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Restoring Respect: Why Mediation could have provided a better solution to the Suarez/Evra case

February 19, 2012

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Report of the Independent Regulatory Commission: http://nav.thefa.com/sitecore/content/TheFA/Home/TheFA/Disciplinary/NewsAndFeatures/2011/luis-suarez-written-reasons

See also: http://www.guardian.co.uk/football/blog/2012/feb/12/liverpool-apologies-luis-suarez-manchester-united; http://www.guardian.co.uk/football/2012/jan/01/fa-report-luis-suarez-patrice-evra

Rightly (or wrongly), the Suarez/Evra case has dominated discussions in the media since November, while the FA may have felt that Liverpool FC’s decision not to appeal the Commission’s verdict meant that they could draw a line under the incident; following ‘handshake-gate’ last week, the controversy has re-ignited once again. This article will examine whether the use of mediation instead could have provided all parties with a much more effective and lasting solution.

 

RACIST LANGUAGE

The original incident was sparked by a foul during the 15th October 2011 Premier League fixture between Manchester United FC and Liverpool FC at Anfield. The match was always likely to be fiercely contested, however on this occasion Luis Suarez (Liverpool striker) fouled Patrice Evra (Manchester United captain / left back) in the 58th minute. On the 63rd minute, as Evra was marking Suarez for a Liverpool corner, heated words were exchanged in Spanish between the two players over the earlier foul. Evra subsequently alleged that racist language was used by Suarez towards him.

Following an investigation, on 16th November, the Football Association (FA) charged Suarez with Misconduct contrary to FA Rule E3:

  • using abusive / insulting words and/or behaviour towards Mr Evra contrary to Rule E3(1) [A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour]
  • and inclusion of a reference to Mr Evra’s ethnic origin and/or colour and/or race in breach of E3(2) [In the event of any breach of Rule E3(1) including a reference to any one or more of a person’s ethnic origin, colour, race, nationality, face, gender, sexual orientation or disability (an “aggravating factor”), a Regulatory Commission shall consider the imposition of an increased sanction…..]

Suarez denied all the charges and requested a personal hearing.

An independent Regulatory Commission met between 14-20th December 2011 to hear the charges, and after lengthy deliberations, found the charges proved (although not in their entirety). The panel imposed a £40,000 fine, suspension for eight first team matches and warned Suarez as to his future conduct as well as ordering him to pay costs [8].

Last Saturday, having fully served his suspension, Luis Suarez was back in the team to play Manchester United at Old Trafford. In the customary Premier League pre-match handshake, Suarez deliberately bypassed Evra’s outstretched hand and in doing so exacerbated what was already an incendiary situation.

So what could have been done differently?

 

MEDIATION & RESTORATIVE JUSTICE

This article will suggest that had the FA used mediation, instead of, or indeed to supplement their traditional disciplinary mechanism, then the conflict could have been resolved.

The initial Suarez case effectively turned on which player’s account of events you believed. While both players agreed on how the incident started, there was considerable divergence on what exactly was said, when, in what context and by whom. Rightly or wrongly, when the affair then became publicly aired through the media, positions hardened, and given the prospective penalties if either accusation was proved (Suarez is a racist, or Evra is a liar), it is perhaps unsurprising that many people came out in support of their respective favourite (resulting in the now infamous Tshirts worn by the Liverpool players and the Klu Klux Klan mask printed in the Manchester United fanzine). The problem is that each action taken immediately after the match escalated the dispute, raising the stakes and firmly entrenching the battle-lines between each side. By the time of the hearing, the solution was always going to be win-lose.

In light of these tensions, the key question therefore becomes was the disciplinary commission hearing the right solution to this problem, or at worst, did it further inflame the situation? This article will suggest the latter. To understand why, it is worth pausing for a second to define mediation. Essentially mediation is one of the oldest forms of conflict resolution and uses neutral third parties to facilitate discussions with all parties in order to resolve the issues in dispute, in a non-binding process. While it is true that the disciplinary commission was comparatively informal, it could not be further removed from mediation.

