Marco Da Silva and Aleksander Mitrovic Provide Key Case
The recent FA Regulatory Commission and FA Appeal Board decisions involving Marco Da Silva (“MDS”) and Aleksander Mitrovic (“AM”) of Fulham FC provide helpful guidance to those involved with FA disciplinary proceedings.
This article will summarise the cases against MDS and AM, explain the regulatory guidance and points of principle emphasised by the Regulatory Commission when reaching its decision on sanction, and explain why the Appeal Board agreed with the part of the Regulatory Commission’s decision on sanction that was appealed against by the FA.
The FA Regulatory Commission – the charges and the findings
MDS and AM were charged in respect of events that occurred during Fulham FC’s FA Cup quarter-final match against Manchester United FC on 19 March 2023.[1]
MDS was charged with five breaches of rule E3.1 of the FA Rules, which states:
‘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’.
It was alleged that MDS (i) had thrown a water bottle in the direction of an assistant referee; (ii) that before being dismissed he used abusive and/or insulting words towards the fourth official; (iii) that he used abusive and/or insulting words and/or gestures and/or behaviour towards the referee; (iv) that after being dismissed he used abusive and/or insulting words and/or gestures and/or behaviour towards the fourth official; and (v) that in a post-match press-conference he made comments that implied bias and/or question the integrity of the match officials and/or bring the game into disrepute.[2]
MDS denied charge (i) but admitted the other charges.[3] In respect of charge (i), an FA Regulatory Commission found that MDS ‘threw the bottle in the direction of the Assistant Referee, if not at the Assistant Referee’ (emphasis original) and that such conduct was improper, therefore establishing the charge.[4]
AM was charged with two breaches of rule E3.1 of the FA Rules.[5] Firstly, it was alleged that pursuant to The FA Disciplinary Regulations, Part D: On-Field Regulations, Section One, para. 20.2 the standard punishment (a 3-match ban) applicable to AM’s sending-off during the match was clearly insufficient (to be dealt with in accordance with The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 6: Clearly Insufficient (“Fast Track 6”)).[6] Secondly, it was alleged that pursuant to The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 2: Incidents on or Around the Field of Play etc. (“Fast Track 2”) that AM’s behaviour and/or language following his sending-off was improper and/or abusive and/or insulting and/or threatening. A video of AM’s conduct is available here.
AM denied that the standard punishment for his sending-off offence was clearly insufficient but admitted the second charge.[7] In respect of the clearly insufficient charge, the Regulatory Commission referred to Fast Track 6, para. 11, which states:
‘11.2 After considering the evidence, the Regulatory Commission will decide whether the claim is rejected or is successful. A claim will only be successful where the Regulatory Commission is satisfied so that it is sure that:
11.2.1 the circumstances of the dismissal under review are truly exceptional, such that the standard punishment should not be applied; and
11.2.2 as a result of the truly exceptional circumstances the standard punishment would be clearly insufficient.
11.3 In considering the matters at paragraph 11.2 above, the Regulatory Commission shall have regard to:
11.3.1 the applicable Law(s) of the Game and any relevant FIFA instructions and / or guidelines;
11.3.2 the nature of the dismissal offence including the Player’s state of mind, in particular any intent, recklessness or negligence;
11.3.3 where applicable, the level of force used;
11.3.4 any injury to an opponent caused by the dismissal offence;
11.3.5 any other impact on the game in which the incident occurred;
11.3.6 the prevalence of the type of incident in question in football generally;
11.3.7 the wider interests of football in applying consistent punishments for dismissal offences’.
The Regulatory Commission also considered the definition of ‘violent conduct’ in the Laws of the Game, which states:
‘Violent conduct is when a player uses or attempts to use excessive force or brutality against an opponent when not challenging for the ball, or against a team-mate, team official, match official, spectator or any other person, regardless of whether contact was made’.
The FA submitted, inter alia, that AM’s conduct was not within the reasonable parameters of the standard three-match ban and that the force used by AM against the referee was distinct from ‘examples where a player makes physical contact with a Match Official for the purposes of gaining [their] attention’.[8] Having considered all of the evidence, the Regulatory Commission were of the opinion that the circumstances of AM’s case were truly exceptional and were satisfied that the standard suspension of a 3-match ban was clearly insufficient.[9].
