Cavani’s Sanction Was Appropriate

On 17 December 2020 it was announced that Edinson Cavani (“the Player”), the Manchester United FC (“MUFC”) and Uruguay player, had been charged with misconduct for an alleged Aggravated Breach of the FA Rules, 2020/2021 (“the Rules”), rule E3.1 and E3.2 (“the Charge”). The Charge related to the Player’s Instagram story post made on 29 November 2020 shortly after the Player had scored two goals in MUFC’s 2-3 win against Southampton FC:

The Rules, rule E3.1 and E3.2 state:

‘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.

E3.2 A breach of Rule E3.1 is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following:- ethic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability’.

On 31 December 2020 it was announced that the Player had admitted the Charge and that a FA Regulatory Commission had sanctioned the Player with (i) a three-match suspension from all domestic football; (ii) a £100,000 fine; and (iii) attendance at an education programme (“the Sanction”).

The Sanction is significant as it is the first application of the FA’s Standard Sanction and Guidelines for Aggravated Breaches (“the Guidelines”) introduced in August 2020. This article will provide an explanation of how the Regulatory Commission applied the Guidelines and consider the appropriateness of the Sanction.

The Guidelines

The Guidelines have altered what sanction a Regulatory Commission will impose on a participant for an Aggravated Breach. The FA’s Disciplinary Regulations (“FADR”), General Provisions, reg. 45 states that when an Aggravated Breach is proven (the Player had admitted the Charge), ‘a Regulatory Commission shall apply… [the Guidelines]’ (emphasis added).

So, decisions involving similar breaches of the Rules, E3.1 and E3.2 made before the introduction of the Guidelines, such as Bernardo Silva, Dele Alli and Andre Gray, were of no assistance to the Regulatory Commission in the Player’s case.[1] (For those interested in an analysis of the decision in The FA v Dele Alli, please see this Football Law article: Should Dele Alli Have Received a Greater Sanction?.)

The Guidelines, which can be found in the FADR, General Provisions, Appendix 1, state that the standard minimum punishment for an Aggravated Breach, but only if it is a first Aggravated Breach, is a suspension of between 6-12 matches (“the Sanction Range”), and an education programme. The minimum suspension of 6 matches is known as the “Standard Minimum”.

However, the Guidelines also provide exceptions to the Standard Minimum in specific circumstances:

• Where the offence was committed in writing only or via the use of any communication device (e.g. on social media); and

• Where the Regulatory Commission is satisfied that the individual had no genuine intent to be discriminatory or offensive in any way and could not reasonably have known that any such offence would be caused; or

• The age of the individual at the time of the offence, such as when the individual was a minor (which is understood as meaning under the age of 18) at the time of the offence; or

• The age of the offence, such as a social media post being made a considerable time ago.

In such circumstances a Regulatory Commission may impose a sanction below the Standard Minimum, but in any event no less than a three-match suspension. It is important to note that it is not mandatory for a Regulatory Commission to impose a sanction below the Standard Minimum even if the those above-stated circumstances are present. When deciding whether to impose a sanction below the Standard Minimum, a Regulatory Commission ‘must be satisfied that the unique circumstances and facts of a particular case are of such significance that a departure from the Standard Minimum is justified to avoid an unjust outcome’ (emphasis added). Significantly, a Regulatory Commission must also consider ‘whether or not it is in the best interests of the game in tackling all forms of discrimination to depart from the Standard Minimum’ (emphasis added).

Additionally, a Regulatory Commission is to have ‘due regard to the circumstances and seriousness of the incident’ when determining the appropriate sanction and, in doing so, whether to depart from the Sanction Range. For the avoidance of doubt, this is subject to the Standard Minimum and its exceptions explained above. It is only in the rarest and acutest of circumstances that it is likely an argument could be made for a sanction to be imposed that is below prescribed in sanction guidelines.[2]

When considering the ‘circumstances and seriousness of the incident’, a Regulatory Commission will consider the presence (if any) of any mitigating factors (e.g. early admission of a charge, cooperation with the FA, and remorse) and/or aggravating factors (e.g. a high number of followers on a social media account on which an offence was committed, and any previous disciplinary record).

