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A shot in the dark: Should the FA Regulatory Commission have carte blanche to punish players who have committed serious violent conduct? On 21 April 2013 Liverpool and Uruguay forward Luis Suarez was seen by television camera, but not by the referee, to bite Chelsea enforcer Branislav Ivanovic.  Suarez immediately released a statement apologising for his actions and Liverpool fined the player an undisclosed amount.  Suarez was subsequently charged by the Football Association with violent conduct, which Suarez admitted, but disputed that the standard three match suspension would be clearly insufficient[1]. Incidents of violent conduct on the field of play that fall under Law 12[2] but which are not seen by a match official can still be pursued by the FA under the FA Disciplinary Procedures[3].  The test as to whether the standard three match ban should be increased, as set out at paragraph (b) (ii) of Schedule A to the Procedures, is where the circumstances of the incident “are truly exceptional” such that the normal three match ban would be “insufficient”. The FA are entitled to take into consideration a series of factors including the nature of the incident and the player’s state of mind; the level of force used; injury to the opponent; and the “wider interests of football in applying consistent punishments for dismissal offences[4]. Importantly, the guidance goes on to state that the Regulatory Commission (“RC”) “may increase any punishment if it believes... any claim by the Player that the standard punishment would be clearly excessive in their case, to have been an abuse of process or without any significant foundation[5]. The RC cited two recent examples of dismissals that had been considered to be “truly exceptional” and, therefore, might justify a suspension of more than three matches.  The first was Eden Hazard’s red card for kicking a ball-boy in Chelsea’s League Cup semi final against Swansea City in January 2013.  In that case, the RC found that the three match suspension was sufficient.  The second case cited was that of Ashley Barnes who was sent off during Brighton & Hove Albion’s match against Bolton Wanderers for deliberately tripping up the referee.  On that occasion the three match standard suspension was considered insufficient and a six match ban was handed out. Taking all the circumstances into consideration, the RC considered that Suarez’s offence was “significantly more serious than that of Ashley Barnes’, and accordingly, the punishment should be significantly higher[6] and ordered that Suarez’s ban should be increased to ten matches. There is no direct case law in the domestic game that deals with the suspension of a player who has bitten another.  Coincidentally, or not, the nearest comparison is a seven match suspension dished out by the Dutch Football Association when Suarez, then playing for Ajax, bit PSV’s Otman Bakkal. It is difficult to understand how the RC can distinguish between an individual who bites another, pushes another or kicks another.  All three circumstances are regrettable and outside the scope of a game of football – how one is punished by a three match ban and the other a ten match ban is incomprehensible, but it is within the discretion of the RC and given the widely drafted regulations, an appeal would not be likely to succeed. In fact, mainly for PR reasons, Suarez has decided not to appeal the ban imposed on him! The straw that broke the camel’s back appears to have been Suarez’s denial that a three match suspension would be insufficient.  The decision states that it appeared to the RC that Suarez “has not fully appreciated the gravity and seriousness of this truly exceptional incident[7] and that they were obliged to send out a “strong message that such deplorable behaviours do not have a place in football[8]. It is easy from a brief consideration of the Hazard, Barnes and Suarez cases to conclude that all three cases were examples of serious violent conduct and deserved punishment greater than the standard three match ban.  However, Suarez’s submissions represent a shot in the dark in persuading the RC that a minimal ban would be sufficient.  There is no codified guidance as to the length of bans open to the RC for specific violent conduct offences.  The RC needs to retain some discretion in order to deal with truly special circumstances, but a skeletal structure/tariff of bans would in itself act as a deterrent to unruly players and provide those that have offended with a guide as to what a proportionate suspension would be for a specific offence. There is clearly a need, therefore, for more clarification in the FA Disciplinary Regulations regarding violent conduct by players on the field of play!   John Wallace is a sports lawyer at the London Law Firm of McFaddens LLP and a Director of DBW, a sports management company.

[1], Page 4, Paras 10-11.
[4] Idem.
[5] Idem, Para D (ii).
[6], Para 83.
[7] Idem, Para 84.
[8] Idem, Para 87.

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