MDS’s charges and AM’s second charge were designated as ‘Non-Standard cases’ as they concerned incidents around the field of play or otherwise outside of the referee’s jurisdiction (i.e., after AM had been sent off).[10] Such designation permitted the Regulatory Commission to impose sanctions above the otherwise applicable ‘Standard Penalty’.[11]
Procedural and noteworthy points
Three points made by the Regulatory Commission are interesting procedurally and on points of principle and practice in FA disciplinary proceedings.
Firstly, it was noted by the Regulatory Commission that pursuant to Fast Track 6, para. 7, a charge that a standard punishment is clearly insufficient should ordinarily be dealt with by way of written submissions and evidence.[12] However, the Regulatory Commission highlighted that pursuant to The FA Disciplinary Regulations, Part E: Fast-Track Regulations, General Principles, para. 3, the Chair of the FA Judicial Panel or Regulatory Commission dealing with any given case has a discretion to deviate from such standard directions.[13]
Accordingly, considering the FA’s charge that AM’s standard punishment for his sending-off offence was clearly insufficient, that the facts surrounding the same was part of a sequence of events, and that the parties were represented (by solicitors and/or counsel), the Regulatory Commission it was appropriate to permit oral submissions in respect of this charge.[14]
Secondly, in respect of the parties’ reliance upon comparable cases to assist the Regulatory Commission in reaching its decision on appropriate sanctions, the Regulatory Commission emphasised the comments of the FA Appeal Board in The FA v Jurgen Klopp:
‘In The FA v Everton FC (28 September 2022) the Regulatory Commission observed (at paragraph 14) as follows:
‘Parties appearing before Regulatory Commissions frequently submit that the doctrine of precedent does not apply. Each case turns on its own facts and must be approached from the basis of those facts. We agree. Nevertheless it is plainly sensible that whilst every case is determined on its own facts there should be a degree of consistency and uniformity of approach. That does not require a Regulatory Commission slavishly to follow the approach of an earlier Commission, but it does require that it should take into account the reasoning of an earlier decision and to apply the wisdom to be gained from it.’
We endorse that observation. Absent good reason to the contrary, parties charged with a breach of the FA Rules are entitled to expect a broad consistency of approach by Regulatory Commissions tasked with sanctioning them if that breach is admitted of found proven. Achieving that requires any Regulatory Commission:
(a) To have regard to any guidelines in place as to sanction for breaches of particular Rules or Regulations – in this case, the Standard Penalty Guidelines – and ask itself how, if at all, those guidelines might apply or be relevant to the facts of the case before it as the Regulatory Commission finds them to be;
(b) To have regard to previous decisions of other Regulatory Commissions and/or Appeal Boards and once again ask itself how, if at all, those decisions might be relevant to the facts of the case before it. As was said in The FA v Everton (supra) that does not mean that a Regulatory Commission should ‘slavishly’ follow the approach of an earlier Regulatory Commission. Nor does it mean that a Regulatory Commission can never adopt a different approach or arrive at a decision that might be considered inconsistent with that reached by an earlier Regulatory Commission. Not only do cases vary on their facts, but attitudes and approaches may, for good reason, change over time. The perceived gravity of what might have been considered trivial misconduct (or even acceptable conduct) at a particular point in time can alter. Provided that the approach taken by a Regulatory Commission and the decision reached by a Regulatory Commission is justifiable and reasonable on the facts of the particular case, it will be a rare case in which an Appeal Board will interfere’.[15]
The emphasis of this guidance is helpful for practitioners appearing before FA Regulatory Commissions, FA Appeal Boards, and other sports’ disciplinary bodies. Disciplinary decisions do not create any binding precedent or authority and should be used as nothing more than a helpful indication to assist in achieving consistency in punishments and compliance with the principle of proportionality. A submission that a sanction imposed in a comparable case should be ‘slavishly’ followed is likely to be given short shrift. Similarly, a submission that a sanction to be imposed should be notably greater or lesser than a sanction imposed in a comparable case (in the absence of any significant distinguishing factor and/or revised sanction guidelines justifying the same) is likely to need weighty justification.
