Retrospective action under the FA’s disciplinary procedures

Last week The Football Association ("FA") confirmed that Wigan midfielder Callum McManaman will not be charged over the challenge on Newcastle United's Massadio Haïdara as the FA's Disciplinary Procedures prevent retrospective action to be taken when one of the match officials saw the incident.

Article 72 of FIFA's Disciplinary Code confirms that the decisions taken by the referee during a match are "final" and this is reiterated within Law 5 of The Laws of the Game.  Article 146 of FIFA's Disciplinary Code requires all national associations "to adapt their own provisions to comply with this code for the purpose of harmonising disciplinary measures."  Schedule A of their Disciplinary Procedures only permits the FA to charge a player for incidents "that are caught on camera but not seen and dealt with by the Match Officials at the time."  In terms of exactly what the match officials need to see in a particular incident in order to determine whether retrospective action can be taken under Schedule A, the FA clarified in a statement that "where one of the officials has seen a coming together of players, no retrospective action should be taken, regardless of whether he or she witnessed the full or particular nature of the challenge."  In the case of McManaman, linesman Matthew Wilkes apparently saw the coming together of the players and so retrospective action is not possible under the FA's Disciplinary Procedures.

The McManaman challenge is not the first time the FA have refused to take retrospective action despite the match officials not seeing the full extent of the challenge. In April 2012 Manchester City's Mario Balotelli was seen committing a studs up challenge on Arsenal's Alex Song. Referee Martin Atkinson saw the coming together of the players, however the serious nature of the challenge was not seen by the referee as he was unsighted.  As with McManaman, the FA refused to take any retrospective action against Balotelli because the referee saw the coming together of the players

The FA confirmed that the purpose of the policy, which has been agreed with FIFA and stakeholders such as the Premier League and the Football League, is to "avoid the re-refereeing of incidents" and that retrospective action is only designed "to address off the ball incidents where match officials are unlikely to be in a position to witness misconduct." FIFA are clearly concerned about incidents, which have been seen by match officials, being subsequently re-refereed as this could diminish the role of the match officials and affect their decision making.

Newcastle United were unsurprisingly "disappointed" with the decision and managing director Derek Llambias described the FA's Disciplinary Procedures as "not fit for purpose."  However, the FA are empowered in certain circumstances to take retrospective action against a player even though the incident was seen and dealt with by the match officials at the time. Rule 8 (j) of Section A of the FA's Disciplinary Procedures provides for a player to be charged for misconduct pursuant to Rule E3 of the Rules of The Association even if the incident was seen and dealt with by the referee.

In deciding whether to invoke Rule 8 (j), the FA have to be satisfied that the incident was sufficiently serious to justify retrospective action and will

consider the following factors:

1. Any applicable Law(s) of the Game or Rules and Regulations or FIFA instructions and/or guidelines;
2. The nature of the incident, and in particular any intent, recklessness, negligence or other state of mind of the Player;
3. Where applicable, the level of force used;
4. Any injury to any Participant caused by the incident;
5. Any other impact on the game in which the incident occurred;
6. The prevalence of the type of incident in question in football generally; and
7. The wider interests of football in applying consistent sanctions.

The FA have only chosen to invoke Rule 8 (j) on one previous occasion when Ben Thatcher was given an eight match ban for his elbow on Pedro Mendes in 2006. This was despite referee Dermot Gallagher seeing the incident and booking Ben Thatcher at the time. The FA in this case clearly felt that the McManaman challenge was not sufficiently serious to justify retrospective action under Rule 8 (j). In some instances, FIFA’s Disciplinary Committee are authorised to sanction any breaches of the laws of the game, which include “sanctioning serious infringements which have escaped the match officials’ attention” and “rectifying obvious errors in the referee’s disciplinary decisions” (See Article 77 of FIFA’s Disciplinary Code). It could be argued by Newcastle that the McManaman challenge comes under one of these two categories and it is possible that FIFA’s Disciplinary Committee would investigate the matter if a complaint from Newcastle is made.  

