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“An injury is much sooner forgotten than an insult”: An analysis of the John Terry Criminal and Regulatory cases

October 10, 2012

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  • The judgment of the criminal case at Westminster Magistrates’ Court (Mr Howard Riddle presiding) between – R v. John Terry (13 July 2012) will be referred to as [WMC].
  • The ruling of the regulatory commission hearing between the Football Association v. John Terry (24th-27th September 2012) will be referred to as [RegComm].

The incident between Chelsea defender, John Terry (JT) and QPR defender, Anton Ferdinand (AF) occurred during the course of an FA Premier League match between Chelsea FC and Queens Park Rangers (QPR) on 23rd October 2011. From an initial altercation, both players attempted to wind each other up through the exchange of a number of ‘industrial’ phrases. JT suggested that AF’s breath smelt, while AF responded with a slow fist pump gesture and made abusive allegations about JT sleeping with his “team mate’s missus”. It was following this latter gesture, that JT made the now infamous statement:

“F*** off, F*** off…[missing disputed words]… f***ing black c**t, f***ing knob-head.”[RegComm: 1.5]

On 22nd December 2011, after an unidentified member of the public lodged a formal complaint, JT was charged with a racially aggravated public order offence:

“using threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with Section 28 of the Crime and Disorder Act 1998, contrary to Section 5 of the Public Order Act 1986 and Section 31(1)(c) and (5) of the Crime and Disorder Act 1998.”

As the criminal case, took priority, the FA disciplinary proceedings were stayed until the conclusion of the criminal case (itself temporarily delayed due to a Chelsea FC request to have it heard after the European Football Championships). It was therefore not until the 27th July 2012 that The FA charged JT with:

“Misconduct pursuant to Rule E.3(1) of it rules and regulations which included a reference to the ethnic origin and/or colour and/or race of Mr Ferdinand within the meaning of Rule E.3(2).”

Although AF admitted that he used abusive and insulting words and behaviour towards JT contrary to FA Rule E.3(1), he was not charged alongside JT as the FA Policy is to only apply on-field sanctions to breaches of E.3(1) rather than take retrospective action, unless the conduct is directed at a match official or third party (spectator) [RegComm: 3.5].

 

When is a question a question?

While all parties agree that JT spoke those words, the crux of both the civil and criminal cases hinged on the disputed words in the middle of the sentence. JT argued that AF had accused him of racial abuse first, and therefore his statement should merely be seen as a forceful rebuttal to AF’s initial comments rather than any new insult [RegComm: 3.4 / 6.2]

JT’s account was corroborated by Ashley Cole (AC), indeed JT even went as far as saying that AF was “not telling the truth in denying that he had used the words first” [RegComm: 6.2]

By contrast, both The FA and the Crown argued that JT had spoken the words to insult or abuse AF.

Unfortunately, despite expert analysis from lip-readers in the criminal trial, it was not possible to definitively identify the exact words used in this middle part as although the match was televised live (and clips subsequently uploaded on the internet), two Chelsea players (John Obi Mikel and Ashley Cole) obscured JT’s face during the disputed part of the sentence. There was similarly no clear camera view of what AF had said immediately prior to JT’s statement.

Interestingly, JT was acquitted in the criminal case, but was subsequently found guilty by the FA Regulatory Commission and received both a four match ban and an index-linked financial penalty of £220,000 plus costs.

So why were there different results on what were ostensibly the same facts?

 

The Criminal Case

While the Chief Magistrate (Mr Riddle) made it clear that he felt that:

  • the prosecution had a ‘strong case’
  • there was enough evidence for the case to go to trial [WMC: Page 7]
  • that JT’s explanation was ‘unlikely’ [WMC: Page 6]
  • and that it was unlikely that AF accused JT on the pitch of calling him a ‘black c**t’ [WMC: Page 14]

ultimately he accepted that “it was possible that Mr Terry believed at the time, and believes now, that such an accusation was made” [WMC: Page 14] and given the lack of hard evidence to rebut this view, this doubt was enough to militate a not guilty verdict.