By its very nature, the disciplinary commission was inherently adversarial and arbitrary. The commission decided any facts in dispute, whether the FA charges had been proved or disproved, and what sanctions, if any, should be awarded. The victim (Evra)’s role in the process was limited to giving evidence on behalf of the FA (witness), while the offender (Suarez) effectively spoke through his legal counsel who made excuses on his behalf (spectator). At no time was there the opportunity to examine and challenge the underlying motivation that led to Suarez’s comments. Instead, once the charge(s) had been proved, a penalty was imposed and the case was closed. Is it any wonder then that after the penalty was spent, tensions between the two players still persisted?

In reality, none of the stakeholders achieved a successful resolution to the conflict:

  • Evra did not receive an apology, indeed he was accused of fabricating malicious lies [327], slighting Suarez’s regional identity (later rejected by the panel [363]) and was ultimately held by the Panel to have initiated the confrontation [240] and used an offensive phrase towards Suarez [87]
  • Suarez was held to have spoken abusive and insulting words which had racial elements to them [392] and was branded as a racist in the media, although the FA [223], Commission [454] and Evra [232] all expressed a belief that Suarez was not a racist
  • The incident flared up again the next time the teams played, causing damage to the FA Respect campaign.

 

Instead, a better approach would have involved traditional mediation or included an aspect of restorative justice (a Victim-Offender Reconciliation Program (VORP) inspired by the Canadian ‘Elmira case’).

This latter model is based on four key principles (see E Gillman’s paper for more details):

1) Understanding that the wrong was committed against a specific person (Patrice Evra) rather than necessarily society. While it is true that in saying what he did, Luis Suarez undermined the FA Respect and Kick it Out campaigns, any public protection argument should be balanced with the need to reconcile the two players and repair any damage committed

2) Challenging attitudes toward offender – in particular how to re-integrate the offender (Suarez) back into the community as a positive citizen

3) Challenging the retributive response – the focus of restorative justice is on providing a range of opportunities for dialogue, negotiation and problem solving in order to encourage accountability, rather than simply imposing punitive sanctions (£40,000 fine, eight game suspension)

4) Victim participation in process – those who have been harmed (Evra) by the offender should have a primary, active role in determining what needs to be addressed, being given the opportunity to be acknowledged and heard, having a role in how the resolution should happen and receiving support services for healing and closure.

While such a system is becoming increasingly common in the criminal justice system, disciplinary frameworks in sport are still comparatively traditional and punitive. Interestingly, under Article 1 of its mediation rules, the Court of Arbitration expressly excludes mediation from all disputes relating to disciplinary matters. This article is not suggesting that such an approach would necessarily be appropriate for all potential offences, for example prosecuting doping offences would be an obvious example where attempts at mediation might be inappropriate, however there were three distinct opportunities where mediation techniques could have provided a better solution to the Suarez case.

 

MEDIATION BEFORE ANY HEARING

The first opportunity was to have mediation occur before the commission hearing. Professional Footballers’ Association (PFA) Chief Executive (Gordon Taylor) did offer to mediate between the two players immediately after the incident, however his offer was rejected.

While I appreciate that it was important to have a full inquiry into the incident, mediation still has its place. One model that could have been used was the German penal model which integrates VOPR into criminal procedure and sanctioning. Such a system encourages voluntary mediation to take place before trial in order to attempt early reconciliation between the parties. Any apology, restitution or compensation that is agreed between the parties prior to the trial can then be used to mitigate any sanctions that would have been imposed subsequently. Such an approach would have had a number of advantages in this case, as the parties might have been less hostile at any commission hearing. If the prime motivation for Evra was to receive an apology and personal redress from Suarez, he would have been far more likely to receive this in a private mediation session rather than the public and considerably more formal commission hearing. It could have also negated much of the hostile media coverage of the incident; Suarez would have similar incentives for participating, as an early admission of his culpability may have defused many of the tensions thereby improving his position in relation to any penalties imposed by the FA. The speed that mediation can occur would also have enabled the incident to have been defused in a much quicker timeframe.

Of note, is that the Mediation process is still valuable even if the parties ultimately fail to agree any resolution as it enables the key issues to be identified for any later hearing and the parties to have at least heard each other’s point of view. Had the clubs (and players) not been of equal international status and resources, mediation would have also been useful for reducing any potential power imbalances between the parties.

