Football Discipline
The FA’s Football Regulatory Authority (“the FRA”) is responsible for, amongst other things (see clause 3 the Terms of Reference for the Composition and Operation of the FRA):
Monitoring compliance with and detecting breaches or possible breaches of the rules of The FA (“the Rules”), the Laws of the Game, the statutes and regulations of FIFA and UEFA;
Taking appropriate measures to detect, inquire into, investigate and prosecute breaches or possible breaches of the Rules, the Laws of the Game, the statutes and regulations of FIFA and UEFA; and
Administering for The FA’s Judicial Panel.
The FA’s Judicial Panel consists of the Regulatory Commissions and the Appeal Boards and they are responsible for providing decisions in disciplinary and other regulatory processes of The FA (see clause 1.1 and 3.1 of the Terms of Reference for the Composition and Operation of the Judicial Panel).
The procedures and powers of the FRA and the Judicial Panel can be found in the following:
The Rules;
The Terms of Reference for the Composition and Operation of the FRA (“the FRA Terms”);
The Terms of reference for the composition and operation of the Judicial Panel (“The Judicial Panel Terms”); and
The FA Disciplinary Regulations (see Part 11 of The FA Handbook).
Further, those governing rules, terms and regulations provide the following purposes and scope of the same and of the FRA and the Judicial Panel:
‘Save for where otherwise set out in these Rules, procedural matters concerning Misconduct shall be dealt with in accordance with [The FA] Disciplinary Regulations…
[The FA] may act against a Participant in respect of any misconduct, which is defined as being a breach of the following:
(a) the Laws of the Game;
(b) the Rules and regulations of [The FA] and in particular Rules E3 to [E26] below;
(c) the statutes and regulations of UEFA;
(d) the statutes and regulations of FIFA;
(e) the rules or regulations of an Affiliated Association or Competition; and
(f) an order, requirement, direction or instruction of [The FA]’ (see rule E1 of the Rules).
‘[The FA] shall have the power to monitor the compliance by each Participant with the Rules, the Laws of the Game, the statutes and regulations of FIFA and UEFA and the rules and regulations of each Affiliated Association and Competition to which a Participant is subject and/or inquire into any incident, facts or matters which may constitute misconduct under these rules. It is for [The FA] to determine in its absolute discretion the manner in which it conducts an inquiry’ (see rule F1 of the Rules).
‘Misconduct under Rule E1.1 shall be dealt with by [The FA], or an Affiliated Association on its behalf, notwithstanding that the alleged breach may constitute Misconduct under the rules and regulations of an Affiliated Association or Competition’ (see rule G1 of the Rules).
‘[The FA] shall have the power to take disciplinary action in all cases where facts or matters give rise to alleged Misconduct under Rule E1.2 to E1.6 inclusive and these powers of [The FA] shall be exercised on the authority of Council as it sees fit’ (see rule G2 of the Rules).
‘Facts or matters giving rise to alleged Misconduct under Rule E1.2 to E1.6 inclusive, which also give rise to an alleged breach of the rules and/or regulations of:
… the Premier League or the EFL, may be dealt with by [The FA] under the Rules and regulations of [The FA], unless [The FA] and either the Premier League or the EFL as appropriate, agree that either league shall act; or
… a Competition other than those referred to at Rule G3.1 above, shall be dealt with by the Competition having jurisdiction under its rules and regulations, unless [The FA] and/or an Affiliation Association acts. A Competition shall not act before [The FA] or Affiliated Association acts’ (see rule G3 of the Rules).
‘The power to impose a penalty or other order for Misconduct shall be exercised on the authority of Council as it sees fit. The power to impose an interim or provisional suspension order where possible Misconduct is alleged or under investigation shall be exercised on the authority of Council as it sees fit’ (see rule G4 of the Rules).
‘There shall be a right of appeal to an Appeal Board under the Rules and regulations of [The FA] only where the Rules and regulations of [The FA] expressly provide for such an appeal or in any other case where [The FA] acting by the Chief Executive Officer… agrees to an appeal taking place’ (see rule H1 of the Rules).
‘The FRA is established by Council as a division of [The FA] in order to be the regulatory, disciplinary and rule-making authority of [The FA], and Council delegates to the FRA powers to administer and exercise on behalf of[The FA] the powers and functions of [The FA] contained in Rules E to L (inclusive)’ (see clause 3.1 of the FRA Terms).