Thirdly, and leading neatly on from that second point, the Regulatory Commission also emphasised another comment of the FA Appeal Board in The FA v Jurgen Klopp:
‘(a) When considering sanction a Regulatory Commission is entitled to have regard to issues of deterrence as a legitimate sanctioning objective (along with other legitimate sanctioning objectives such as punishment of the offender and wider issues such as protecting/preventing harm to the integrity, reputation and image of the game) if it considers the same to be relevant.
(b) While a Regulatory Commission is entitled to impose a sanction which has combined aims of punishing the offender, deterring him and others from offending and protecting/preventing harm to the integrity, reputation and image of the game, the sanction imposed must remain a proportionate response to the facts of the cases under consideration and the offending in question.
(c) A Regulatory Commission is not entitled to include a ‘deterrent element’ in/add a ‘deterrent element’ to a sanction if by doing so the overall sanction imposed would become disproportionate to the offending under scrutiny in the particular case. Put simply a Regulatory Commission is not entitled to increase a sanction for the purpose of deterring others (or the respondent) from offending in the future if by doing so the nature or level of the sanction would increase to a level that was no longer proportionate to the facts of the case for which the sanction is being imposed’.[16]
This emphasis was made particularly in relation to AM’s misconduct generally, and presumably the increasing instances of players (at every level of the game) reacting angrily and physically to referees’ decisions. The guidance from the FA Appeal Board in The FA v Jurgen Klopp is crucial in circumstances where a sport’s governing body has failed to take steps to impose stricter sanctioning guidelines or mandatory punishments for a particular type of offence, yet submissions are made on a governing body’s behalf that a more severe sanction should be imposed than has historically been imposed for such offences.
The FA Regulatory Commission – MDS’s sanction
In respect of MDS and the first four of his offences, the FA relied upon their Standard Penalty Guidelines which recommend a one-match touchline ban and a fine of £8,000 (in respect of a Premier League club) for a breach of the FA Rules, rule E3. The FA submitted that for the first four of MDS’s offences he should be sanctioned for each offence at the Standard Penalty Guideline recommendation, which would result in (at a minimum) a four-match ban and a £32,000 fine.[17] MDS argued that the FA’s approach was ‘salami slicing’ one course of misconduct, and that it was at odds with how sanctioning had been approached in comparable cases dealing with one course of misconduct.[18]
The Regulatory Commission rejected the FA’s suggested approach to sanction and indicated that a sanction involving a four-match ban would be disproportionate when considering comparable cases involving similar misconduct.[19]
The Regulatory Commission acknowledged the seriousness of MDS’s misconduct, that he had denied the charge in respect of throwing a water bottle in the direction of an assistant referee, and that MDS had been sanctioned for similar conduct in April 2022.[20] The Regulatory Commission also acknowledged MDS’s mitigation, which included the apology he offered to the referee and to the Regulatory Commission.[21]
In such circumstances, the Regulatory Commission sanctioned MDS with a two-match touchline ban and a fine of £20,000.[22]
In respect of MDS’s fifth offence concerning his comments made during an interview after the match against Manchester United FC, the Regulatory Commission were referred to the comparable cases of The FA v Jurgen Klopp (where an FA Regulatory Commission imposed a fine of £45,000) [23], The FA v Frank Lampard (where an FA Regulatory Commission imposed a fine of £30,000) [24], and The FA v Neil Warnock (where an FA Regulatory Commission imposed a fine of £20,000).[25]
Considering those cases, details of MDS’s salary, and the mitigation in MDS’s favour which included that his comments were said without malice and that he admitted the offence at the first opportunity, the Regulatory Commission sanctioned MDS with a fine of £20,000.[26]
The FA Regulatory Commission – AM’s sanction
The Regulatory Commission approached AM’s sanction by acknowledging there were two elements, being (i) the conduct that resulted in AM being sent-off and whether the standard punishment was clearly insufficient; and (ii) AM’s conduct after being sent off, which was then outside the referee’s jurisdiction.[27]
In respect of the first element, the Regulatory Commission acknowledged that ‘this was the worst example of on-field behaviour toward a Match Referee for a very long time’.[28]. The Regulatory Commission also had in mind the guidance on deterrence forming part of any sanction as explained above and stated that it did not ‘overtly consider deterrence as a part of the appropriate sanction that should apply… Rather, the Commission concentrated on the facts as it found them’.[29]
