In his debut article for The Football Front, Spors Barrister Phil Gibbs dissects the Luis Suarez –Patrice Evra race charge.
Luis Suarez and Liverpool FC announced in a formal on the January 2012, that they would not be appealing the verdict and sanctions imposed by The FA's Independent Regulatory Commission following the disciplinary hearing conducted in December against the player with regard to allegations made by Manchester United’s Patrice Evra with concern to the comments made to him by Suarez during the Liverpool v Man Utd Premier League game in October 2011. The Commission had published its detailed reasoning (115 pages) in the last few days. Evra complained during, and after, the match in November that he had been racially abused by Suarez. Initially Evra believed that he had been called a 'nigger'. He complained to the referee Andre Marriner and after the game to fellow players, Sir Alex Ferguson and then most dramatically to Canal Plus live on French television. Later it transpired that he had misunderstood the Spanish translation of 'negro' ('black' or 'blackie'). The FA Disciplinary Regulatory Team conducted an exhaustive inquiry, interviewing players, linesmen, Marriner and various team officials as well as scrutinising footage from TV companies including some which was not originally broadcast. Evra and Suarez were interviewed under taped conditions. The investigation was complicated by the linguistic difficulties which arise from a Premier League dominated by nationalities from across the globe. Suarez addressed Evra in a South American latin dialect Spanish. Evra, a multi lingual, but predominantly French speaker, also spoke to Suarez in his version of Spanish.
Directly after the game, Daniel Comolli, Liverpool's Director of Football and a Frenchman, spoke to Suarez in Spanish before reporting Suarez's version of events to the referee. Dirk Kuyt gave evidence in the proceedings. He had spoken to Suarez after the game in Dutch. Suarez is an able dutch speaker having spent a number of seasons at Ajax Amsterdam. The interpretation and comprehension of these conversations was a major obstacle to the enquiry. The FA sought the assistance of linguistic experts and received detailed reports as to the nuances and cultural differences of various words and gestures. Ultimately these reports were accepted by both sides.
Both sides were represented by legal teams. They had the opportunity to make representations with regard to the composition of the Commission. Interestingly at the disciplinary hearing before the Commission, Luis Suarez was allowed to have a 'friend' sit with him during the hearing and his testimony. The Commission recognised that this was a serious matter with potentially profound consequences for the player. Suarez was 'accompanied' by a member of staff from Liverpool Football Club.
Suarez in effect faced 2 charges. He was accused of using insulting words or behaviour. Additionally this was alleged to have been aggravated by the insults making reference to race or ethnicity, in this case the colour of Evra's skin. The Commission ruled that it was not deciding whether Suarez was a racist per se, but whether in this instance he was guilty of the relevant conduct. Indeed Evra had stated baldly in his witness statement that he did not believe that Suarez was generally racist and indeed that he had previously had a high regard for him, particularly in playing terms.
In essence the Commission had to decide on the balance of probabilities whether Suarez had abused Evra and made reference in so doing to his race or ethnicity. The burden of proving the allegations lay with the FA. The seriousness of the allegations and the consequences for Suarez if convicted, were taken into account in deciding whether the allegations were found to be proven. In other words the Commission imposed upon itself extra caution before arriving at its verdict.
Although witness statements had been served in advance, the Commission heard evidence in chief from the main protagonists in order to get an enhanced flavour of their cases. Suarez was assisted throughout by an interpreter. Evra gave his evidence in English and although he had an interpreter available to assist him, he did not ultimately find it necessary to use their services.
The TV footage assisted in as much as it showed the sequence of events and the comings together between the 2 players, but it was of only limited assistance with regard to what was actually said as for the majority of the time the camera did not capture the mouths of the 2 players. Interestingly and significantly, Suarez was captured pinching Evra's skin during the exchange. Evra had not been aware of this at the time. Evra stated that he had been called 'negro' 7 times by Suarez. Suarez claimed in his testimony to have only used the word once and in a context which was not insulting.
The case boiled down to the credibility of each side. What was determinative in my opinion was that Evra came across impressively before the Commission. He was straightforward. He revealed that he had abused Suarez first after being aggrieved by a Suarez foul. Suarez had not heard this. Evra had accordingly chosen to reveal something which did him no credit whatsoever and of which nobody else was aware. Evra was, according to the Commission, consistent throughout. He also spoke well of Suarez generally as mentioned in previous paragraphs. He did not appear to have an agenda. Suarez's legal team never managed to convincingly show any malicious motivation on the part of Evra towards Suarez in making his allegations.
