October 2023 Roundup
A roundup of notable football law news and decisions from October 2023:
Leeta Rutherford sanctioned
On 31 May 2023, the FA announced that it had charged Leeta Rutherford, then of Southampton FC, in respect of an alleged incident of discrimination.
On 14 October 2023, the FA announced that an FA Regulatory Commission had sanctioned Ms Rutherford, now of Portsmouth FC, with an eight-match ban, a fine of £130 and attendance at a face-to-face education programme. The Regulatory Commission’s written reasons are available here.
The Regulatory Commission’s reasons identify that Ms Rutherford was charged with an aggravated breach of the FA Rules rule E3.1 and E3.2 in respect of an incident during the FA Women’s Championship match between Southampton FC and Sunderland AFC on 12 February 2023 wherein Ms Rutherford allegedly used the words ‘Down’s Syndrome’ repeatedly towards a Sunderland AFC player (see para. 3-10 of the written reasons).
Ms Rutherford denied the charge but the FA successfully proved the charge at the hearing before the Regulatory Commission.
The decision provides a useful example of when a witness’ evidence is considered reliable or unreliable, and the significance of the same when there is an absence of reliable video/audio footage of the incident concerned. The decision also shows an example of a sanction being imposed that is more severe than the Standard Minimum six-match ban applicable to aggravated breaches of FA Rules, r. E3.1 of this nature (see the FA’s Disciplinary Regulations, Appendix 1 – Standard Sanctions and Guidelines for Aggravated Breaches).
Reece James sanctioned
On 27 September 2023, the FA announced that Reece James of Chelsea FC had been charged with a breach of the FA Rules, r. E3.1 for allegedly using ‘improper and/or insulting and/or abusive words and/or behaviour towards a match official in the tunnel’ after Chelsea FC’s Premier League match against Aston Villa FC on 24 September 2023.
On 4 October 2023, the FA announced that Mr James admitted the charge, and that an FA Regulatory Commission had sanctioned Mr James with a one-match suspension and a fine of £90,000. The Regulatory Commission’s written reasons are available here.
The evidence against Mr James came from, inter alia, the match referee, Jarred Gillet, whose match report stated:
‘As we left the field of play, around the top of the tunnel in very close proximity to the Chelsea technical area, we were confronted by Chelsea player, Reece James, who wasn't on the team sheet for the game. James said to me as we walked towards him 'You couldn't be more fucking horrid today. All three of you. Fucking every decision.' I didn't respond to James' comments and kept walking towards the match officials' room’ (see para. 8).
Mr James’ charge was designated as a non-Standard Case (see The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 2: Incidents on or Around the Field of Play etc. (“Fast Track 2”), para. 9) (see also para. 13 of the written reasons). Such designation gave a discretion to the Regulatory Commission to impose such sanctions as it considered appropriate (as opposed to the otherwise applicable Standard Penalty) (see Fast Track 2, para. 12).
The decision sees the Regulatory Commission consider the (lightly) updated Standard Penalty Guidelines that were introduced in July 2023 which provide for a one-match suspension in circumstances of Mr James’ case, and balancing the same against the two-match automatic suspension that would have applied if Mr James had been sent off for using offensive, insulting, or abusive language and/or gestures (see the FA Disciplinary Regulations, Section D, On-Field Regulations and Table 2) (see para. 19, 24 and 27 of the written reasons).
As indicated above, the Regulatory Commission had a discretion in respect of the sanction to impose. The Regulatory Commission felt that factors such as Mr James’ conduct not being seen by the general public and nor by a TV audience made a two-match suspension excessive and that a one-match suspension was appropriate, in addition to a fine (see para. 26-28).
Italian footballers sanctioned for betting offences
Juventus FC’s player Nicolò Fagioli has been sanctioned by the Federazione Italiana Giuoco Calcio (FIGC), the Italian football association, with a 12-month ban, five of which are suspended on conditions, and a €12,500 fine in relation to breaches of the FIGC’s rules against players betting on FIGC, UEFA and FIFA football matches.