Newcastle confirmed that they would be making representations “to the FA and the Premier League to see how a more appropriate, fair and even-handed disciplinary process can be introduced at the earliest opportunity to prevent incidents of this nature going unpunished in the future." There have been calls for football to adopt a similar disciplinary process as in rugby union whereby the citing commissioner can take retrospective action against a player even if the referee saw and dealt with the incident. Any changes to the rules relating to retrospective action would have to be sanctioned by FIFA and apply to all national associations so the policy is expected to remain for the foreseeable future.

The case of Vernon Fernando and FIFA’s code of ethics

FIFA confirmed earlier this month that Vernon Manilal Fernando, a member of FIFA's Executive committee and the Asian Football Confederation, had been provisionally banned from any football activity for 90 days at the request of Michael Garcia (chairman of the investigatory chamber of FIFA's Ethics Committee) and Hans-Joachim Eckert (chairman of the adjudicatory chamber of FIFA's Ethics Committee). 

The decision is based on Article 83 Paragraph 1 of FIFA's Code of Ethics, which empowers the chairman of the adjudicatory chamber of FIFA's Ethics Committee to impose provisional sanctions if it appears that a breach of the Code of Ethics has been committed in order to prevent "interference with the establishment of the truth."

Fernando reportedly has close links to former FIFA Executive Committee member and president of the AFC, Mohamed Bin Hammam, who was twice banned for life by FIFA's Ethics Committee. In 2011, Bin Hammam confirmed that he would be challenging Sepp Blatter for the role of FIFA president however, during a trip to Trinidad and Tobago in May 2011, he was accused of providing cash gifts to Caribbean Football Union ("CFU") officials in exchange for votes in support of his election campaign. Bin Hammam was charged with offering bribes for votes and was banned for life from all football activities by FIFA's Ethics Committee. Following an unsuccessful appeal to FIFA's Appeal Committee, Bin Hammam appealed to the Court of Arbitration for Sport ("CAS") who overturned the lifetime ban on the grounds that there was insufficient evidence to link Bin Hammam with the cash gifts offered to the CFU officials. However, in December 2012 Bin Hammam was banned for life for the second time by FIFA's Ethics Committee for repeated violations of Article 19 of the FIFA's Code of Ethics relating to conflicts of interests whilst Bin Hammam was AFC President and member of the FIFA's Executive Committee. Bin Hammam has since resigned from all football related positions.

FIFA have not confirmed what the specific allegations against Fernando are and so it is not clear what provisions of FIFA's Code of Ethics Fernando has alleged to have breached.  It has been reported that Fernando's suspension relates to alleged misuse of AFC accounts so it is possible that the general rules of conduct under Article 13 may have been breached. Article 13 Paragraph 3 of the Code requires all persons bound by the code (all officials, players and agents) to "show commitment to aethical attitude" and to "behave in a dignified manner and act with complete credibility and integrity." Article 13 Paragraph 4 also prevents all persons bound by the Code to "abuse their position in any way, especially to take advantage of their position for private aims or gains." Misuse of AFC accounts may, therefore, amount to a breach of the general rules of conduct under Article 13. Interestingly, Fernando accompanied Bin Hammam on the trip to Trinidad and Tobago in May 2011 and so Articles 20 and 21, which prohibit the offering and accepting of gifts or other advantages in most circumstances as well as the misappropriation of FIFA assets (See Article 21 Paragraph 2), may also be applicable. The conflict of interests provisions under Article 19 of the Code may also be relevant if, as reported, Fernando's ban is linked to the previous case against Bin Hammam.

What's next for Fernando?

Fernando can appeal the provisional sanction of the 90 day ban to FIFA's Appeal Committee providing the appeal is lodged within two days of the notification of the decision (See Article 86). FIFA have not confirmed whether Fernando has lodged an appeal and so it appears the case will now proceed in accordance with the procedure under FIFA's Code of Ethics.

