The FA Left Red-Faced by Atlético
An article published on Football Law on 13 January 2021 provided an explanation of the FA v Kieran Trippier: The FA v Kieran Trippier - All Bets Are Off. In that case the Regulatory Commission imposed a sanction on Kieran Trippier (“the Player”), the Club Atlético de Madrid (“Atlético”) and England player. The sanction imposed included a 10-week suspension from all football-related activity for the Player’s breaches of the FA Rules 2019/2020, rule E8(1)(b). For a full explanation of the case, please see Football Law’s earlier article referred to above.
As identified in that earlier article, it was this author’s understanding that the FA had requested FIFA’s Disciplinary Committee to extend the Player’s 10-week suspension from all football related activity to have worldwide effect considering (i) the FA’s jurisdiction in respect of imposing a suspension from football extends to England only; and (ii) the Player currently plays for Atlético, who play outside of the FA’s jurisdiction. The FIFA Disciplinary Code (“FDC”), article 66.1 permitted the FA to make the request for a worldwide extension to the 10-week suspension.
On 14 January 2021 the Regulatory Commission, made up of the same members who imposed the 10-week suspension on the Player, released its written reasons for refusing the FA’s application to revise the effective date of the 10-week suspension (“the 14.1.2021 Written Reasons”).[1]
The 14.1.2021 Written Reasons identify:
On 18 December 2020 the Player was informed orally and in writing of the Regulatory Commission’s decision to impose a 10-week suspension from all football-related activity effective from 21 December 2020 (“the Sanction Decision”).[2]
For the reasons understood by this author as explained above, on 18 December 2020 and pursuant to FDC, article 66.1 the FA did make an application to FIFA’s Disciplinary Committee to extend the Player’s 10-week suspension to have worldwide effect.[3]
On 23 December 2020 FIFA confirmed that the FA’s application had been allowed by FIFA’s Disciplinary Committee and the 10-week suspension was extended to have worldwide effect from 21 December 2020.[4]
Football Law’s earlier article also referred to and explained reports that (i) Atlético had appealed against FIFA’s Disciplinary Committee’s decision to extend the 10-week suspension to have worldwide effect; and (ii) FIFA’s Appeal Committee had, upon a request by Atlético, subsequently ordered a provisional measure to suspended the worldwide effect of the 10-week suspension pending the outcome of Atlético’s appeal. The 14.1.2021 Written Reasons confirm the same, and clarify that only Atlético is a party to that appeal, not the Player or the FA.[5]
Football Law’s earlier article also identified that notwithstanding FIFA’s Appeal Committee’s decision to suspend the worldwide effect of the 10-week suspension, the 10-week suspension was still running. It is in those circumstances that the FA made an application on 5 January 2021 to revise the effective date of the 10-week suspension ‘so that [the Player’s] 10-week suspension will take effect from the earlier of (i) [the Player’s] return to the jurisdiction of the FA or (ii) the lifting of the [provisional] measures granted by [FIFA’s Appeal Committee]’ (“the Application”).[6]
The Regulatory Commission refused the Application, as set out in the 14.1.2021 Written Reasons. This article will explain how the Regulatory Commission reached that decision and the significance of the same.
A matter of interpretation
In making the Application the FA relied upon the FA Disciplinary Regulations 2020/2021, General Provisions, para. 55, which states:
‘A Regulatory Commission may issue such further order, requirement or instruction as it considers appropriate for the purpose of giving effect to its decision’.
The Player opposed the Application, arguing that the Regulatory Commission has no power to revise the effective date of the 10-week suspension and that even if the Regulatory Commission does have such power then it should not exercise it.[7] Further, the Regulatory Commission notified the FA that its preliminary view was that the Regulatory Commission did not have the power to grant the Application.[8] Notwithstanding that position, the FA proceeded with the Application and an oral hearing was required to deal with the same.
It is important to note that the Application was not, and neither the FA nor the Player had made, an appeal against the Sanction Decision. Indeed, the deadline for notification of an intention to appeal was at the latest 11 January 2021 (i.e. seven days after the Player had been provided with the written reasons for the Sanction Decision, which are dated 4 January 2021).[9]
In considering whether the FA Disciplinary Regulations 2020/2021 (“FADR”), General Provisions, para. 55 gave the Regulatory Commission power to vary the effective date of the 10-week suspension, the Regulatory Commission stated that the words of that provision should:
Be given their ‘ordinary and natural meaning… informed by what the words would mean to a reasonable person having all the relevant background information about the context’; and
Be read in light of the FADR as a whole.[10]
The Regulatory Commission considered ‘further order’ in FADR, General Provisions, para. 55 to mean an order ‘ancillary to the decision already made… for the purpose of giving effect to that earlier decision’.[11] The Regulatory Commission also noted that the the Sanction Decision – which as explained above was communicated orally and, significantly, in writing to the Player on 18 December 2020 – was a ‘conclusive recording of the Regulatory Commission’s decision’ in accordance with FADR, General Provisions, para. 61.[12]
The Regulatory Commission also reminded itself of the extent of its jurisdiction, namely that it only had and has the power to suspend the Player or a participant from all football-related activity in England.[13] As indicated above, this is why the FA requested that FIFA extend the 10-week suspension to have worldwide effect.
