A comparison of how the Japanese J-League responds to racism in football compared to European leagues
For the Reds, which has only seventeen home league matches per season, from an economic standpoint this unprecedented behind closed doors one match sanction is an extremely harsh punishment (the total damage is thought to be around 100 million Japanese yen (JPY), around 575,000 GBP or 720,000 EUR).
This article examines the ‘international standards’ on sanctions for racism and discrimination at football matches and goes on to consider if the sanctions imposed by the J-League in the Reds’ banner incident were appropriate and proportionate.
Reaction from the Japanese media
l “The J-League deserves credit for the strict stance it has taken against racism.”
l “It is greatly anticipated that this [the J-League’s sanction imposed on the Reds] will increase the awareness of and produce an educational effect in terms of the racism and discrimination problems in Japan.”
It goes without saying that the eradication of racism and discrimination is an important issue worldwide. Thus, when viewed in this light the J-League’s uncompromising stance towards punishing racist and discriminatory behaviour in football stadiums should be applauded. However, it is the content of the J-League’s sanctions that is problematic.
For example, even if the Reds’ conduct deserved punishment, there should have been an investigation into whether the sanctions imposed on the Reds’ were proportionate to the conduct committed. Nevertheless, there were almost no news articles from the Japanese media that examined whether or not the sanctions imposed on the Reds were proportionate.
In the sports world there have been strong demands for the autonomy of sport and the ‘specificity of sport’, thus it is difficult to verify the appropriateness of the actions of sports organisations from a legal perspective (i.e. it is hard for the ‘rule of law’ to take effect). Also sport is an industry that easily attracts great attention from society, therefore, when misconduct or scandals occur in the industry there is often a tendency for sports organisations to impose overly harsh sanctions on the alleged wrongdoers (i.e. punishment that is not proportionate to the alleged conduct).
To provide some context for these sanctions I felt it would be a good opportunity to write a joint international comparative analysis as an article on LawInSport’s newly established Japan Sports Law Blog, to which my friend and esteemed English sports lawyer Daniel Geey, has very kindly provided some incisive analysis on recent cases of racism in European football.
Recent cases sanctioning racist behaviour and discrimination in European football
To begin, Daniel will analyse the recent trends regarding the sanctioning of racist behaviour and discrimination in European football.
Racism in sport continues to hit the headlines. Sepp Blatter recently argued that stadium closures for racist behaviour was counter-productive. A video of Daniel Alves eating a banana that was thrown at him at a Barcelona game went viral across social media too. Across the Atlantic, the LA Clippers owner has received a lifetime ban from all basketball related activity for his racist comments. There are a number of European examples of where racist behaviour primarily from fans has led to a variety of sanctions, some of which have been labelled either too lenient or overly harsh.
In July 2013, FIFA published a circular letter (no. 1369) (link here https://www.fifa.com/aboutfifa/organisation/footballgovernance/circularletters.html) resolving to provide guidelines for the sanctioning of racist behaviour and discrimination. The circular set out a raft of sanctions that could be imposed on players, officials, spectators, teams or associations who offend the dignity of a person or group through discriminatory or denigratory words or action concerning race, skin colour, language, religion or origin. The types of sanctions that are available to FIFA include a fine, match suspension, stadium ban, deduction of points, relegation, an order to play a match behind closed doors, forfeiting a match or disqualification from competition. Many of the above sanctions are the harshest sporting sanctions available.
Lastly FIFA set out what they considered to be a two-stage approach to such breaches:
- "For a first or minor offence, the sanctions of a warning, a fine and/or the playing of a match behind closed doors shall be applied.
- For reoffenders or for serious incidents, sanctions such as point deductions, expulsion from a competition or relegation should be applied."
