Disciplinary actions

Should the decisions of football’s governing bodies be more like the courts, where justice must not only be done but must be seen to be done? Dianne Millen examines the case for change

Much as it may pain them to acknowledge it, football clubs are not above the law. Like any other business, they can be sued by disgruntled ex-employees, and if they sell off their ground for supermarkets they need a valid contract. And every player, from the Premiership to part-timers, is subject to the criminal law (albeit some more frequently than others).

Despite this, football is effectively self-regulating when it comes to disciplinary matters – an area where one might expect the law to have a say. Discipline of players, coaches and officials is the responsibility of national FAs, which have detailed procedures; in some matters, clubs are also subject to UEFA and FIFA regulations. These systems govern everything from an appeal against a yellow card to the expulsion of clubs for fans’ behaviour. If any dispute cannot be resolved, it can be taken to the Court of Arbitration for Sport in Lausanne, whose decision is final.

Football clearly needs some form of internal regulation for minor matters, but the scrutiny of the system following the Carlos Tévez affair has highlighted some of its drawbacks. Increasingly, football discipline seems to be operating in a quasi-judicial role, borrowing the trappings and language of the law to give its decision-making status, but without any of the safeguards in place that give the actual law its legitimacy. For example, precedent – the legal doctrine whereby previous court decisions are binding on subsequent panels, thus giving the law consistency – appears to play little part in disciplinary decisions, with numerous examples of players (or indeed clubs) being given different sanctions in very similar circumstances.

Some disciplinary cases can be very complex and it is debatable whether football has the capacity to deal with them adequately, especially those raising challenges of proof (eg “his word against his”). Last year the Scottish Football Association acknowledged their procedures were not good enough to deal with racial and sectarian abuse, after heavy criticism in the media and Parliament of their treatment of an allegation of racist abuse in a junior match. Then chief executive David Taylor acknowledged that “we require improved policies and processes that set out very clearly how complaints can be made and dealt with”.

Legal ideals of fairness also involve speedy and transparent decision-making, neither of which are always in evidence. Avoidable delays in disciplinary hearings have the potential to affect outcomes on the pitch. Could the Tévez commission have reasoned that fans would be penalised by a points deduction if the matter had been heard sooner? The fact that players can continue to appear when their appeals are pending also has potential for unfairness. For example, in March Hearts midfielder Laryea Kingston was “charged with misconduct” after accusing referee Steve Conroy of racism when he sent him off. The SFA’s disciplinary committee did not ban Kingston until May 1 and, when he appealed, there was a further delay because the SFA needed to convene a special appeals tribunal. Kingston was free to play on pending his appeal, appearing against Aberdeen, Hearts’ rivals for the last European place. As Aberdeen manager Jimmy Calderwood complained, “there are too many grey areas in these kind of situations and they are being exploited”.

A system where hearings are held by unknown officials behind closed doors, with a brief press release all that is seen of their decision-making processes, may no longer be appropriate to the level of scrutiny involved in the modern game and the financial consequences of their decisions. While nobody is suggesting that the disciplinarians themselves, many of whom are qualified legal practitioners, are incompetent or corrupt, it may be appropriate for some of their more significant decisions to be subject to the scrutiny of the “real life” law. Such a challenge may not be long in coming, following the European Court of Justice’s 2006 decision that sporting activity was not necessarily excluded from the jurisdiction of EU competition law if it constituted an “economic activity”.

Given the amounts of money that hang on certain decisions, and the increasing readiness of clubs and individual sportsmen to use the legal process, it cannot be long before someone mounts a serious legal challenge to football disciplinary decisions. If this gives the beaks in blazers a chance to review, simplify and improve their internal regulation, football at all levels will benefit.

From WSC 245 July 2007