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Column: John Terry’s Case – An Overlap Of Criminal And Disciplinary Proceedings

October 8, 2012

On July 13, 2012 English football player John Terry (Chelsea Football Club) was cleared of a racially aggravated public order offence. He was accused of using racially abusive and insulting words towards Queens Park Rangers’ player Anton Ferdinand during a game between their teams on October 23, 2011. The Westminster Magistrates Court found that there was a reasonable doubt about Terry’s guilt.[1] Subsequently, the only possible verdict could be one of not guilty. There was insufficient evidence of what Terry exactly said, in what context, and with what tone. After the verdict, an independent regulatory commission of the Football Association (FA) unsuspended its own disciplinary proceeding investigating whether Terry was guilty of misconduct based on the Rule E3 (2) of the FA Rules 2011-2012 (racially insulting word). On September 27, 2012 the independent commission decided on his guilt and suspended him from all domestic club football for four competitive matches and fined the sum of £220,000.[2]

 

Had the FA the right to make a decision inconsistent with the court’s judgment? A criminal procedure, just as a civil procedure, is separate and different from a disciplinary procedure. They are independent of one another. Disciplinary sanctions are elements of wider contractual or social relations that exist between an athlete and a private sports association. The same offense, such as a racial insult, can be viewed as a breach of contract (i.e. the statute of the association or bylaw) as well as an infringement of law, e.g. a crime. For this reason, the disciplinary proceeding launched or unsuspended after the judgment of a court of law does not constitute a breach of one of the most fundamental legal principles – ne bis in idem. Moreover, the decisions made by disciplinary bodies may differ from court rulings.
In the said case the court used, as it always does, the criminal procedure standard of proof “beyond reasonable doubt”. It means that there was no certain evidence that could prove Terry’s guilt. The disciplinary body used a lower civil standard of proof that is “the balance of probability”. It assessed the credibility of both parties and the probability of what might have been said. Furthermore, the disciplinary body acted in compliance with its policy on fighting racism as well as with its former decisions, e.g. in Luis Suarez’s case.[3]

 

The next step that John Terry may take is to appeal to the Appeal Board. But what would happen, if it doesn’t reverse the independent commission’s decision?

 

According to section 3.2 of FA’s Disciplinary Procedures “A decision of the Appeal Board shall be final and binding and there shall be no right of further Challenge, save for only in relation to appeals to CAS brought only by FIFA or WADA pursuant to the Doping Regulations”.[4]  This precludes an appeal to higher instances of sporting judicial structures. This rule, however, cannot result in depriving an athlete of his right to appeal to the court of law. It would constitute a breach of Article 6 of European Convention on Human Rights, which guarantees a right to fair trial by an independent and impartial tribunal established by law in the determination of one’s civil rights. The European Court of Human Rights in Gautrin and others v. France judgment expressed an opinion that conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not infringe Article 6(1) of the Convention.[5] Yet this condition is satisfied only when either the professional disciplinary bodies themselves comply with the requirements of that Article, or they are subject to subsequent review by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 (1). To say the least, it is doubtful, if the said disciplinary commission fulfils the requirements of an independent and impartial tribunal established by law. Presupposing that suspension for a number of four games affects labour rights of John Terry, it can be asserted that John Terry is entitled to go to the court of law and have the disciplinary judgment revised and potentially reversed.

 

Jan Lukomski is a PhD candidate at Adam Mickiewicz University in Poznan and intern at the ASSER International Sports Law Centre.

Research

About: ASSER International Sports Law Centre

The T.M.C. Asser Instituut, together with its stakeholder universities, is currently aligning its research activities in four inter-university research programmes. These research programmes will form the core of the academic activities of the institute for the coming years. Each programme has its ow...

 

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