THE FA: A LAW UNTO THEMSELVES

by Sam Jones

The FA, and their legal representatives will doubtless be relieved that in the aftermath of the release of their written reasons for the outcome they reached following the charges brought against Luis Suarez, that so much time, effort and emotion has been spent by so many people on completely missing the point.

Much has been made of the issue of “is Luis Suarez a racist”. The Daily Mirror think so. Manchester United fans seem to think so too, although many Liverpool fans don’t. It doesn’t matter. The question hasn’t even been addressed.

A lot of time and effort has been spent debating how the FA arrived at the conclusion that Evra is a more reliable witness than Suarez. Doesn’t matter, they are entitled to make whatever findings of fact that they like. The decisions of juries are far more serious and don’t undergo this scrutiny.

The only real remaining issue, in so far as it affects “what next” is the basis for an appeal. The FA’s rules say you can lodge an appeal for the following reasons;

(vii) The appeal may only be allowed on one or more of the following grounds:

(a) The Regulatory Commission misinterpreted or failed to comply with the rules or regulations relevant to its decision; and/or

(b) came to a decision to which no reasonable such body could have come; and/or

(c) the penalty, order or sanction imposed was excessive.

So this means that an appeal can be because they got the law wrong, the decision was clearly perverse or the sanction is too harsh.

Do any of these apply?

In spite of the feelings of many, the decision is not clearly perverse, nor is the sanction too great, assuming the validity of the outcome is accepted.

This leaves points of law. What points of law applied, and what points of law did the FA consider when reaching its verdict?

First is the “burden of proof”. This is the issue of who has to prove what. This rests with the FA, they have to prove Suarez’s guilt, not he his innocence.

Secondly, the “standard of proof”. This is the extent to which it needs to be proven. In criminal cases this is “beyond reasonable doubt”, for the purposes of the FA commission it is, as with civil law, “the balance of probabilities” so, is it more likely than not. Critically though, it is the “flexible civil standard”, so the more serious the allegation the more proof needed.

The final, and most controversial issue, is the matter of whether the FA’s disciplinary rule E 3(1) should have an “objective” i.e. do the panel feel the act has been committed, or “subjective” i.e. was the act intended, test applied. This is the issue on which the whole case turned.

The FA made a number of points relating to the applicable law. Their representative, Mr Paul Greaney QC is a barrister, a Queen’s Counsel no less. A QC is the elite amongst barristers, the Fernando Torres 08/09 of legal representation. He made their arguments, covering the area of law that is crucial to the case.

He made the assertion that the FA rule E 3(1) should be tested objectively. That is, it doesn’t matter what Suarez intended, only what the panel felt he had done.

In order to justify this he claims that it is analogous to some pieces of criminal law. This then, needs a little background.

In criminal law there a two principles, mens rea the guilty mind, and actus reus, the guilty act. Fitting perhaps that bad Latin creeps into the discussion of bad Spanish.

In order to be convicted of a crime it must be established that, not only have you done the act, but also that there is some element of intent. This may be outright intent, it may be negligence or even recklessness, but there is a mental component.

The are some exceptions to this, strict liability offences, but they are few and far between and include things like speeding or statutory rape. For these offences there can be no excuse of “I didn’t mean it”.

The FA made the case that rule E 3(1) was to be tested objectively – was strict liability. They likened it to an offence under the Public Order Act, Liverpool’s lawyer, seemingly the Christian Purslow of legal representation, noted this, but doesn’t seem to have pursed it very vigorously.

In effect the FA state that rule E 3(1) is analogous to a crime under the Public Order Act 1986. The part of the statute they quote is:

5 Harassment, alarm or distress.

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,

or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

They say the wording of this is similar enough to E 3(1) to use it as an analogy, and that because later in the same act it says;

(4)A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

The FA reasoned that because this is separate to section 5 that section 5 therefore does not have an inherent intention for a mental element for the offence.

All well and good, you might say. But they left out another part of section 5;

(3) It is a defence for the accused to prove—

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

So section 5 expressly provides for a mental element but the FA ignore it. So, either the FA’s QC is not legally competent, or, in order to make a case against Suarez they have resorted to outright mendacity in their legal reasoning.

There is a further issue here. If you are convicted of an offence under section 5 you are facing a fine of up to up to £1000, level 3.

In the same act there is a more serious version of this offence, providing for up to 6 months in prison, and a £5000 fine, the maximum a magistrate can issue. The wording is almost identical to the section 5 offence. The difference? Intent.

