Is the right to a fair trial secure under the FA’s Whole Game System?
The recent decision of an FA Appeal Board in Craig Walton v Birmingham County FA (“Walton”) [1], wherein this author represented the appellant, raises several questions of procedural fairness and natural justice:
Firstly, can FA disciplinary proceedings brought against a Participant, without their knowledge, ever be considered fair?
Secondly, is the answer to that question dependent upon the severity of the potential sanctions for the relevant charge(s)?
Thirdly, if the second question is answered “yes”, is that a fair approach?
The Appeal Board’s decision in Walton also offers some answers to those questions in the context of the FA’s Whole Game System (“WGS”) (an online portal used by the FA and grassroots football for administrative tasks). The Appeal Board’s written reasons can be found here.
This article argues that the Appeal Board’s answers set a concerning approach for individuals’ right to a fair hearing in FA disciplinary proceedings. This article also argues that recent changes to the FA’s Disciplinary Regulations 2024/25 do not do enough to safeguard that interest, and that, in any event, there are shortcomings in the WGS meriting review.
Factual background
Craig Walton (“CW”) was a full-time professional coach for a men’s National League football club. In addition to this role, he volunteered as an assistant coach of a Sunday-league women’s football club Alvechurch Ladies FC (“Alvechurch”). In the latter role, he was involved in an altercation with a linesman during a football match in April 2024. CW was subsequently charged by the Birmingham County FA (“BCFA”) with a breach of the FA Rules, Rule E3.1 (“the Charge”).
The Charge was brought on the basis that CW had allegedly assaulted or attempted to assault a Match Official (“Charge 1”); or alternatively, made physical contact or attempted physical contact on a Match Official (“Charge 2”).
The physical letter for the Charge was addressed to Alvechurch’s secretary and invited a response to be made using the WGS. Alvechurch responded through the WGS by denying the charge and requesting for the case to be dealt with by correspondence / written submissions (“the Response”). Crucially, despite the Response submitted by Alvechurch through the WGS, CW was never notified of the fact that the Charge had been brought against him, and therefore did not seek legal advice or request a personal hearing.
On 11 June 2024, an FA National Serious Case Panel (sitting as an FA Disciplinary Commission) found Charge 1 proven and imposed a suspension of six years and 182 days from all football activity. As a full-time professional coach, this effectively meant that CW would be unable to work. It was only after the results letter had been sent to Alvechurch on 17 June 2024 that CW was finally made aware of the Charge, but that the proceedings against him had been concluded. CW then appealed the decision on the basis that he had not been given a fair hearing.
The parties’ submissions to the FA Appeal Board
The FA’s Disciplinary Regulations in place in this case were the season 2023/24 version. The FA’s Disciplinary Regulations, Part D – On-Field Regulations (“OFR”), Section 3, para. 4 stated the following in respect of providing a response to a charge by using the WGS:
‘Where a Club receives a notification pursuant to this Section Three, it is the duty of the Club Secretary and the Player, by the deadline stated on any notification, to ensure that either (a) the Affiliated Association Secretary receives the completed player reply form or (b) ensure that a response has been provided via the electronic system operated by The Association from time to time…
Where the Club provides a response via the electronic system operated by The Association from time to time, in doing so the Club Secretary acknowledges that the Player has been made aware of the contents’ (emphasis added).
In relation to charge letters, however, the OFR, Section 3, para. 111 also stated:
‘Where a Participant has been issued with a Charge, both the Club Secretary and the Participant will be required to sign and return the form to the Affiliated Association’.
On behalf of CW, this author submitted that, insofar as any physical form referred to in the OFR, Section 3, para. 111 is concerned, CW had never seen or signed off on any such form attached to the Charge.[2] The OFR, Section 3, para.111 required a signed response form to be returned to BCFA, which was consistent with ensuring that an individual clearly understood the charges they were facing, and also that they could consider their various rights under the FA Disciplinary Regulations. These included opting for a personal hearing to cross-examine the BCFA’s witnesses and orally submit their own evidence and legal arguments. Put differently, this author argued that the requirement under the OFR, Section 3, para. 111 was intended to safeguard the right to a fair hearing.[3] This author therefore submitted that BCFA should not have proceeded with the hearing in the absence of a signed response form from CW and, in the circumstances, that a re-hearing was appropriate.
In response, BCFA considered that it had discharged its responsibilities as Alvechurch, CW’s club, had been provided with all the relevant correspondence in accordance with the FA Disciplinary Regulations, and that Alvechurch was familiar with the disciplinary process. Consequently, BCFA submitted that CW’s position that he was unaware of the severity of the Charge and how to properly respond was illogical.[4] On the BCFA’s view, the process had been ‘fair, clear and transparent’.