Ethics Committee proceedings include an investigation and an adjudicatory process. The investigatory chamber investigates potential breaches of the Code of Ethics and once their investigation is completed, the investigatory chamber prepares a final report on the investigation proceedings, which is sent to the adjudicatory chamber (See Article 28).

FIFA confirmed that investigation proceedings in relation to Fernando opened in October 2012 and so the investigation process has now concluded and the investigatory chamber's final report and files have now been sent to the adjudicatory chamber. This final report will contain all the facts, the list of rules alleged to have been violated by Fernando, the evidence gathered and a recommendation to the adjudicatory chamber as to sanctions that should be imposed (See Article 68). The adjudicatory chamber will now review the final report and files forwarded by the investigatory chamber and decide whether to proceed with adjudicatory proceedings against Fernando or close the case if there is insufficient evidence (See Article 69). In the event that the chairman of the adjudicatory chamber decides to proceed with the adjudicatory proceedings, a copy of the final report and files will be sent to Fernando who will have a set time limit to make submissions including filing a defence, evidence upon which he intends to rely and a request for a hearing if applicable (See Article 70). The adjudicatory chamber will generally make its decision on paper without hearing the parties and once the chamber's decision has been notified, the parties will then be summoned to a hearing or invited to submit written statements when the chairman of the adjudicatory chamber will decide whether to confirm, revoke or amend his decision (See Article 84). However, in some instances, the adjudicatory chamber may decide to convene a hearing before making a decision at the request of one of the parties or on its volition (See Article 74).

In accordance with Article 30 of FIFA's Code of Ethics, the adjudicatory chamber may impose a further ban on Fernando from taking part in any football-related activity for up to two months and/or impose a fine of up to CHF 50,000. Whilst, the adjudicatory chamber's decisions are generally limited to the above, these sanctions may be increased if a breach has been repeated (See Article 10) and the adjudicatory chamber is not "obliged to adhere to the general upper limit of the fine" when there is more than one breach (See Article 11). For instance, in the case of Bin Hammam, he was found to be in violation of various provisions of FIFA's Code of Ethics that the Ethics Committee felt justified a life time ban. In reaching its decision, the adjudicatory chamber will take into account "all relevant factors in the case, including the offender's assistance and cooperation, the motive, the circumstances and the degree of the offender's guilt" (See Article 9). Once the adjudicatory chamber's decision is notified, Fernando may in certain circumstances be permitted to appeal the decision to FIFA's Appeal Committee (See Article 80) and subsequently to CAS if any such appeal is unsuccessful as in the case of Bin Hammam.

Providing the adjudicatory chamber decides that there is sufficient evidence to proceed with adjudicatory proceedings, it is likely to take a couple of months for the adjudicatory chamber to reach its decision. Until then, specific details of the allegations against Fernando are unlikely to become clear.

FC Barcelona and the protection of minors - Article 19 of FIFA Regs

It has been recently reported that FC Barcelona have been ordered by FIFA not to select six of their youth team players aftereportr the club allegedly breached FIFA regulations relating to the protection of minors. The players in question, who are between the ages of 14 and 15, are believed to be Seung Woo Lee, Paik Seung-Ho and Jang Gyeolhee from Korea, Theo Chendri from France, Bobby Adekanye from Nigeria and Patrice Sousia from Cameroon.

Given inflated transfer fees and increased competition in the transfer market, many football clubs across Europe have sought to acquire young players from continents across the globe including Africa, Asia and South America. Unfortunately, the prospect of securing lucrative contracts with European clubs has led to greed and many instances of young children being exploited by unscrupulous agents who take young children from their families to Europe with the promise of a trial with a European club. However, if the trial falls through or is unsuccessful, many young players are simply left abandoned by the agent.  

