Referees, racism and regression in footballKevin Carpenter
Since October last year football worldwide has been beset by moral and legal problems: be they match-fixing, racism or violence. Football has always been my first love in terms of sports (and life some ex-girlfriends would say) but this season I have never been less passionate about the game or worried about its future.
This overbearing sense of doom hit rock bottom when following the Premier League game between Chelsea and Manchester United on Sunday 28th October FIFA and Select Group referee Mark Clattenburg was initially accused by Chelsea of using "inappropriate language" in two separate incidents towards their players. It soon became clear that one such accusation was of a racial nature. Once Chelsea had further interviewed their players the second accusation, widely believed to be 'mere' swearing at a player, was not taken forward to a formal complaint.
Much has been written and discussed around the world about this unsavoury situation world over the past couple of weeks. Yet some interesting theoretical and practical angles for lawyers have been largely overlooked:
- Have Chelsea been well advised in bringing this claim against Mr Clattenburg? – I don't know who Chelsea's lawyers are but I can imagine their bills purely in relation to racial incidents in the past year may make even Mr Ambramovich balk. The club have been widely criticised in their attitude towards John Terry, firstly in his criminal case and then that brought by the FA. They did not seemingly investigate the claims made against him following the QPR v Chelsea game on 23 October 2011 until the FA handed down its ruling and punishment in September this year. The club are now said to have disciplined him but have not made public the nature of those sanctions. But why? Surely transparency in cases such as these is paramount. The football world wants to know the club have treated the matter with sufficient gravity and punished Mr Terry accordingly. This left the club on shaky moral ground regarding racism. A month later they are making a formal complaint about a top referee being racist. Here is where I believe lawyers and PR professionals have to work together. Would it have been better to not report the matter keeping the club out of the headlines and preventing any potential future referee bias against the club, or should allegations of racism always be reported regardless?
- To what extent should the criminal law interfere with sport? – This is an age old discussion but in this instance a graver outcome of the allegations made against Mr Clattenburg is that a criminal investigation has now also been launched by the Metropolitan Police following a complaint by the Society of Black Lawyers ('SBL'). The SBL have been quite active in football recently advocating a new black players' union in the wake of the Terry case, which also saw several high profile players refusing to support the long-established, FA-backed Kick It Out campaign. The SBL had no direct interest in the game in question so what right did they think they had to initiate criminal proceedings? "By protecting players, we're actually protecting society from race hate crimes because there is a direct link...This referee is considered innocent until proven guilty, so if he's done nothing wrong then the law protects him" said David Neita from the SBL. What they fail to appreciate (and let's remember they are not laymen but the Society of Black LAWYERS) is the reputational damage a criminal investigation brings, even if ultimately exonerated by the police and/or the courts. My view is that the SBL initiating the criminal action is out of order and the law needs to be changed. Remember the case against Mr Terry was also as a result of a complaint emailed to the police by an anonymous member of the public, presumably also someone not directly involved in the match.
So where does all of this leave us? With each passing day Mr Clattenburg's refereeing career and character are placed further into doubt by the concurrent FA and Metropolitan Police investigations. This in itself is legally puzzling as in the Terry case the FA took the decision that it would be wrong to continue their own investigations so as not to prejudice the criminal investigation. At least by having concurrent investigations you hopefully won't have the ludicrous delays there were in the Terry case which dragged on and did significant damage to the sport. Should Mr Calttenburg be found not guilty, were I his lawyer I would be suggesting he pursues a claim against both Chelsea and the SBL for defamation.
At the outset of this post I mentioned violence as another prominent issue facing the game's governing bodies and law makers more widely. In Egypt the football season 2012-13 has been delayed indefinitely due to the violence which erupted towards the end of last season where 74 people were killed. Then there were the ugly scenes that marred the end of the England U21s recent victory away in Serbia, with violence both on and off the pitch. At the game there were also audible monkey chants being made by the crowd towards England players. It is not the first time Serbia has been in trouble, a match the senior team played in Italy in October 2010 had to be abandoned due to violence. UEFA warned them that any repeat would bring with it serious sanctions. Would they go as far as to ban the Serbian FA from all UEFA competitions and seek the same from FIFA? Given the quite frankly derisory fine they recently handed down to Lazio for racist chanting by their fans at a Europa League game, of £32,500, one would very much doubt the appropriate sanctions will be metered out.
Another recent shocking incident took place in England in the second-tier game between Sheffield Wednesday v Leeds United which was broadcast live on Sky TV. At this point I should declare my interest as a Sheffield Wednesday supporter, however this does not detract from the legal concerns to be raised. Leeds equalised towards the end of the game to make it 1-1 and in the ensuing celebrations some Leeds supporters spilled on to the pitch. One of whom preceded to run from behind the Wednesday goalkeeper Chris Kirkland and strike him in the face causing him to fall to the ground, for which he needed medical treatment and the game was delayed. The attacker ran into the stand but soon after the final whistle the wonder of social media meant a photo was circulated within minutes and he was soon identified as Aaron Cawley. It then came to light that he had been served with a football banning order that he had broken three times previously! Why was he allowed in the ground? Who polices football banning orders? Then 3 days after 'Clatt-gate' a Chelsea fan is reported for making monkey gestures in the Capital One Cup match again between Chelsea and Manchester United and is subsequently arrested.
The tribal nature of football, its universal appeal from the working classes to the 'prawn sandwich brigade' and the fact it embraces nearly every country on earth regardless of nationality and race inevitably leads to tensions which have been ever present since football began. However, at the moment, particularly in England, one could describe the atmosphere hanging over the sport as poisonous. Football has progressed more than most sports in terms of its attitude towards race and violence in the past 20 years but the last 12 months has seen a regression back towards the dark days of the 1970s and 80s. Supporter and player behaviour has at times been simply unacceptable. I hope for the good of the game that FIFA, the confederations and national FA's take a hard stance with their sporting sanctions, hopefully minimising police intervention in the future and putting football back on the path to progression forging the way for other sports to follow.
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About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.