Had this case been brought in Scotland, this may have been a Not Proven verdict, as Mr Riddle’s comments do not exactly represent a glowing endorsement of either JT or AC’s evidence. Indeed, the Regulatory Commission perceptively note at [RegComm: 6.7] that the Chief magistrate’s analysis was couched in terms of “possible” rather than “probable”.

That said, Mr Riddle does also point to inconsistencies and discrepancies in AF’s evidence [WMC: Page 5] and makes the suggestion that despite his evidence to the contrary, it was possible that AF could have been aware of what JT said at the time “but found it easier to say that he wasn’t” [WMC: Page 6] and when AF went to away team dressing room to meet JT & AC, it could have simply been to put the incident behind him.

  

The Regulatory Commission of the FA

Although the Regulatory Commission case adopts a very similar approach, it is worth highlighting a number of important issues.

Double Jeopardy?

JT not only denied the substance of the charge, but challenged the very validity of the charge letter and the jurisdiction of the FA suggesting that the case was an abuse of process and procedurally barred under Regulation 6.8 of the FA Disciplinary Regulations [RegComm: 3.2]

This argument was however rightly dismissed by the Commission. In doing so, they made an important clarification that this was not the FA having a second bite of the cherry, but rather its first bite since “the purpose of the criminal proceedings that were brought by the Crown was not to regulate football” [RegComm: 5.16].

In practical terms, this meant that the Commission was not bound by any of the findings of the Chief Magistrate and could revisit the existing evidence, or consider new evidence in light of the lower civil standard of ‘balance of probabilities’ rather than the stricter criminal test of ‘beyond all reasonable doubt’. This is a longstanding convention, and has been applied worldwide to cases as diverse as OJ Simpson to doping and hooliganism. In this case however, the Commission laid out 4 potential scenarios for sports regulators who considering bringing a disciplinary case after a civil or criminal action [RegComm: 5.14]. For ease of understanding, I have converted these scenarios into a matrix:

The FA could therefore simply resubmit identical evidence from the criminal trial to be considered by the Regulatory Commission. Ironically, the high-profile nature of JT actually counted against him in this regard, as usually the only clearly known facts that are discernible from a criminal case are the acquittal or conviction, unlike the full narrative verdict given in a civil case. In JT’s criminal trial however, the Chief Magistrate prepared a 15 page written verdict which provided a number of material findings.

For me, this provided one of the undoubted highlights of the Disciplinary Panel ruling at [RegComm: 5.8] where the Panel noted that:

“Mr Carter-Stephenson [JT’s counsel] argued that the only “facts and matters” in the judgment that are relevant to the result are those that favoured Mr Terry in the decision that was reached and not those that were adverse to him” – bonus points for effort I suppose!

 

Evidence

Perhaps the biggest difference between the criminal and civil (disciplinary) approaches was in relation to the evidence.

For example, the Regulatory Commission allowed newspaper and video evidence of a match against Barcelona in order to rebut evidence given in the criminal trial that JT had “unusual qualities of self-control and leadership” [WMC: Page 8]. In doing so, the Regulatory Commission treated hearsay evidence as: 

“being inclusionary and can be given such weight as the court thinks fit, unless and until any other issue as to its admissibility is raised which might limit its exclusion.” [RegComm: 7.15]

In this particular case, the video evidence showed “matters that are relevant to our overall assessment of disposition, demeanour and conduct during the critical phase of the match against QPR.” [RegComm: 7.18] by undermining JT’s credibility and character.

This was very much a theme throughout the disciplinary hearing as the Regulatory Commission took a much more hostile view of the witness testimony, and in particular JT’s decision not to give evidence. While the Panel was at pains to stress that it did not make adverse findings against him for not giving evidence, by allowing inconsistencies and criticism to go unchallenged, this is essentially what happened.