The Regulatory Commission noted, inter alia, that AM is an experienced player, that there was no reasonable excuse for AM to be approaching the referee and that ‘no player should use force toward the Match Referee’.[30] The Regulatory Commission were also assisted by the previously decided case of The FA v Bacuna, where the player received an additional three-match ban to the standard three-match ban for similar conduct.[31]
AM also received no credit for contesting the clearly insufficient charge.[31]
In such circumstances, the Regulatory Commission sanctioned AM with a three-match ban in addition to the standard punishment of a three-match ban (bringing the total sanction to a six-match ban).[33]
In respect of the second element of sanctioning AM, the Regulatory Commission noted that AM became more aggressive after being sent-off, and that if the referee had not moved away from AM there would have been further physical contact by AM towards the referee.[34] The Regulatory Commission also noted the definition of ‘violent conduct’ in the Laws of the Game quoted above, and that contact does not need to be made for conduct to amount to violent conduct. In such circumstances, had AM’s conduct after being sent off occurred before being sent off, this itself would also have warranted a red card and attracted a standard punishment of a three-match ban.[35]
The Regulatory Commission also acknowledged AM’s mitigation, which included AM’s apology to the referee, a public apology, and that he admitted the charge for this offence at the earliest opportunity.[36] It should be noted that an early admission of an offence will usually attract some discount or reduction to the level of sanction that would otherwise be imposed.
In such circumstances, the Regulatory Commission considered a three-match ban was appropriate and proportionate for AM’s conduct that occurred after he had been sent off. However, the Regulatory Commission reduced this to a two-match ban to account for AM’s mitigation.[37] AM was also fined £75,000.[38]
The FA Appeal Board – the appeal and relevant considerations
The FA appealed against the Regulatory Commission’s decision to sanction MDS with a two-match ban in respect of his first four offences, and to sanction AM with a two-match ban for his misconduct that occurred after he had been sent off.[39] The FA’s appeal was brought on the basis that such sanctions were ‘so unduly lenient as to be unreasonable’.[40)
In considering the FA’s appeal, the Appeal Board also relied upon the decision in The FA v Jurgen Klopp, which provided the following guidance when considering whether a sanction is ‘so unduly lenient as to be unreasonable’:
‘a) That this appeal is by way of a review of the decision of the [Regulatory Commission], not a rehearing;
b) That the burden rests with the Appellant – the FA – to establish that the [Regulatory Commission’s] decision was one to which no reasonable Regulatory Commission could have come. The hurdle for the FA to clear is thus a high one;
c) That when assessing whether the [Regulatory Commission’s] decision was one to which no reasonable Regulatory Commission could have come, an Appeal Board is entitled to examine both
i) The route by which the Regulatory Commission reached its decision, and
ii) The ultimate decision reached by the Regulatory Commission;
d) That when considering evidential assessments, factual findings and the exercise of a judicial discretion in the context of an appeal by way of a review, a Regulatory Commission made up of individuals with considerable sporting and dispute resolution experience (as the [Regulatory Commission] was) should be accorded a generous and significant margin of appreciation by an Appeal Board;
e) That evidential assessments and factual findings made by a Regulatory Commission should only be disturbed by an Appeal Board if they are clearly wrong or wrong principles have been applied; it is not for an Appeal Board to substitute its own view simply because it might have reached a different decision;
f) That when assessing whether a sanction is unreasonable, the same generous and significant margin of appreciation applies. It is not for an Appeal Board to substitute its own opinion on sanction unless it finds that the Regulatory Commission’s decision was unreasonable or one that it was not open to the Commission to have reached:
i) By analogy with the decision in Wilfred Zaha v The FA (supra) @ para 30 (where the issue was whether the sanction imposed by the Regulatory Commission had been ‘excessive’) it would be ‘wrong for an Appeal Board to interfere with a sanction imposed by a Regulatory Commission simply because the Appeal Board would itself have imposed a slightly lower (sic) sanction’
ii) ‘So unduly lenient as to be unreasonable’ means more than merely ‘lenient’; it means so unduly lenient as to be unreasonable in the sense that it was a sanction which no reasonable Regulatory Commission could have imposed’.[41]
The guidance will be familiar to those that have made or responded to such appeals, and the threshold to pass for an appellant is a high one. The decision to make an appeal is not one that should be made lightly.