 

MEDIATION DURING THE HEARING

Using mediation during the hearing may have broken down a lot of the animosity and helped the panel to reach findings of fact quicker. It would also have enabled the commission to explore underlying motives leading up to the incident, from all parties. As it was, the Commission was focused (hamstrung?) into making a decision on the Charge (and any penalty) and nothing else [222].

As with anything, mediation is not a complete panacea as it will very much depend on the victim (Evra)’s willingness to actively take part in proceedings and explain his reaction and pain in a neutral environment. As it was, Evra’s evidence before the Commission was challenged by Suarez’s legal team as malicious lies in order to exact vengeance for Suarez’s foul and subsequent failure to offer an unrestricted and unequivocal apology! [327]). Indeed, the Commission itself commented that Mr Suarez made what we considered to be such an unarguable assertion in his witness statement, ie that pinching was an attempt to defuse the situation when it plainly was not [249] and again at [267] once more, we were troubled by the fact that Mr Suarez advanced this case to us and relied on it to the extent that he did, when it was unsustainable. Such actions are inherent though in a legal dispute where the burden is on proving fault and casting doubt on the opponent, but could perhaps be avoided by a skilled mediator.

Although the action was initially framed as an investigation into the use of offensive racist language, by the end of the hearing, the focus somewhat shifted into the acceptability of words spoken in the heat of the moment in order to provoke Evra and cause him to be sent off, thereby gaining a competitive advantage in the game [414]. This is an important distinction, not in the context of the FA Charge (once it is accepted that the offensive word was repeated seven times, sanctions will ensue), but rather in educating future conduct (both Suarez’s and the wider footballing family).

All parties to the dispute ultimately accepted that cultural differences could represent a source of conflict if they are not respected, valued or understood. Indeed, there were language difficulties by both sides; Suarez spoke little English [235], while Evra’s initial allegation that the Spanish word Suarez had called him translated as n**~$%*, was later withdrawn and replaced with black [274]. What made the matter even more contentious though was that while the panel accepted that the Spanish word ‘negro’ can be employed with the intent to offend and to offend in racial terms [171], it is by no means always used offensively. Indeed, in Uruguay, the term can also be used as a friendly form of address [172], however in all situations, it depends heavily on the context in which it is used [201]. In this incident, in the context of animosity, confrontation and hostility, the Panel held that the language was designed to be abusive and insulting [205], although it is clear from the comments that Suarez posted to Facebook and Twitter the day after the incident that he did not share this perception and he was upset at accusations of racism [161]. Unless Suarez himself accepts genuine contrition for the incident (as opposed to cursory apologies issued by the Club on his behalf), feelings of unfairness may still fester.

It is also worth noting that conflicts may have multiple underlying causes and the incident was perhaps not as one-sided as it was portrayed in the media. While Suarez’s behaviour should rightly be condemned, the fact that Evra was seen to initiate the conflict and use an offensive phrase against Suarez (seemingly condoned by the authorities as the phrase did not contain racial slurs) could leave Suarez feeling somewhat hard done by. This absolutely does not defend what Suarez said subsequently, but certainly could form part of the underlying conflict structure, and was left unaddressed by the Panel and FA. Mediation on the other hand, would have allowed Suarez to express any feelings he might have about this and may have prevented Evra’s exuberant post-match celebrations immediately after the second match (condemned by all sides), which could have acted as a trigger event to a new conflict.

 

MEDIATION AFTER THE HEARING

The Commission announced their ruling (plus findings of fact) at 3pm on 20th December. After hearing submissions from both parties (The FA and Suarez) on penalties, it then adjourned at 4:40pm to consider the appropriate sanction(s). It subsequently announced its decision on penalties at 6:20pm that evening [44].

Is quick justice lasting justice? Indeed it is worth considering what the objective of the Commission actually was and what effect it hoped to have on Suarez? At [454], they stated that “Mr Suarez said in evidence that he will not use the word “negro” on a football pitch in England in the future, and we believe that is his genuine and firm intention”  but does this solve the underlying conflict structure or fulfil Patrice Evra’s needs?

It is perhaps illuminative to look at the FA submissions on what they feel the appropriate penalty should have been: at [408] an increased sanction was required to punish Suarez and also to ensure that it is widely known that the FA deprecates and will not accept racist behaviour. In other words, a deterrent sanction is called for…. [410] aggravated because Suarez is an international footballer of exceptional ability playing for one of the best-known clubs in the world.