‘The Judicial Panel was established by the Council as the group of individuals which Regulatory Commissions and Appeal Boards will be drawn by the Judicial Panel Chair or its nominee, to hear cases or appeals in connection with disciplinary and other regulatory processes of [The FA]’ (see clause 3.1 of the Judicial Panel Terms).
This overview shall explain the role of the FRA and the role of the Judicial Panel generally, and consider how Regulatory Commissions and Appeal Boards formed from the Judicial Panel deal with non-fast track disciplinary matters.
The FRA
As noted in Football Law’s overview of The FA, the FRA is managed by the FRA Commissioners, which consists of up to eight members of The FA Council (four of who are national game representatives and four of who are professional game representatives) and up to four independent non-FA Council commissioners (see clause 4.1 of the FRA Terms). In addition to the FRA Commissioners, there is also a Chief Regulatory Officer, who is a full-time employee of The FA responsible for the day-to-day management of the FRA on behalf of the FRA Commissioners (see clause 4.5 of the FRA Terms).
The FRA monitors compliance with and detects breaches or possible breaches of the Laws of the Game, the statutes and regulations of FIFA and UEFA, and the Rules, in particular rules E3-E26 (see rules E1-E2 of the Rules).
Breaches of Rules E3-E28 of the Rules include a ‘Participant’ (see the definition provided in rule A2 of the Rules):
Failing to act in the best interests of the game or acting in an improper manner so as to bring the game into disrepute (see rule E3(1));
Committing an act of victimisation as defined in the Equality Act 2010, or any act of discrimination (see rule E4);
Influencing the result, progress, conduct or any other aspect of a football match or competition for an improper purpose (see rule E5);
Generally, betting directly or indirectly on any aspect of a football match or competition or providing inside information to another when that information is used by that other person for betting (see rule E8(1));
Failing to comply with a decision made pursuant to the Rules and regulations of The FA (see rule E10);
Failing to comply with The FA’s Anti-Doping Regulations and Social Drugs Regulations (see rule E25); and
(In this instance only in relation to an affiliated association, competition and club) failing to ensure that its directors, players, officials, employees, servants, representatives and spectators conduct themselves in an orderly fashion (see rule E20).
A breach of the Rules or those other statues and regulations amounts to ‘misconduct’ (see rule E1 of the Rules).
The power of The FA to inquire into any incident, facts or matters which may constitute misconduct (see rule F1 of the Rules) is included in those powers and functions delegated to the FRA pursuant to clause 3.1 of the FRA Terms.
Those powers of inquiry allow for:
Participants or other persons to be required to attend questioning and to provide documents or other information held or obtainable (see rules F2 and F5 of the Rules).
Affiliated associations, competitions and clubs have a duty to ensure the compliance by its officials, directors, players, representatives or servants with any requirement to answer questions and provide documents or other information (see rule F4 of the Rules).
Any type of evidence that has been provided during such inquiries to be relied upon (see paragraph 19 of The FA Disciplinary Regulations, General Provisions).
The FRA’s powers of inquiry are assisted by Participants’ duty to ‘act in a spirit of co-operation to ensure [that] proceedings are conducted expeditiously, fairly and appropriately’ and ‘take all reasonable measures to assist [The FA] in the collection of evidence’ (see paragraphs 5 and 28 of The FA Disciplinary Regulations, Part A – General Provisions). Moreover, a Participant’s failure to comply with a request for questioning or providing documents may also amount to misconduct (see rule F3 of the Rules). Further, it is also worth noting that the Rules impose an obligation upon Participants to ‘immediately report to [The FA] any incident, facts or matters which may constitute Misconduct’ (see rule E14 of the Rules), breach of which may also amount to misconduct.
The decision that facts or matters may give rise to misconduct and that a charge be brought against a Participant is made by the Chief Regulatory Officer on behalf of The FA (see paragraph 30 of The FA Disciplinary Regulations, Part A – General Provisions). If a decision is so made, a charge is served on the Participant alleged of misconduct, and that charge shall (see paragraphs 32 and 34 of The FA Disciplinary Regulations, Part A – General Provisions):
State the nature of the alleged misconduct;
Identify what breach has occurred, and more than one may be included;
Enclose any documents or other material referred to in the charge; and
Be sent in copy to the Judicial Panel chairperson who then appoints a Regulatory Commission in accordance with the Judicial Panel Terms.
