have done quite well to get it dealt with as soon as they did.
Publishing a verdict as soon as possible is required by the regulations, and this is what they did. It is not a surprise that such a long set of reasons took so long to produce, requiring careful drafting and consultation between the 3 members of the panel.
The report sets out the evidence that they considered and the weight they attached to it. It is untenable to suggest that the tribunal should have just said that as the main basis of the complaint was from Evra it should have been rejected out of hand.
It is surely naive to suggest that nothing happened between Suarez and Evra, I could see it before me on the day from my seat in the Lower Centenary, and regardless of the actual details on the basis of the evidence before the Tribunal I can see why a guilty verdict was reached.
To move from that position we would have to show that Evra is a complete and utter fantasist and a liar. The fact that Suarez admitted saying certain things shows that something happened.
I do think that the verdict could have been avoided. This is where I am frustrated. It looks to me that several errors were made that contributed to Suarez’s downfall. Hindsight however is wonderful and often in court one wishes an argument had been run in a different way.
The representative Liverpool used is a specialist in Sports Law and no doubt an expert in this area. Without being there we don’t truly know what happened on the day. Representatives react on their feet to the attitudes of witnesses and Judges.
I know how lawyers work, and despite smears against the make up of the panel I do believe this to be an honest result, albeit one I wished hadn’t be reached.
So why did we lose?
- The low standard of proof would not help, though you will see that in view of the seriousness of the charge they confirmed that where possible Suarez may get the benefit of the doubt.
- We lost on the argument over what test was applicable, whether the offence or whether the abuse had to be committed intentionally or not. This objective/subjective point is crucial and despite our lawyers arguing otherwise we lost on it. I can see why, as the reasons set out otherwise decisions on dangerous tackles would be impossible to adjudicate on if one had to prove intent.
- Inconsistency – this was disastrous and it happened time after time. There were differences in the evidence provided, even McCormick admitted there had been bad drafting. One minute the “pinch” was a wind up as admitted at the hearing, but previously it was “conciliatory”.
- It was regarded as being very coincidental that evidence changed in light of the expert evidence, no doubt because Liverpool hoped this had given Suarez a way out. Liverpool had time to draft their statements, something went wrong.
- There were inconsistencies between what Comolli said at the time, and also between what evidence was given by Kuyt. Suarez was left trying to argue that both were wrong, via plain error or misinterpretation. That cannot have looked good.
- Why didn’t we refer to Evra’s past? That is a mystery to me I must admit, not least because at the time of Evra reporting this incident Dalglish was clear of his history. We were offered the chance to raise credibility factors and declined. Mud sticks and I would have thrown as much as I was able. Probably not the most professional approach but still.
I don’t think we can put too much weight on the purported inconsistencies in Evra and Ferguson’s evidence. Yes it didn’t match word for word (whether he said it 5, 7 or 10 times) but the inconsistencies occurred at the time the match finished, no doubt when tempers were frayed and where the media were desperate to put their angle on it.
I sadly think that United’s approach was largely consistent, and of course supported by the views of the referee. United and referees is of course a different article to write!
I am disappointed to conclude that whilst not being found to be racist Suarez was correctly found guilty of having used words that mean he committed the offence he was charged with.
Frankly he doesn’t come out of this well. We knew he had an edge, his previous bans and even the hair pull showed he can’t help but get involved in trouble. Acting in this way was stupid – end of.
It doesn’t matter if other players wind each other up. He was trying to upset Evra, and it worked but he went way too far. He was upsetting Evra simply by making him look a mug on the pitch.
People talk about how far Liverpool and Suarez will pursue this. The clubs sign up to these rules meaning that in theory all they can do is appeal and then go to the CAS in Switzerland.
An appeal is not a re-hearing. We would have to show that either there was some major administrative failing or that to reach the conclusion they did was so wrong it must be reversed. That I do not think can be achieved. Just because we do not like the outcome does not mean we can succeed.
There are other options, through the courts but they are to be regarded as the “nuclear” option as they would shake the foundations of the FA power and their rules.
A recent case involving Wayne Rooney attempted to take a dispute to the courts and failed, the courts confirming that the parties had agreed to abide by the rules they had signed up to. I would be surprised if a challenge to the courts would succeed.
That does not mean other litigation might not follow to attempt to clear Suarez’s name. Off the top of my head the Daily Mirror must be concerned. It had a headline of “Racist” despite Suarez not being found to be such.
I really hope I am wrong, and that Liverpool can get out of this mess (we have quite a record of pulling victory from the jaws of defeat – see Istanbul and ask Tom Hicks) but my instinct is that we need to move on. We shouldn’t punish ourselves either for the t shirts or the support given to our player, our hero.
The only justification for appeal is in respect of the size of the ban. The problem here is that as the Tribunal acknowledges this is a new area of law and that essentially they had a blank piece of paper to work with.
On that basis finding 8 games on the basis of aggravating factors is probably not unreasonable. I guess the best we can hope for is say 5 or 6 games but I don’t doubt a failed appeal would see an increased punishment.
If I were Kenny Dalglish (and thank goodness I am not in his shoes) I would accept the ban, carefully picking the date to do so to do the least damage in terms of big games missed, whilst issuing a strongly wording statement highlighting frustrations and again putting pressure on the FA to behave consistently and punish Evra for his foul and abusive language and the fact it was his misbehaviour that caused Suarez to react.
Ultimately Suarez is young, and we hope he will learn from his mistakes. What is certain is that his career with us is undoubtedly going to be a roller coaster of emotions.