The FA Appeal Board’s decision
On 2 August 2024, the FA Appeal Board allowed CW’s appeal.[5]
The Appeal Board found on the balance of probabilities that CW had not received the Charge or been made aware of its contents.[6]
On CW’s submissions in respect of the OFR, Section 3, para. 111, the Appeal Board held that this had to be considered alongside para. 4. The Appeal Board noted the difficulty in reconciling the two provisions, but ultimately held:
‘[…] the Regulations appear to be trying to cover the situation of responses being submitted solely via WGS, which … is now very much the norm. In light of the use of WGS, the Appeal Board queried whether the paper response form sent with charge letters was in fact still fit for purpose, although that was not something within its jurisdiction’.[7]
Considering this, the Appeal Board was not prepared to accept CW’s submission that the appeal was bound to succeed solely because BCFA did not insist on receiving a signed response form.[8] However, the Appeal Board’s decision explained that whilst it would not normally have allowed an appeal in the absence of any procedural failings by the Respondent:
‘[…] this was not a “normal” case in the sense that the Charge was at the most serious end of the spectrum and the penalty, if proven, was a five-year suspension as a minimum. […] It also felt that the Commission, having reviewed all the paperwork should have asked the [BCFA] to check that [CW] did in fact want the case to be heard on the papers without any further evidence before determining the case’.
Considering both the severity of the Charge and the potential sanctions which could be imposed on CW, the Appeal Board considered that CW had been denied a fair hearing. Accordingly, a re-hearing before a fresh FA Disciplinary Commission was deemed appropriate.[9]
The right to a fair hearing: dependent upon severity?
Although the Appeal Board’s decision was warmly welcomed by CW and this author, its contextual approach to the requirements of a fair hearing is concerning. Notwithstanding that there is no formal system of precedent applicable to sport’s disciplinary bodies’ decisions, like cases should be treated alike.
The Appeal Board’s approach implies that there could be cases where either the charge or the potential sanctions (or both) are not considered severe enough to require the Affiliated Association to confirm that a Participant has been notified of the case against them, before that case is decided. The Appeal Board’s reference to a ‘"normal” case’ suggests that it is only in exceptional cases where such a failure to notify would amount to a failure to provide a fair hearing and be sufficient to allow an appeal.
This contextual approach is problematic and raises several questions:
What level of severity does a charge need to reach to require an Affiliated Association to obtain confirmation of notification from the Participant?
If an Affiliated Association or Disciplinary Commission decides that notification was unnecessary but fails to explain why in its written reasons, would these decisions be open to challenge or appeal?
In what circumstances would the Commission be entitled to proceed on the assumption that the Participant had been notified?
In this author’s opinion, the approach is at odds with the fundamental principle of the right to a fair hearing. By their blameless ignorance, a Participant could be deprived of the ability to seek legal advice, contest the charge, request a personal hearing, call evidence and cross-examine witnesses in the case. The notion that a Participant could, in such circumstances, be sanctioned in absentia with a fine (however much it may be) or serve out a suspension (for however brief a period) is worrying.
It is trite that not all offences and sanctions are equal, and it is that fact which the Appeal Board’s decision seeks to accommodate. Whilst it is correct to say that the extent of the requirements of a fair hearing can vary according to the severity of the offence and/or sanction, that cannot extend to extinguishing the basic qualities of that right: being fully and fairly informed of the charge. Such an approach would be unacceptable in any other form of disciplinary or legal proceedings. Why, then, should it be any different for an Affiliated Association’s disciplinary proceedings?
The FA Disciplinary Regulations 2024/25
To their credit, the FA appears to be attempting to address the discrepancy noted by the Appeal Board above, aligning it with the current practice of responding via the WGS. The 2024/25 edition of the OFR, Section 3, para. 111, now para. 107, has been amended as follows:
‘Where a Participant has been issued with a Charge the Participant and/or the Club Secretary (if applicable) will be required to reply via the electronic system operated by The Association from time to time’.
At first glance, the reference to ‘the Participant’ needing to respond via the WGS implies that they will need to be made aware of the charge to begin with. Indeed, that appears to be the effect of OFR, Section 3, para. 4, which imposes a joint duty on both the Club Secretary and the Participant to provide a response either by completing the Reply Form or via the WGS. Further, OFR, Section 3, para. 4 also states that when ‘the Club provides a response via the [WGS …] in doing so the Club Secretary acknowledges that the Participant has been made aware of the contents’. Note also that in the earlier 2023/24 version of this provision, this presumption applied only to Players, as opposed to Participants more broadly.