On-field matters
It should be noted that specific regulations in The FA Disciplinary Regulations deal with misconduct arising from on-field matters. Those specific regulations are The FA Disciplinary Regulations, Part D – On-Field Regulations (“the On-Field Regulations”). These also fall under the responsibility of the FRA.
The On-Field Regulations provide:
Standard punishments imposed for on-field incidents, such as automatic suspensions for a player committing a sending-off offence or accumulating a certain number of cautions in a season; and
For disciplinary action against clubs in respect of the same, such as fines against clubs for their players accumulating a certain number of cautions or sending-offs in a match.
The standard punishments for on-field matters involving players associated with clubs in the Premier League, the EFL, the National League, the FA Women’s Super League and the FA Women’s Championship playing in first team competitions can be found in paragraphs 24-32 and Tables 1-2 of Section One of the On-Field Regulations. When a player has been cautioned or sent off, paragraph 11 of Section One of the On-Field Regulations explains that a player will be notified by The FA through their club of:
The cautionable and/or sending-off offence reported by the referee to The FA;
In the case of a cautionable offence, the total number of cautions accumulated by the player during the current playing season; and
Any automatic suspension, fine or other consequences resulting from an accumulation of cautions or the sending-off.
Despite those standard or automatic punishments stated in Section One of the On-Field Regulations, The FA may issue a charge (in accordance with process stated above) against a player in relation to an on-field incident whether or not the same has been dealt with by the referee so as to impose a sanction or a different or further sanction(s) for the incident (see paragraphs 5-6 of Section One of the On-Field Regulations). The FA may also issue a charge against a club in relation to cautionable or sending-off offences committed by players of the club (see paragraph 7 of Section One of the On-Field Regulations).
Additionally, the On-Field Regulations provide limited bases for players to challenge on-field decisions to a Regulatory Commission. The process for such challenges is more fully set out in The FA Disciplinary Regulations, Part E: Fast Track Regulations, which are beyond the scope of this overview. However, the On-Field Regulations identify that such challenges can be made on the following bases:
That a caution or a sending-off has been given to the wrong player due to mistaken identity (see paragraph 13 of Section One of the On-Field Regulations);
That the referee has made an obvious error in dismissing the player, except where the dismissal follows two cautions (see paragraphs 15-18 of The FA Disciplinary Regulations, On-Field Regulations, Section One); or
That the standard punishment for a sending-off offence would be excessive because of the exceptional circumstances of the case (see paragraphs 20-23 of Section One of the On-Field Regulations). However, the FA can also use this same process to claim that the standard punishment for a sending-off offence would be clearly insufficient because of the exceptional circumstances of the case (see paragraph 20.2 of Section One of the On-Field Regulations).
The Judicial Panel – The Regulatory Commissions
As noted in Football Law’s overview of The FA, The Judicial Panel consists of five types of members (see clause 4.1 of the Judicial Panel Terms), including:
Members of The FA Council;
Legal panel members, who are professionally qualified barristers or solicitors;
Football panel members, who are individuals with appropriate experience of the game of association football);
Chairs’ Panel members, who are appointed by the FRA to sit as Chairs of Regulatory Commissions; and
Specialist panel members, who are qualified barristers or solicitors with more than seven years’ experience or other appropriately experienced individuals.
One member of the Judicial Panel is appointed by the FRA as the Judicial Panel Chair (see clause 9 of the Judicial Panel Terms).
The Judicial Panel chair draws from the Judicial Panel members, and for appeals draws from the Appeal Board Chairs’ Panel members (see clause 5 of the Judicial Panel Terms), those needed to establish Regulatory Commissions and Appeal Boards to hear misconduct first-instance hearings or appeals (see clauses 6 and 7 of the Judicial Panel Terms).
There are two sets of regulations found in The FA Disciplinary Regulations used to determine the procedure of misconduct proceedings before a Regulatory Commission. These two sets of regulations are the Non-Fast Track Regulations (see The FA Disciplinary Regulations, Part B) and the Fast Track Regulations (see The FA Disciplinary Regulations, Part E). The NFTR will now be looked at in detail.
