Does the FA strike the right balance on players’ and managers’ media comments?Lydia Banerjee
Manchester United’s game at Cambridge United in January was part of a surprising weekend of FA action. Manchester City lost 2-0 to Middlesborough, Chelsea lost 4-2 to Bradford and Manchester United drew 0-0 with Cambridge United.
In that context you could be forgiven for missing the post match interview in the comparatively dull goalless draw.1 After the results had sunk in and the teams returned to Premier League action the FA charged Van Gaal with bringing the game into disrepute.
The comments drawing the attention of the FA were:
“Every aspect of a match is against us. We have to come here, the pitch isn’t so good, that can influence that you can play in another style. The opponents always give a lot more than they normally give and defending is always easier than attacking. Then you have seen the referee – it’s always the same. Everywhere I have coached these games, and I have coached them with other clubs, it’s always the same”.2
The comments are said to be in breach of FA Rule E3(1) (the “Rule”)3 which prohibits conduct which is improper or brings the game into disrepute. In addition Rule E1(e) and (f)4 make breach of the ‘rules or regulations of an Affiliated Association or Competition’ or ‘an order, requirement, direction or instruction of the Association’ as misconduct. The allegation against Van Gaal is that his comments were “improper conduct in that they allege and/or imply bias on the part of the match referee and/or bring the game into disrepute”.5 Van Gaal denied the allegation of misconduct and requested a personal hearing. An independent regulatory commission conducted the hearing on Wednesday 18 February 2015 under Schedule B to the FA Rules,6 and found that his comments breached FA Rules in relation to media comments. Van Gaal received a warning for his conduct.7
Other recent offenders
Van Gaal is by no means the only manager to have fallen foul of the Rules. Other recent examples include: Arsene Wenger’s charge for post-match comments made about referee Damir Skomina for which he received a £33,000 fine and a three match touchline ban in the Champions League in 20128; Jose Mourinho’s formal warning for pre-match comments encouraging a strong performance from the referee ahead of the Stoke City game in December 20149; and Jose Mourinho’s comments about a campaign against Chelsea by officials after the Southampton game on December 28 2014 which led to a £25,000 fine.10 In the last scenario, the FA found that Mourinho’s comments were improper conduct but not implying bias.
The use of disciplinary proceedings to control criticism of match day officials is not limited to football. Similar rules exist in to the sport of rugby union.11 Indeed Pat Lam is currently being investigated on a charge of misconduct by the Pro12 in relation to comments he made about an official during a game between Cardiff Blues and Connacht.12
Rationale for the Rule
The Rule and the charge raise an interesting question in today’s world of instant mass media.
In the Premier League managers and players are required to attend media conferences both pre-match and post-match under Section K of the Premier League Handbook.13 Football is a multi-billion pound industry and the broadcasters are the paymasters. In those circumstances requiring co-operation with the press is hardly surprising.
In addition, any member of the public can make a comment such as that made by Van Gaal without censure by the FA. Of course members of the public, while not bound by the Rule, still risk legal sanction for offensive or derogatory comments and there has been a steady increase in action over comments on social media.14
The obvious argument for the Rule goes that comments from managers and players attract more attention, carry more weight and have far greater potential to damage the reputation of the game. In the present example you have to question whether this is the case. If the FA had not charged Van Gaal, it seems likely to the author that his comments would have been forgotten long ago had they even been noted by anyone at the time. It was not a talking point given the other events of the weekend.
That said, the merit of restricting players and managers from using the media to undermine the reputation of the game does have it’s grounding in common sense. Players are the stars of the game with managers not far behind. They have social media followings running to millions; in Wayne Rooney’s case 10.7 million follow his comments on Twitter. An audience with those numbers would be the envy of many marketing specialists. It’s therefore only sensible that consideration be given to how their potentially influential comments could affect the game.
Striking the right balance
First, how does a manager or player square the obligation to participate in the media interviews, the public interest in informed comment, the media clamour for a headline remark and the risk of FA disciplinary action if, for example, they wish to make comments about officials?
Second, if we do not want participants to be able to damage the reputation of the game then how far does that extend? Does any criticism of an official bring the game into disrepute? Is there any scope for discussion about a fault in the rules or practices of the game?
Third, what about the use of platforms other than the pre or post match interview? Jose Mourinho spoke extensively to Sky Sport’s Goals on Sunday about issues with officials and their decisions.15 Although this communication is still be covered by the Rule, there does not yet appear to have been a consideration of penalising him for these comments, which were reported by The Telegraph as constituting an attack on referees and media.16 When alternative platforms are used, does that undermine the media agreements in relation to the pre and post match interviews with all the ‘real’ views being reserved for alternative platforms to the detriment of the broadcaster?
Fourth, what is the responsibility of the interviewer? Mourinho complained that he was led into his comments by the questions that were asked by the press.17 On any given weekend of football there are multiple post-match interviews where the leading questions invite a particular response. It is no coincidence that managers are always asked about key decisions taken by linesmen and officials. Did the linesman get it wrong with the offside call? Was the penalty fairly awarded? No code of conduct applies to reporters and it is only natural that they ask about the key moments in the game, this will include the controversial or contentious decisions of match officials.
Finally, where does this lead? Mourinho’s response to the allegations he faced was to ‘gag’ himself and avoid the media interviews, sending along his assistant in his place.18 Managers who feel unable to speak about their view of the game offer banal comments to the press or avoid the press altogether.
For an extreme example of where this could lead, we can look across to the United States, where Marshawn Lynch attended the Super Bowl Media day this year and answered every question with the words “I’m just here so I won’t get fined”.19 Lynch had already been fined once with the fine rescinded so long as he played by the rules and meets his media obligations. If he doesn’t they will double the fine to $100,000 (£ 67,188).20 In another interview in 2014 Lynch answered “yea” over 40 times with the majority of the rest of his answers also monosyllabic and non-committal.21 Lynch’s behaviour highlights the need to strike the right balance between protecting the reputation of the game, and providing content that engages subscribers and pays the bills.
As Lynch himself said “If you’re forced to do something, it’s not as good as if you choose to do it”.22 Being forced to attend and participate in the media events around the NFL inevitably reduces the value of the contribution. With football, managers and players are required under the broadcasting agreements to attend media interviews around games. The money comes from the media coverage of the games. If the media coverage is limp and insipid because key participants feel unable to speak then that damages the commercial interests of the game with the potential consequence that foreign talents are less attracted to English football.
Overall the question that has to be asked is what is better or worse for the reputation of the sport: strong regulation and enforcement that protects the game’s reputation but risks restricting players and managers freely offering opinions to avoid penalties; or, lighter regulation that facilitates a more lively debate about controversial elements of the game, but that poses reputational risks? And does the FA currently strike the correct balance, or they in danger of stifling one of the most intriguing spheres of the game?
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About the Author
Lydia is an active member of the Littleton Chambers Sports law group. In line with the broader chambers specialisms Lydia’s core areas of practice are commercial law and employment law. Lydia’s commercial practice encompasses disputes including contractual interpretation, professional negligence and directors’ duties. Lydia’s employment work has a particular focus on disability discrimination but also incorporates all areas of tribunal disputes and high court action in relation to bonuses and restrictive covenants.