Notwithstanding these changes, it remains arguable that the issues in this appeal could potentially still arise in practice. The inclusion of ‘and/or the Club Secretary’ in para. 107 indicates that it would still be possible for a Club Secretary to respond on the WGS without a Participant’s knowledge. There is therefore still an element of uncertainty as to what happens in circumstances where a Club Secretary responds on a Participant’s behalf but where the Club Secretary has not informed the Participant of the charge and/or the Participant has not informed the Club Secretary of how they should respond to the Charge (i.e., admitting the charge, denying the charge, and requesting a personal hearing).
The applicable regulations could be improved by requiring proof that the Participant has been notified of the charge(s) to be uploaded to the WGS. It is suggested that this could be done with two amendments.
Firstly, the joint duty in OFR, Section 3, para. 4 could be further supplemented by imposing a duty upon the relevant Affiliated Association to take reasonable steps to notify the Participant of the charge(s) against them. This could be as simple as sending a copy of the charge letter and the response form to the Club Secretary by email and copying in the Participant, and/or requiring the Club Secretary to forward the same to the Participant and to provide evidence of this via the WGS.
Secondly, ‘and/or the Club Secretary (if applicable)’ could be replaced with ‘and/or the Club Secretary (acting with the Participant’s express written permission, such permission to be identified by evidence showing that the Participant has been fully informed of (a) the charge(s) against them; and (b) the options available to them)’.
The above-stated suggestions would ensure that any substantive response has come from the Participant themselves, with the Club Secretary’s providing a response on the WGS only where they are able to demonstrate that they are responding on the Participant’s behalf and with their permission. The effect of this change would be to inject further certainty into disciplinary proceedings by preventing a possible repeat of the scenario which arose in CW’s case. It would also eliminate the need for the contextual approach applied by the Appeal Board in Walton, since a Disciplinary Commission could proceed with the knowledge that the Participant had provided an informed response to the charge.
Shortcomings of the Whole Game System
The changes proposed above would also need to be accompanied by changes to the WGS interface, to safeguard reliance upon any response received. Presently, the WGS simply provides for a drop-down box of options for ‘Response to Charge(s)’, together with the date of the response (and, arguably redundant, a ‘Yes/No’ option under ‘Response Received’). A useful starting point (to reflect the current OFR, Section 3, para. 107) would be to include an option for the user to select whether the response is being provided by the Participant or the Club Secretary on the Participant’s behalf.
It would also be helpful to incorporate two separate checkboxes providing declarations stating:
“I am the Participant and I confirm that I have read and understood the Charge(s) against me”; or
“I am the Club Secretary responding on behalf of the Participant, and I confirm that the Participant has been notified of and understands the Charge(s) against them and the options available to them”.
Ticking the relevant checkbox would provide confirmation that the Participant is fully aware of the charge against them, has considered their various rights under the FA’s Disciplinary Regulations, and that the Participant’s true response is being provided (whosoever is providing it). The addition of the above-suggested checkboxes would be further enhanced by also providing an opportunity for responders to upload evidence in support of their selection and add any commentary which may explain their selection.
Conclusion
Moving forward, although the changes to the FA’s Disciplinary Regulations 2024/25 account for the increasing use of the WGS, they could be improved to prevent a reoccurrence of the issues arising in Walton. Most importantly, to eliminate any ambiguity, the above-stated suggested amendments to the FA Disciplinary Regulations and the WGS should be implemented. This will ensure that any exercise or waiver of a Participant’s fair hearing rights is an informed one and avoid the need for unnecessary appeals.
For finality, readers will be interested to know that following CW’s successful appeal, this author continued to represent CW in his subsequent re-hearing before a fresh Disciplinary Commission. At that re-hearing, Charge 1 was found not proved, but CW admitted Charge 2. Crucially, this meant that CW’s initial suspension of 6 years and 182 days from all football activity was reduced to a ban of just 132 days. As CW had already served a period of the suspension pending the outcome of the re-hearing, CW was able to return to work in just a matter of weeks.
This article was written by Mass Ndow-Njie, barrister at 7BR Chambers and who represented CW in Walton.
Footnotes
[1] Craig Walton v Birmingham County FA, FA Appeal Board (Ch. Sally Davenport), 2 August 2024.
[2] Ibid, [13].
[3] Ibid, [15].
[4] Ibid, [17].
[5] Ibid, [31].
[6] Ibid, [26].
[7] Ibid, [28].
[8] Ibid, [30].
[9] Ibid, [31].
2 December 2024