The FA Disciplinary Regulations, Part B – The Non-Fast Track Regulations (“NFTR”)
The NFTR apply to all misconduct proceedings before Regulatory Commissions save for those specified in the FTR. In particular they apply to (see paragraphs 1-2 of the NFTR):
Aggravated breaches of rule E3.1 of the Rules;
Breaches of integrity and betting matters in accordance with rules E5 and E8 of the Rules;
Breaches of a participant’s reporting obligations in accordance with rule E14 of the Rules;
The conduct of a club’s spectators or supporters in accordance with rule E20; and
Breaches of The FA’s Anti-Doping Regulations (see Part 13 of The FA Handbook) in accordance with rule E25 of the Rules.
For the purposes of the NFTR, disciplinary proceedings are commenced by the service of the charge on the Participant in accordance with paragraphs 30-34 of The Disciplinary Regulations, Part A – General Provisions (see paragraph 4 of the NFTR), as explained above.
Unless an extension is applied for complex or exceptional cases, within seven days of the Participant being charged, the Participant must serve on The FA a reply by email, which shall include, amongst other things (see paragraphs 5-7 of the NFTR):
An admission or denial of the charge(s);
Whether they wish for the matter to be dealt with by way of written submissions or at a personal hearing, and if there is to be a personal hearing then the participant must also pay a hearing fee of £100;
A clear explanation of the nature and extent of the admission or denial of the charge(s);
A signed written statement of each witness which the participant intends to rely upon which sets out their evidence in full; and
Copies of any documents, evidence, mitigation or other relevant material which the participant intends to rely upon.
In practice, the reply therefore requires the Participant charged to submit the entirety of their case in defence or mitigation and, if required, written submissions are regularly provided at this stage for consideration by the Regulatory Commission.
If an extension to the deadline for the reply is needed or anticipated, there should be a prompt and reasoned request sent to the FA’s regulatory advocate dealing with the case and the Judicial Panel Chairperson or the Chairperson of the Regulatory Commission (if the Regulatory Commission has been appointed at this stage).
Where the Participant fails to serve their reply to the charge within seven days (or within any extended deadline) or to comply with the provision of the above-stated information, the Regulatory Commission shall determine the charge in such manner and upon such evidence as it considers appropriate (see paragraph 8 of the NFTR).
Upon review of the participant’s reply, The FA may provide to the participant and the Regulatory Commission any further evidence or relevant material on which it intends to rely (paragraph 9 of the NFTR). If The FA does provide anything further, the participant will also have an opportunity to provide to The FA any such further evidence or relevant material on which they intend to rely, provided that this is done so at the earliest opportunity and in any event no later than seven days before the date on which the Regulatory Commission is to determine the matter (see paragraph 10 of the NFTR).
If not already done, the Judicial Panel chair will then establish a Regulatory Commission to deal with the matter, whether it is to be dealt with by way of written submissions or at a personal hearing (see paragraph 12 of the NFTR and clause 6.2 of the Judicial Panel Terms). Where there is to be a personal hearing before a Regulatory Commission under the NFTR, any party may make an application to the Judicial Panel chair within seven days of the charge being served on the participant for a specialist panel member (i.e. a qualified barrister or solicitor with more than seven years’ experience, or other appropriately experienced individuals) to be the chair of the Regulatory Commission to be established (see paragraph 13 of the NFTR and clause 6.2.1 of the Judicial Panel Terms).
Once established, the Regulatory Commission may, either at a hearing or without, give any further directions considered necessary for the proper conduct of the proceedings (see paragraphs 25-26 of The FA Disciplinary Regulations, NFTR), such as:
Establishing the date, time and place of a hearing (which will be either a personal hearing with the Participant charged and others in attendance or otherwise the Regulatory Commission’s consideration of the papers);
Determining that issues may be dealt with as preliminary issues or at a preliminary hearing (see also paragraphs 14-18 of The FA Disciplinary Regulations, NFTR);
Determining who shall attend the hearing; and
Requiring parties to make written submissions or submit skeleton arguments in advance of an oral hearing.
Where the charge is to be dealt with by way of written submissions, the Regulatory Commission shall determine the charge and, if the charge is found to be proven, the sanction in the absence of the participant charged and shall make such penalty or order as it deems appropriate (see paragraph 29 of the NFTR).
