Sexism in football & the independence of disciplinary panels: Issues from the David Moyes case

Published 05 July 2017 By: Graham Gilbert

Football player carrying ball about to enter the stadium

This article reviews The Football Association’s (The FA) disciplinary hearing relating to David Moyes and the remarks he made towards an interviewer, Ms Vicki Sparks, after Sunderland’s 0-0 draw with Burnley on 18 March 2017.  The cases touches on two particularly important wider issues, most notably the on-going culture of sexism in football and the difficulties faced by internal sports disciplinary bodies in avoiding perceptions of bias.  Specifically, the article looks at:

  • The FA’s rules pertaining to Mr Moyes’ actions

  • The main issues in the case

  • Current concerns about football’s culture

  • The arguments advanced by Mr Moyes

  • The Commission’s decision in the matter

  • Analysis and comment on the conclusions of the Commission

 

Background

By anyone’s standards the final week of April 2017 was a difficult one for former Sunderland manager David Moyes. It culminated in Sunderland doing that which they had seemed certain to do for the whole of 2016-17 season and had threatened to do for several previously: being relegated from the Premier League. Mr Moyes was quoted at the time as describing the demotion to the Championship as “my worst day in football”. Pundits were lining up to speculate whether he would still be in a job for the club’s Championship bow and raking over the coals of his previously powerful reputation, built on eleven successful years as manager of Everton. In the end, Mr Moyes stymied at least some of the chatter by resigning from the post on 22 May.

The week had not been going well after he was formally charged on 26 April by The FA with a breach of its Rules for remarks he had made after Sunderland’s 0-0 draw with Burnley on the 18 March 2017. At the end of an interview with Ms Vicki Sparks, a freelance journalist working for the BBC, Mr Moyes was asked if the presence of Mr Ellis Short, Sunderland’s owner, had placed additional pressure on him. He replied “no” and the interview ended there.

However, after the interview finished Mr Moyes, unaware that he was still be filmed, appeared to tell Ms Sparks off for asking about Mr Short’s presence. He said:  "you were just getting a wee bit naughty at the end there, so just watch yourself. You still might get a slap even though you're a woman. Careful the next time you come in." Ms Sparks can be heard laughing whilst this is said.

The comments were not made public at the time and only emerged at the beginning of April when they were leaked to the media. This, it should be stressed, was not done by Ms Sparks. Mr Moyes subsequently apologised to Ms Sparks, saying he “deeply regrets” speaking to her in the way he did. For her part, Ms Sparks made no formal complaint and remained silent throughout the process. In the FA Hearing she gave no live evidence and her reaction and feelings had to be judged through second-hand evidence.

 

The FA Rules

Mr Moyes was charged with a breach of FA Rule E3(1), which stipulates that:

A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour.[1]

In a release on its website,[2] The F.A specified that: “It is alleged [that] the Sunderland manager’s remarks were improper and/or threating and/or brought the game into disrepute.” He was initially given until 6p.m on Wednesday 3rd May 2017 to respond to the charge but was granted an extra week after requesting more time to consider his position.

On 9 May, Mr Moyes denied the charge and requested a hearing, as he is entitled to do under Rule 4.4. of the FA’s Procedural Rules[3].

The hearing was held on the 17 May and the Commission’s decisions and written reasons were provided to the public on the 9 June.[4] In summary, Mr Moyes was found to be in breach of Rule E3(1) and he was handed a £30,000 fine.

 

The main issues

The interesting point to arise from the hearing was not the decision of the Commission on the breach of Rule E3(1). As was noted in the written reasons, “the issue of breach”, as the Commission referred to it, was “so clear” that the finding that Mr Moyes was "guilty" was hardly surprising.  

What is more interesting is considering the context in which Mr Moyes case was heard and the impact it had on it.

 

Football’s culture

Football is currently facing an image crisis when it comes to inclusivity: at the start of this year four Chelsea fans were convicted for racist violence in Paris after pushing a black man off a Metro train whilst chanting: “we’re racist and that’s the way we like it.[5] Celtic’s Scott Sinclair was racially abused by Glasgow Rangers fans[6] during the Old Firm derby game on Saturday 29 April 2017 and research commissioned by the Sport’s Peoples Think Tank (and published in November 2016) indicated that only 4.1% of senior coaching positions at professional clubs are from BAME backgrounds[7].  

