How a change in approach could help tackle racism in football – The Jonjo Shelvey case

Published 12 April 2017 By: Lydia Banerjee

Football players shaking hands

In December Newcastle United confirmed[1] that they would not be appealing Jonjo Shelvey’s 5 match ban for an aggravated breach of FA Rule E3(2)

Shelvey was accused of using abusive language to another player coupled with “Arab” or “Arabic”. The reference to ethnic origin, race and/or nationality aggravated the offence. Mr Shelvey claimed that he used the words “smelly breathed prick”, he also claimed that he used them because he had been called abusive terms several times during the game by, he believed, the recipient of his remarks. 

Mr Shelvey suffers from alopecia and is bald as a result. The abuse he said that he had received referred to his baldness. Based on the evidence the panel concluded on the balance of probabilities that Mr Shelvey was guilty of the alleged conduct and he received the mandatory 5 match ban along with a £100,000 fine, a requirement to undertake a face to face mandatory education course and a warning as to future conduct. 

To summarise such a case does not take long but the author have been grappling with what is new about yet another case of such conduct. The case was one of at least 12[2] at which players and coaching staff were disciplined over the calendar year for aggravated breaches of FA rule E3 the vast majority for comments relating to race (all bar two). Mr Shelvey’s case might not be particularly exceptional but it demonstrates that despite a concerted effort to tackle racism in football over many years it remains an issue at all levels of the game. 

The question is what can be said that was not said already in relation to the disputes around John Terry[3] or Mark Clattenburg[4]. What more can we do to rid football, indeed all sport, of racism? 

 

The key problems

On reflection, this author has concluded that the story is the fact that this issue remains an issue. We have now had 23 years of Kick It Out campaigning to remove racism and discrimination. We have high profile ads with international footballing mega stars encouraging us to say no to racism[5] and yet we still have regular charges being brought for racist abuse in football. So the real story is not what happened in the game against Wolves in September but rather what can be done to change the record?

In the author’s view the problem is two fold: 

  • players don’t think they will be caught; and

  • fans don’t care so players don’t lose their appeal because of such behavior.

 

Proposed solutions

So what is the solution? Well the author suggests that we need a co-ordinated crackdown which sends a strong message to fans and players that such conduct is not acceptable, will not be tolerated, will be detected and will be sanctioned. Forget kick it out – we need to stamp it out

Racism is not unique to football and other sports also have their share of challenges but it is interesting to note that in the same period the RFU disciplinary records record[6] just two cases of race discrimination across all levels of the game. It may well be worth considering the lessons that can be learned across sports to ensure that tackling behaviour considered to be unacceptable is as efficient as possible. 

 

Mics and video review 

By way of example, the use of microphones for referees so that on field conduct is more likely to be detected is generally considered an effective part of the deterrent and detection armoury in rugby, used to good effect in the Joe Marler disciplinary case[7] heard this year. For a more detailed review of the Joe Marler case please see this LawInSport article by Tim O’Connor[8].

No doubt referee microphones could cause a significant culture shock in football. In fact it is commonly said that the foul language used in football is so commonplace that referee microphones could not be used as the content would be inappropriate for broadcasting. This argument is circular and leads to the maintenance of the status quo – “we cannot use ref mics to tackle inappropriate behaviour because the behaviour is so inappropriate”.

There are ways to mitigate the shock and awe impact of referee mics. Mics can be introduced for a transition period where they are not broadcast but the recording is monitored and players warned about conduct which will not be permitted once the broadcasting commences. This gives players and officials the chance to begin moderating behaviour before the record is shared with the public. If linesmen were also mic’d then the coverage of the record would be more effective and perhaps mics could also be incorporated into goal frames to further provide coverage of the on pitch discussions between players. Only the referee mic need be broadcast to fans but the other sources could be relied upon in the event of a complaint.