The Commission also effectively all but accused JT, AC and the Chelsea Club Secretary, David Barnard (DB) of lying:

  • “…we are driven to conclude not just that it is ‘highly unlikely’ that Mr Ferdinand accused Mr Terry on the pitch of calling him a ‘black c**t’, but that he did not.” [RegComm: 7.7(i)]
  • “That Mr Terry did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’, or any word(s) that might have suggested that he was accusing Mr Terry of racially abusing him” [RegComm: 7.7(ii)]
  • “That Mr Cole did not hear, and could not have believed, understood or misunderstood Mr Ferdinand to have used the word ‘black’ or any other word beginning with the word ‘B’ that had any reference to, or context with skin colour, race or ethnicity…” [RegComm: 7.7(iii)
  • “There are then further aspects of Mr Terry’s defence that the Commission finds improbable, implausible and contrived…” [RegComm: 7.8]
  • “All of this causes the Commission to have very real concerns about the accuracy of Mr Barnard’s recollections and the motivation for the assertions that he makes in his witness statement about what Mr Cole said in during the FA interview” [RegComm: 7.37]
  •  “….shows Mr Barnard’s recollections to be materially defective.” [RegComm: 7.38]

 

 Learning Points for the FA

Of possible note for the FA disciplinary team is that the Commission report highlights two learning points. The first is that the debate over whether AC’s evidence had ‘evolved’ or had been misquoted by the FA investigators could have been avoided had the interview been taped and transcribed and this is something the FA may wish to consider for future investigations.

The second relates to concerns about the inadequacy of the disclosure of FA evidence [RegComm: 8.1]. In particular, the Commission was scathing about the lack of “any kind of established system, procedure or protocol for dealing with the type of disclosure order that was made in this case.” [RegComm: 8.2]. Although the Commission did note that it was reasonably satisfied that the FA had complied with its disclosure obligations, this may be something the FA may wish to revisit to avoid any difficulties in future cases.

  

What constitutes Racism?

Finally, at times both the Magistrates Court and Regulatory Commission seemed to perform linguistic somersaults and contortions worthy of a place on an Olympic Gymnastics team:

“It is not the FA’s case that JT is a racist” [RegComm: 3.4]

And similarly at [WMC: Page 2]: “The issue for this Court to decide is not whether Mr Terry is a racist, in the broadest sense of the word. I have received a substantial volume of unchallenged evidence from witnesses, both in person and in writing, to confirm that he is not…..the issue between the defendant and the Crown is whether Mr Terry uttered the words “f***ing black c**t” by way of insult. If he did then the offence is made out, regardless of what may have motivated him.”

Readers may remember that this was very much a theme that arose in the earlier Suarez incident. It is perhaps worth considering going forward that if using racially aggravated words does not constitute racism, what exactly does? Can one incident be excused or is once one time too many?

For all the media hype surrounding the perceived witch-hunt of John Terry, this case is notable for the confirmation that sport is not above the law, but rather that difficulties in establishing the quality of evidence may mean that internal sporting bodies are better placed to robustly deal with disputes, it is just a shame that on this occasion it has taken so long to do it.

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Matt Stevens starts 2yr Drug Ban

March 6, 2009

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Source: http://news.bbc.co.uk/sport1/hi/rugby_union/my_club/bath/7915732.stm; http://www.guardian.co.uk/sport/2009/jan/22/matt-stevens-bath-england-suspension;  

Matt Stevens (England prop) has received a two-year drugs ban until January 18th 2011, after testing positive for a prohibited substance (though to be cocaine) during a routine urine sample, last December. The ban covers all aspects of rugby (playing / coaching / even promoting the sport). Stevens has opted not to appeal and instead accepts “full responsibility” for his actions.