Sexism in football is currently, and quite rightly, a hot topic following such high-profile cases of Eva Carnerio[8], the former Chelsea first team doctor who ran on to the pitch to attend to a player only to be derided by manager Jose Mourinho for doing so in his post-match comments and Malkay MacKay’s text messages[9] that were considered by many parties to be sexist. It is notable that Mr MacKay was not charged for the content of those messages. The FA faced a storm in late 2016 when its initiative to encourage girls to take up the sport was widely derided as sexist.[10]

Former England and Sunderland winger Adam Johnson was convicted for sexual offences against a young girl earlier this year – only for some “fans” to suggest on message forums that it was somehow her fault. Three years ago, in 2014, Executive Chairman of the Premier League Richard Scudamore[11] was forced to apologise for making “inappropriate” comments in an email.

Women in Football released the results of a survey[12] in March this year suggesting that 25% of women involved in football have suffered some form of bullying and cited the “ingrained, systemic problem of sexist culture” within the sport. The organisation blamed the authorities for not doing enough to address this.

 

The arguments advanced

Mr Moyes counsel, Mr Gilroy QC, attempted to play on these feelings in the hearing to suggest that Mr Moyes was, essentially, being made an example of by an FA keenly aware of its poor track-record and public image. Mr Gilroy submitted that this amounted to an affront to natural justice which requires that justice be seen to be done to all parties.

In making these submissions he was doubtless aided by the poorly timed and conceived comments of Mr Greg Clarke, The FA Chairman, on 4 April 2017 – the day after The FA had written to Mr Moyes asking for his initial observations. During an interview, Mr Clarke was asked for his views on Mr Moyes’ comments to Ms Sparks. Perhaps mindful of The FA’s poor reputation in handling these issues, Mr Clarke, whilst making reference to how the comments were disrespectful and, as such, outside what the game stood for, stated that:

The disciplinary team will crack down on people who break the rules and they will decide whether the rules have been broken and what an appropriate sanction should be.[13]

He also expressed his own opinion on how they remarks should be viewed.

Mr Gilroy called these comments “fundamentally prejudicial” and “frankly outrageous” and invited the Commission to dismiss the charges based on the possibility of perceived bias against Mr Moyes.

 

The commission’s decision

Despite the Commission making some concessions to Mr Gilroy’s arguments, the submission failed.

The Commission did accept that there was some ambiguity around precisely who Mr Clarke was addressing when he got on his soapbox on the 4 April. However, it drew a distinction between an internal department of The FA – in this case the internal disciplinary departments of the Association and/or FA Regulatory Legal – and an independent body sitting in judgement on the cases brought by those internal departments. The Commission noted that:

it is reasonably clear that when Mr. Clarke made his ‘crack down’ comment he was referring to an internal department within the FA, not the independent adjudicating tribunal that would ultimately decide whether any charge that might be brought pursuant to such a robust policy had been proven.[14]

The Commission highlighted Mr Clarke’s reference to the disciplinary team in coming to this conclusion.

The Commission also had to consider whether, regardless of whom he was addressing, Mr Clarke’s comments were capable of being perceived by a member of the public as putting pressure on the disciplinary process, such that the possibility of bias could not be discounted. Here, the logic used by the Commission is less clear-cut.

In a nod to Mr Gilroy’s submissions, the Commission conceded that “we are not convinced that a member of the football-following public would understand there to be some kind of artificial Chinese wall, or barrier, between its Chairman and those at The FA who are responsible for deciding whether disciplinary charges should be brought in any given case.” It added that “the public perception is likely to be one of leadership and direction coming from the very top” before concluding: “In our view, the man on the Clapham Omnibus reading the sports pages of his newspaper is more likely to regard The FA and its internal workings as a single, indivisible entity.

However, the Commission then stressed that it was and is an independent body: “whatever the public perception may be of the internal arrangements within The FA, this Regulatory Commission is independent of it.

In rejecting Mr Gilroy’s submissions, the Commission also highlighted that the charge brought against Mr Moyes was a “simple” breach of Rule E3(1), rather than the aggravated version which would, it said, have more closely followed the views expressed by Mr Clarke given the aggravated breach must involve discrimination on the grounds of, amongst other things, gender. Furthermore, as has already been noted, the breach of the “simple” offence was “so clear” that no prompting from anyone in The FA, chairperson or other, was needed to persuade the charge to be laid against Mr Moyes.