The even more radical suggestion might be to mic players, not for commentary as they do in cricket but merely to provide a record of comments during the game. No doubt there would be protests against such a step but the only one which I can think of having any weight is a desire to preserve team tactical discussions and prevent such information being available to the opposition. This objection is fairly easily met by limiting access to the material to limited circumstances around a complaint and those within the vicinity who have evidence to provide. 

Video review of match footage should be conducted as standard to pick up events and incidents with players questioned about incidents of concern even without a report from the other players involved. These conversations would not be disciplinary but could encourage the reporting of incidents by players or team mates. The clear message must be relayed to all players that discriminatory conduct will not be tolerated and that the powers that be are actively looking out for it and will take action where it is found.

 

Changing the attitude of fans

Attitudes need to change with the fans as well as players. The ultimate sanction available is a stadium ban which Rugby used after racist and homophobic abuse[9] directed at the referee was reported by a fellow spectator; UEFA has used stadium bans for repeated racist behaviour from fans[10]; and the Australian Football League banned a fan who threw a banana at Eddie Betts[11] an Aboriginal player. The problem is identifying individual fans for the purposes of a personal ban and taking a proportionate approach to all fans for the behaviour of a few. It is sadly still commonplace to hear racist and discriminatory comments and chants from fellow spectators. Stewards are ill-equipped to tackle such behaviour usually limited to warning offenders a warning which almost inevitably falls on deaf ears.  

To add weight to the steward’s warning we should consider using modern technology to support them. Cyclists on London’s roads such as the well known Jeremy Vine[12] increasingly use helmet or bike cameras to record incidents which happen on their daily rides. Why not use the technology to enable stewards to record incidents and images of the offender so that they can report the matter after the match and action can be taken to follow up and sanction those found guilty. If this all sounds a little like a nanny state the author can only apologise. The simple fact is that we need to show people that there is no anonymity in the crowd, that their behaviour is unacceptable and that they will be punished. Our current approach does not provide the evidence with which to deliver this message and therefore we need to consider the next alternative. Kick It Out have an app for fans to report racist behaviour but is this enough? Should we not also equip and empower the stewards on the ground?

The Australian Football league (AFL) have recently hit the headlines as Aboriginal players have written an open letter to the sport’s fans calling for an end to racial abuse[13]. This form of collective action and education has to form part of any comprehensive strategy. The standard penalty from The FA does involve attendance at a mandatory education course but could this be developed further adopting a restorative justice approach so that the perpetrator meets with the victim directly to learn about the impact of the abuse on them. This may be more effective for player on player abuse than a written apology mandated by disciplinary proceedings. 

 

The role of sponsors 

What about sponsors? We all know that money talks and sports stars who fall from grace find sponsors distancing themselves and funding reduced so how about encouraging sponsors to include terms that provide for a proportion of their money to be returned where a player is found guilty of racially aggravated conduct in disciplinary proceedings. There is no reason why this could not extend to team sponsors also getting money back for individual misconduct of a player. Sponsors adopting these clauses would show that they do not condone such conduct, an important message given their own obligations to their employees and customers under the Equality Act. It would also incentivise clubs to take a firm approach to such conduct given the potential impact on their purse strings and if this cost were to be passed on, even in part, to the player then it may be more effective then the current fine system.

 

Comment 

No doubt changes such as those set out would be controversial and cause some major changes in the game but football needs it. Greg Clarkes’ comments to the select committee in October 2016[14] regarding the inability of The FA to prevent abuse of homosexual players appears to be acceptance of an unacceptable state of affairs. Greg Clarke now professes that there is a desire and will to reform within The FA. 

The proposals set out above, with a little fine tuning, could provide the tools for The FA’s armory to take on and change attitudes. If the approach works with racism they will then be equipped to tackle other abusive behaviour including homosexual abuse. This has to be a better strategy than just suggesting that all homosexuals “come out together[15]”. 

 

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Author

Lydia Banerjee

Lydia Banerjee

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.

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