Retrospective action under the FA’s disciplinary proceduresJohn Shea
Last week The Football Association ("FA") confirmed that Wigan midfielder Callum McManaman will not be charged over the challenge on Newcastle United's Massadio Haïdara as the FA's Disciplinary Procedures prevent retrospective action to be taken when one of the match officials saw the incident.
Article 72 of FIFA's Disciplinary Code confirms that the decisions taken by the referee during a match are "ﬁnal" and this is reiterated within Law 5 of The Laws of the Game. Article 146 of FIFA's Disciplinary Code requires all national associations "to adapt their own provisions to comply with this code for the purpose of harmonising disciplinary measures." Schedule A of their Disciplinary Procedures only permits the FA to charge a player for incidents "that are caught on camera but not seen and dealt with by the Match Officials at the time." In terms of exactly what the match officials need to see in a particular incident in order to determine whether retrospective action can be taken under Schedule A, the FA clarified in a statement that "where one of the officials has seen a coming together of players, no retrospective action should be taken, regardless of whether he or she witnessed the full or particular nature of the challenge." In the case of McManaman, linesman Matthew Wilkes apparently saw the coming together of the players and so retrospective action is not possible under the FA's Disciplinary Procedures.
The McManaman challenge is not the first time the FA have refused to take retrospective action despite the match officials not seeing the full extent of the challenge. In April 2012 Manchester City's Mario Balotelli was seen committing a studs up challenge on Arsenal's Alex Song. Referee Martin Atkinson saw the coming together of the players, however the serious nature of the challenge was not seen by the referee as he was unsighted. As with McManaman, the FA refused to take any retrospective action against Balotelli because the referee saw the coming together of the players
The FA confirmed that the purpose of the policy, which has been agreed with FIFA and stakeholders such as the Premier League and the Football League, is to "avoid the re-refereeing of incidents" and that retrospective action is only designed "to address off the ball incidents where match officials are unlikely to be in a position to witness misconduct." FIFA are clearly concerned about incidents, which have been seen by match officials, being subsequently re-refereed as this could diminish the role of the match officials and affect their decision making.
Newcastle United were unsurprisingly "disappointed" with the decision and managing director Derek Llambias described the FA's Disciplinary Procedures as "not fit for purpose." However, the FA are empowered in certain circumstances to take retrospective action against a player even though the incident was seen and dealt with by the match officials at the time. Rule 8 (j) of Section A of the FA's Disciplinary Procedures provides for a player to be charged for misconduct pursuant to Rule E3 of the Rules of The Association even if the incident was seen and dealt with by the referee.
In deciding whether to invoke Rule 8 (j), the FA have to be satisfied that the incident was sufficiently serious to justify retrospective action and will
consider the following factors:
- Any applicable Law(s) of the Game or Rules and Regulations or FIFA instructions and/or guidelines;
- The nature of the incident, and in particular any intent, recklessness, negligence or other state of mind of the Player;
- Where applicable, the level of force used;
- Any injury to any Participant caused by the incident;
- Any other impact on the game in which the incident occurred;
- The prevalence of the type of incident in question in football generally; and
- The wider interests of football in applying consistent sanctions.
The FA have only chosen to invoke Rule 8 (j) on one previous occasion when Ben Thatcher was given an eight match ban for his elbow on Pedro Mendes in 2006. This was despite referee Dermot Gallagher seeing the incident and booking Ben Thatcher at the time. The FA in this case clearly felt that the McManaman challenge was not sufficiently serious to justify retrospective action under Rule 8 (j). In some instances, FIFA’s Disciplinary Committee are authorised to sanction any breaches of the laws of the game, which include “sanctioning serious infringements which have escaped the match ofﬁcials’ attention” and “rectifying obvious errors in the referee’s disciplinary decisions” (See Article 77 of FIFA’s Disciplinary Code). It could be argued by Newcastle that the McManaman challenge comes under one of these two categories and it is possible that FIFA’s Disciplinary Committee would investigate the matter if a complaint from Newcastle is made.
Newcastle confirmed that they would be making representations “to the FA and the Premier League to see how a more appropriate, fair and even-handed disciplinary process can be introduced at the earliest opportunity to prevent incidents of this nature going unpunished in the future." There have been calls for football to adopt a similar disciplinary process as in rugby union whereby the citing commissioner can take retrospective action against a player even if the referee saw and dealt with the incident. Any changes to the rules relating to retrospective action would have to be sanctioned by FIFA and apply to all national associations so the policy is expected to remain for the foreseeable future.
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