Where the charge is to be dealt with at a personal hearing, the Regulatory Commission proceeds in accordance with paragraph 30 of the NFTR, which requires, amongst other thing that:
The Participant charged, if an individual, shall attend the hearing in person, or if not an individual, shall attend through a club official;
The Chief Regulatory Officer of the FRA shall nominate an individual or individuals to present the charge, call evidence and make submissions (i.e., usually the FA’s in-house regulatory advocates but sometimes external counsel) (see also paragraph 12 of The FA Disciplinary Regulations, Part A – General Provisions);
A Participant charged and required to attend a personal hearing is entitled to be represented, which includes legal representation (see paragraph 10 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 30.4 of the NFTR); and
Where the Participant charged gives evidence in their own defence, they must give their evidence first, before any other defence witness gives evidence and all other witnesses of fact for The FA or the defence cannot enter the hearing until they are called to give their evidence.
Any type of evidence may be relied upon in proceedings, and the Regulatory Commission has an absolute discretion when regarding the evidence relied upon and the weight to be given to the same (see paragraphs 9 and 19 of The FA Disciplinary Regulations, Part A – General Provisions).
When appearing before a Regulatory Commission (or Appeal Board) it is important to remember the following from paragraph 4 of The FA Disciplinary Regulations, Part A – General Provisions):
‘The bodies subject to these General Provisions are not courts of law and are disciplinary, rather than arbitral, bodies. In the interests of achieving a just and fair result, procedural and technical considerations must take second place to the paramount object of being just and fair to all parties’.
The applicable standard of proof is the ‘civil standard on the balance of probabilities’, which is often referred to by lawyers as “being more likely than not” and “more than 50% likely” (see paragraph 8 of The FA Disciplinary Regulations, Part A – General Provisions). Proceedings of a Regulatory Commission (and Appeal Board) take place in private, and all oral or written representations, submissions, evidence and documents created in the course of proceedings are confidential (see paragraphs 14 and 16 of The FA Disciplinary Regulations, Part A – General Provisions). However, The FA has the power to publish, amongst other things, the outcome of any proceedings, reports of any hearing, decision, finding or penalty, and any representations, submissions, evidence and documents created in the course of any proceedings (see paragraphs 17-18 of The FA Disciplinary Regulations, General Provisions). A database of publicly available decisions from Regulatory Commissions (and Appeal Boards) is available here.
Once the evidence and submissions have been presented to the Regulatory Commission, the Regulatory Commission deliberates the same in private to decide whether a charge is proven and, if so, on what factual basis (see paragraph 39 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 31 of the NFTR).
Decisions are reached by a majority, with each member of the Regulatory Commission having one vote (see paragraph 40 of The FA Disciplinary Regulations, Part A – General Provisions). In the event of a tie the chair of the Regulatory Commission has a second and casting vote.
Once a decision has been reached, the Regulatory Commission shall, as soon as practicable, send to the Participant charged and the Chief Regulatory Officer of the FRA a written statement of its decision (see paragraphs 62-63 of The FA Disciplinary Regulations, Part A – General Provisions and paragraphs 32, 36 and 38 of the NFTR). Further, written reasons for the Regulatory Commission’s written decision may be requested by the Chief Regulatory Office of the FRA or the Participant charged, so long as such a request is made within seven days of receipt of the written decision (see paragraphs 64-65 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 39 of the NFTR). In practice, written reasons are provided for non-fast track matters without a request.
The Regulatory Commission has discretionary powers when determining the type and extent of the sanction to be imposed if the charge is proven, but in doing so must apply any applicable ‘standard sanction or sanction guidelines’, any mitigating or aggravating factors (see paragraphs 42 and 47 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 33-35 of The FA Disciplinary Regulations, NFTR). An example of sanction guidelines is those applicable to an ‘aggravated breach’ under rule E3.2 of the Rules found in The FA Disciplinary Regulations, Part A – General Provisions, Appendix 1.
The sanctions that the Regulatory Commission can impose include, and can be a combination of (see paragraphs 41 and 49-51 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 33 of the NFTR):
A warning;
A fine;
A suspension from all or any specified football activity;
The playing of a football match without spectators;
Expulsion from a competition;
Compensation;
Drug rehabilitation and counselling (used particularly for matters relating to anti-doping or social drugs); and
Such ‘further or other penalty or order as is considers appropriate’.
