by Sam Jones



99.5%. A fairly impressive figure, but what is it?

Liverpool’s chance conversion rate in the 2011/12 season? The percentage of Paul Scholes’ tackles that were so late that you would have received compensation if he was an airline? The weekly interest rate of a midday ITV advertised loan?

No, it’s the percentage of people charged by the FA who are subsequently found guilty.

This is a standout figure, testimony to the effectiveness of the FA’s disciplinary machine, or at least its effectiveness in gaining convictions. But does that represent justice?

In the Crown Court, where serious criminal cases are heard, conviction rates stand at a little over 80%. Lest we forget, before even getting in front of a jury in the Crown Court a police investigation will have to have taken place that is adequate to convince the Crown Prosecution Service that there is a good chance of convincing a jury, beyond reasonable doubt, of the accused’s guilt.

So the bar is set pretty high in terms of evidence before it will even see the inside of a court. And even then, fully 1 in 5 will walk away free men and women. Contrast this with the FA, where the number that walk away absolved of guilt is 1 in 200.

The FA counter that the only time that they pursue a case is when it has merit. By contrast to the CPS, do they mean? They also point out that they “aren’t sending people to prison”, however they can dole out fines that a magistrate can’t – fines are capped at £5000 in a magistrate’s court, and issue lengthy bans to players, as we have recently discovered to our enormous detriment.

This is obviously not new, beyond the situation causing the FA’s process to come under scrutiny, but it seems fair to argue that it does, in fact, merit scrutiny.

The recent Luis Suarez case raised the profile of the FA’s process enormously, suddenly large number of people were taking great interest in the workings of it, workplaces and pubs were filled with conversations on the subject, nowhere more so than in Liverpool, or wherever Liverpool fans met to talk.

As with the events of last autumn that introduced the language of business and finance, PIK loans and insolvency, into the lexicon of the football supporter, so this year brought us standards of proof, mens rea and the credibility of witnesses when measuring their evidence on the balance of probabilities.

So, what does this new found interest in the FA’s processes tell us? First, they seem to act, as has been recently noted by a sports lawyer, as “police, judge and jury all rolled into one”.

Now, this certainly seems to be the case. In respect of Luis Suarez, the FA conducted an investigation. The FA convened a panel. The FA made representations to that panel in attempt to secure a guilty verdict against Luis Suarez, and they did this using the FA’s rules.

Contrast this against the criminal courts. The police conduct and investigation. The police have to convince a separate body, the CPS, to pursue a prosecution, where it is then heard in front of an independent judge before a jury of your peers decides on your guilt. Quite a difference.

But, as the FA are keen to point out, they aren’t prosecuting a crime. Even though their process bears all the hallmarks of a criminal prosecution. You are charged, your are found guilty, you are fined –  a punitive act. When deciding on the issue of intent in the Suarez case they used a criminal offence as an analogy in their legal argument. But it’s not a criminal court, definitely not.

But if we agree that they are right, and that criminal standards shouldn’t apply, what standards should? In a civil court an independent judge makes a decision, after one party to a dispute has sued another. But the FA are an internal disciplinary body, so what rules normally apply here?

If you get in trouble at work your employer may sack you, but legally they will have to have held a fair and balanced investigation into all the facts, and arrived at a reasonable decision to do so. But they aren’t punishing you, it is recognition that your contract is fundamentally undermined by your actions. You won’t be facing a fine, and you can apply to a real court if it has been unfair.

Doctors and lawyers face great scrutiny, rightly, in their professional conduct, and face sanction from their respective professional bodies if found to be guilty, so is this the comparator we need? A doctor can be struck off, likewise a solicitor and they apply a flexible civil standard of proof, as do the FA. But is it that straightforward?

The Courts aren’t convinced. In R v Mental Health Review Tribunal [2005] the judge said:

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

But that’s not the only thing the courts have had to say, this from a case relating to football banning orders;  “While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the magistrates to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.”

So it is still the balance of probability, but if the offence, and the consequences of being found guilty, are more serious, then more evidence should be required before arriving at a decision. More evidence than one man’s word, maybe?

Did they do this for Suarez? Not in the opinion of Stuart Gilhooly, the solicitor for the Professional Footballers Association ofIreland, who says “Where they singularly and, in my view, disgracefully failed was in applying the standard to the facts. On many issues, their findings weren’t even close to highly probable.”

This is a view with which it is extremely hard to disagree.

So the waters are a little muddy for certain. Do the FA apply criminal standards? When it suits their argument they are happy to hint at it, yet when the chips are down they say no, we apply the civil rules. Yet not the guidance as to those rules quoted above.

Maybe they aren’t a criminal court. Maybe they aren’t a tribunal, interested in finding the truth, and acting accordingly, as your employer is required to do. Maybe, just maybe, they are a revenue generating mechanism?

Or maybe the FA just don’t know what they are trying to do. Interestingly, having heard 473 cases in 2011 when it came to one of the last ones, Suarez’s, they still didn’t know if their now infamous rule E (3) (1) required intent, and that legal argument played out in the hearing. Well, FA, did it need intent in the rest? Do you apply precedent to your pseudo legal process? Or does it not matter, as hardly anyone chances their arm in a personal hearing, preferring to write a cheque, take the ban and get on with it? Maybe the FA hadn’t actually had to consider it before. Or had they?

In 2007 Emre, then playing for Newcastle United, was charged by the FA with the same offence as Suarez following a match against Everton. The transcript of the hearing does not appear on their website, however, the following statement does.

“At a Disciplinary Commission hearing today, a charge against Newcastle United midfielder Belozoglu Emre was judged to be not proved. In its decision, the Commission stated that “having heard all the evidence presented, and having regard to the standard of proof agreed with both The FA and Newcastle United, we were not satisfied that the Charge was proved.”

So, the FA agreed a standard of proof with Newcastle. Not with us, they didn’t. And it wasn’t proven. But what was the evidence? This, from a Guardian article at the time sheds a little light.

Lescott stated in his written submission that Emre had called Yobo “a fucking negro”; Howard that he had called him “a fucking nigger”.

So, two slightly conflicting accounts, but two accounts nonetheless, and this was to provide sufficient doubt that the allegations were “not proven”.

It is fair to say that no good has so far come of the whole sorry affair. Liverpool handled their PR, and their legal defence like rank amateurs. Luis Suarez can’t play for eight games and got to write the FA a cheque for £40k plus costs. Patrice Evra, as ever, looks a bit of a tit and the tabloids, both in print and on tv got to portray the club and city of Liverpool in a bad light.

If one positive can come of this, then maybe the FA can review its disciplinary processes, because as things stand they are some way from fit for purpose. The recent scrutiny may just act as the catalyst for this, and it would, in all honesty, be in the interests of everyone if the big clubs, along with the likes of Chelsea and Man City, put pressure on them to do so, because, as we now know, any team’s players are only one allegation away from a season crippling ban.