 

He is quitting his club rugby side, Bath, to spare them any further embarrassment, and instead will focus attention on opening a new cafe (Jika Jika) this summer in Bath.

 

Martin Johnson (England Rugby Manager) has commented that: Matt has admitted that he has a problem and is seeking help. We support him in that but all rugby players must understand that they are responsible for their actions, and that includes lifestyle choices.”

 

As Cocaine is also a Class A recreational drug, Stevens is lucky that he is not facing imprisonment or criminal charges. Lets just hope that the new cafe is not like the ones that you can find in Amsterdam!

 

See the Sky Sports Interview here: http://news.sky.com/skynews/Home/video/Matt-Stevens-England-Rugby-Player-Admits-Taking-Drugs-And-Faces-Two-Year-Ban/Video/200901315207503?lid=VIDEO_15207503_MattStevensEnglandRugbyPlayerAdmitsTakingDrugsAndFacesTwoYearBan&lpos=searchresults

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UEFA Riot Appeal

February 11, 2009

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The names of 29 men suspected of being involved in rioting at last year’s Uefa Cup final have been given to police.  It comes after images of 49 men were posted on the internet and released through the BBC’s Crimewatch programme. Disorder began before kick-off between Rangers and Zenit St Petersburg in Manchester last May. The resulting violence saw officers and supporters clash in the streets, resulting in a number of injuries and criminal damage (Rangers eventually lost the match 2-0).

After studying hours of CCTV footage, pictures of 49 people police want to trace were placed on the force’s website on Tuesday. The suspects posted on the internet were all involved in violent disorder, with some responsible for assault, criminal damage, looting and a variety of other offences.

Source:  http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/7855228.stm

The images of the unidentified rioters can be found here: http://news.bbc.co.uk/1/hi/in_depth/7854173.stm

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Tevez’s Bentley seized

February 11, 2009

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The 25-year-old Manchester United and Argentina international was stopped by traffic officers close to Junction 7 on the M60 near Stretford, Greater Manchester . His car has been impounded.

A Police Spokesman confirmed that: “The officers were concerned certain windows were illegally tinted. They were tested and found to be too dark so a prohibition notice was issued to the driver. When asked to provide his documentation, it was discovered the driver did not have a full UK driving licence and was advised to arrange removal of the car. As he could not arrange this, the car was removed under Section 165 of Road Traffic Act 1988.”

Source: http://news.bbc.co.uk/1/hi/england/manchester/7876308.stm

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Poll suggests that Canadians are against fighting in the NHL

January 29, 2009

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On a similar vein, a recent poll conducted by Harris-Decima, suggested that 54% of canadian respondents oppose fighting in the NHL. If this is indeed true, this survey seems to go against much of the conventional thinking that audiences flock to the sport because of, and not in spite of, the fighting on the ice.

“Fighting in hockey has resurfaced as a hot-button issue in recent weeks because Don Sanderson, an Ontario senior men’s league player, died recently after a fight in which his head hit the ice. Another player suffered a seizure after a fight in the AHL.”

The NHL says the topic will be addressed at this season’s general managers meeting in March., so watch this space….

Source: http://sports.sympatico.msn.cbc.ca/abc/News/ContentPosting.aspx?isfa=1&feedname=CBC-SPORTS-V3&showbyline=True&date=true&newsitemid=fighting-survey090127

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‘Barbarity’ rules NHL

January 29, 2009

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Jon Heshka has written another commentary on the state of the NHL in the Canadian newspaper – The Province. The article discusses the current lack of respect sweeping through the game

“Despite denouncements by the league and rules against such conduct, players are hitting one another harder (into the boards or open-ice checks), hitting higher (in the head) and hitting with a weapon (a hockey stick) more than ever before. Lost is a respect for the game and a willingness to “cross the line” with late hits and cheap shots.”