Some headline European examples
FIFA President Blatter was quoted as suggesting that punishing fans' racist behaviour by closing stadiums is “extremely dubious” and “unduly excessive”. In the alternative he believed that sporting sanctions such as points deductions "cause real hurt to" clubs and are a more targeted punishment than stadium closures. Indeed, FIFA ruled that Ukraine had to play a World Cup qualifier game against Poland behind closed doors after fans made monkey chants and performed Nazi salutes. The below table highlights some recent examples of where FIFA has sanctions imposed on clubs and associations. Interestingly, since the date of the FIFA circular the trend appears to have been towards harsher sanctions that have primarily related to stadium closures. Prior to the circular being published, fines, rather than sporting sanctions, were much more prevalent.
||Real Madrid supporters sanctioned due to discriminatory banners towards Bayern Munich.
||Part closure of stadium.
||Bayern Munich sanctioned due to homophobic banners towards Arsenal.
||Part closure of stadium.
||Atletico Madrid fans racially abuse Manchester City youth players.
||£8200 fine and partial stadium closure.
||Lazio fan racist chanting.
||Next Europa League game in front of an empty stadium. However, upon appeal Lazio had this reduced to a partial stadium closure.
||Ukraine racist fan chants against San Marino.
||Playing their next world cup home qualifier behind closed doors. Ukraine’s appeal against this was rejected.
||Roma sanctioned after fans target Mario Balotelli for AC Milan
||Partial stadium closure for one game.
||Dynamo Kiev fan racist abuse against PSG.
||Two European games in front of an empty stadium.
||Racist chants from the crowd and violence on the pitch between Serbia and England Under-21 teams.
||Serbia fined £65,000.
||Lazio fan racism by their fans during a Europa League tie against Tottenham.
||Russian fans made monkey noises at the Czech Republic full-back Theodor Gebre Selassie during Euro 2012.
||Spain fans racial abuse at Italy forward Mario Balotelli during Euro 2012.
||Porto fined for racism towards Mario Balotelli.
Are the sanctions imposed by the J-League on the Reds’ appropriate in light of the international standards?
As Daniel showed in his analysis, since the July 2013 FIFA circular that provides guidelines for the sanctioning of racist behaviour and discrimination (“FIFA discrimination guidelines”), there has been a trend towards harsher sanctioning, which includes an increase in ’behind closed doors’ matches over fines. After the issuance of the FIFA discrimination guidelines, the Japan Football Association (“JFA”) and the J-League, whose regulations did not contain any sanctions analogous to behind closed doors matches, had just under the instructions of FIFA introduced such sanctions to their regulations in November 2013. In that sense it can perhaps be said that the recent sanctions imposed on the Reds’ were in line with the ‘international standards’.
However, the problem here is why the J-League did not make the choice to impose a partial stadium closure sanction on the Reds, as is frequently the case in European football. In fact, at the same time as the Reds’ banner incident, Bayern Munich and Atletico Madrid were punished with partial stadium closures for the racist or discriminatory behaviour of their fans. This was also the case for Real Madrid in May 2014.
On this point it must be noted that, as well as the 2014 Reds’ banner incident, in 2010 the J-League also dealt with a racism case involving the Reds’ supporters (after a league match between the Reds and Vegalta Sendai, a group of Reds’ supporters shouted racist or discriminatory abuse at the Vegalta team bus). In the 2010 case the J-League imposed a fine of five million JPY – around 30,000 GBP or 36,000 EUR) on the Reds for its supporters’ actions. Thus, in light of this recidivism (repeat offence), the J-League applied a harsher punishment for the 2014 incident. However, doubts remain regarding the appropriateness of this approach to sanctioning harshly for recidivism, in terms of ‘previous convictions’ that occurred prior to the FIFA discrimination guidelines being issued (when the matches behind closed doors punishment did not exist).
This is illustrated most helpfully, as mentioned also by Daniel, by the UEFA Appeals Body (“AB”) in its October 2013 judgment when it reduced the sanction imposed on Lazio at first instance (by the UEFA Control and Disciplinary Body – “CDB”) from a behind closed doors match to a partial stadium closure.