4A Intentional harassment, alarm or distress.

(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,

or

(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

Now, the FA reckon Suarez has committed a serious offence. They have banned him for 8 games and fined him £40,000. They say it’s serious, “wholly unacceptable” yet, the analogy they use in criminal law is the lesser of two almost identical offences. Incompetence, or again, mendacity?

In seeking to establish that a subjective test should be used they cite the House of Lords in a 1973 case. They ignore though, the following guidance from the same court on the issue of strict liability offences in the case of Sweet v Parsley [1970];

  1. Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision.
  1. It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
  1. The fact that other sections of the Act expressly require mens rea is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.

So, the highest court in the land basically forbids their line of reasoning?

And what do the FA do?

I’ll leave it to you to decide what the FA were trying to achieve here, suffice it to say, there appears to be, even to the untrained eye, more than grounds for appeal on a number of issues in law, and it would be fair to say the FA won’t really want this playing out in a real court with proper legal representation for Luis Suarez.

I wonder what Grabiner would make of it all?

20 Comments

  1. Grabiner’s been too busy defending Rupbert Murdoch

    and don’t think we can take the FA to a ‘real’ court without facing sanctions unfortunately

  2. If this is the work of an ‘untrained eye’, Shanks only knows what you could produce, after a bit of training. Impressive!

  3. I think you may have confused the objective test and strict liability. they are not the same thing.

    mens rea (intention) applied but only objectively.

    strict liability never requires any form of intention, it is taken as a given. Not the the same thing as the objective test.

  4. Emperor Kenny

    “The FA reasoned that because this is separate to section 5 that section 5 therefore does not have an inherent intention for a mental element for the offence.”

    The logic is faulty though.

    As you rightly say in the piece, crimes must have a mens rea. Thus, when Parliament makes something a criminal offence, they must specify the mens rea.

    The Commission decided that when Parliament enacted that a person “is guilty of an offence under section 5 only if he intends … ” then Parliament was indicating that Section 5 itself did not imply that intention was required.

    But that isnt true. The reason sub para 4 was required was simply so that people would know that the required mens reas was “intent” as opposed to “recklessness” or “carelessness”.

    I realise this is a bit of a technical point, but it is true nonetheless. ie the Commission erred on this point.

    It is irrelevant though. The Commission decided that Suarez did intend to annoy Evra. Unless that part of the decision is overturned, it makes no difference whether the test for “guilt” is the one the FA proposed (and the Commission accepted) or the one which Suarez’s side asked for.

  5. @ Anon – mens rea is by definition subjective – it is the individuals intent, recklessness, negligence etc when committing the act.

    The objective test the panel applied was “did Suarez (in the opinion of the panel) abuse Evra”. They did not apply a subjective test “Did Suarez intend to abuse Evra”.

    By removing the need for any intent – they argue the law at length in the reasons, they effectively create a strict liability offence. The words of Liverpool’s lawyer, as well as my own.

  6. Emperor Kenny

    “In spite of the feelings of many, the decision is not clearly perverse, nor is the sanction too great, assuming the validity of the outcome is accepted.”

    Some parts of the decision are perverse. The issue is whether reversing those parts would be sufficient reason for the appeal board to order a fresh hearing. (It is unlikely the appeal board would decide he was definitely fully innocent and that no new hearing was required).

    1. To decide that LS said “negro” 7 times despite Evra saying it was 5.

    2. To praise Evra for accurately and consistently remembering the word “negro” was used 5 times when
    (a) the Commission decided it was 7 (at least 6 of which were heard by Evra) and
    (b) Evra actually said the word “nigger” was used 5 time and
    (c) Evra said a (unspecified) word was said “at least 10 times”

    3. To decide that LS definitely was lying about saying “porque negro?”, and to use that lie on that issue as a reason to disbelieve all the rest of his evidence BUT then to decide that LS definitely did say “porque negro?” and use that as the 7th instance of guilt (and then use the fact he said the word 7 times as a justification for the level of sanction).

    4. It also seems perverse to decide that Evra did not know the word “negro” was the very common Spanish word for the colour black in view of PE’s own claims to have told the ref during the match that someone had called him “black”, and also in view of the proof that Evra is reasonably proficient in Spanish. His own evidence was that the Spanish for “your sister’s ladyparts” should not be translated literally, but means (he said) “effing hell” or somesuch.