 

Comment on the conclusions of the Commission

The test for apparent bias in judicial proceedings is that laid down in Porter v Magill. In that case, Lord Bingham of Cornhill stated that the test was:

The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.[15]

Bearing that in mind, the Commissions reasons appear, on inspection, to be based on highly artificial distinctions and misunderstandings of how the public approach cases such as Mr Moyes’.

The internal departments of The FA would doubtless assure anyone who would listen that they were independent of the views expressed by their chairperson in interviews and came to decisions based on the rules of the association, but, crucially, that is not how the public would perceive it. By extension, for the Commission to stress its own independence but not acknowledge how it could equally be perceived by the “man on the Clapham Omnibus” to not be independent appears to fly in the face of its earlier concession. Either they accept that all bodies associated with The FA are capable of being perceived as subject to outside pressures, or none are.

In its written reasons, the Commission stresses that it is distinct from The FA, referring to itself as removed from any decision-making process and merely judging whether the charges brought because of that decision-making process are proven. However, the clue as to why the Commission might not be viewed as entirely independent comes from its own title:

The FA v Moyes

The Commission is called “an Independent Regulatory Commission of the Football Association”. NOT “a Regulatory Commission independent of the Football Association”. Its very title suggests a link to the governing body, in much the same way that The FA disciplinary department could be referred to as “the Disciplinary Department of the Football Association.” Viewed in this way the distinction drawn by the Commission can be viewed as an artificial one and is very likely to be by an observer not well-versed in how judicial panels work.    

In support of its independence, the Commission pointed out that its members were a self-employed barrister at the independent bar and two independent members of The FA’s Judicial Panel. The question that must be asked in response to that point, though, is how many members of the public who might be thinking that a commission could be biased would go to the trouble of looking up who its members were? Such a consideration is to perhaps suggest the “fair-minded and informed observer” is a somewhat more informed than any average Joe: it is the title of the commission that they would look at, not the people making it up. It is akin to how a member of the public refers to the decision of a court as “the court’s decision” – they do not say that it was the decision of “such-and-such a judge”. If reference is made to the person making the decision it is usually just “the judge” and nothing more specific or insightful than that. .

It is instructive to compare the approach taken by The FA Commission and those taken by judicial arms of other sporting bodies when applying Lord Bingham’s test.

In Flaherty v National Greyhound Racing Club,[16] another first instance decision was set aside due to apparent bias. In Flaherty, the chief executive of the governing body retired with the disciplinary tribunal when it went to makes its decision. The quashing of the original decision was later overturned by the Court of Appeal that ruled that, although there had been the appearance of bias, the evidence against Flaherty was so strong that the finding of guilt was safe. 

However, more recently, in late 2016 the British Horseracing Association (BHA) quashed the decision[17] one of its disciplinary panels had made against Jim Best[18]. This was done on the basis that the chairman of the panel that found Mr Best in breach of the Rules of Racing, Matthew Lohn, had been paid by the Authority for advisory work. As the board hearing Mr Best’s Appeal against the original panel’s decision noted: “Mr Lohn’s position gave rise at the time of the hearing before the Disciplinary Panel to an appearance of bias”.[19]

 

Conclusions

The purpose of this article is not to suggest, in any way, that the Commission was not as was said entirely independent of The FA, its chairman’s views and any pressure that those may bring or that its decision was in anyway influenced. However, its concession that an entirely internal department could be viewed as being subject to such outside influences, whilst maintaining that it did not have such an image problem, does not, in the author’s view, hold up to scrutiny. Similarly, its suggestion that members of the public investigate the backgrounds of those making such decisions is far-fetched. Even they did so, fears would only be allayed so far in the light of Mr Moore’s website.

It is entirely possible, in the author’s view, that a member of the public, aware of The FA’s image, its desire to correct it and Mr Clarke’s ill-timed comments, could come to the conclusion that a body associated with The Football Association in any form, was biased against a manager who had made the comments Mr Moyes did.

For more on this theme, please see: The Rebalancing Of Power - The Need For Greater Transparency In Sports Tribunals.[20]

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Author

Graham Gilbert

Graham Gilbert

Graham is a barrister at 3PB. Having gained a wealth of knowledge in other areas, Graham has most recently begun accepting instructions in sports law matters and has a keen interest in regulatory and disciplinary aspects of the area, both domestically and internationally. He regularly prosecutes in prohibited substance matters for the British Horseracing Authority, as well as assisting with other disciplinary matters on the Authority's behalf.

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