Referee Sanctioned for Clash With Player
On 17 February 2021 the FA charged referee Darren Drysdale (“DD”) with breach of the FA Rules, rule E3 for alleged improper conduct arising out of an incident that occurred in the 90th minute of the English Football League, League One match between Ipswich Town FC (“ITFC”) and Northampton Town FC (“NTFC”) that took place on 16 February 2021 (“the Match”) (collectively “the Charge”).
The FA Rules, rule E3.1 states:
‘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’.
‘Participant’ includes, inter alia, a ‘Player’ and ‘Match Official’.[1]
The incident concerned a clash between DD and ITFC’s player Alan Judge (“AJ”). A video of the incident is available here.
On 11 March 2021 the FA announced that an FA Regulatory Commission had sanctioned DD with a four-match backdated suspension (“the Sanction Decision”).[2]
This article will summarise and explain the Sanction Decision and consider whether AJ could also be charged with a breach of the FA Rules, rule E3 for alleged improper conduct in respect of the same incident that resulted in the Charge against DD.
The Sanction Decision
DD admitted the Charge, therefore the Sanction Decision only concerned the appropriate sanction to be imposed on DD for his breach of the FA Rules, Rule E3.1.[3]
DD requested and the FA was content for the matter to be dealt with by way of written submissions or “on the papers” (i.e. without an oral hearing).[4] In particular, DD had provided a statement explaining points in mitigation to be considered by the FA Regulatory Commission when determining the appropriate sanction (“DD’s Statement”).[5] However, the FA Regulatory Commission (“the RC”) exercised its power under the FA Disciplinary Regulations, Part B, Non-Fast Track Regulations, para. 25.9 and ‘declined to dispense with an oral hearing’.[6] Accordingly, the FA and DD were required to attend an oral hearing before the RC (which would have taken place by video conference).
The RC noted that DD’s Statement explained the following in respect of the incident:
‘I then processed what had happened for a few seconds before blowing my whistle and decided to caution Alan Judge for an act of trying to deceive a match official. As I blew my whistle Alan Judge shouted aggressively in a loud voice at me and from a distance of only 5 metres "It's a fucking penalty you cheating bald cunt!” Reacting completely out of character, I took exception to what I considered to be an offensive comment. I walked towards Alan Judge who then continued his tirade of abuse as he then, what I deemed as, aggressively and provokingly pointed his finger towards my face and shouted, "You're a fucking cheating cunt!”. I accept that I should not have moved my head towards Alan Judge as this only inflamed the situation. At no time was there any physical contact between myself and Alan Judge. My action of moving forward was as a posture of authority and with the player being significantly shorter than me, this led to me looking down at him. I then issued a yellow card to Alan Judge for his exaggerated fall’.[7]
DD’s Statement also repeated an apology that he had made publicly, explained his remorse for the incident, and indicated that since 17 February 2021 he had been ‘suspended from three matches to date and [remains]suspended from all officiating duties’.[8] DD was also supported by a character statement from Paul Russell, head of psychology for the Professional Game Match Officials Limited (PGMOL).[9]
Interestingly, the FA’s position was that DD’s conduct was ‘not of the utmost seriousness’ and it did not invite the RC ‘to impose any particular sanction’.[10] Further, the FA ‘did not challenge DD’s account that he was provoked nor the provocative words he said were used [by AJ]’.[11] In this author’s opinion it is strange that (insofar as the Sanction Decision does not identify otherwise and subject to what is noted below in respect of ITFC and AJ not engaging with the RC) that the FA did not seek to obtain witness evidence from NTFC players proximate to the incident to assist the RC with making a reliable determination of what was or was not said between DD and AJ during the incident. In this author’s opinion it is also strange that there is no reference in the Sanction Decision to any match report made by DD after the Match providing a contemporaneous report of what was said or was not said between DD and AJ, as required by the Laws of the Game, Law 5.3.
It must also be assumed from the Sanction Decision that the video evidence available to the RC did not assist with identifying what was or what was not said between DD and AJ. Indeed, this publicly available video of the incident does not assist.
Concerningly for this author, and the RC, there was no statement or evidence from AJ provided to the RC.[12] The RC noted this omission when first considering the papers in respect of the Charge, and therefore directed the FA to confirm what attempts had been made by the FA to speak to AJ and obtain his version of events, or if not done to be done so immediately. The FA’s responses to the RC’s direction did not address the RC’s concerns, and it was for this reason that the RC directed that an oral hearing was necessary.[13]
Before the oral hearing, the FA explained that it had contacted ITFC and had received, inter alia, the following response from ITFC’s club secretary Stuart Hayton:
‘… whilst [AJ] did not accept that he had use the word, “Cunt”, he did agree that he had used other insulting words towards [DD], immediately prior to the incident’.[14]
It is understood that at the oral hearing the FA revealed that the explanation from Stuart Hayton was based on ‘the word around [ITFC]’, and therefore was not directly from AJ.[15] The RC was ‘not content to proceed on that vague basis’, however further attempts to provide AJ with an opportunity to explain his version of events resulted in the following responses:
‘… [AJ] does not wish to be involved at all and he considered the matter closed when he left the field of play that evening.