    5. It is perverse to decide that PE’s claims in the ref’s dressing room were not different to the testimony he later advanced

    6. It is perverse to say Suarez changed his evidence re the “pinch” or that he was reluctant to answer the FA’s barrister’s questions on the “pinch”.

    7. It is perverse to say that the use of the English word “conciliatory” meant that LS was changing his evidence in his written statement when it was clear that he was arguing that all along, and surely has no idea what the English word “conciliatory” means, and surely had no idea the language experts had included it in their highly technical reports which were written in English.

  7. drakerichards

    In their own loony tunes world the FA can do what they like. They can bring a guilty verdict based on the colour of the defendants tie. The point would be to drag them out in to the real world: in to the English judicial system.Perhaps get some of FSG’s sharp suited Philadelphia lawyers on the case instead of Snigsby ,Snaggs and Noggins

  8. Just to make one point as an example, the FAs judgement says:

    It seemed to us to be a deliberate foul, and the referee awarded a free kick. The foul was committed by Mr Suarez kicking Mr Evra on his right knee.

    Please look at the video, Suarez tries to go past Evra and Evra tries to block him – Suarez right knee and Evra’s left knee collide. This is not a foul. Suarez did not kick him. Look, freeze frame and decide yourself.

    Is this not a basis for appeal in itself?

  9. http://www.mirror.co.uk/news/top-stories/2012/01/04/fa-chief-exec-in-email-race-row-still-working-for-governing-body-115875-23677761/

    Seems the FA won’t punish their own – maybe we should all email them and ask them the reason for this???

  10. Just check how many Latin American human rights and antiracist organizations uses the word “Negro” in its name. And these are just from Ecuador.
    The same happens in Cuba, Uruguay, etc, etc, in every Latin American country. Just search. But they say Suarez must apologize.

    http://www.flacsoandes.org/biblio/catalog/resGet.php?resId=38057

    Maybe they are hidden racists organizations… according to FA. Maybe they must apologize too.

    (Who was defending Suarez? They did not check that? Why they didn’t say nothing about that? Who were his lawyers?)

  11. Just check how many Latin American human rights and antiracist organizations uses the word “Negro” in its name. And these are just from Ecuador.
    The same happens in Cuba, Uruguay, etc, etc, in every Latin American country. Just search. But they say Suarez must apologize.

    http://www.flacsoandes.org/biblio/catalog/resGet.php?resId=38057

    Maybe they are hidden racists organizations… according to FA. Maybe they must apologize too.

    (Who was defending Suarez? They did not check that? Why they didn’t say nothing about that?)

  12. This is Stuart Gilhooly’s article http://afootballreport.com/post/15301344153/flaws-and-consequences-the-curious-case-of-luis-suarez

    I think it points to the fact that either LFC have decided to avoid taking on The FA knowing that it will damage the club irreparably or that Suarez must have come to the club with a further admissions making the case untenable. I don’t really care what has been said in club statements or by Suarez himself it counts for very little, in the end it’s just rhetoric.

    I resent being made to feel guilty by other fans for not supporting Suarez. I don’t know the guy, and his past form and misbehaviour tells me he is FAR from being an innocent choirboy, in fact quite the opposite. So, now we know he did at least once misuse the word he claims is non-perjorative in his country, that removes my responsibility for unconditionally supporting the guy. The CLUB is the important entity here, and the club should be protected from this sort of scandal. The club made a massive mistake sticking its neck out so far for one player, but I would expect no less of it and is just one reason why I love it.

    Suarez was undone by himself and his fairly inept law counsel, and ended up with a ban far exceeding that of which he was deserving. However, the dye is cast, and the ban must be served. It remains to be seen whether he will have the gumption to see out his contract or jump ship and let the stain on his character follow him to the end of his days.

    When Beckham came home after the famous red card at the ’98 World Cup, I seriously thought someone was going to snuff him considering the amount of animosity that was being directed his way. However, he stuck it out, keeping his mouth shut, and winning the haters over with his performances on the pitch. Look at the value of the Beckham brand today! I would advise Luis Suarez to do the same.

  13. Here we go again Nige – WE might not be able to take the FA to a proper court over this but? Luis CAN – He need ONLY allege Slander/Libel/Defamation of his Character leading to personal emotional harm/damage/distress etc – He is STILL a private citizen & could EASILY take the FA to task in a CIVIL court over this as is HIS RIGHT AS A PRIVATE CITIZEN!!!!

