Flares at Football - A Hot Topic
On 31 May 2022 Richarlison de Andrade (“the Player”) was charged by the FA with misconduct for breach of the FA Rules, rule E3.1 (“the Charge”):
‘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’.
The Charge related to the Player’s conduct during the 46th minute of the Premier League match between Everton FC (“EFC”) (the Player’s then club) and Chelsea FC on 1 May 2022 at Goodison Park. The Player had just scored a goal and during the subsequent celebrations an EFC fan threw a flare from the stands on to the pitch. The Player ran towards the flare, picked it up and threw the flare back into the stands. The flare landed in a clearer area of the stands designated for disabled supporters, and no one was injured. A video of the incident can be seen here.
The Charge alleged that the Player’s conduct was ‘improper’ within the meaning of rule E3.1 of the FA Rules, and the Player admitted the Charge. Following a paper hearing of the matter, an FA Regulatory Commission sanctioned the Player with a one-match ban and a fine of £25,000.[1]
This article explains the Regulatory Commission’s reasoning in imposing that sanction, highlights the recent attempts to deal with the increased use of flares, smoke bombs, pyrotechnics or similar at football matches, and explains the serious consequences that can arise from use of the same.
The Regulatory Commission’s Decision
Approach to sanction
The Charge against the Player was dealt with pursuant to The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2 – Incidents on or Around the Field of Play (“FT2 Regulations”).
As noted above, the Player admitted the Charge and therefore the only task for the Regulatory Commission determining the appropriate penalty.
While paragraphs 8 and 10-11 of the FT2 Regulations provide Standard Penalties for a ‘Standard Case’ dealt with pursuant to the FT2 Regulations, the Player’s case was designated a non-Standard Case due to the unusual nature of the incident.[2]
In non-Standard cases the Regulatory Commission has a discretion to impose any penalty it considers appropriate.[3] However, in such cases the Regulatory Commission is still required to apply The FA Disciplinary Regulations, Part A – General Provisions (“General Provisions”), which, amongst other things, identify the Regulatory Commission’s powers in determining the appropriate penalty.[4]
A Regulatory Commission can impose penalties comprising one or more of a warning, a fine or a suspension.[5] Further, any such penalty can be suspended for such time and upon such conditions as the Regulatory Commission considers appropriate where there is a clear and compelling reason to do so. Importantly, in determining the appropriate penalty, a Regulatory Commission must apply any mitigating factors and/or aggravating factors.[6]
Further, the principle of proportionality is the guiding principle when considering the application of penalties or sanctions in a sporting regulatory context. The severity of a penalty must be proportionate with the seriousness of the offence.[7]
Weighing up the parties’ cases
The FA invited the Regulatory Commission to impose a sanction of a suspension of at least two matches.[8] Comparatively and by way of examples:
A two-match suspension would be the automatic suspension imposed if a player committed the on-field sending-off offence of using ‘offensive, insulting or abusive language and/or gesture’; and
A three-match ban would be the automatic suspension imposed if a player committed the on-field sending-off offence of ‘violent conduct’ or ‘serious foul play’.[9]
The Player invited the Regulatory Commission to impose a sanction of a reprimand and/or a warning.[10]
To support his case and to support points in mitigation, the Player provided a letter from himself and another letter from David Harrison, EFC’s Director of Football Operations and Club Secretary.
The Player’s evidence provided an apology from the Player and explained that the Player had no intention to throw the flare at anyone or into the fans but simply to throw the flare into an empty space. The Player also acknowledged that with hindsight he should have left the flare for EFC’s security team to deal with.
The Player’s evidence also identified that the Player had not been informed by The FA or the Premier League to not pick up flares or similar when thrown on to the football pitch.[11] It was also highlighted that the Player had previously played football in South America, where the throwing of flares or similar on to the football pitch is prevalent.
The Regulatory Commission’s opinion was that the Player’s conduct was ‘reckless and foolish’ and noted that ‘common sense dictates that picking up a smoking flare and then throwing it forcefully into an area where people are situated is behaviour that, by any standards, is unwise, reckless and therefore self-evidently improper’.[12]
Considering the arguments put forward by The FA and the Player, including the Player’s otherwise good disciplinary record, his good character, and a consideration of his football income, the Regulatory Commission considered that the appropriate and proportionate sanction was a one-match ban and a fine of £25,000.[13]
Putting out the fire
It is understandable that The FA sought a suspension of at least two matches against the Player considering the notable increase in the use of flares and smoke bombs at football matches in England over the last year.
Ahead of the 2022 FA Cup Final, The FA released a statement referring to the increased use of flares and smoke bombs at football matches, highlighting the dangers of their use and reminding fans of the illegality of bringing the same to football matches.
Further, in July 2022, The FA, the Premier League, the EFL and the Football Supporters’ Association released a joint statement which stated, amongst other things:
‘The FA, Premier League and EFL are together introducing new measures and stronger sanctions across the game to tackle the increased anti-social and criminal behaviours recently seen within football grounds and underline the importance of a safe matchday environment.