Applying FADR, General Provisions, para. 55 and the Application to the Sanction Decision, the Regulatory Commission asked itself whether the revision to the effective date sought by the FA is necessary to “give effect” to the Sanction Decision? Simply, the Regulatory Commission decided that ‘the answer to that question is no’.[14] A revision to the effective date of the Sanction Decision in the form requested by the FA in the Application ‘would not facilitate the carrying into effect’ the Sanction Decision.
The FA suggested that to not revise the Sanction Decision as requested by the FA in the Application could result in the Player serving a suspension ‘which is far less in terms of its length than [the Regulatory Commission] considered to be just and proportionate’.[15] However, the Regulatory Commission was clear that that was ‘not a basis for an interpretation of [FADR, General Provisions, para. 55] which is not justified by its wording’.[16]
The Regulatory Commission also went on to state that even if it had decided that FADR, General Provisions, para. 55 did give them the power to revise the effective date of the Sanction Decision, it still would not have revised the Sanction Decision as requested by the FA in the Application. In particular, the Regulatory Commission stated that to do so would be an injustice to the Player. Witness evidence from the Player identified that notwithstanding the 10-week suspension not having worldwide effect and allowing him to play for Atlético, its effect in England was ‘impeding his prospects of being transferred to an English club during the current transfer window very substantially’.[17] While Atlético may not be pleased to read that, the Regulatory Commission noted that that consequence demonstrates that the 10-week suspension is having a punitive effect on the Player.[18] Further, allowing the Application could mean that the 10-week suspension may not take effect for a few days or for a much longer period of time, and to a time when it is not known what the full effect of the suspension will be. The Regulatory Commission noted that that would cause ‘significant stress and anxiety’ to the Player who wanted simply to ‘move on’ from these disciplinary proceedings.[19]
This author has sympathy with the FA insofar as it wishes to enforce its rules and ensure that the Sanction Decision is implemented to full effect. FADR, General Provisions, para. 55 is drafted broadly, and the Sanction Decision was made on an expectation that FIFA would extend the 10-week suspension to have worldwide effect.[20] Even though the Regulatory Commission, and seemingly the FA itself, did not anticipate Atlético’s appeal, such an intervening act should not undermine the rationale of the 10-week suspension that the Regulatory Commission intended the Player to serve and believed would affect the Player’s ability to play for Atlético. Additionally, considering that FIFA’s Appeal Committee’s power to suspend the 10-week suspension is limited to 90 days save in exceptional circumstances, it is unlikely that there will be a long wait for the outcome of Atlético’s appeal.[21]
Good news for the Player
The circumstances of the Player’s case and the Sanction Decision are unique in that there are going to be very few instances when a Player will face disciplinary proceedings from the FA while playing for a football club outside of the FA’s jurisdiction. Nonetheless, this author would not be surprised if the FA’s experience in these disciplinary proceedings prompts an amendment to FADR, General Provisions, para. 55 to cover for such circumstances and allowing for revisions of the type sought in the Application.
The Regulatory Commission’s decision to dismiss the Application is undoubtedly a boon for the Player. However, the Player is not completely out of the woods yet insofar as the 10-week suspension is concerned. If FIFA’s Appeal Committee decide on Atlético’s appeal quickly and it is dismissed, then the worldwide effect of the 10-week suspension will resume. In any event, Atlético are likely to be very pleased with their lawyers’ work.
Footnotes
[1] The Football Association v Kieran Trippier, The FA Regulatory Commission (Ch Sir Wyn Williams) 13 January 2021.
[2] Ibid, [3] and [18]-[19].
[3] Ibid, [4] and [20].
[4] Ibid.
[5] Ibid, [5], [9] and [27].
[6] Ibid, [6].
[7] Ibid, [7].
[8] Ibid.
[9] Ibid, [3]; FA Disciplinary Regulations, Appeals – Non-Fast Track, para. 4-5.
[10] (n1), [14].
[11] Ibid, [15].
[12] Ibid, [19].
[13] Ibid, [20].
[14] Ibid, [21].
[15] Ibid, [23].
[16] Ibid.
[17] Ibid, [25].
[18] Ibid.
[19] Ibid, [26] and [10].
[20] Ibid, [22].
[21] FDR, article 48.3.
14 January 2021
On 18 January 2021 FIFA announced that Atlético’s appeal against FIFA’s Disciplinary Committee’s decision to extend the Player’s 10-week suspension to have worldwide effect had been dismissed. The matter may not yet be over though.
Pursuant to FDC, article 49, final decisions of FIFA’s Appeal Committee (such as dismissing Atlético’s appeal) can be appealed against to the Court of Arbitration for Sport (“CAS”). It should be noted that an appeal to the CAS cannot be made against ‘suspensions of… up to three months’ (FIFA Statutes, article 58.3). However, it is arguable that FIFA’s Appeal Committee’s decision relates to the worldwide effect of the 10-week suspension, not the suspension itself, and therefore Atlético could proceed with an appeal to the CAS.
If Atlético does make an appeal, then, pending the outcome of that appeal, the CAS may order that the appeal has a ‘suspensive effect’, which could again suspend the worldwide effect of the Player’s 10-week suspension until a final decision is reached (FIFA Statutes, article. 58.4).
On 19 January 2021 it was reported that Atlético is appealing FIFA’s Appeal Committee’s decision to the CAS.