UEFA, as with the JFA and J-League, changed its disciplinary regulations in June 2013 based on the FIFA resolution on the fight against racism and discrimination (that was announced by the FIFA Congress in May that year), and it now applies harsher sanctions for racism and discrimination. In the aforementioned Lazio CDB case, the CDB sentenced Lazio with a one match behind closed doors sanction because it had committed a previous offence (i.e. for recidivism) in February 2013. However, in Lazio’s appeal to the AB, the AB held that it was inappropriate for the CDB to deem Lazio’s previous conduct (which occurred prior to June 2013 reforms of the UEFA Disciplinary Regulations) as recidivism, because this was not in the spirit of Article 70 of the new Disciplinary Regulations, which lays downs the principle of lex mitior (i.e. if the law relevant to the offence of the accused has been amended, the less severe law should be applied). Consequently, the AB reduced Lazio’s sanction to a partial stadium ban. (The UEFA AB case can be found at this link: https://www.uefa.org/MultimediaFiles/Download/uefaorg/UEFACompDisCases/02/04/83/54/2048354_DOWNLOAD.pdf)
In relation to the J-League’s recent ruling on the Reds’ banner incident, it is unclear whether it took into account the judgment of Lazio’s aforementioned appeal to the UEFA AB. In any case, regarding the J-League’s view on the Reds’ 2010 recidivism, which occurred four years prior to the J-League’s reform of its disciplinary regulations (and which differed slightly from the 2014 incident in that it was verbal racism or discrimination by the Reds’ supporters aimed at the Vegalta team bus), from the viewpoint of ‘lex mitior’ I feel that there is something wrong with the J-League deeming this as recidivism. It is unfortunate here that doubts remain about whether the J-League has carried out a sincere consideration with regard to whether the punishment was proportionate.
Are the Reds’ ‘autonomous sanctions’ adequate in light of the ‘international standards’?
・ indefinitely banning banners and flags from all Urawa games (also for away games);
・ closing the club and online shops on 23 March (the day of the Shimizu game);
・ refunding cancellation costs incurred by fans for the affected match (including for accommodation and transport costs);
・ refunding season ticket holders for relevant tickets; and
・ indefinitely banning all members of the supporters’ group responsible for the offensive banner from future Urawa games.
Although, it is understandable that the Reds imposed sanctions on the supporters responsible for the discriminatory banner, the problem here is the sanctions against the club itself and its innocent supporters (i.e. those who did not do any wrong).
In order to express its remorse externally (or to avoid possible criticism for making profits from sales at the club shop during the match) the Reds’ imposed its own extreme Japanese-style, hara-kiri sanctions, such as closing the club and online shops on the day of the behind closed doors match.
This so-called custom of ‘self-restraint’ (or ‘self-censorship’) is not only prevalent in the Japanese sports world but also throughout Japanese society, and it is very difficult to explain this custom to non-Japanese people like Europeans and Americans (it is also hard to translate into English). To put it simply (in order to explain this to the international community), there is a great tendency for Japanese people to act in a way so that they avoid being criticised in society. This is because Japanese society is very homogeneous (almost all the population descends from the Yamato race) and one in which ‘immoral behaviour’ is relentlessly criticised, thus there is huge pressure to conform. Another explanation is to consider that Japan is a strongly Confucian country with strict hierarchies based on seniority, where the attitude prevails that obedience and compliance with the decisions of superiors is desirable (and expected). Thus, this probably illustrates why the Reds ‘broadly interpreted’ the J-League’s sanctions.
On the contrary, in Europe parties affected by such sanctions are much more likely to challenge these than adhere to ‘self-restraint’, as is shown in the aforementioned case of Lazio which had its claim accepted (as stated above, it is highly likely that the Reds, in their case, could have brought a similar claim to Lazio’s). Also in America the LA Clippers controversy highlights that Sterling was willing to use legal means to fight his case. However, in Japanese society there is a tendency to regard such conduct as being akin to ‘opposing one’s superiors’ and thereby rude. In the Reds’ case rather than challenging its sanctions, the club did the opposite and imposed sanctions on itself (‘autonomous sanctions’ or ‘self-censorship’). This thinking can be difficult for foreigners to comprehend – it can perhaps be said that such an approach is anti-‘international standards’.