You can read the full article here: http://www.theprovince.com/Sports/Barbarity+rules/1221208/story.html

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Prison football

January 29, 2009

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Former Plymouth Argyll goalkeeper, Luke McCormick (who was recently jailed after killing two young boys in a crash while drunk behind the wheel) has been signed up to for the Channings Wood Prison football team. Apparently, prison team officials have now sent a registration form to the South Devon League requesting McCormick be allowed to play for their Division Two side.

League secretary Lisa Buley told Sky News Online: “I think it’s poor taste him getting permission to play, but our hands have been tied by the FA. Personally, as a mother-of-two, I don’t think he should be allowed to because those two little boys he killed will not play football again, but we can’t bring our personal views into it.

The final say now rests with the prison’s governor Jeannine Hendrick, who is understood to be backtracking on McCormick’s league registration. The prison refused to discuss the matter when contacted by Sky. A spokeswoman would only say: “We do not comment on individual prisoners.”

Source: http://news.sky.com/skynews/Home/UK-News/Luke-McCormick-Causes-Storm-After-Being-Signed-Up-To-Play-For-Prison-Football-Team/Article/200901415210692?f=rss

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Coin throwing incident

January 19, 2009

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“The man who appeared in court in Birmingham today charged with throwing a coin at an assistant referee during this season’s Villa Park encounter between Aston Villa and Portsmouth is a company director, it has been revealed. 43-year-old John Billington threw the coin into the crowd as a an act of frustration at the 0-0 draw he was witnessing. The 50 pence piece unfortunately connected with linesman Phil Sharp’s forehead, leaving the official with a 1.5cm cut and knocking him off his feet. A police inquiry was launched into the incident immediately, and the police were able to use CCTV footage to establish from which row of seats the object had been thrown.

Mr. Billington, the managing director of an engineering firm and the father of two daughters aged six and ten, was “profoundly ashamed” according to his defence lawyer, gave himself up soon afterwards and today in court admitted the offence. The judge adjourned sentencing until February 5, but Mr. Billington was told to expect a football banning order of at least three years in addition to a community punishment.”

Source: http://www.goal.com/en-india/news/1445/aston-villa/2009/01/15/1062923/when-coin-throwing-fan-turns-a-managing-director

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‘From Fights to Bites’

January 19, 2009

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Jon Heshka has recently published a passionate commentary on Ice Hockey violence within the National Hockey League (NHL) in Canada. Definitely worth a read as it illustrates the downward spiral of excessive violence currently plaguing the sport.

Source: http://www.winnipegfreepress.com/opinion/westview/from_fights_to_bites.html

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Gerrard arrested

January 6, 2009

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UPDATE: Steven Gerrard appeared in Southport Magistrate’s court with two other defendants (Ian Smith & John Doran). All three have been granted bail and are due to return to court on March 20th. Gerrrard pleaded not guilty to charges of assault and affray.

Source: http://www.guardian.co.uk/football/2009/jan/23/steven-gerrard-assault-charge

 

Steven Gerrard MBE was arrested on Monday December 29th following a fight at the Lounge Inn, Southport. He had gone there on Sunday evening with friends following Liverpool’s win at Newcastle. Allegedly McGee (the victim) had been in charge of the bar’s music system and had refused to let Gerrard select a song. According to witnesses, Gerrard then pushed past McGee catching him with his elbow. Mr McGee then retaliated and swore at Gerrard, at which point one of Gerrard’s friends allegedly smashed a beer bottle over McGee’s head. McGee was taken to hospital where he received four stitches to his forehead and treatment on a cut nose, swollen eye and dislodged tooth. Police have arrested Gerrard and five other men in relation to the incident. All are charged with Affray and Assualt occasioning Actual Bodily Harm and are due to appear before magistrates on January 23rd.

Source: Daily Mail, The Times: http://www.timesonline.co.uk/tol/sport/football/premier_league/liverpool/article5412689.ece, BBC Online: http://news.bbc.co.uk/1/hi/england/merseyside/7802932.stm

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