Friday, 5 October 2012

FA Regulatory John Terry Decision

The FA's Independent Regulatory Commission today published its written reasons for the decision in the John Terry racial abuse case. There are a number of interesting revelations, both about the events themselves and with regard to the process and reasoning. The key participants, Terry and Ferdinand, but also Ashley Cole, emerge with little credit intact.
The incident itself demonstrates the childish and ignorant behaviour which sometimes blights professional football. Terry and Ferdinand engage in a running dispute during which they verbally abuse each other, exchange shoulder barges started by Terry, who then tries to kick Ferdinand, and culminates with Terry racially abusing Ferdinand. All of this because Ferdinand believes that Terry has tried con the referee over a penalty and because Terry is upset that Chelsea are losing. Its pretty pathetic stuff. Terry's view of such goings on is revealed in comments to Ferdinand post match which  demonstrate football's unending dilemma with player behaviour "It's handbags init, it's what happens on the pitch, it happens". It should not.
Terry's defence team argued abuse of process and also that the FA was barred from proceeding by its own regulations. The arguments about abuse of process were rejected. The FA was perfectly entitled to pursue the regulation of the sport notwithstanding the outcome of the criminal proceedings. FA Regulation 6.8 created a presumption in Terry's favour because previous findings (the criminal case) were presumed to be correct. The FA were required to rebut that presumption by 'clear and convincing' evidence. The FA were entitled to rely upon the existing evidence and were not required to produce new or fresh evidence to succeed.
'Improbable, implausible and contrived'

The FA answered my previous question as to why Ferdinand (and in similar circumstances previously, Patrice Evra) was not charged with misconduct. The referee did not apply an on fiels sanction and it is FA policy not to take retrospective action with regard to abuse simpliciter under Regulation 3 (1) unless that abuse is directed at a match official or a 3rd party such as a spectator. There is a different policy in place in respect of the more serious 3 (2) charge which Terry faced. so if Terry had not used the word 'black' he would not have been charged at all.
Contrary to media reports, the FA did not invite a guilty verdict unless the Commission found that Terry had used the offending words as an insult. If Terry's defence was accepted the FA did not seek a finding in their favour. The verdict is accordingly a complete rejection of Terry's version of events.
There was legal argument about the standard of proof, resolved in Terry's favour. Interestingly the FA's own rules on this matter have changed since the incident and prior to the hearing. The standard is now 'the civil standard of proof''. Until 1.7.12 the standard was 'the flexible civil standard of the balance of probability, the more serious the allegation, taking into account the nature of the misconduct alleged and the context of the case, the greater the burden of the evidfence that is required to prove the matter'. This undoubtedly made it more difficult for the FA to prove its case.
Terry did not give evidence, in other words he declined to expose himself to the risks of cross examination. We do not of course know precisely why, but it as undoubtedly a factor in his defeat (an error?) even though the Commission expressly stated that they came to their conclusion without even applying any adverse inference in this regard. Even more surprisingly Anton Ferdinand was not cross examined.
The Commission concluded that Ferdinand did not accuse Terry of calling him a 'black c...'. Terry did not hear, or believe he heard, the word 'black'. In a damaging conclusion the The Commission found aspects of Terry's defence 'improbable, implausible and contrived'. It was much more likely that Terry was angry and that his words were an angry reaction to Ferdinand's provocation and the way that the match was going (Chelsea were losing and down to 9 men). The film footage does not support the Terry 'it was questioning' version of events. Terry only sought out Ferdinand an hour after the game and then probably because he realised that his words may have been witnessed or caught on camera. He asked Ferdinand 'what happened?' because he needed to know what Ferdinand knew or had heard.
The Commission found 'no credible basis' for Terry's defence and were 'quite satisfied' that the words were an insult.
New evidence was introduced. Terry's appalling behaviour (red card for off the ball assault) in the Champions League semi final v Barcelona came back to haunt him. Terry had given an account of the incident upon leaving the pitch which he was forced to retract later. It as argued that he had a propensity to be untruthful about what happened on football pitches. The Commission exercised its discretion under 6.8 to admit the evidence in theory, but found that there was no reliable evidence, before them, as to what Terry had said. This is nonetheless an important precedent for future use, players beware of microphones!
Coming Back to Haunt You

The Barcelona footage did though undermine key Terry character evidence that Terry possesses 'preternatural reserves of self control'. The Barcelona footage clearly showed that Terry was capable of losing that self control.
The only saving grace for Terry was that the neither the FA nor the Commission were saying that Terry was racist. There was a large body of evidence that Terry was not inherently racist.

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