The Guidelines also provide for situations where an individual is charged with a second or further Aggravated Breach, and where an Aggravated Breach has been committed by a minor or someone other than a ‘Player, Manager or Technical Area Occupant’. Those considerations are irrelevant to the Player’s case and are therefore not explained in this article.

Applying the Guidelines to the Player’s case

Expert evidence before the Regulatory Commission identified that the words ‘Gracias negrito’ used by the Player in his Instagram story post made on 29 November 2020 translated to ‘Thanks little black guy/ Thanks Blackie/ Thanks Black’. Such expert evidence also identified that ‘someone familiar with South American culture and language could have… understood that in the context of friends it was not used with the intention to be racist’. Indeed, the person to whom the Player used the words towards provided witness evidence explaining that he took no offence from the word. Contrastingly, the expert evidence before the Regulatory Commission conceded that those unfamiliar with South American culture and language ‘would be likely to take offence to the words used’.

As noted above, the Player admitted the Charge. Therefore the Regulatory Commission was only required to decide on the appropriate sanction. It can be seen from the above explanation of the Guidelines that the best-case scenario for the Player was to be a 3-match suspension and an education programme. Fortunately for the Player, and in this author’s opinion rightly, the Regulatory Commission considered that the circumstances of the Player’s offence were such to allow for a departure from the Standard Minimum:

• The Player’s Aggravated Breach was committed using social media.[3]

• There was no intent on the part of the Player to be discriminatory or offensive in any way.[4] In making this finding the Regulatory Commission gave particular consideration to the Player’s lack of knowledge of English and, therefore, his lack of awareness of the meaning of the words he used when translated literally.[5]

• The Player could not reasonably have known that any such offence would be caused by his Instagram story post.[6] In making this finding the Regulatory Commission gave particular consideration to the Player having been in England for only two months at the time of the offence, and that he had received no media training upon his arrival in England despite having c. 7.9 million Instagram followers.[7]

• The unique circumstances and facts of the Player’s case were ‘of such significance that a departure from the Standard Minimum is justified to avoid an unjust outcome’.[8]

• Further, the Regulatory Commission considered that ‘a reasonable observer who had full knowledge of the background and context to this case’ would consider a suspension of below six matches to still properly reflect the Player’s culpability ‘without distracting in any way from the common wish to tackle discrimination in the game’.[9]

Upon that basis, the Regulatory Commission was left to consider the appropriate length of suspension in reference to the presence of any mitigating and/or aggravating factors. The mitigating factors in favour of the Player were his good character, an admission of the Charge, his remorse, and steps he had taken since the offence to understand the responsibilities arising from his large social media following.[10] The only aggravating factor against the Player was his c. 7.9m Instagram followers.[11]

Despite the presence of an aggravating factor, the Regulatory Commission concluded that the Standard Minimum of a three-match suspension was the appropriate sanction, in addition to an education programme, and a fine of £100,000.[12]

In this author’s opinion, the sanction imposed on the Player was appropriate, notwithstanding any outrage from the Uruguay Football Players' Association or any assertion that the Player is not a racist. The Player is not a racist and had no intention to be racist, that much is clear from the Regulatory Commission’s written reasons. However, an individual does not have to be a racist to commit an act of racism. Further, whether an incident is racist unwittingly or wittingly, or is not perceived as racist by the intended recipient but is by others, it is still racism.[13] The Guidelines were produced following a detailed consultation process with focus groups and stakeholders such as Kick It Out, the PFA, the LMA and various representatives from clubs and leagues. In this author’s opinion, to have imposed a sanction below the Standard Minimum in the Player’s case would have undermined that consultation process and, consequently, would not have been in the best interests of the game in tackling all forms of discrimination.

Footnotes

[1] The Football Association v Cavani, The FA Regulatory Commission (Ch Richard Smith QC) 4 January 2021, [17].

[2] The FA v Jake Livermore, The FA Regulatory Commission (Ch David Casement QC) 8 September 2015.

[3] (n1), [21].

[4] Ibid, [24].

[5] Ibid, [22].

[6] Ibid, [26].

[7] Ibid, [27].

[8] Ibid, [29].

[9] Ibid, [30].

[10] Ibid, [34].

[11] Ibid, [33].

[12] Ibid, [36]; FADR, General Provisions, reg. 40.2.

[13] (n1), [12]-[15].

20 January 2021