John Terry's case - an overlap of criminal and disciplinary proceedings.

Lukomski, Jan

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 words). 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 [pounds sterling]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. The general stance on lack of mutual dependence of disciplinary and criminal proceedings was expressed in British jurisprudence (3)

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 (4) as well as with its former decisions, e.g. in Luis Suarez's case. (5) Katie Simmonds correctly points (6) at the report "The British Horseracing Authority and Integrity in Horseracing" by Dame Elizabeth Neville QPM. It clearly states that the disciplinary proceedings should not be stayed until the end of criminal case. (7)

There is a growing awareness of the powers that sport governing bodies wield. If sports governing bodies make such a great effort to secure their autonomy in resolving internal issues, then it should be also strongly emphasised that their rule- and decision-making procedures should comply with the fundamental principles of natural justice and law. The latter would include an appropriate level of legal certainty. In the relevant case, John Terry could have had a legitimate expectation that the acquittal will have a decisive influence on the disciplinary proceeding, since it was suspended until the end of the criminal proceeding.

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". (8) 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. At various occasions the European Court of Human Rights expressed the opinion that conferring the duty of adjudicating on disciplinary offences on professional disciplinary bodies does not infringe Article 6(1) of the Convention. (9) Yet this condition is satisfied only when either the professional disciplinary bodies themselves comply with the requirements of that Article, or when they are subject to subsequent review by a judicial body that has full jurisdiction and provides 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 the 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.

(1.) Full text of the verdict: www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/r-v-john-terry.pdf

(2.) Full Written Reasons of the Independent Regulatory Commission: www.thefa.com/News/governance/2012/oct/~/media/22A83175745E44468105B57232F085B7.ashx

(3.) See the High Court Of Justice Queen's Bench Division Administrative Court judgment Bhatt v General Medical Council [2011] EWHC 783 (Admin) (01 April 2011), par. 53: "(...) the purpose of disciplinary proceedings (regulation to maintain proper standards in the profession in the best interest of the public and the profession) is different from that served by the criminal courts; that the standard of proof is significantly different, such that there is no inconsistency between acquittal by a jury and a finding by a disciplinary panel that allegations are proved (as there might often have been at a time when the standard was the same); that evidence admissible before a disciplinary tribunal may differ in that different rules of evidence are likely to apply, and in part because judicial discretions may well be differently exercised (...) generally less strictly in the disciplinary context where at least the accused's liberty is not at stake.", available at: www.bailii.org/ew/cases/EWHC/Admin/2011/783.html

(4.) This policy is expressed in Chapter 1 (Article 3) "General provisions", which signifies its importance as one of the most fundamental principles of the football governing bodies.

(5.) Yet this case was not the subject of a criminal investigation.

(6.) K. Simmonds, Disciplinary: John Terry case: criminal proceedings vs. FA sanctions, World Sports Law Report, Volume: 10 Issue: 10 (October 2012).

(7.) "The second question is whether a disciplinary inquiry or disciplinary proceedings against a person can be commenced or continued in circumstances where that conduct may also amount to a criminal offence. The broad answer is that there is no rule of law that provides that merely because criminal proceedings are contemplated or have begun (or indeed that civil proceedings are contemplated or have begun) private disciplinary proceedings must be stayed pending the outcome of those proceedings. On the contrary, the courts have held that there is a substantial public interest in such disciplinary proceedings continuing unhindered.", "The British Horseracing Authority and Integrity in Horseracing", An Independent Review, Dame Elizabeth Neville DBE QPM, 13th May 2008, p. 29, par. 8.22, www.britishhorseracing.com/images/inside_horseracing/media/Neville_Review_Exec_Summ_Recomm_May_08.pdf

(8.) The FA Rules: www.thefa.com/TheFA/~/media/Files/PDF/the-fa-2012-13/2012-13-rules/fa_rules-2012-13.ashx

(9.) See ECHR rulings: Albert and Le Compte v. Belgium, 7299/75; 7496/76, Council of Europe: European Court of Human Rights, 28 January 1983, available at: http://www.unhcr.org/refworld/docid/3ae6b6f510.html;Gautrin and others v. France, 38/1997/822/1025-1028, Council of Europe: European Court of Human Rights, 20 May 1998, available at: www.hrcr.org/safrica/administrative_justice/gautrin_france

By Jan Lukomski *

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