Newcastle United FC’s player Sandro Tonali has also been sanctioned by the FIGC with an 18-month suspension, eight of which are suspended on conditions, and a fine of €20,000 for similar breaches.
Both incidents relate to bets placed while the players were under the jurisdiction of the FIGC. While suspensions imposed by the FIGC ordinarily only have effect in Italy, the nature of the players’ misconduct allowed the FIGC to apply to FIFA to extend the suspensions to have worldwide effect. Newcastle United and FIFA have since announced that Mr Tonali’s suspension has been given worldwide effect pursuant to FIFA’s Disciplinary Code, article 70.
Following Mr Tonali’s £55 million transfer to Newcastle United FC from AC Milan in July 2023, the incident provides a helpful reminder to check any warranties or indemnities made in a transfer agreement by the selling club as to their knowledge of any disciplinary or investigatory procedures the player being sold is subject to or could be subject to. Alternatively, the incident will now likely make sports lawyers more alert to seeking the inclusion of such warranties or indemnities in transfer agreements to protect clubs’ investments in such transfers.
Pogba B sample positive
As explained in Football Law’s September 2023 Roundup, Paul Pogba has been provisionally suspended by Italy’s national anti-doping organisation after a urine sample he provided after a match in which he was an unused substitute tested positive for the presence of non-endogenous testosterone metabolites.
It has since been reported that Mr Pogba’s B Sample has also tested positive for the presence of the same substance.
Matthew Etherington steps down as interim head coach of Colchester United FC
Matthew Etherington resigned as manager of Crawley Town FC in December 2022. On 28 June 2023 Mr Etherington was appointed as coach of Colchester United FC U21s. On 23 October 2023 Mr Etherington was appointed interim head coach of Colchester United FC.
Crawley Town FC released a statement on 30 October 2023 identifying that Mr Etherington’s contract included the following clause and that the same had been communicated to Colchester United FC:
‘The Manager shall not be permitted to bring his Agreement to an end early under this clause to take up employment at or be otherwise engaged by another football club playing in the same or a lower league as the Club is playing in at that time. No buyout will be permitted in such circumstances’.
It appears that Crawley Town FC is holding out for compensation, alleging that Mr Etherington has acted in breach of the above-stated clause by taking employment with Colchester United FC c. 7 months after resigning as manager of Crawley Town FC. It will be interesting to see if Crawley Town FC maintains its position. In the meantime, it has been reported that Mr Etherington has stepped down from his position of interim head coach of Colchester United FC.
Luis Rubiales banned for three years
FIFA has banned Luis Rubiales, the former president of the Real Federación Española de Fútbol, the Spanish Football Association, from all football-related activities at national and international levels for three years following his inappropriate, uninitiated, and uninvited conduct at the FIFA Women’s World Cup 2023 final on 20 August 2023. FIFA’s announcement identifies that a FIFA Disciplinary Committee found Mr Rubiales’ actions were in breach of article 13 of the FIFA Disciplinary Code:
‘1. Associations and clubs, as well as their players, officials and any other member and/or person carrying out a function on their behalf, must respect the Laws of the Game, as well as the FIFA Statutes and FIFA’s regulations, directives, guidelines, circulars and decisions, and comply with the principles of fair play, loyalty and integrity.
2. For example, anyone who acts in any of the following ways may be subject to disciplinary measures:
a) violating the basic rules of decent conduct;
b) insulting a natural or legal person in any way, especially by using offensive gestures, signs or language;
c) using a sports event for demonstrations of a non-sporting nature;
d) behaving in a way that brings the sport of football and/or FIFA into disrepute…’
FIFA’s announcement is available here and follows the previous decision of the FIFA Disciplinary Committee to provisionally suspend Mr Rubiales for 90 days, the written reasons for which are available here.
