Thomas Tuchel and the Handshake Rumble
On 15 August 2022 The FA charged Thomas Tuchel, manager of Chelsea FC (“CFC”), and Antonio Conte, manager of Tottenham Hotspur FC (“THFC”), with 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’ (the “Charge” or the “Charges”).
The Charges related to Thomas Tuchel’s (“TT”) and Antonio Conte’s (“AC”) behaviour at the end of the Premier League match between CFC and THFC on 14 August 2022. At the end of that match TT and AC shook hands but TT refused to let go of AC’s hand, which resulted in an aggressive confrontation between TT and AC. The confrontation required the intervention of the clubs’ players and staff and resulted in both TT and AC receiving a red card from referee Anthony Taylor. The incident can be seen in this video.
The Charges against TT and AC alleged that TT’s and AC’s conduct was ‘improper’ within the meaning of rule E3.1 of The FA Rules. TT and AC admitted the respective Charges. Following a paper hearing of the matter on 19 August 2022, an FA Regulatory Commission (hearing the cases jointly pursuant to The FA Disciplinary Regulations, Part A – General Provisions, para. 13) imposed the following sanctions:
TT was sanctioned with a £35,000 fine and a one-match touchline ban; and
AC was sanctioned with a £15,000 fine.[1]
TT subsequently appealed against the Regulatory Commission’s decision, and on 19 August 2022 it was announced that the sanctions imposed by the Regulatory Commission against TT were suspended pending the outcome of TT’s appeal (pursuant to The FA Disciplinary Regulations, Part A – General Provisions, para. 59).
TT’s appeal was heard by an FA Appeal Board on 26 August 2022. On the same day it was announced that TT’s appeal had been dismissed and the sanctions imposed by the Regulatory Commission were activated.[2]
This article will explain the Regulatory Commission’s approach to determining the appropriate sanctions to impose against TT and why TT’s appeal against those sanctions was unsuccessful.
The Regulatory Commission’s decision
The Charges against TT and AC were 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”).
While paragraphs 8 and 10-11 of the FT2 Regulations provide Standard Penalties for a ‘Standard Case’ dealt with pursuant to the FT2 Regulations, TT’s and AC’s cases were designated non-Standard Cases due to the ‘level of aggression demonstrated in the alleged behaviour and/or the unusual nature of the reported behaviour’.[3]
In non-Standard cases the Regulatory Commission has a discretion to impose any penalty it considers appropriate.[4] 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.[5]
A Regulatory Commission can impose penalties comprising one or more of a warning, a fine or a suspension.[6] 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.[7]
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.[8]
In considering the appropriate sanction to impose on TT, the Regulatory Commission took consideration of, amongst other things, the referee’s match report, video clips of the incident, a letter written by TT, a letter written by David Barnard, Director of Football Operations at CFC, that TT had admitted the Charge and TT’s weekly net salary.[9] It was also noted that TT had a previously clean disciplinary record.[10]
TT’s letter is noted as stating:
‘At the end of the match I approached Mr Conte to shake his hand as an act of sportsmanship. Mr Conte took my hand but did not look at me and I considered his demeanour to be a sign of disrespect towards me. I therefore held on to his hand as he walked past me and told him to look me in the eyes when he shakes my hand. Mr Conte replied in Italian and acted very aggressively towards me. I did not react to his aggression and did not say anything insulting to him... I acknowledge that I could and should have dealt with Mr Conte’s conduct towards me in a more appropriate manner (for example, by speaking to him privately afterwards) ... I apologise to The FA and to the Regulatory Commission, for having to bring and consider the Charge’.[11]
Upon consideration of all the evidence, the Regulatory Commission noted, amongst other things:
The Premier League is the most-watched league in the world and therefore TT’s and AC’s conduct was watched by millions of viewers.
TT instigated the incident.
But for TT’s instigation the incident and the following events would not have occurred.
TT’s reason for his conduct (that AC did not look him in the eyes) did not justify his conduct. The Regulatory Commission noted that cursory handshakes are a common occurrence at the end of football matches.
TT’s conduct of gripping AC’s hand and telling AC to look him in the eyes was a ‘highly provocative act’.
AC did not over-react to TT’s conduct in the circumstances.
The confrontation was likely to have increased tensions between CFC’s and THFC’s supporters.[12]
It was also noted that if the Charges against TT and AC had been Standard Cases (as opposed to non-Standard Cases), then the fine to be imposed by way of The FA’s Standard Penalties would have been £8,000.[13] It should also be noted that if a Standard Case includes abusive and/or insulting language then a one-match touchline ban also applies.
Taking all the above-stated points together, the Regulatory Commission decided that the appropriate sanction to impose on TT was a fine of £35,000 and a one-match touchline ban. The Regulatory Commission noted that the more severe sanction imposed on TT reflected TT’s higher degree of culpability in causing the incident.[14]
The Appeal Board’s decision
TT had the right to appeal against the Regulatory Commission’s decision pursuant to the FT2 Regulations, para. 35 and The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 7 – Appeals (“FTA Regulations”).