Save where an immediate sanction (such as an aggravated breach under rule E3.2 of the Rules) the Regulatory Commission also has the power to suspend a sanction imposed, and such suspension can be for a specified period or until a specified event and on such terms and conditions as the Regulatory Commission considers appropriate (see paragraphs 43-44 of The FA Disciplinary Regulations, Part A – General Provisions).
Sanctions come into effect as soon as they are notified to the participant (see paragraph 58 of The FA Disciplinary Regulations, General Provisions).
In respect of costs of misconduct proceedings, generally any costs incurred in bringing or defending a charge are borne by the party incurring the costs and any costs incurred by the Regulatory Commission (i.e. the costs of the Regulatory Commission and related expenses) may be ordered to be paid in full or in part by either party (see paragraph 52 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 37 of the NFTR).
Participants and The FA have the right to appeal a decision of a Regulatory Commission to an Appeal Board in accordance with The FA Disciplinary Regulations, Part C – Appeals – Non-Fast Track regulations (see paragraph 66 of The FA Disciplinary Regulations, Part A – General Provisions and paragraph 40 of the NFTR). There is no further right of challenge in respect of a decision of a Regulatory Commission, which is otherwise final and binding.
The Judicial Panel – The Appeal Boards
As noted above, the Judicial Panel chair draws from the members of the Judicial Panel the group of members needed to establish Appeal Boards to hear appeals (see clause 7 of the Judicial Panel Terms).
Each Appeal Board (see clauses 2, 5 and 7 of the Judicial Panel Terms):
Will be chaired by an individual from the Appeal Board’s Chairs’ Panel, which is a panel made up of specialist panel members, i.e., qualified barristers or solicitors with more than seven years’ experience, or other appropriately experienced individuals; and
Shall include two members who are not The FA Council panel members and shall include one member who is ‘independent’ (that is: a Judicial Panel member that shall not be or have been a member of The FA Council; shall not be or have been an employee, director or officer of, nor have or have had a material business relationship with the appellant or the respondent in the appeal proceedings; and shall not be or have been an employee, director or officer of, nor have had any material business relationship with a Participant who the Judicial Panel chair reasonably considers to have a material interest in the outcome of the appeal proceedings).
The FA Disciplinary Regulations, Part C – Appeals – Non-Fast Track (“ANFT”)
When the NFTR and the ANFT apply, The FA may appeal against a decision of a Regulatory Commission on the basis that the Regulatory Commission (see paragraph 1 of the ANFT):
Misinterpreted or failed to comply with the Rules and/or regulations of The FA relevant to its decision;
Came to a decision to which no reasonable such body could have come; and/or
Imposed a penalty, award, order or sanction that was so unduly lenient as to be unreasonable.
Further, a Participant may appeal against a decision of a Regulatory Commission on the basis that the Regulatory Commission (see paragraph 2 of the ANFT):
Failed to give the Participant a fair hearing;
Misinterpreted or failed to comply with the Rules and/or regulations of The FA relevant to its decision;
Came to a decision to which no reasonable such body could have come; and/or
Imposed a penalty, award, order or sanction that was excessive.
Timings for the appeal process run from the date of notification of the decision being appealed, which will be either the date of provision of the written decision, or, where permitted and requested, the date of provision of written reasons (see paragraph 4 of the ANFT) (“the notification date”).
If written reasons have not been provided and appeal proceedings are commenced, the appellant will be required to request written reasons from the Regulatory Commission and which shall be provided to the Appeal Board, or otherwise the Appeal Board shall require that a member of the Regulatory Commission attends the appeal hearing to answer questions put by the Appeal Board (see paragraph 9 of the ANFT). Therefore, the request for written reasons as discussed can be seen as an initial and proactive step of an appeal but, as stated above, they are ordinarily provided in non-fast track matters.
To commence an appeal against a decision of a Regulatory Commission pursuant to the ANFT (see paragraph 5 of the ANFT):
A notification of an intention to appeal must be sent to The FA or the participant (depending on whether it is The FA or the participant who is the appellant) within seven days of the notification date. This is ordinarily sent by email; and
A notice of appeal must be submitted by email to The FA or the participant within 14 days of the notification date.
The notice of appeal must (see paragraph 7 of the ANFT):
Identify of the specific decision(s) being appealed;
Set out the grounds of appeal and the reasons why it would be substantially unfair not to alter the original decision;
Include a statement of the facts upon which the appeal is based;
If necessary, include an application for leave to present new evidence (see paragraph 10 of the ANFT); and
Where the appellant is a Participant, be accompanied by payment of an appeal fee of £100 (see paragraph 7.4 of the ANFT and paragraph 21 of The FA Disciplinary Regulations, Part A – General Provisions).