    WHEN are the timid cowards calling themselves our fans GOING To understand this!!! Also BTW? The CLUB might ALSO have an avenue such as this open to them if THEY feel defamed – Man United have threatened it on ex-employees, other organisations who open their mouths often enough. Wise up & Grow a pair Nige’ in short. There’s PLENTY of ways we/Luis COULD & CAN take on the FA over this STILL if we/he so wish And? There’s NOTHING the FA or anyone else can do to stop us. Live & Learn……….

    • I think that they should’ve applied the “doctrine of unclean hand” as they call it in law or “In pari delicto” (potior/melior est conditio possidentis), Latin for “in equal fault (better is the condition of the possessor)”[1] is a legal term used to indicate that two persons or entities are equally at fault, whether the malfeasance in question is a crime or tort.
      The phrase is most commonly used by courts when relief is being denied to both parties in a civil action because of wrongdoing by both parties. The phrase means, in essence, that since both parties are equally at fault, the court will not involve itself in resolving one side’s claim over the other, and whoever possesses whatever is in dispute may continue to do so in the absence of a superior claim. The doctrine is similar to the defense of unclean hands, both of which are equitable defenses. Comparative fault and contributory negligence are not the same as in pari delicto, though all of these doctrines have similar policy rationales.
      However that would only happens if they were interested in justice, and we all know the answer to that one.

  14. R. Anderson

    Hi Sam,
    You do not disagree with the report’s primary or secondary reasons for testing rule E 3(1) objectively. That “The starting-point is the natural and ordinary meaning of the words of Rule E3(1)” and that this is “a straightforward question, uncomplicated by legal technicalities” (Paragraph 58). And that “it would be highly surprising if the subjective test applied to some of the other types of behaviour prohibited by Rule E3(1)” (paragraph 59) and that it “would be an odd conclusion to reach that the drafters of Rule E3(1) intended a different test to apply to different parts of the same Rule.” (paragraph 60).

    You also do not seem to disagree with parts of the third reason. That “Similar wording to Rule E3(1) is now found in section 5(1) of the Public Order Act 1986” (paragraph 65) or that “Parliament would not have deemed it necessary expressly to provide for subjective intention via section 6(4) if that requirement was already inherent in section 5” (paragraph 67). Your summary thus far is “All well and good, you might say”.

    Your key suggestion is that 5(3) of the Public Order Act expressly provides for a subjective test. Even though this is untrue and contradicts what you seem to believe previous to that, it’s actually irrelevant because the words of 5(3) of the Public Order Act are not analogous to any of the words of rule E3, which is precisely why it is 5(1) of the act that is being used in the analogy NOT 5(3).

    Another example of you misunderstanding the use of analogous legal provisions in civil law is your criticism “the analogy they use in criminal law is the lesser of two almost identical offences. Incompetence, or again, mendacity?” You are correct that section 5(1) and section 4A(1) of the Public Order Act are “almost identical” and to state “The difference? Intent”. That is actually WHY section 5(1) was used rather than section 4A(1), because it has greater parity with the words of Rule E3(1) which likewise does not state intent.

    More examples of you misunderstanding the use of analogous legal provisions in civil law is your incorrect belief that guidance for criminal law applies to civil law and that the objective test being used equates it to a strict liability offence. This is not the case and paragraph 70 discusses why similar extrapolation is inapposite.

    Finally, your entire article is rendered irrelevant by paragraph 399 stating, along with it‘s reasoning, “Had we decided that the test for a breach of Rule E3(1) included a subjective element, we would still have found the Charge proved”, which you fail to mention.

  15. Sorry I’ve just skimmed through this and wanted to point something out to R.Anderson. You said that the entire article is rendered irrelevant by paragraph 399 of the report where they FA stated that even if they used the subjective element then they would still have found the charge proven.

    You fail to mention that in paragraph 383 the report states that the FA do not believe Suarez meant it when he said, ‘because you are black’ and ‘I don’t speak to blacks’, nor do they believe that Suarez was trying to get Evra sent off. His comments were said in the heat of the moment with no intention. Without intention which the FA clearly state he did not have, they could not prove the subjective element.

  16. Jamie Walsh

    Doesn’t it make you wish the country’s football writers would know more about the laws of our game and the problems the FA create and report on it, rather than splashing RACIST headlines all over the place not bothering to understand why people are upset?

    Great piece and it is an embarrassment to the professionals that this stuff gets hidden away while their opinions are broadcast as facts.

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