Does this mean that the penalty system should be subjective? If you are a rubbish player at a lower league club, and you say exactly the same words, you should be entitled to a lesser penalty? The FA (and ultimately the Commission) view is almost biblical – an eye for an eye, behaviour control through punitive sanctions to act as a deterrent for other wrongdoers.

However, it should be questioned whether alternative approaches would have been more appropriate:

“Much deviance is expressive, a clumsy attempt to say something. Let the crime then become a starting point for a real dialogue, and not for an equally clumsy answer in the form of a spoonful of pain.” (N Christie, Limits to Pain 1981)

If the ultimate aim of the process was to stop the downward spiral and underlying issues, then Suarez should have been re-integrated him back into the football community over a period of time following successful rehabilitation and re-education. It is right that he should be held to account by the community, but he should also be offered forgiveness if he has accepted responsibility for his actions and then expressed genuine remorse. Marking him out as an offender does little to ensure future compliance with rules, although it may be appropriate if public safety was an issue.

It is encouraging that the PFA is once again offering to mediate in the on-going row, but I fear that this may be too little too late. A better future solution would have been to have the hearing if the facts were in doubt, but to mediate before any final sanctioning decision. One model that may be of interest is the Australian approach that referred all AFL cases of racial misconduct to mediation as a key part of the process to educate offenders about the issue of racism.

In particular, T Humphrey gives the example of how in 1999, “Peter Everitt, after abusing Scott Chisholm mid-game, took a compromise settlement at mediation that involved a self-imposed four-week suspension, a $20,000 fine, a racial awareness training program, loss of match payments and a public apology to Chisholm, his family and the aboriginal community.” (Dust in the Balance, ISLR (2008))

If any English post-hearing mediation involved all the relevant stakeholders (the FA, Evra, Suarez and representatives from the wider football community) and guidance was given as to appropriate ranges of sanctions, there is scope for a much more appropriate and agreed solution. Suarez should be punished for what he said, at issue though is how to make him accept that what he did is wrong in order to reduce any risk of re-ofending. Anybody can simply view a punishment as a slap on the wrist and a temporary hurdle to be endured.

Ultimately, the question then becomes: should any or all of these mediation approaches be adopted, would FIFA and the media (as moral arbiters of the game) accept such an outcome?

 

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I wasn’t THAT bad was I? (Brennan v. Health Professions Council [2011] EWHC 41 (Admin))

February 9, 2011

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See also: http://blogs.bmj.com/bjsm/2011/01/23/bloodgate-reversal-of-fortune-ethicist-lynley-anderson-comments/; http://www.guardian.co.uk/sport/2011/jan/21/harlequins-physio-brennan-overturns-bloodgate-decision

Read the Full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/41.html

The case concerns the appeal by Stephen Brennan, the former head physiotherapist at Harlequins Rugby Football Club (RFC), against the punishment imposed by the Health Professions Council (HPC) for his part in the ‘Bloodgate’ scandal.

‘Bloodgate’ concerned a European Rugby Cup (ERC) match between Harlequins RFC and Leinster on the 12th April 2009. Harlequins were losing the match, and their head coach, Dean Richards, wanted to bring their principal fly half (Nick Evans) back onto the pitch. The problem was, as Evans had been substituted for another player (Tom Williams), the only way this would be possible is for Williams to go off himself due to a ‘blood injury’. Brennan, as Harlequins head physiotherapist, went onto the pitch to talk to Williams during a stoppage in play. During this time, he gave Williams a fake blood capsule he conveniently had in his bag. A couple of minutes later, Williams bit down on the capsule and following Brennan’s inspection of him was substituted by the referee. Evans came back onto the pitch, but subsequently (or justly, depending on your viewpoint) missed a crucial kick.

To cover their tracks against the suspicions of the ERC match director, the Leinster team doctor and the 5th official, Dr Chapman (the Harlequins team doctor) deliberately cut William’s lip. Brennan then photographed this cut to support his actions.

At an ERC investigation into what they suspected was a fake blood injury, Brennan lodged a false account of what had happened and prepared false witness testimony for both Nick Evans and Tom Williams. However, this testimony fell apart as Tom Williams later confessed to the ERC what had happened. All parties involved Williams, Brennan, Richards, Chapman etc were all punished by the ERC (Brennan being banned from participation in all rugby activities for 2 years). Stephen Brennan and Dr Chapman were also brought in front of the disciplinary panels of their professional bodies.