Protection of minors is a major concern for FIFA and various measures have been implemented by FIFA to combat this problem and regulate the transfer of minors. Article 19 Paragraph 1 of FIFA’s Regulations on the Status and Transfer of Players prohibits the international transfers of players under the age of 18 including players who have never previously been registered with a club (Article 19 Paragraph 3). However, the following three exceptions to this rule apply (Article 19 Paragraph 2):

1. The player’s parents move to the country in which the new club is located for reasons not linked to football;
2. The transfer takes place within the territory of the European Union (EU) or European Economic Area (EEA) and the player is aged between 16 and 18. In this case, the new club must fulfil the following minimum obligations: i. It shall provide the player with an adequate football education and/or training in line with the highest national standards. ii. It shall guarantee the player an academic and/or school and/or vocational education and/or training, in addition to his football education and/or training, which will allow the player to pursue a career other than football should he cease playing professional football. iii. It shall make all necessary arrangements to ensure that the player is looked after in the best possible way (optimum living standards with a host family or in club accommodation, appointment of a mentor at the club, etc.). iv. It shall, on registration of such a player, provide the relevant association with proof that it is complying with the aforementioned obligations;
3. The player lives no further than 50km from a national border and the club with which the player wishes to be registered in the neighbouring association is also within 50km of that border. The maximum distance between the player’s domicile and the club’s headquarters shall be 100km.

Since 1 October 2009, every international transfer and first registration of a minor is subject to the approval of a sub-committee appointed by FIFA’s Players’ Status Committee who monitors compliance with FIFA Regulations including Article 19. The national association who wishes to register a minor player is required to submit an application to the sub-committee for approval and sanctions may be imposed on any association who fails to submit an application to the sub-committee or who issues a transfer certificate without the sub-committee’s approval. A club who reaches an agreement for the transfer of a minor without the approval of the sub-committee also commits an offence (Article 19 Paragraph 4). 

FIFA’s computer based Transfer Matching System (TMS) manages this process  by requiring the clubs involved in the transfer of a player to enter identical information regarding the transfer including details of the player, clubs and payments. Documents must also be submitted such as proof of residence for both the player and player’s parents (if applicable) and documentation of the academic education and football training provided to the player. Once the required information and documentation is uploaded into the TMS, the respective associations are required to verify all the documentation and the sub-committee will then review the application. FIFA president, Sepp Blatter, explains the rationale behind TMS:

“Thanks to TMS, football’s authorities have more details available on each and every transfer… it increases the transparency of individual transactions and helps us to tackle issues such as the fight against money laundering and the protection of minors in transfers.”

FIFA clearly think that these measures are robust enough to offer sufficient protection to minors with FIFA’s general manger of TMS, Mark Goddard, proudly proclaiming that “there is now a rigorous system in place to monitor the movement of minors that are declared in TMS by associations.”

If FC Barcelona have violated Article 19, they are not the only club to have done so.  

The leading case involving Article 19 involved Paraguayan player Carlos Javier Acuña Caballero. In 2005, Caballero signed a contract with Spanish club Cádiz at the age of 16 from Club Olympia de Paraguay. In order for the player to be validly registered, the Spanish Football Association asked the Paraguayan Football Association to issue an International Transfer Certificate (See Article 9 of FIFA’s Regulations on the Status and Transfer of Players). However, the Paraguayan Football Association refused to issue an International Transfer Certificate due to non-compliance with Article 19 and so the transfer could not be completed. The Spanish Football Association, at Cadiz’s request, subsequently appealed to FIFA’s Players’ Status Committee relying upon the exception laid down in Article 19 Paragraph 2(a). Interestingly, Caballero’s mother signed an employment contract with a restaurant in Spain a week after the player’s contract with Cadiz was agreed. The family were apparently in a very difficult financial situation and so intended to move to Spain “for reasons not linked to football.” The Players’ Status Committee were not satisfied with this account and effectively concluded that the mother had only moved to Spain as a result of her son’s transfer to Cadiz, thus the exception under Article 19 Paragraph 2(a) did not apply.