One of the grounds of appeal available to TT and which was relied upon in his appeal to the Appeal Board was that the sanction imposed by the Regulatory Commission was excessive.[15] TT’s appeal was based on the following three points:
Excessive weight was attributed to TT’s culpability and insufficient weight was given to AC’s culpability;
Insufficient weight was given to TT admitting the Charge and TT’s previous clean disciplinary record; and
TT’s conduct was at the lowest end of the scale of improper conduct.[16]
The FA opposed TT’s appeal, and the Appeal Board provided a detailed review of the Regulatory Commission’s reasons for its decision.[17] The Appeal Board also reminded itself of the question to be asked when determining whether a sanction is excessive: was the sanction materially more than was necessary or proportionate in the circumstances of the case?[18]
The Appeal Board dismissed each of the three points relied upon by TT:
As to the first point, the Appeal Board noted that TT’s conduct was unprovoked and unjustified and, as the Regulatory Commission found, highly provocative. The Appeal Board emphasised that TT’s conduct was the root cause of the incident and that AC’s reaction to TT’s conduct does not absolve TT for his culpability for the incident. The Appeal Board confirmed that the Regulatory Commission was entitled and bound to conclude that TT was largely to blame for the incident and significantly more culpable than AC.[19]
As to the second point, the Appeal Board decided that TT was simply wrong to contend that the Regulatory Commission had given him little or no credit for admitting the Charge and his previously clean disciplinary record. As noted in the summary of the Regulatory Commission’s decision above, the Regulatory Commission expressly referred to the same in its written reasons.[20]
As to the third point, the Appeal Board noted that TT had not challenged the categorisation of the Charges as Non-Standard Cases due to, inter alia, the level of aggression demonstrated in the behaviour. The Appeal Board took this as tacit acceptance from TT that his conduct involved a level of aggression. The Appeal Board also endorsed the Regulatory Commission’s finding that TT’s conduct was serious for being aggressive, unjustifiable and highly provocative.[21]
Considering the sanctions as a whole, the Appeal Board decided that the sanctions were not excessive as they were not materially more than was necessary or proportionate in the circumstances of the case. It was noted that:
The Regulatory Commission was entitled to conclude that a fine alone would be inadequate to reflect TT’s breach of rule E3.1 of The FA Rules (as explained above in respect of non-Standard Cases);
The fine of £35,000 was not excessive considering TT’s significant weekly net income;
A one-match touchline ban was the minimum touchline ban that the Regulatory Commission could impose; and
The disparity between the sanction imposed on AC and the sanctions imposed on TT were well justified in the circumstances of the case.[22]
For all those reasons the Appeal Board dismissed TT’s appeal, and the sanctions imposed by the Regulatory Commission were activated.
Conclusion
The Regulatory Commission’s and Appeal Board’s decisions provide helpful guidance on the range of factors that can be considered when determining the appropriate sanction to impose for a breach of rule E3.1 of The FA Rules. Further, the Appeal Board’s decision is a useful reminder of the high threshold to overcome to be successful in an appeal on the ground that a sanction imposed by a Regulatory Commission was excessive.
Footnotes
[1] The Football Association v Thomas Tuchel and Antonio Conte, FA Regulatory Commission (Ch Stuart Ripley), 22 August 2022.
[2] Thomas Tuchel v The Football Association, FA Appeal Board (Ch Graeme McPherson QC), 26 August 2022.
[3] (n1), [7]; The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2 – Incidents on or Around the Field of Play (“FT2 Regulations”), para. 9.
[4] FT2 Regulations, para. 12.
[5] Ibid, para. 28; The FA Disciplinary Regulations, Part A – General Provisions, para. 41 and 52.
[6] The FA Disciplinary Regulations, Part A – General Provisions, para. 41.
[7] Ibid, para. 42.2.
[8] W v FEI, CAS 99/A/246, 11.5.2000, [31].
[9] (n1), [13] and [14].
[10] (n1), [16].
[11] Ibid, [19].
[12] Ibid, [20].
[13] Ibid, [21]; FT2 Regulations, para. 16; see also The FA’s Standard Penalty Guidelines 2022.
[14] (n1), [20(m)] and [23].
[15] (n2), [10]; The FA’s Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 7 – Appeals (“FTA Regulations”), para. 6.2.
[16] (n2), [10].
[17] Ibid, [9] and [11].
[18] Ibid, [12]; Wilfried Zaha v The Football Association, FA Appeal Board (Ch Graeme McPherson QC), 17 February 2019, para. 28-30.
[19] (n2), [13]-[16].
[20] Ibid, [17]-[19].
[21] Ibid, [20]-[22].
[22] Ibid, [23].
31 August 2022