The FA Appeal Board – the FA’s submissions
In respect of MDS, the FA’s submissions that the two-match ban was so unduly lenient as to be unreasonable included the following:
The proper approach when determining the appropriate sanction for a Non-Standard case (as this case was) is: (i) to refer to the standard penalty guidelines and see what would be imposed if the matter was a Standard case; (ii) impose a sanction that is higher than the standard penalty guidelines suggest; (iii) where there are multiple alleged breaches, approach each breach separately unless it would be unreasonable to do so; and (iv) consider whether the overall sanction is proportionate.[42]
The Regulatory Commission was wrong to consider MDS’s misconduct into a single incident or one court of misconduct.[43]
In any event, the two-match ban was unduly lenient, the Regulatory Commission offered no explanation why a four-match ban or higher was disproportionate, and the Regulatory Commission was wrong to attribute any significant weight to MDS’s late, post-charge apology.[44]
The Appeal Board rejected the FA’s submissions:
There is nothing in the FA Rules or the FA Disciplinary Regulations that requires an FA Regulatory Commission to approach sanction in the way submitted by the FA. Indeed, Fast Track 2, para. 12 expressly states that in Non-Standard cases ‘the Regulatory Commission shall have a discretion to impose any such penalty as it considers appropriate’.[45]
The Appeal Board was satisfied that the Regulatory Commission had considered all relevant factors when coming to its decision, including the mitigation in MDS’s favour.[46] There is no limit or constraint on what can be considered as a mitigating factor, and in any event remorse, apologies and early admissions are common mitigating factors that have an impact upon the level of sanction imposed.
In respect of AM, the FA’s submissions that the two-match ban for his misconduct after being sent off was so unduly lenient as to be unreasonable included the following:
The Regulatory Commission’s own findings indicated that AM became more aggressive and threatening after being sent off and this misconduct was therefore more serious than the misconduct that resulted in AM being sent off.[47]
The Regulatory Commission was wrong to reduce AM’s match ban from three matches two matches on the basis of a late, post-charge apology.[48]
The sanction did not take any account of the need to deter such conduct in the future.[49]
The Appeal Board rejected the FA’s submissions:
It was noted that AM’s misconduct that resulted in him being sent off involved physical contact with the referee, whereas his misconduct after being sent off did not. In such circumstances it could not be considered that the latter misconduct was more serious than the earlier misconduct.[50]
The Appeal Board was satisfied that the Regulatory Commission had considered all relevant factors when coming to its decision on sanction, particularly with reference to its reliance upon the definition of ‘violent conduct’ and the standard punishment that would have been imposed had AM’s misconduct after being sent off occurred in isolation.[51]
The Appeal Board was satisfied that the Regulatory Commission gave proper consideration to the mitigation in AM’s favour, which included his apology and his early admission of the charge in respect of his misconduct that occurred after being sent off.[52] Again, there is no limit or constraint on what can be considered as a mitigating factor, and in any event remorse, apologies and early admissions are common mitigating factors that have an impact upon the level of sanction imposed.