On the 14th September, the Competence and Conduct Committee of the Health Professions Council (HPC) struck Brennan from its register for misconduct, it did however note that Mr Brennan’s clinical skill was not in issue [10]

Effectively while Brennan does not dispute that he was at fault, the case is his appeal against the severity of the HPC sanction. In effect, while the HPC had the power to make one of four sanctions:

  • Caution Brennan for a period of 1-5 years – appropriate if the lapse is isolated, low risk of recurrence or the registrant has taken remedial action [17].
  • Impose conditions of practice for upto 3 years – appropriate where the failure or deficiency is capable of being remedied, there is no risk of future harm, and there has been no breaches of trust or evidence of dishonesty [18-20].
  • Suspend his registration for upto 1 year
  • Strike him off the HPC register – appropriate if there is a finding of deliberate dishonesty, rather than ignorance of the appropriate standards:
    • “last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolves matters will suggest that a lower sanction may not be appropriate.” [22]

 While Brennan freely admits at [8] that he:

  • Purchased a number of fake blood capsules and kept one in his bag during the match
  • provided a capsule to Tom Williams and encouraged him to cheat
  • actively attempted to conceal the fabricated injury to deceive match officials and Leinster RFC
  • prepared false and/or inaccurate statements for two players to use at the ERC enquiry
  • lied during his own testimony to the ERC enquiry
  • had fabricated blood injuries to players on at least four other occasions between 2006-09

He argues that the HPC sanction (striking off) was unduly punitive, as the primary objective of an HPC sanction (the future protection of the public) was not at issue in this case [45] and that Dean Richards was accepted to have instigated the incident [11].

Brennan further argues that any sanction awarded should be a balancing exercise between his rights, the deterrent effect to other registrants, the reputation of the profession, and the public confidence in the regulatory process [13].

 The High Court nearly agreed with him at [45], when it suggested that the HPC Committee had not adequately dealt with the case for why Mr Brennan should be struck off. In particular, Mr Justice Ouseley stated that the HPC’s reasoning was not legally adequate; in that it does not enable the informed reader to know what view it took of the important planks in Mr Brennan’s case. Instead, Ouseley J required the Panel to:

  • Consider how the individual had responded
  • The sincerity and effectiveness of that response
  • The reality of repetition in view of his insight into how the practice of the profession related to his obligations to his employer in professional sport
  • Any punishment inflicted by the sport’s regulatory body
  • The effect which various sanctions would have on the legitimate objectives of sanction for unfitness to practice

That is not to say the High Court is saying that the HPC Panel were wrong in making the decision they did, rather the decision to remit the case back to the Panel is saying that the HPC didn’t give enough reasons to underpin and support this decision and they would need to review and more fully reason their decision. Interestingly, the Court also explicitly accepted two instances where striking off would not be disproportionate:

  1. If Mr Brennan was insincere in his evidence to the committee and had not grasped the need to stand up to an employer applying pressure to abuse his professional qualifications [61]
  2. Where the sanction was for important for deterrent reasons or to prevent damage to the reputation of the profession.  Such an argument would however depend on other factors such as any sporting sanction imposed, and punishments to other parties.

What made this case unusual was the tension between traditional ‘unfitness to practice’ and sporting sanctions:

“Mr Brennan’s dishonesty occurred in unusual circumstances since patients were not harmed, and what was done at the behest of a dishonest coach on behalf of their joint employer. Cheating a professional sport, abusing one’s position as a physiotherapist to cheat and then lying to the sport’s disciplinary body is serious misconduct, but the sanction here required a bespoke consideration of how the general words of the sanctions policy, which cover all situations, should be applied to this particular and unusual case.” [52]

and

“The punishment for cheating in sport and lying about it was for the sport’s regulatory body. What was for the HPC was the relationship between cheating in sport and lying about it, and his position as a physiotherapist, notably his abuse of that position to enable the cheating to take place, and his reliance on his professional position to assure the first ERC hearing that as a physiotherapist he would not lie. This relationship required careful attention if sanction was not just to become a further punishment; and the Committee did not address this issue in its expressed reasoning.” [54]

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