The new set of actions, which will be implemented across all English football leagues from the start of Season 2022/23 and backed by the Football Supporters’ Association, will target activity such as… carrying or using smoke bombs or pyrotechnics and throwing objects…
From the start of Season 2022/23, all identified offenders will be reported by clubs to the police and prosecution could result in a permanent criminal record, which may affect their employment and education, and could result in a prison sentence. The FA will also be enforcing a tougher charging and sanctioning policy for clubs, which will reinforce these measures.
Furthermore… who enters the pitch and those identified carrying or using pyrotechnics or smoke bombs will now receive an automatic club ban. These bans could also be extended to accompanying parents or guardians of children who take part in these activities.
…
To further support this action, The FA, Premier League and EFL are working with police forces, the UK Football Policing Unit (UKFPU), and the Crown Prosecution Service to establish a new principle for cases relating to pyrotechnics and smoke bombs... This will mean cooperating to achieve a prosecution in these cases will become the default response of the football authorities and criminal justice system, sending a clear and unambiguous message to all who break the law’.
Further, The FA has now started to include in its ‘Essential Information for Players’ a warning in respect of pyrotechnics (an omission that was noted by the Player in his documents and evidence put before the Regulatory Commission):
‘In the event of any pyrotechnic device being thrown onto the pitch, you should move well away from it and you must not attempt to remove the device yourself as such matters will be dealt with by safety stewards.
In recent seasons, there have been several incidents of players picking up pyrotechnic devices – Please note that players now risk being charged by The FA should similar incidents occur from this season onwards’.
While Richarlison has not been charged with any criminal offence for his conduct (in such and comparable circumstances it is common for the police not to investigate on the basis that The FA is handling the matter and imposing a sanction), fans committing similar conduct are likely to face more severe consequences.
The use and mere possession of flares, smoke bombs, pyrotechnics or similar has been prohibited in the United Kingdom since 1986 when section 2A was inserted to the Sporting Events (Control of Alcohol etc.) Act 1985, which states:
(1) A person is guilty of an offence if he has an article or substance to which this section applies in his possession –
(a) at any time during the period of a designated sporting event when he is in any area of a designated sports ground from which the event may be directly viewed, or
(b) while entering or trying to enter a designated sports ground at any time during the period of a designated sporting event at the ground.
(2) It is a defence for the accused to prove that he had possession with lawful authority.
(3) This section applies to any article or substance whose main purpose is the emission of a flare for purposes of illuminating or signalling (as opposed to igniting or heating) or the emission of smoke or a visible gas; and in particular it applies to distress flares, fog signals, and pellets and capsules intended to be used as fumigators or for testing pipes, but not to matches, cigarette lighters or heaters.
(4) This section also applies to any article which is a firework’.
‘Designated sporting event’ includes:
Football matches in which one or both of the participating teams represents a club which is for the time being a member of the Football League, the Premier League, the Football Conference National Division, the Scottish Football League or Welsh Premier League, or whose home ground is situated outside England and Wales, or represents a country or territory;
Football matches in competition for the FA Cup, save for any preliminary or qualifying rounds; and
Football matches at a sports ground outside England and Wales in which one or both of the participating teams represents a club which is for the time being a member of the Football League, the Premier League, the Football Conference National division, the Scottish Football League or Welsh Premier League, or represents the Football Association or the Football Association of Wales.[14]
‘Designated sports ground’ includes any sports ground in England and Wales.[15]
The prohibition is therefore wide and, in addition to a club ban referred to in the joint statement quoted above, an offence can result in a criminal record. In conversation with Rhys Rosser, barrister at 2 Bedford Row who practises in criminal and quasi-criminal matters, Mr Rosser explained:
‘An individual who commits this offence can be sentenced to a fine of up to £1,000 and/or a period of up to 3 months’ imprisonment…
Additionally, there could be the imposition of a Football Banning Order pursuant to the Football Spectators Act 1989, s.14A. This could be imposed where a football related offence has been committed and there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder’.
The Player’s case and The FA’s and other stakeholders’ efforts demonstrate that the use of flares, smoke bombs or similar at football matches is a serious issue, and players and fans alike should take both as a serious warning.
Footnotes
[1] The Football Association v Richarlison de Andrade, The FA Regulatory Commission (Ch Stuart Ripley), 7 July 2022.
[2] Ibid, [8]; The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2 – Incidents on or Around the Field of Play, para. 9.
[3] The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2 – Incidents on or Around the Field of Play, para. 12.
[4] Ibid, para. 28; The FA Disciplinary Regulations, Part A – General Provisions, para. 41 and 52.
[5] Ibid, para. 43-44.
[6] Ibid, para. 42.2.
[7] W v FEI, CAS 99/A/246, 11.5.2000, [31].
[8] (n1), [12].
[9] The FA’s Disciplinary Regulations, Part D – On-Field Regulations, para. 1.1, 30-31 and Table 2.
[10] Ibid, [11] and [13].
[11] Ibid, [16].
[12] Ibid, [15]-[16].
[13] Ibid, [17]-[19].
[14] The Sports Grounds and Sporting Events (Designation) Order 2005, Schedule 2.
[15] Ibid, Schedule 1.
10 August 2022