Following FIFA’s refusal to register Caballero, Cádiz filed an appeal with the Court of Arbitration of Sport (“CAS”). After considering the evidence, CAS followed the decision of FIFA’s Players’ Status Committee and concluded that the mother’s decision to move to Spain was directly linked to the contract Caballero signed with Cadiz. CAS also held that Article 19 was valid as it was proportionate and pursued a legitimate objective. The appeal was, therefore, dismissed and it became the first transfer of a minor rejected under Article 19. (See Càdiz C.F. & Caballero v/FIFA & Asociación Paraguaya de Fútbol CAS 2005/A/955 & CAS 2005/A/956)

The case of Caballero and Cadiz was followed by the case involving FC Midtjylland and the Danish Football Association in 2007. 

FC Midtjylland established a relationship with Nigerian club, FC Ebedei, whereby FC Midtjylland would acquire the Nigerian club’s hottest prospects. In 2006, FC Midtjylland registered three minor players from the Nigerian club namely, Ikechukwu Jude Nworah and Lanre Adeola Runsewe who were both 16 and Akubar Yabubu Akilu who was 17. The Danish Football Association proceeded to register the players as amateurs. 

FlFPro learnt of the transfers and contacted FIFA alleging that FC Midtjylland had transferred minor Nigerian players contrary to Article 19. FIFA’s Players’ Status Committee investigated these allegations and issued a decision against FC Midtjylland and the Danish Football Association on the basis that Article 19 applies to both amateur and professional players. FC Midtjylland and the Danish Football Association were both issued with strong warnings for infringing Article 19.

The Danish Football Association accepted the verdict but FC Midtjylland appealed the decision to CAS on the grounds that Article 19 did not apply as the players were mainly in Denmark as students as well as basing their appeal on various arguments relating to EU law. CAS rejected all of FC Midtjylland’s arguments and followed the decision of FIFA’s Players’ Status Committee by concluding that Article 19 equally applies to amateur and professional players and that none of the exceptions under Article 19 applied:

“after taking into due consideration all evidence produced and all arguments made, the Panel finds that the Appellant (FC Midtjylland) has breached Article 19 of the Regulations on the Status and Transfer of Players and that it was justified to impose a sanction for the registration of the Players. Furthermore, the Panel is of the opinion that the nature and the level of sanction imposed on the Appellant is totally appropriate.” (See Paragraph 8.1 of CAS 2008/A/1485 FC Midtjylland A/S v/ Fédération Internationale de Football Association)

In the case of FC Barcelona, FIFA have simply confirmed that “the matter is still pending '' so full details of the case against FC Barcelona are not known. Presumably, given that the players in question have played in FC Barcelona’s youth team for some time, their registrations were initially approved by FIFA’s Player’s Status Committee via the TMS otherwise Barcelona and the Spanish Football Association are in breach of Article 19 Paragraph 4. It is, therefore, possible that FIFA have obtained further information to make them suspect violation of Article 19 hence the directive to not select the players until they investigate the matter further. 

Barcelona spokesman, Chemi Terres, has said that FIFA's communication has “caught the club by surprise”and it has been reported that they will rely upon the fact the players are given a complete education at the club’s La Masia training facility, thus coming under the exception laid down by Article 19 Paragraph 2(b). However, this exception only applies to players between the ages of 16 and 18 so it does not appear that this exception will apply to the players in question in which case the club will need to rely upon one of the other exceptions under Article 19 Paragraph 2 in order escape sanctions. More details are likely to emerge once FIFA’s Player’s Status Committee investigate the matter further and it will be interesting to see whether FC Barcelona have breached the provisions of Article 19. If so, FC Barcelona and the Spanish Football Association can expect similar sanctions as FC Midtjylland and the Danish Football Association received in 2007.