Not only does this custom of ‘self-restraint’ (or ‘self-censorship’) frequently impact on parties connected to the clubs, it also affects various other third parties. In fact, the Reds’ ‘self-restraint’ adversely affects all supporters in the stadium by prohibiting the display of banners (including not only at home but also away games). Such sanctions are clearly not connected with racism or discriminatory behaviour; as a matter of fact, they deprive innocent supporters of the freedom to properly support their club. In the meantime, these supporters are forced to tolerate and suffer these sanctions because they are given no opportunity to challenge the situation.
Rather than focus primarily on the efficiency of sanctions, these executives are likely to prioritise sanctions as a means of avoiding criticism. In particular, there is a tendency that these demands are treated much more importantly in Japan, where there is massive pressure to conform to society, than in other countries.
However, if sanctions are to eradicate racism and discrimination, we must consider the appropriateness of sanctions in terms of what can be effective for this eradication. At a glance, the choice of harsh sanctions seems like a valid just cause to gain bold recognition for message of eradicating racism and discrimination (I agree that it is of massive importance itself to convey this message). However, when we consider the notion that slightly excessive sanctioning is still reasonable to convey this important message, for this purpose I feel it is dangerous and problematic that we can neglect to think about whether the sanctions are proportionate or not.
Globally, the realisation of the ‘rule of law’ in sports is becoming a very important requirement. Concurrently, the idea of the ‘rule of people’, which is ingrained in the thinking of top-level sports association executives, is becoming highly inappropriate and antiquated because sport is also a part of society in law-governed countries. Thus, in this case, the Japanese sports world must learn from the Reds’ banner incident that simply by imposing harsh sanctions, this it is not effective enough to give a strong message about the eradication of racism and discrimination. It is also necessary to consider what measures are efficient for this eradication. To this end, to make the sports world more open we need to learn about what the ‘international standards’ are and tolerate diversity. Moreover, I believe that the most important matter is the tolerance (and acceptance) of a wide range of opinions from the stakeholders in sports.
It is often the case in sports that there is a tendency to apply harsh sanctions and to neglect the efficient resolution of problems. We can see such problems in matters like anti-doping activities and the prevention of match-fixing, which are worldwide problems not simply limited to Japan.
In this sense, it does not mean that Japan is far behind the ‘international standards’. Japanese people are generally good at learning from foreign countries or ‘international standards’ and then taking account of the positive points from these to ensure development in the future. Therefore, Japanese sport can take advantage of the Reds’ banner incident to properly gain an understanding of its distance from the ‘international standards’ and, at the same time, think about the problems which are inherent in the ‘international standards’. Here, if Japan can make positive solutions or recommendations and move forward without hesitation, it is certain to be on the road to becoming one of the world’s proud, developed sports nations.
For this purpose, it is of great importance that Japanese society accepts a wide range of opinions, as it is believed that this position will be conducive to the construction of a foundation for the ‘acceptance of diversity’, and will lead to the eradication of racism and discrimination.
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- Tags: Court of Arbitration for Sport (CAS) | Discrimination | England | Europe | FIFA | Football | Germany | Italy | J-League | Japan | Racism | Spain | UEFA | United Kingdom
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Takuya, a Japanese Attorney-at-Law, is the founder and Managing Partner of Field-R Law Offices, a niche sports and entertainment legal practice based in Tokyo.
Takuya has vast legal and business experience in sports both in Japan and internationally. He is a member of the FIFA Dispute Resolution Chamber, a position held since 2009. In 2016 he became the Chairman of FIFPro Division Asia/Oceania.
Daniel is a Partner in the Sport Group.
Daniel’s practice focuses on helping clients in the sports sector, including rights holders, leagues, governing bodies, clubs, agencies, athletes, sports technology companies, broadcasters and financial institutions.