It should be noted that a notice of appeal against a decision of the Regulatory Commission shall not be deemed to have been made unless all financial orders, including costs orders, relating to the Participant in question have been paid in full or the chair of the Regulatory Commission has made an order to set aside the relevant financial orders pending the outcome of the appeal (see paragraph 54 of The FA Disciplinary Regulations, Part A – General Provisions).
Further, upon application and at its absolute discretion, the Regulatory Commission has the power to stay the effect of or compliance with a sanction or order in the event of any appeal being made by the Participant against such sanction (see paragraph 59 of The FA Disciplinary Regulations, General Provisions).
Within 21 days receipt of the notice of appeal, the respondent to the appeal must serve a written response to the notice of appeal on the appellant and the Appeal Board (see paragraph 8 of the ANFT). Save that any application to present new evidence should be included in the response, there are no mandatory requirements for the contents of the response.
The notice of appeal and the response usually include the parties’ written submissions but it is possible for separate written submissions to be requested by the chair of the Appeal Board (see paragraph 14.5 of the ANFT).
In preparation for a hearing before the Appeal Board, the appellant shall provide a set of documents to the Appeal Board and the respondent at least seven days before the hearing, and these documents shall include (see paragraph 11 of the of the ANFT):
The original charge;
The original reply;
Any documents or other evidence referred to at the original hearing relevant to the appeal;
A transcript of the original hearing (if available);
The written decision being appealed and, where provided, the written reasons for the decision;
Where permission has been given, any new evidence
The notice of appeal; and
The response.
Appeals are by way of a review of documents only; oral evidence is not permitted except where the Appeal Board has given permission to present new evidence (see paragraph 12 of the ANFT). Parties are however entitled to make oral submissions to the Appeal Board.
The usual procedure followed at an appeal hearing under the ANFT is as follows (see paragraph 17 of the ANFT):
The appellant addresses the Appeal Board and summarises its case;
Any new evidence from the appellant is presented;
The respondent addresses the Appeal Board and summarises its case;
Any new evidence from the respondent is presented;
Each party puts questions to any witness giving new evidence;
The Appeal Board puts questions to the parties and any witness giving new evidence;
The respondent provides closing submissions;
The appellant provides closing submissions.
Decisions of the Appeal Board are reached by a majority, with each member of the Appeal Board having one vote, save that the chair shall have a second and casting vote in the event of a tie (see paragraph 19 the ANFT).
The Appeal Board has the power to make the following decisions under the ANFT (see paragraph 21 of the ANFT):
To allow or dismiss the appeal;
Exercise any power which the Regulatory Commission could have exercised, whether the effect is to increase or decrease any penalty, award, order or sanction originally imposed;
Remit the matter to the Regulatory Commission for a re-hearing;
Order that any appeal fee be forfeited or returned;
Make such further order as it considers appropriate; and
Order any costs, or part of any costs, incurred by the Appeals Board to be paid by either party or be shared by both parties.
Once a decision has been reached, the Appeal Board notifies its decision to the parties as soon as practicable and its decision comes into effect immediately (see paragraph 20 of the ANFT). Further, as soon as practicable after the appeal hearing, the Appeal Board shall publish a written statement of its decision, and if requested by the appellant or the respondent the Appeal Board shall also provide written reasons for its decision (see paragraphs 25-26 of the ANFT). Again, in practice, written reasons are provided for non-fast track appeals without a request.
Costs in appeal proceedings are normally borne by the party incurring the costs but in exceptional circumstances, and upon application, the Appeal Board may order one party to pay some or all of the other party’s costs, excluding any legal costs (see paragraph 23 of the ANFT).
Decisions to the Appeal Board are final and binding and there shall be no right of further challenge, except in relation to (see paragraphs 22 and 24 of the ANFT):
Appeals to the Court of Arbitration for Sport for appeals brought by FIFA or the World Anti-Doping Agency pursuant to The FA’s Anti-Doping Regulations (see Part 13 of The FA Handbook); or
The amount of costs any party is ordered to pay by the Appeals Board, which shall be conducted and decided by Sport Resolutions.
31 July 2022
Thomas Horton