He wishes [DD] well with his refereeing career and does not wish to pursue the matter nor add any further comments or speak to [the RC]’.[16]
Further, at the oral hearing, DD maintained the account provided in DD’s Statement.[17]
In such circumstances, the RC considered that ‘the only appropriate course is for us to sanction DD upon the basis of his own account, namely he reacted to AJ’s provocative conduct as he described it was’.[18] For completeness, it should also be noted that the RC was satisfied that DD did not make any physical contact with AJ during the incident or if there was ‘it was modest… as such as to have no material effect on sanction’.[19]
The significance of DD’s case is that there were no sanctioning guidelines or comparable cases to assist the RC in determining the appropriate sanction for DD’s breach of the FA Rules, rule E3.1.
The RC considered the automatic three-match suspension imposed upon a player who receives a red card for ‘Serious foul play’ and ‘violent conduct’, and the automatic two-match suspension imposed upon a player who receives a red card for ‘Using offensive, insulting or abusive language and/or gestures’.[20]
The RC also considered the Standard Penalty Guidelines in respect of breaches of the FA Rules, rule E3.1 (“the SPG”).[21] The SPG state that for an admitted breach of the FA Rules, rule E3.1 that involves ‘Abusive/Insulting Language’ and which occurred in the EFL League One, the standard penalty is a one-match ban and a £1,000 fine.
The RC also considered that DD ‘should not have acted in the hostile and confrontational way he did’, in addition to ‘considerable mitigation’, such as the spontaneity of DD’s reaction ‘to the significant provocation he described’, his admission of the Charge, his apology and that the incident was ‘completely out of character’.[22]
The RC stated that DD’s breach of the FA Rules, E3.1 is ‘so serious as to merit an immediate suspension’ (as opposed to a suspended one), and that ‘absent [DD’s] admission and the… mitigation, this conduct by a match official would have [warranted]… a suspension of six matches or a time based equivalent’ (sic).[23] It is interesting to note therefore that absent an admission and appropriate mitigation, the RC placed DD’s conduct on the same sanction level as ‘Spitting at an opponent or any other person’, or the ‘Standard Minimum’ sanction for an ‘Aggravated Breach’ of the FA Rules, rule E3.1.[24] However, applying those above-stated mitigating factors in favour of DD as required, the RC considered a four-match suspension was appropriate.[25]
The RC also took account of the fact that DD’s Statement explained how DD had been ‘suspended from three matches to date and [has remained] suspended from all officiating duties [since 17 February 2021]’. This was confirmed by PGMOL at the oral hearing before the RC, and it was also explained that as a consequence of that suspension DD had not been appointed as a referee or fourth official for at least five matches.[26] Accordingly, DD had already ‘served the equivalent of the suspension’ and ‘[it] would be a disproportionate penalty for [DD] to serve suspension of a (further) four matches’.[27]
Accordingly, and pursuant to its power under the FA Disciplinary Regulations, Part A, General Provisions, para. 40.3, the RC ordered that the four-match suspension imposed upon DD was effective from 19 February 2021 to March 2021, during which time DD had already served the four-match suspension.[28]
AJ to face a charge?
It is possible that AJ could face a charge from the FA in respect of the incident, in particular for what he is alleged to have said to DD, and most likely for a breach of the FA Rules, rule E3.1. That possibility exists ‘whether or not the incident has been dealt with by the Referee and/or pursuant to [the FA Disciplinary Regulations, Part D, On-Field Regulations]’.[29]
It was notable in the Sanction Decision that the RC was particularly critical of referees receiving and tolerating abuse from Participants. Generally, the RC stated:
‘Match officials are entitled to, and should, be treated with respect by all participants. The incessant abuse and haranguing of match officials is unacceptable. It besmirches the sport and is inexcusable. Behaviour of this kind seems generally to be tolerated in football, often by match officials themselves. In our judgement, it should not be’.[30]
Further, in particular reference to the incident between DD and AJ, the RC stated that ‘[a] player behaving in [the way alleged by DD] towards a referee or match official should receive a red card’ and that ‘DD should have dismissed AJ’.[31] Indeed, at the oral hearing before the RC DD stated that ‘he should have sent off AJ for his conduct’.[32]
If AJ is charged by the FA for a breach of the FA Rules, rule E3.1 for what he is alleged to have said to DD (“the Possible Charge”) then the burden of proof will be upon the FA to prove the Possible Charge. If the Possible Charge was proved, and considering the recent decision in The Football Association v Paddy Madden and/or the SPG, it is likely that AJ would receive a sporting sanction (i.e. a suspension).[33]
Insofar as AJ might be concerned by the Possible Charge and that the Sanction Decision compromises his position in respect of any findings made as to what he allegedly said to DD during the incident, the FA Disciplinary Regulations, Part A, General Provisions, para. 23 and 24 is relevant:
’23. The fact that a Participant is liable to face or has pending any other criminal, civil, disciplinary or regulatory proceedings (whether public or private in nature) in relation to the same matter shall not prevent or fetter The Association commencing, conducting and/or concluding proceedings under the Rules.