Mr Rubiales has 10 days to request written reasons for the FIFA Disciplinary Commission’s latest decision and may seek to appeal against the same to the FIFA Appeals Committee (see FIFA Disciplinary Code, articles 54 and 60).
Everton FC
The hearing of the charges against Everton FC for alleged breaches of the Premier League’s profitability and sustainability rules was held during the final two weeks of October (see Premier League Rules, r. E.47 et seq; nb., the version of the Premier League rules being used in the proceedings may be different to the current 2023 version).
It has been reported that if the charges against Everton FC are established, then the Premier League’s position is that Everton FC should be sanctioned with a 12-point deduction (presumably applicable to this season but the details are unclear) (see Premier League Rules, r. W.51.4).
Sheffield Wednesday FC and Leeds United FC fined for crowd control misconduct
Sheffield Wednesday FC has been fined £50,000 in respect of crowd control misconduct in its EFL League One match against Peterborough United FC on 18 May 2023. Leeds United FC has been fined £40,000 with £20,000 suspended until the end of the 2024/25 season on condition that no further crowd control misconduct occurs before then, in relation to crowd control misconduct in its Premier League match against Newcastle United FC on 13 May 2023.
The Regulatory Commission’s written reasons are available here and here, and provide a useful reminder of the approach to sanctioning clubs for breaches of FA Rules, r. E21 established in The FA v Birmingham City FC, FA Regulatory Commission, 13 September 2019 (Ch. Graeme McPherson QC) following a Birmingham City FC fan’s assault of Jack Grealish in March 2019.
EFL Embargoes
The EFL’s “Current Embargoes” list has two additions in the form of Sheffield Wednesday FC and Sutton United FC, who have been added pursuant to EFL Regulations, reg. 17.3 and therefore identifying that the clubs have been added for their failures to pay liabilities to HMRC. The details of the liabilities are unknown. EFL Regulations, reg. 17.3 explains the effect of the embargo:
‘… a Club… shall not be permitted to register any Player with that Club without the prior written consent of The League for the period that the Club is subject to a Default Event’.
Reading FC served with winding-up petition
On 31 October 2023 it was reported that HMRC had served a winding-up petition on Reading FC in respect of unpaid taxes.
It is not yet known when the winding-up petition will be heard, as the petition has not yet been advertised in the Gazette (Insolvency Rules 2016, r. 7.10).
FIFA Clearing House
On 6 October 2023, FIFA released Circular no. 1862, which is available here.
The Circular identifies that in addition to investigations being opened through the Automated Sanction Procedure where a club fails to upload relevant proof of payment of transfer compensation in respect of domestic or international transfer declarations (see articles 11 and 17.5 of the FIFA Clearing House Regulations and Annex 3, paragraph 17 of FIFA’s Regulations on the Status and Transfer of Players), such investigations can now also be opened if a football association or a club fails to comply with other administrative obligations provided for under the FIFA Clearing House Regulations.
A helpful summary of the function of the FIFA Clearing House is available in this article from Lombardi Associates.
FIFA Football Agent Regulations FFAR (FFAR)
As explained in Football Law’s September 2023 Roundup, the FFAR have not been implemented in all member associations.
As noted, the European Court of Justice’s preliminary ruling on the compatibility of the FFAR with European Union competition law is expected in 2024.
On 31 October 2023 it was reported that the European Commission’s written observations submitted to the ECJ have given full support to the FFAR.
UEFA introduces minimum standards framework for women’s national teams in Europe
On 2 October 2023 UEFA announced the introduction of a Minimum Standards Framework for Women’s National Teams, which is available here.
The Framework requires UEFA’s member associations to provide minimum standards of care and conditions to their women’s national team players, including that a member association’s women’s national team’s head coach holds a UEFA Pro Licence, that women’s national team players have access to optimal training facilities, and that appropriate numbers of qualified medical staff are available at appropriate times. UEFA also offers funding to its member associations in implementing the Framework (see article 4 and UEFA’s HatTrick VI Regulations).
1 November 2023