The Appeal Board also referred to the guidance provided in The FA v Jurgen Klopp quoted above in respect of whether sanctions should have a deterrent effect, and the Regulatory Commission’s reliance upon the same when determining the appropriate sanction to impose on AM.[53] The Appeal Board was satisfied that the Regulatory Commission ‘had in mind that it was entitled to have regard to deterrence as a legitimate sanctioning objective if it considered it relevant to do so’.[54]
Conclusion
The decisions provides helpful guidance on three points for those involved with FA disciplinary proceedings (or other sports’ governing bodies), and they have each been categorised as a “key case” by the FA. Firstly, parties should bear in mind the guidance on the weight of comparable cases and the way they are to be relied upon. Secondly, sports’ governing bodies should bear in mind that seeking to add a deterrent effect to a sanction is not an easy task. In this author’s opinion, if sports’ governing bodies wish to seek or impose greater sanctions than have otherwise been imposed in similar circumstances, they should consult with appropriate stakeholders and introduce appropriate sanction guidelines. Thirdly, appealing against a decision of an FA Regulatory Commission on the basis that a sanction it imposed is ‘so unduly lenient as to be unreasonable’ is not an easy threshold to pass; mere disagreement with the sanction imposed is not a sound basis for bringing an appeal on that ground.
Footnotes
[1] The FA v Fulham Football Club, Marco Da Silva and Aleksander Mitrovic, The FA Regulatory Commission (Ch. Christopher Stoner KC), 6 April 2023.
[2] Ibid, [9].
[3] Ibid, [12].
[4] Ibid, [29] and [69].
[5] Ibid, [10].
[6] See the FA Disciplinary Regulations, Part D: On-Field Regulations, Section One, para. 31 and Automatic Suspensions and Sanctions, Table 2.
[7] Ibid, [13].
[8] (n1), [51].
[9] Ibid, [62]-[63].
[10] Ibid, [9]-[10]; The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 2: Incidents on or Around the Field of Play etc. (“Fast Track 2”), para. 9.
[11] Fast Track 2, para. 12.
[12] (n1), [45].
[13] Ibid, [46].
[14] Ibid, [48].
[15] Ibid, [60]; The FA v Jurgen Klopp, The FA Appeal Board (Ch. Graeme McPherson KC), 13 November 2022, [26]-[27].
[16] (n1), [92]; (n15) The FA v Jurgen Klopp, [40].
[17] (n1), [72]-[73].
[18] Ibid, [75]-[78].
[19] Ibid, [79].
[20] Ibid, [80].
[21] Ibid, [81].
[22] Ibid, [83].
[23] The FA v Jurgen Klopp, The FA Regulatory Commission (Ch. Peter Powell), 21 February 2019.
[24] The FA v Frank Lampard, The FA Regulatory Commission (Ch. Christopher Stoner QC), 30 May 2022.
[25] The FA v Neil Warnock, The FA Regulatory Commission (Ch. Gareth Farrelly), 20 May 2019.
[26] (n1), [88].
[27] Ibid, [89].
[28] Ibid, [91].
[29] Ibid, [93].
[30] Ibid, [95].
[31] Ibid, [97]; The FA v Leandro Bacuna, The FA Regulatory Committee (Ch. Brian M Jones), 3 March 2017.
[32] (n1), [63].
[33] Ibid, [98].
[34] Ibid, [100].
[35] Ibid, [101]; (n6).
[36] (n1), [106]-[107].
[37] (n1), [104].
[38] Ibid, [108].
[39] The FA v Fulham Football Club, Marco Da Silva and Aleksander Mitrovic, The FA Appeal Board (Ch. Paul Goulding KC), 25 April 2023, [5].
[40] The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 7: Appeals, para. 5.3.
[41] (n39), [13]; (n15) The FA v Jurgen Klopp, [20].
[42] (n39), [23].
[43] Ibid, [24].
[44] Ibid, [25].
[45] Ibid, [29]-[31].
[46] Ibid, [33]-[36].
[47] Ibid, [38].
[48] Ibid, [39].
[49] Ibid, [39].
[50] Ibid, [41].
[51] Ibid, [43].
[52] Ibid, [44].
[53] Ibid, [45]-[46].
[54] Ibid, [47].
26 May 2023