24. The result of any proceedings referred to in paragraph 23 (save for an acquittal) and findings upon which such result is based shall be presumed to be correct and true unless it is shown, by clear and convincing evidence, that this is not the case… An acquittal or equivalent result in civil, disciplinary or regulatory proceedings (and any finding upon which such result is based) shall only be presumed to be correct if the applicable standard of proof in those proceedings was the same or lower than the applicable standard of proof in the proceedings brought under the Rules’ (emphasis added).
Upon this author’s reading of the Sanction Decision, the RC did make a finding of fact that AJ said to DD, inter alia, “You're a fucking cheating cunt!”. Further, pursuant to FA Disciplinary Regulations, Part A, General Provisions, para. 23 and 24, if the Possible Charge is brought against AJ, the FA could be entitled to rely upon the finding of fact made in the Sanction Decision in respect of what AJ said to DD during the incident. (This author appreciates that the FA Disciplinary Regulations, Part A, General Provisions, para. 23 and 24 may be argued against and/or interpreted differently to that above.)
If the Possible Charge is brought against AJ and the FA is entitled to rely upon that finding of fact pursuant to FA Disciplinary Regulations, Part A, General Provisions, para. 24, AJ would be faced with, arguably, a reversal of the burden of proof. AJ would be required to provide ‘clear and convincing evidence’ that he did not say to DD, inter alia, "You're a fucking cheating cunt!”.
In either event, it appears that AJ will be in a strong position to defend the Possible Charge or produce ‘clear and convincing evidence’ considering his statement released on 11 March 2021:
‘I said the incident was over as far as I was concerned when I walked off the pitch and that I wasn’t looking for an apology…
I didn’t want to make anything of it because it’s a tough job being a referee but I’m not going to keep quiet when I’ve been accused of calling the referee a cheat and using the C word.
I’ll admit using the F word but I said to him ‘you have got to be F…… joking me and I said that a couple of times to him. I never used the C word. I don't use that word and I didn't call him a cheat.
…
Our media team have got some audio and it backs me up…’
Notwithstanding the above, it is this author’s opinion that it is unlikely that the FA would bring the Possible Charge against AJ considering the FA’s distanced approach to the Charge brought against DD. For example, as noted above, the FA expressly stated that DD’s conduct was ‘not of the utmost seriousness’. Additionally, as also noted above, there appears to be a lack of any evidence that would support DD’s account of what he alleges AJ said to him during the incident.
Footnotes
[1] FA Rules, rule A2.
[2] The Football Association v Darren Drysdale, The FA Regulatory Commission (Ch Christopher Quinaln QC), 10 March 2021.
[3] Ibid, [9].
[4] The FA Disciplinary Regulations, Part B, Non-Fast Track Regulations, para. 5.2 and 29.
[5] Ibid, [11]; The FA Disciplinary Regulations, Part A, General Provisions, Section Two, para. 41.2.
[6] Ibid, [10].
[7] Ibid, [12].
[8] Ibid, [17].
[9] Ibid, [18].
[10] Ibid, [20]-[21].
[11] Ibid, [22] and [30].
[12] Ibid, [23].
[13] Ibid, [24-25].
[14] Ibid, [26].
[15] Ibid, [27].
[16] Ibid, [27]-[28].
[17] Ibid, [29].
[18] Ibid, [30].
[19] Ibid.
[20] Ibid, [32]; The FA Disciplinary Regulations, Part D, On-Field Regulations, para. 29 and Table 2.
[21] (n2), [32].
[22] Ibid, [34]-[36].
[23] Ibid, [37].
[24] The FA Disciplinary Regulations, Part D, On-Field Regulations, para. 29 and Table 2; The FA Rules, rule E3.2 and FA Disciplinary Regulations, Part A, General Provisions, para. 45 and Appendix 1.
[25] (n2), [37].
[26] Ibid, [39].
[27] Ibid, [40].
[28] Ibid, [41].
[29] The FA Disciplinary Regulations, Part D, On-Field Regulations, para. 5.
[30] (n2), [2].
[31] Ibid, [32] and [34].
[32] Ibid, [29].
[33] The Football Association v Paddy Madden, The FA Regulatory Commission (Ch Tom Finn), 15 July 2020.
13 March 2021