Should Dele Alli Have Received a Greater Sanction?
On 6 February 2020 Dele Alli of Tottenham Hotspur FC was at Heathrow airport with friends (including Aaron Greene, and Dele Alli’s brother and agent Harry Hickford) to fly to Dubai for a mid-season break. Before his flight, Dele Alli sat in a waiting lounge at Heathrow airport and was wearing a facemask at the time due to the then nascent concerns about Covid-19. Whilst sat in the waiting lounge, Dele Alli posted a video to Snapchat which showed (i) firstly, Dele Alli in the waiting lounge wearing his facemask; (ii) secondly, a zoom-in of a man ‘who was of Asian appearance’ also sat in the waiting lounge; and (iii) was accompanied by a caption throughout which stated ‘Corona whattttt, please listen with volume’ (“the Video”).[1] Dele Alli explained that the man he zoomed-in on had been coughing and that is why the caption had been included in the Video.[2]. However, no such coughing can be heard during the Video.
Dele Alli made the Video available to 160 ‘friends and colleagues’ on his Snapchat account, and to three friends in a WhatsApp group.[3] Dele Alli later deleted the Video from his Snapchat account but in the meantime the Video had been forwarded to newspapers and published online.[4] Dele Alli also later recorded and released a video apologising for the Video.[5]
The Football Association, the principal body responsible for dealing with misconduct in English football, charged Dele Alli with misconduct (“the Charge”) pursuant to Rule E3 of the Rules of the FA (“the Rules”), which states in part:
‘(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.
(2) A breach of Rule E3(1) is an “Aggravated Breach” where it includes a reference, whether express or implied, to any one or more of the following :- ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability’.
The burden was upon The FA to prove Dele Alli’s misconduct pursuant to the Charge. The applicable standard of proof is the ‘civil standard on the balance of probabilities’ (see paragraph 8 of The FA Disciplinary Regulations, General Provisions), which is often referred to by lawyers as “being more likely than not” and “more than 50% likely”.
The FA Regulatory Commission (which is part of The FA’s Judicial Panel and which is explained in detail in Football Law’s Football Discipline – The FA overview) heard the charge by a video hearing on 8 June 2020 and considered the oral and written evidence and submissions from Dele Alli and The FA.
The FA Regulatory Commission (“the RC”) found Dele Alli to have committed an Aggravated Breach of Rule E3(1) and sanctioned Dele Alli with:
A suspension from one first team competitive domestic match with immediate effect;
A fine of £50,000; and
An order to attend a face-to-face education programme.
This article summarises the parties’ cases in respect of the Charge and the RC’s written reasons dated 9 June 2020 given for the sanctions imposed on Dele Alli, and considers whether the sanctions imposed went far enough.
The misconduct
It was not The FA’s case that Dele was a racist but ‘that ‘without sufficient thought’, [Dele] shared [the Video] that depicted an ‘unacceptable racist stereotype’ in a misguided attempt at humour’.[6]
Dele Alli’s case was that Covid-19 had made him concerned about travelling and he had therefore prepared for travelling by wearing a facemask and carrying antibacterial hand gel, which Dele Alli’s friends teased him about as they considered such measures to be an ‘overreaction’.[7] Further, Dele Alli argued that when he heard someone in the waiting lounge coughing he decided to record the person coughing as a joke aimed at himself and his overreaction.[8] Dele Alli ‘denied that he had zoomed in on the Asian man simply because of his appearance’ but because ‘he happened to be the person coughing… “ethnicity was irrelevant”’.[9] Aaron Greene and Harry Hickford also gave supporting evidence that they ‘had heard the man coughing in the airport lounge’.[10] Dele also recognised that ‘it was only after the video had been posted that he appreciated that the soundtrack did not in fact include any coughing noise’ and that ‘it was “in China where [Covid-19] had affected the most people”’.[11]
In summary, Dele Alli’s case was that the content of the Video was not ‘of a kind to ‘cross the link’ into conduct answerable under Rule E3… as the [Video], in his opinion, “had nothing to do with the ethnicity of the man”’.
The RC’s written reasons identify that Dele Alli’s, Harry Hickford’s and Aaron Greene’s evidence was considered credible, and the RC was ‘satisfied that Dele Alli had heard the man in question coughing, and that when [Dele Alli] commenced his video his (ill judged) [sic] intention was to film the man so as to suggest a link between the coughs and coronavirus’.[12]
Further, the RC found that:
‘After careful consideration… the [RC] concluded that the Player had, as he had said, filmed the man not because of his ethnicity, but because he was the man who had been coughing… the [RC] gave weight to the evidence they had heard from the Player and had regard in addition to the Player’s character which they accepted was of a kind inconsistent with a suggestion that he deliberately sought to reference race in a joke’.[13]
Despite that, the RC:
‘… unhesitatingly concluded that the subject matter and content of the posted video went far beyond a poor joke made in bad taste; the material was very clearly insulting and improper of a kind to bring the game into disrepute within the meaning of Rule E3(1). Accordingly, The FA proved the basic charge of misconduct’ (emphasis added).[14]
Such misconduct amounts to an ‘Aggravated Breach’ if objectively ‘it includes a reference, whether express or implied, to any one or more of the following :- ethnic origin, colour, race, nationality’.[15] The RC found that Dele Alli had committed an Aggravated Breach:
‘Viewed objectively the [RC] concluded to the requisite standard, that the video included an implied reference to race and nationality. The video very clearly was open to the interpretation that the creator was seeking to observe that there was a link as between the man of Asian appearance and coronavirus. Accordingly, the [RC] found the charge proved in the aggravated form’ (emphasis added).[16]
The sanctions
When it came to considering the appropriate sanction for Dele Alli’s aggravated breach of Rule E3(1), the RC was made aware that this case had ‘certain similarities with the comparative case of Bernardo Silva’ and his racist Tweet sent to Benjamin Mendy (which this author discussed and criticised in this article for LawInSport). In that case, Bernardo Silva received the same sanctions as Dele Alli (as listed above). Notably, the members of the RC in Dele Alli’s case were also the same members of the RC for the Bernardo Silva case (Richard Smith QC (Ch), Gareth Farrelly and Marvin Robinson).