The Commission were more troubled by Suarez's account. He was not consistent. He appeared to have changed his account to fit in with other evidence of which he had become aware after his initial FA interview. The evidence of Comolli and Manager Kenny Dalglish as to what had been said by Suarez immediately after the game undermined his original account. His testimony included an admission that he had clearly stated something in his witness statement which was untenable and untrue. He claimed to have pinched Evra in an act of conciliation, but subsequently conceded that this was incorrect and implausible. The Commission found that his case had altered to take account of the expert reports with regard to cultural and linguistics differences in South America. Ultimately they did not sufficiently believe Suarez so as to be able to defeat Evra's more compelling account.
The Commission's detailed reasoning clearly sets out their approach and demonstrates the very great care with which they approached their task.
It is not in the least surprising that Suarez and Liverpool FC have decided not to contest the Commission’s findings. The whole matter has been a PR catastrophe for Liverpool. They emerge with no credit whatsoever and have inflicted considerable collateral damage upon themselves. The testimony of their own officials, Dalglsih and Comolli, contradicted Suarez’s case. The clubs response to the Commission’s verdicts was to appear at the warm up for the next match wearing t – shirts supporting Suarez, a player who had now been quite properly found guilty of using racial abuse to a fellow player. The club put their own black player, Glen Johnson, in an impossible position. The Liverpool message was one of disrespect to the FA, to Evra, to the Commission and to victims of racism wherever. Liverpool FC probably did not consider this however. Their main motivation in not seeking to appeal would appear to be entirely pragmatic. Suarez has no reasonable prospect of success in any appeal. There is the possibility of an enhanced punishment. The matter would have consequently dragged on and continued to engulf and distract the club at a time when they are seeking to qualify for the Champions’ League. Suarez was banned for 8 matches, but he may well only miss 4 league games as there are several cup commitments in the approaching weeks.
Could Suarez have appealed the sanction?
As I said above, he would have risked increasing the penalty. There is little precedent to suggest that the sanction might have been decreased. Suarez was being made an example of and it is near inconceivable that any appeal panel would have watered down that message.
In 2002 John Mackie, a Reading player, admitted racially abusing Carl Asaba of Sheffield United. He apologised the following day and donated 2 weeks' wages to Anti Racism causes. Sheffield United accepted the apology. Nonetheless the FA suspended him for 8 matches of which 5 were suspended. Mackie's career never really recovered. Suarez is of course a far more prominent international player. The starting point for the Suarez Commission was a suspension of 4 games. This is arrived at, in accordance with the FA rule book, by doubling the automatic sanction for a dismissal for foul and abusive language. The Commission has doubled this. Their reasoning included their finding of a number of aggravating factors. They found that Suarez was guilty of 'multiple uses of insulting words' rather than an isolated incident. He specifically targeted Evra and stated that 'he kicked him because he was black' and 'he did not talk to blacks'. The exchanges had taken place in multiple phases in a heated environment. Undoubtedly the fact that Suarez's actions significantly undermined anti - racism campaigns was a major factor in the sanction.
The reality is that it would have been be a major climb down if the sanction were to be reduced on appeal. The message that racist abuse will not be tolerated would be significantly weakened. Liverpool painted themselves into a corner, doing everything to support their player, but have now been left looking somewhat foolish. Their previous demands, that Evra be sanctioned if Suarez was vindicated, look very ill judged, certainly with hindsight. Evra on the other hand emerges as honest and reasonable, notwithstanding that his character has been unreasonably smeared. Liverpool and Suarez have now chosen to do the only sensible thing, accept the punish and move on. Common sense finally seems to have prevailed, even if their announcement could not have been framed in less gracious terms, with Suarez still proclaiming that he had done nothing wrong.
His reputation, but possibly also that of his club, may never fully recover.This article was written by Phil Gibbs who is a Sports Barrister of KCH Garden Square Leicester You can follow Phil on Twitter : @gibbsbarrister and phone: 0116 2987500. Check out his blog too: http://gibbsbarrister.blogspot.com/