The specific factors considered by the RC when in imposing the above-stated sanctions upon Dele Alli included:
Dele Alli had not admitted the breach, unlike Bernardo Silva;
Dele Alli’s misconduct was a ‘misguided attempt at humour’ and the ‘product of spontaneous ill-judged stupidity rather than any sense of malicious intent’;
The fact that the Video was intended to be distributed to a limited number of people did not make the Video any less offensive or inappropriate;
Dele Alli had ‘not deliberately distributed to a very wide public audience… [but] could and should have appreciated that once material is distributed the author no longer has control of the onward distribution’;
Dele Alli, as a public figure, knew or ought to have known that there will always be public and media interest in controversial or inappropriate content he produces;
‘… the onward transmission of the content had, as one could have foreseen, added to a misplaced media narrative about Asian stereotypes…’; and
The Video had not been published widely by Dele Alli;
Dele Alli’s misconduct was not premeditated and ‘had not set out to be insulting or to create a racial stereotype’; and
Mitigating factors, which included the prompt deletion of the Video, the subsequent posting of an apology, and that there had been no previous similar misconduct charges against Dele Alli.[17]
Further, when an Aggravated Breach is committed generally the minimum sanction to be imposed is an immediate six-match ban (see paragraph 47 of The FA Disciplinary Regulations, General Provisions). However, when an Aggravated Breach is committed by the use of social media then the RC is not bound to impose an immediate six-match ban (see paragraph 48 of The FA Disciplinary Regulations, General Provisions). In any event, when an Aggravated Breach is committed, the RC must impose a sanction of attendance at an education programme (see paragraph 46.1 of The FA Disciplinary Regulations, General Provisions).
Bearing those factors and relevant provisions in mind, the RC considered that ‘justice of the case was met by the imposition of a one match [sic] suspension from playing, together with the imposition of a fine… [and] an education programme’.[18]
Not kicking it out again?
Whether an incident is racist unwittingly or wittingly or is not perceived as racist by the intended recipient but is by others, it is still racism.
While the RC reminded itself that ‘the [Video] and other circumstances of this case had to be viewed in the context of world events as they were in February 2020’ – which might have been an attempt to swerve current heightened attention to racism – that does not mean that the RC was not in a position to impose a sanction that would have a resounding impact against racism.[19]
The RC has the authority to impose, amongst other things, (i) a suspension from all or any specified football activity permanently or for a sated period; (ii) a fine; and (iii) such other order considered appropriate (see paragraph 40 of The FA Disciplinary Regulations, General Provisions). As seen in the Bernardo Silva case and the comparable cases therein – and with the Bernardo Silva case being the comparable case in Dele Alli’s case – the RC seems to have its hands tied in relying upon previously decided cases rather than looking forward and considering what sanctions or other orders are fit so as to have a resounding impact.
It is appreciated that challenges could be made to the imposition of an overly strict sanction on the basis of fairness, rationality and proportionality, but it is time that the RC took a bold step and imposed a sanction(s) that would act as a weighty marker against any comparable conduct from any of football’s participants. Without such a step being taken we are again left with another lenient decision from the RC, and one which appears to play down and excuse Dele Alli’s racism as merely a ‘misguided attempt at humour’ and the ‘product of spontaneous ill-judged stupidity rather than any sense of malicious intent’.
Footnotes
[1] The Football Association v Dele Alli, The FA Regulatory Commission (Ch Richard Smith QC) 8 June 2020, [5]-[6].
[2] Ibid, [7].
[3] Ibid, [8].
[4] Ibid, [9].
[5] Ibid.
[6] Ibid, [10].
[7] Ibid, [15].
[8] Ibid, [16].
[9] Ibid, [16] and [19].
[10] Ibid, [23].
[11] Ibid, [17] and [18].
[12] Ibid, [29]-[31].
[13] Ibid, [34].
[14] Ibid, [36].
[15] The Rules of the FA, Rule E3(2).
[16] (n1), [41].
[17] Ibid, [42]-[48].
[18] Ibid, [50]-[51].
[19] Ibid, [36].
15 June 2020